dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 5983406 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b) , 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The Director of the California Service Center denied the petition , concluding that the Petitioner did 
not sufficiently establish that: (1) it qualifies as a United States employer with an employer-employee 
relationship with the Beneficiary ; (2) the Beneficiary will be employed in a specialty occupation for 
the requested period ; and, (3) the proffered position qualifies as a specialty occupation. 
Upon de nova review, we will dismiss the appeal. 1 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-IB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii) , the term "United States employer" means a person, firm, corporation, 
contractor, organization , or other association in the United States which : 
(1) Engages a person to work within the United States; 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court has determined that where federal law fails 
to clearly define the term "employee," courts should conclude that the term was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 
490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services 
(USCIS) will apply common law agency principles which focus on the touchstone of control. 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion over 
when and how long to work; the method of payment; the hired party's role in hiring and 
paying assistants; whether the work is part of the regular business of the hiring party; 
whether the hiring party is in business; the provision of employee benefits; and the tax 
treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 2 See Clackamas Gastroenterology Assocs., PC v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
The Petitioner, located in Texas, indicated that it will assign the Beneficiary through a mid-vendor to 
work as a 'java developer" for an end-client, in Pennsylvania, for the duration of the validity period 
requested. The contractual chain is as follows: Petitioner ➔ J-G- (mid-vendor) ➔ V- (end-client). 
2 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists 
or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for by the 
common-law test. See Darden, 503 U.S. at 323-24. 
2 
As a preliminary matter, the Petitioner has provided contradictory material regarding the Beneficiary's 
work location. Therefore, we conclude that the Petitioner has not sufficiently complied with the 
itinerary requirement at 8 C.F .R. § 2 l 4.2(h)(2)(i)(B). 3 The petition and the labor condition application 
(LCA)4 submitted with the petition identified one work location for the duration of the Beneficiary's 
proposed H-lB employment: the end-client's office location in Pennsylvania, and the intended place 
of employment was reiterated in letters from the end-client and the mid-vendor. The Petitioner did 
not initially provide a statement or itinerary to establish the Beneficiary's work location, but provided 
one in response to the Director's request for evidence (RFE), which also identified the end-client 
location in Pennsylvania as the location of the Beneficiary's proposed employment. 5 In contrast, the 
Petitioner identified a different work location for the Beneficiary in its letters submitted in response to 
the RFE, and again on appeal, stating: 
[T]he mere fact that [ the Beneficiary] would be contracted to [ the end-client], and based 
at its office in I I IL ~ I project as per the client 
requirements, would not make him an employee of [the end-client]. 
Given the contradictory evidence in the record and lack of an inclusive itinerary for the duration of 
the requested period of employment, the Petitioner has not adequately identified the specific location 
where the Beneficiary will perform services as an H-lB nonimmigrant. 6 Moreover, the Petitioner also 
mistakenly and repeatedly references the Beneficiary in the masculine pronoun case in its letters 
submitted on appeal and in response to the Director's RFE. The record also lacks an explanation for 
this inconsistency. Thus, we must also question the accuracy of the documents and whether the 
information provided is correctly attributed to this particular Beneficiary and position. The Petitioner 
must resolve these inconsistencies and ambiguities in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Nonetheless, 
for the purposes of our discussion, we will reference the Beneficiary's work location in Pennsylvania 
as the end-client's location in this matter. 
3 The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
Service or training in more than one location. A petition that requires services to be performed or 
training to be received in more than one location must include an itinerary with the dates and locations 
of the services or training and must be filed with USCTS as provided in the form instructions. The 
address that the petitioner specifies as its location on the Form T-129 shall be where the petitioner is 
located for purposes of this paragraph. 
4 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73l(a). 
5 The Petitioner employed the Beneficiary through STEM-related post-completion optional practical training, and has 
provided copies of wage statement for her employment with the Petitioner. 8 C.F.R. §§ 274.a. l 2( c )(3)(i)(C), 
214.2(t)(l 0)(ii)(C). 
6 8 C.F.R. § 214.2(h)(2)(i)(B) requires the Petitioner to provide the dates and locations of the services to be performed. 
3 
Applying the Darden and Clackamas tests to this matter, we conclude that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-lB temporary "employee." The Petitioner has not submitted sufficient, 
consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. 
As we will farther explain, the Petitioner has not substantiated key elements in this matter, to include 
who exercises control over the Beneficiary. 7 The submitted a letter from the end-client which 
references the contractual relationships amongst the parties noting the Beneficiary "has been providing 
services to [the end-client] through [the mid-vendor], and indicates: 
[T]his letter is being issued upon request of [ the Beneficiary], [ the end-client] is not the 
employer of [ the Beneficiary] and cannot confirm her employment with [ the Petitioner] 
or her employment status with [ the Petitioner]. We presume that [ the Petitioner] retains 
all control over [the Beneficiary's] employment. ... 
