dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-I- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE L 2016 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a computer company. seeks to temporarily employ the Beneficiary as a "'business 
development manager"' under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 
H -1 B 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. Vermont Service Center. denied the petition. The Director concluded that the 
Petitioner did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence submitted on appeal establishes that the minimum of a bachelor's degree is 