The end-client farther states that the Beneficiary provides services on "an ongoing project with the 
possibility of extension." This letter does not persuasively substantiate the Petitioner's asserted 
"employer-employee relationship" with the Beneficiary. The Petitioner also provided a February 
2015 sub-vendor agreement (SA) between the Petitioner and the mid-vendor for the Petitioner's 
provision of the Beneficiary's services at the end-client location, as follows, in relevant part 
(verbatim): 
Article 1. Use of this Agreement. The services to be performed under this Agreement 
will be defined through Work Orders that are signed [by the Petitioner and the mid­
vendor]. This Agreement provides the basic terms which apply to all Work orders. 
Article 2. Services to be performed. [The mid-vendor] hereby retains [the Petitioner] 
to perform services for [the mid-vendor] or its Client as set forth in the Work Order 
attached hereto and any additional Work Order that may be entered into in the future 
prior to the termination of this agreement, and [ the Petitioner] agrees to perform such 
services utilizing [the Petitioner's] consultant(s) specified in the applicable Work 
Order. 
Article 3. Compensation to [the Petitioner]. 
3.1.1. [] [The mid-vendor] will pay [the Petitioner's] invoices, rendered as provided 
below, within 30 days after [the mid-vendor's] receipt of those invoices and 
corresponding Client-approved time card. 
7 The Petitioner submitted documentation in support of the H-IB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
3.1.3 Warranty of Services. [The mid-vendor] shall submit [the Petitioner's] technical 
services personnel to Client according to the qualifications, experience, and project 
requirements of the Client. It is within [the mid-vendor's] discretion whether to 
propose such personnel to Client. The work to be performed by the technical services 
personnel providing services under this agreement shall be set forth by Client and stated 
in a Work Order (or similar form). If Client chooses to terminate the services of [the 
Petitioner's] personnel for any reason, including but not limited to unsatisfactory 
performance, [the Petitioner] will be compensated only for services approved and paid 
for by Client. 
The mid-vendor's work order attached to the SA identifies the Beneficiary and the end-client, but does 
not identify the specific location of her assignment. While the work order notes that she will 
commence her assignment in October of 2016 and that it "is expected to go long-term," the work order 
also does not identify the project to which she will be assigned, her job title, or the duties to be 
performed. 8 The work order specifies, in pertinent part: 
2. At the end of every two weeks and within 30 days of incurred expenses, [the 
Petitioner] shall submit an invoice for services performed and customer approved 
expenses incurred along with a timecard provided by [the mid-vendor] and signed by 
an authorized official of [the end-client]. ... 
3. [The Petitioner] will discuss its hours and location where the work is to be performed 
with the [end-client], including notification to the [end-client] if [the Petitioner's staftl 
cannot be present. 
4. [The Petitioner] agrees to complete the assignment within the guidelines provided 
by the [end-client] or within any reasonable changes to the guidelines as provided by 
the [end-client]. 
Notably, the Director requested evidence of the employer-employee relationship and availability of 
specialty occupation work, which included the end-client's contracts, statements of work (SOWs) and 
work orders ( or similar documentation) in her request for evidence (RFE). In response to the RFE, 
the Petitioner asserted "[w]e believe that the end-client absence of the agreement with mid-vendor are 
confidential between two parties who are not concerned with the filing of this H-1 B petition by [ the 
Petitioner] and therefore, these parties did not provide the contract. ... "9 The Director denied the 
8 Notably, the mid-vendor states in its March 2018 letter that the Beneficiary started her assignment with the end-client in 
November of 2017. Matter of Ho, Dec. at 591-92. 
9 The claim a document is confidential does not provide a blanket excuse for a petitioner not providing such a document if 
that document is material to the requested benefit. Although a petitioner may always refuse to submit confidential 
commercial information if it is deemed too sensitive, the Petitioner must also satisty the burden of proof and runs the risk 
5 
petition, in part, concluding that given the lack of corroborating evidence, such as the contractual 
material that she requested in her RFE, the Petitioner did not demonstrate its right to control the 
Beneficiary's work at the end-client location, or provide with sufficient detail and specificity the work 
to be performed by the Beneficiary for the period of time requested. 10 We agree. 
On appeal, the Petitioner provides the end-client's master staff augmentation services agreement 
(MSASA). However, the record does not contain work orders or other contractual documentation 
specific to the Beneficiary's assignment between the mid-vendor and the end-client. The MSASA 
agreement was executed in September 2011 by the end-client and the mid-vendor, and calls for the 
mid-vendor to "[] perform, certain consulting or other [services] as described in individual Work 
Orders agreed to from time to time by the parties." Under the MSASA agreement, the mid-vendor: 
[S]hall provide for [the end-client's] needs for IT contractors and authorized 
subcontractors at [the end-client's] various locations .... [T]he end-client will issue 
Job Orders describing the number of [mid-vendor] [p]ersonnel required, the job 
classification and experience level required for such [personnel], and the estimated 
duration of the assignment. The mid-vendor will "provide to [the end-client] resumes 
for [the end-client's] review .... Once [the mid-vendor] and [the end-client] have 
identified acceptable [mid-vendor] personnel for a Job Order, [the mid-vendor] shall 
prepare and the parties shall execute a Work Order [], describing the [mid-vendor] 
personnel and the scope and estimated duration of the assignment. 
The MSASA also describes a process whereby the end-client can request removal of mid-vendor 
personnel should the end-client "become[] dissatisfied" with such personnel. Further, mid-vendor 
personnel's timesheets "will be reviewed by and are subject to the approval of the appropriate end­
client supervisor," if requested by the end-client. The Petitioner has not established the relevance of 
the MSASA to the Beneficiary's assignment as it does not reference the Beneficiary, and is not 
supported by the underlying job orders and work orders, or similar documents that would provide the 
terms and conditions of employment for her end-client work assignment under the MSASA. 
Considering the submitted material collectively, we conclude that the contractual documentation does 
not sufficiently demonstrate how the Petitioner exercises control over the Beneficiary's off-site 
employment. The contractual documentation presented in the record stipulate that the Beneficiary 
will perform services as "set forth" by the end-client at the end-client location within job orders and 
work orders, and will perform services within the guidelines provided by the end-client. She will 
account for her work hours using the mid-vendor's timecard, which must be approved by the end-
of a denial. Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his 
claim under the Fifth Amendment[; however], in so doing he rnns the risk that he may fail to carry his burden of persuasion 
with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. Sec 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
10 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(14). 
6 
client prior to their submission by the Petitioner to the mid-vendor for payment. The end-client must 
be notified if the Beneficiary will not be present at the end-client location. Moreover, the end-client 
may terminate the Beneficiary's employment at the end-client location "for any reason, including but 
not limited to unsatisfactory performance." 
Since the end-client must approve the Beneficiary's hours at the end-client location, and the mid­
vendor must verify the Petitioner's invoices based on the Beneficiary's worktime data from its own 
timecards, it appears that the end-client and the mid-vendor primarily control and supervise the 
Beneficiary's work. Further, as the end-client will identify the work that the Beneficiary will perform 
in a work order, will provide the guidelines for the Beneficiary's services, and may terminate her 
employment for any reason, we conclude that the end-client exercises a substantial level of supervision 
and control over the Beneficiary's day-to-day employment. This contractual material starkly contrasts 
with the Petitioner's claimed supervision and control over the Beneficiary's work, and therefore, does 
not persuasively establish that the Petitioner will in fact actually exercise control over the Beneficiary's 
employment at the end-client location. 11 
Importantly, the Petitioner has not documented a process in which it can actively monitor and evaluate 
personnel it places with the end-client. The Petitioner initially provided an organization chart which 
reflected that its President would supervise the Beneficiary. However, the Petitioner did not offer 
sufficient objective evidence to corroborate how the president, who supervises around 250 employees 
according to the organization chart, came to have sufficient knowledge of the Beneficiary's work 
performance in order to appraise his work at the end-client location. It later asserted in its RFE 
response that the Beneficiary "will report to the Petitioner's Supervisor! [" stating that: 
We like to clarify that the initial submitted organization chart incorrectly depicts the 
president directly supervising all the employees. Please note that the [president] is 
responsible for all its employees however his executive position does not allow him to 
supervise each and every employee .... Please see a corrected organization chart of the 
[P]etitioner showing [the] supervisory chain of employees at similar level with the 
[B]eneficiary. We also like to clarify that the supervisors are based off-shore, and are 
employees of [the Petitioner's foreign subsidiary]. 
The updated organization chart indicates that the Beneficiary's "off-shore" supervisor is an "SME" 
who supervises at least 21 individuals including the Beneficiary. However, the Petitioner did not 
provide sufficient narrative or corroborative documentation to detail specifically how the SME has 
and will supervise the Beneficiary at the end-client location. The Director denied the petition, in part, 
concluding that the Petitioner's uncorroborated testimony did not satisfy the Petitioner's burden of 
proof in these proceedings. 12 She determined that the evidence provided was not sufficient to 
demonstrate that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with actual control over the Beneficiary's day-to-day employment at the end-client 
location. We agree. 
11 Matter of Ho, 19 T&N Dec. at 591-92. 
12 As previously noted, the Beneficiary has been working at the end-client site through her STEM optional practical training. 
However, the record did not contain evidence of ongoing communication with the SME, other than the Petitioner's 
statement that the Beneficiary will do so. 
7 
On appeal, the Petitioner provides a letter from its HR manager who indicates that the Beneficiary has 
been employed by the Petitioner since 2016 as a java developer and describes the Petitioner's 
supervisory oversight of the Beneficiary at the end-client location, as follows: 
As per our HR policy, all employees must submit [ m ]onthly [p ]roject status reports. 
Their supervisor, initially reviews that employee project status reports and helps them 
to fill the gaps. The supervisor gives feedback to [the Petitioner's president] only if 
any critical project need arise, requiring higher executive attention .... In [the] case of 
[the Beneficiary], and her immediate supervisor[] we followed the same HR protocol. 
The Petitioner also discusses various means by which it generally monitors and supervises employees 
at end-client locations, such as communication with employees through "teleconference[s], Skype, 
scrum meetings, supervisor call 24/7, status reports, and appraisals." Nonetheless, the Petitioner has 
not offered persuasive evidence to illustrate how it has and will supervise and guide the Beneficiary's 
work assignments for the end-client. 
For instance, on appeal the Petitioner references a series of monthly "employee status reports" for the 
Beneficiary submitted in response to the RFE. The reports indicate the number of hours that she 
worked, that she was working on projects such as "gift registry," and "card management." The reports 
give brief project "accomplishments; such as "[g]ot to know the requirements from client and fixed 
issue which were road blocks," and "added logic for gatekeeper toggle based on conditions if that is 
ON or Off" While the Petitioner did not provide evidence to show who created these monthly status 
reports and to whom they were submitted, we note that the Petitioner asserts that its employees must 
draft and submit monthly project reports, which are reviewed by their supervisor who "helps them to 
fill the gaps," and indicates that the Beneficiary and her supervisor followed this "HR protocol." The 
fact that the Beneficiary is reporting on the status of the projects in which she is engaged for the end­
client (on a monthly basis), and not the Petitioner, farther erodes the Petitioner's claim that it actively 
monitors and supervises the Beneficiary's day-to-day work at the end-client location. 13 
On appeal, the Petitioner farther references the material famished in response to the RFE, indicating 
that the Director erred in not considering this evidence sufficient to establish that it will have an 
employer-employee relationship with the Beneficiary at the end-client location. It asserts: 
[W]hile the work is done by [ the Beneficiary] would be as per the [end-client] 
specifications; this does not make [the Beneficiary] an employee of the end-client. The 
fact that he is physically present at the [end-client] office .... , does not make him an 
employee of the end-client. This is an arrangement for the convenience of the end­
client.14 
13 Matter of Ho, 19 T&N Dec. at 591-92. 
14 We observe again that the Petitioner mistakenly and repeatedly references the Beneficiary in the masculine pronoun case 
in its letters submitted on appeal and in response to the Director's RFE. The record lacks an explanation for this 
inconsistency. Thus, we must also question the accuracy of the documents and whether the information provided is 
correctly attributed to this particular Beneficiary and position. Id. 
8 
Nonetheless, we conclude that the Petitioner does not adequately address the Director's concerns with 
the probative value of the submitted material relating to the Beneficiary's off-site employment, even 
though these concerns were specifically discussed by the Director in her RFE, and ultimately in her 
denial of the petition. It is the Petitioner's burden to prove by a preponderance of evidence that it is 
qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, 
eligibility is to be determined not by the quantity of evidence alone but by its quality. Id. Here, the 
documentation provided is not probative towards establishing how the Petitioner supervises, controls, 
and oversees the Beneficiary's work. 
The Petitioner also refers to unpublished AAO decisions and asserts that: 
Although the [P]etitioner may provide consulting services to other firms and [the 
Beneficiary] will work for another client at the client's work location, it is the 
[P]etitioner who has hired [the Beneficiary] and will pay the salary and meet all of the 
LCA requirements and hence they share an employer-employee relationship. 
The Petitioner has not famished copies of those unpublished decisions. As the record of proceedings 
does not contain any evidence of the unpublished decisions, we are not able to determine if the 
referenced cases support the Petitioner's assertion and the facts of the instant petition are analogous to 
those in the unpublished decisions. 15 
As discussed above, the Petitioner has not demonstrated that it exercises actual control over the 
Beneficiary's substantive work. It appears that the Petitioner's role and responsibilities are primarily 
limited to the administration of the Beneficiary's payroll and other related benefits, including the filing 
of immigration benefits. While social security contributions, worker's compensation contributions, 
unemployment insurance contributions, federal and state income tax withholdings, and other benefits 
are still relevant factors in determining who will control the Beneficiary, other incidents of the 
relationship, e.g., who will oversee and direct the work of the Beneficiary, where the work will be 
located, and who has the ability to affect the projects to which the Beneficiary is assigned, must also 
be assessed and weighed in order to make a determination as to who will be the Beneficiary's 
employer. Without foll disclosure of all of the relevant factors, we are unable to conclude that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
15 Any suggestion that USCIS must review unpublished decisions and possibly request and review each case file relevant 
to those decisions, while being impractical and inefficient, would also be a shift in the evidentiary burden in these 
proceedings from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
Accordingly. this office is not required to request and/or obtain a copy of the unpublished decisions cited by the Petitioner. 
If a petitioner wishes to have unpublished decisions considered by USCTS in the adjudication of a petition, the petitioner 
is permitted to submit copies of such evidence that it either obtained itself through its own legal research and/or received 
in response to a Freedom of Information Act request filed in accordance with the applicable regulations. In the instant 
case, the Petitioner did not submit a copy of the unpublished decisions. As the record of proceedings does not contain any 
evidence of the unpublished decisions, there were no underlying facts to be analyzed and, therefore, no prior, substantive 
determinations could have been made to determine what facts, if any, were analogous to those in these proceedings. While 
8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished decisions are not similarly binding. 
9 
Upon complete review of the record of proceedings, we conclude that the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 8 C.F.R. 
§ 214.2(h)(4)(ii). 
II. SPECIALTY OCCUPATION 
A Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor, 201 F.3d at 387. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
10 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
B. Proffered Position 
The Petitioner indicated that the proffered position is a java developer who will provide services to 
the end-client for the period of employment requested in the petition. It submitted an (LCA) for the 
"Software Developers, Applications" occupational category corresponding to the Standard 
Occupational Classification (SOC) code 15-1132, with a level I wage. 16 The Petitioner did not initially 
provide a description of the job duties of the proffered position, other than the description contained 
in the mid-vendor and end-client letters, as follows: 17 
• Developing the application using [ various information technology tools and 
software languages]; 
• Developing customer facing software for managing advertisements to grow the 
business using [ various information technology tools and software languages]; 
• Providinr development workl ~ ~ an~._ _________ ____. 
I _ application; 
• Analyze complex user requirements, procedures, and problems to improve existing 
System design; 
• Designing, developing, configuring, programming and implementing software 
applications, packages and components customized to meet specific needs and 
requirements; 
• Developing end to end application components involving business layer, 
persistence layer, and database and web services layer. 
• Reviewing and modifying programs to ensure technical accuracy, security and 
reliability; 
• Developing and executing unit test cases; 
• Performing test plan preparation and unit and system testing, and; 
• Providing quality documentation, status updates. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
16 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http:/ /flcdatacenter.com/download/NPWHCGuidance _Revised_ I I_ 2009 .pdf 
17 We acknowledge that the Petitioner later submitted similar information regarding the job duties, which, for the sake of 
brevity, have not been included herein. However, this material has been closely reviewed and considered, as with all 
evidence in the record. 
11 
To begin with, we conclude that while the Petitioner provided contractual documentation to illustrate its 
contractual relationship with the mid-vendor and end-client, it has not established definitive, non­
speculative, specialty occupation employment for the Beneficiary. As discussed, the Petitioner has 
not established the relevance of the mid-vendor's SA and the end-client's MSASA to the Beneficiary's 
assignment. These contractual agreements do not reference the Beneficiary, and are not supported by 
the underlying job orders and work orders, or similar documents that sufficiently detail the terms and 
conditions of employment for the Beneficiary's end-client work assignment thereunder. For instance, 
the Petitioner submitted the mid-vendor's work order which identifies the Beneficiary and the end­
client, but does not identify the location of her assignment. While the work order notes that she will 
commence her assignment in October of 2016 and that it "is expected to go long-term," the work order 
does not identify the project to which she will be assigned, her job title, or the duties to be performed. 
Though requested by the Director in her RFE, the Petitioner did not provide contractual documentation 
from the end-client specific to the Beneficiary's assignment. 18 The lack of complete contractual 
documentation specific to the Beneficiary's employment is important because, in this case, the existence 
of the proffered position appears dependent entirely upon the willingness of the end-client to provide 
it. Absent folly executed contracts and accompanying statements of work (or similar documentation) 
between the Petitioner and the mid-vendor, and the mid-vendor and the end-client, the record lacks 
evidence of any legal obligation on the part of the end-client to provide the position described by the 
Petitioner in this petition. 19 Further as previously noted, the end-client stated in its letter that it "cannot 
confirm her employment with [the Petitioner] or her employment status with [the Petitioner]." The 
Petitioner has also provided inconsistent statements regarding the actual location of the Beneficiary's 
work assignment. Therefore, we question whether the record of proceeding is sufficient to establish 
what exactly the Beneficiary would do for the period of time requested or where exactly and for whom 
the Beneficiary would be providing services. 20 
For the reasons discussed, the Petitioner has not established that it has non-speculative work for the 
Beneficiary at the end-client location in Pennsylvania which existed as of the time of the petition's 
filing. 21 Our regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
IS 8 C.F.R. § 103.2(b)(14). 
19 CJ Galaxy Software Solutions. Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
20 The Petitioner must also resolve these inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, Dec. at 591-92. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
21 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example. a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-IB classification is not intended as a vehicle for an alien to engage in 
a job search within the United States, or for employers to bring in temporary foreign workers to meet 
possible workforce needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an H-1 B nonimmigrant 
under the statute, the Service must first examine the duties of the position to be occupied to ascertain 
whether the duties of the position require the attainment of a specific bachelor's degree. See section 
12 
seeking at the time the petition is filed. 22 A visa petition may not be approved based on speculation 
of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248. Here, the Petitioner has not demonstrated that 
this petition was filed for non-speculative work. For this reason, the petition may not be approved. 
Setting aside the inadequacy of the documentation establishing that work actually exists for the 
Beneficiary to perform, the record also does not include probative evidence that any work that may be 
available will be H-lB caliber work. A crucial aspect of this matter is whether the duties of the 
proffered position are described in such a way that we may discern the actual, substantive nature of 
the position. As noted, the record lacks sufficient evidence to substantiate the Beneficiary's 
assignment as represented by the Petitioner. Again, when a beneficiary will perform the work for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. 
Defensor, 201 F.3d at 387-88. When determining whether a position is a specialty occupation, we 
look at the nature of the business offering the employment and the description of the specific duties of 
the position as it relates to the performance of those duties within the context of that particular 
employer's business operations. The Petitioner has not done so here. 
Notably, the material provided does not communicate the actual work that the Beneficiary will perform 
on a day-to-day basis within the context of the end-client's project(s), and the correlation between that 
work and a need for a particular education level of highly specialized knowledge in a specific 
specialty. 23 The record includes the previously discussed contractual documentation between the mid­
vendor and the Petitioner, and between the mid-vendor and the end-client, the Petitioner's overview 
of the Beneficiary's proposed duties, and the end-client/mid-vendor's position descriptions provided 
above from their initially submitted letters. The Petitioner indicated the end-client's project involves 
the development of an end-client application called~---------------' and states 
that the I I 
• [Is] for the advisor who are working for the clients who has invested their money, 
stock, bonds and loan to be managed. 
• Initially advisors had not specific tool or app to save their information in one 
centralized space. 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either paii of this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-lB classification. Moreover, there is no assurance that the alien will engage in 
a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). 
22 See 8 C.F.R. ~ 103.2(b)(l), (12). 
23 We must review the actual duties the Beneficiary will be expected to perfonn to asce1iain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
13 
• Thisl I application has been built which all new framework i.e Angular 5, 
A WS, typescript, Data is saved in A WS cloud. 
• This application can help advisor to schedule more appointments with clients which 
helps in business group. 
However, these vague descriptions do not sufficiently identify what products or services are actually 
being developed, or maintained, at the end-client location, and the substantive nature of the 
Beneficiary's role therein. Similarly, the end-client indicates that the Beneficiary has been providing 
services on "an ongoing project with the possibility of extension." The mid-vendor explains that the 
Beneficiary has been working as a "subcontractor" for the end-client, but does not otherwise identify 
or discuss the end-client project that is said to require the Beneficiary's services. 
The Petitioner states that the Beneficiary will "[be] [i]nvolv[ed] in developing web pages using 
Angular2 and JodeJS, which are powerful in building single web page applications," "participate[] in 
code reviews at least an hour a day which giving more knowledge on coding and which is different 
from person to person," "pair programming with team if in case team needs help," and "[be spending 
a] couple of hours in meetings where we discuss about what should be our next steps and business 
needs where we can improve our application." These descriptions in the record identify the use of 
software development languages and data formats to perform generic information technology job 
functions which do not give context to the specific tasks that the Beneficiary will perform. 
Importantly, while the Petitioner provided the brief explanation of the project discussed above, the 
record contains insufficient material from the end-client that would identify the scope, duration, and 
magnitude of the projects that are being developed, or maintained, at the end-client location. We 
conclude that the material provided does not communicate the actual work that the Beneficiary will 
perform on a day-to-day basis within the context of the end-client's project, and the correlation 
between that work and a need for a particular education level of highly specialized knowledge in a 
specific specialty. It is not evident that the proposed duties as described in the record, and the position 
that they comprise, merit recognition of the proffered position as a specialty occupation. Here, the 
lack of corroborative supporting detailed evidence about the proffered position from the end-client, 
and the generic job descriptions in the record do not illustrate the substantive nature of the proffered 
position. 24 
Additionally, the material in the record is insufficient to establish the minimum requirements for the 
Beneficiary's position at the end-client location. The Petitioner stated that a "bachelor's degree in 
computer science or equivalent combination of education or experience" was needed for entry in to 
the proffered position. However, based on the provisions of the mid-vendor's SA and the end-client's 
MSASA, the selection of the Petitioner's personnel for hire would be made by the mid-vendor and 
end-client through a referral process managed by the mid-vendor. The Petitioner's personnel would 
provide services to the end-client in accordance with the MSASA and SA and underlying work orders, 
executed between the mid-vendor and the Petitioner, and between the mid-vendor and the end-client. 
However, the record does not contain work orders or other contractual documentation specific to the 
Beneficiary's assignment under the MSASA and SA at the end-client location. The mid-vendor's 
letter submitted in the RFE response indicated minimum requirements of a "bachelor's degree or 
24 Defensor, 201 F.3d at 387-88. 
14 
Foreign or Experiential Equivalent, without describing the attainment of a degree in a specific 
specialty as a requirement. Likewise, the end-client letter provided that a minimum of "a bachelor's 
degree ( or the equivalent) in a closely related field or related work experience would suffice for entry 
in to the position. The end-client did not identify the specific degrees that would be needed for the 
position, nor did it explain the amount and type of work experience that would be acceptable in lieu 
of a bachelor's degree. Considering the end-client's vague position requirements in the letter, the 
inconsistencies in the record regarding the minimum requirements for the position in the record, and 
the insufficient contractual documentation between the parties in the record; without more, the 
Petitioner has not established the end-client's minimum requirements of the proffered position. 25 
The Petitioner also submitted a letter froml lo~ I University, Florida, who 
determined that the duties of the position require a "bachelor's degree in computer science or related 
field of education and experience." After careful consideration, we conclude that the opinion letter is 
not persuasive. The professor stated "I am personally familiar with the functions performed by such 
professionals within industrial, business, educational, and technology consulting organizations, such 
as the employer." Importantly, the professor did not discuss the duties of the position within the 
specific context of the end-client project upon which the Beneficiary would work. Rather, he simply 
quoted the position descriptions present in the record, which as we stated previously were insufficient 
for determining what the Beneficiary would be actually doing at the end-client location. 26 Therefore, 
his level of familiarity with the actual job duties as they would be performed in the context of the end­
client's business has not been substantiated. 27 
We acknowledge that the professor provided excerpts from the DOL's Occupational Information 
Network (O*NET) summary report for the "Software Developers, Applications" occupational 
category, listed as SOC code 15-1132.28 The professor opined "[a]s per DOL, the proffered position . 
. . designates a Job Zone 4 ... indicating an SVP of 7.0 to 8.0, which typically indicates a Bachelor's 
degree + 2 years or 4 years of experience. Under SVP, a Bachelor's degree indicates 2 years 
preparation, Master degree 4 years preparation and a Ph.D. 7 years preparation." 
While the O*Net summary report provides general information regarding the occupation, it does not 
support the professor's assertion regarding the educational requirements for the proffered 
position. For example, the Specialized Vocational Preparation (SVP) rating cited within O*NET's 
Job Zone designates this occupation as 7 < 8. An SVP rating of 7 to less than ("<") 8 indicates that 
25 Matter of Ho, Dec. at 591-92. 
26 The professor also discussed a listing of the Beneficiary's previous coursework for the purpose of conelating the need 
for the Beneficiary's education with the associated job duties of the position submitted in response to the Director's RFE. 
However, we are required to follow long-standing legal standards and determine first, whether the proffered position 
qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at 
the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 
1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
27 The professor quoted the brief narrative that the Petitioner provided regarding the end-client's project, but did not provide 
further discussion about the end-client projects that require her services, and the nature of the services that she will provide 
within the context of the end-client's projects .. 
28 The DOL's O*Net summary rep01t for the "Software Developers, Applications" occupational category may be viewed 
at https://www.onetonline.org/link/summary/l 5-1132.00. (Last visited Feb. 12, 2020.) 
15 
the occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating 
indicates the total number of years of vocational preparation required for a particular position, it is 
important to note that it does not describe how those years are to be divided among training, formal 
education, and experience - and it does not specify the particular type of degree, if any, that a position 
would require. 29 
Further, the O*NET summary report provides the educational requirements of"respondents," but does 
not account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the 
summary report does not indicate that the "education level" for the respondents must be in a specific 
specialty. 
The professor acknowledges the Petitioner's Level I wage selection for the proffered position, and 
paraphrases from DO L's Prevailing Wage Determination Policy Guidance, stating among other things 
"the duties of the particular job offer [is] for 'entry/beginning' level employees who have only a basic 
understanding of the occupation or position." Under a heading entitled "Parallel Positions 
Requirements," he notes "[ a ]ttached are some similar recent job offers that outline the duties of the 
proffered position with the employers' notes as to knowledge, education, and qualifications required." 
We have reviewed the referenced job announcements posted by other employers, and find the 
professor's reliance on them to substantiate his conclusions to be misplaced. 
First, the professor does not analyze the job postings or otherwise explain how these advertised 
positions are parallel to the instant position. Second, the professor relies on the Petitioner's job 
descriptions in the record for his position analyses which, without more, do not adequately 
communicate (1) the actual work that the Beneficiary will perform; (2) the complexity, uniqueness, or 
specialization of the tasks; and (3) the correlation between that work and a need for a particular level 
of education and knowledge in order to make such a determination. 30 Third, even if the Petitioner 
established the substantive nature of the proffered position, which it has not, the job announcements 
lack sufficient information to determine the relative complexity or specialization of the tasks to be 
performed within the advertised positions in order to determine whether they are parallel positions. 
Even so, we observe that some of the job announcements require candidates to possess extensive prior 
work experience while the Petitioner does not specify any particular prior experience for the Level I 
wage position offered in the petition. For instance, T-S-' s job announcement is for a "mid-senior level 
Java developer" position which requires either a BS/MS in computer science or equivalent, and "at 
least 5 to 7 years of development experience, with at least 3 years in middleware development," plus 
"2 to 3 years of experience in EAI development." Here the professor has not explained how T-S-'s 
"mid-senior level Java developer" position is parallel to the proffered position. 
Lastly, even assuming that the professor possessed expertise on the degree requirements for the 
position, the opinion letter does not substantiate his conclusions, such that we can determine that the 
Petitioner has met its burden of proof For example, the professor opines "it is an industry-standard 
practice for Enterprise-level companies, such as this employer to require at least the attainment of 
29 For additional information, see the O*NET Online Help webpage available at 
http: //v..v.w. onetonline. org/help/ online/ svp. 
30 Matter of Chawathe, 25 l&N Dec. at 376. 
16 
bachelor's degree in computer science or related field of education and experience," but does not 
further discuss the degrees that would be "related" within the Petitioner's industry. He also does not 
reference, cite, or discuss studies, surveys, industry publications, authoritative publications, or other 
sources of empirical information, which he may have consulted to complete his evaluation, beyond 
his brief discussions of the aforementioned O*NET summary report and DOL's Prevailing Wage 
Determination Policy Guidance. 
For the reasons discussed, we find that the professor's opinion letter provided lends little probative 
value to the matter here. As a matter of discretion, we may use opinion statements submitted by the 
Petitioner as advisory. Matter o_fCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
we will reject an opinion or give it less weight if it is not in accord with other information in the record 
or if it is in any way questionable. Id. For the sake of brevity, we will not address other deficiencies 
within the professor's analyses of the proffered position. 
Upon review of the totality of the record, including the Petitioner's assertions on appeal, the record 
does not include sufficient detailed information regarding the duties of the proffered position to 
establish the substantive nature of the proffered position. This lack of probative evidence precludes a 
conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
it is the substantive nature of that work that determines (1) the normal minimum educational requirement 
for entry into the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the proffered position and thus appropriate for review for a common degree requirement, under 
the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, 
which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. As the Petitioner 
has not established that it satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
established that the proffered position qualifies as a specialty occupation. 31 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
31 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
17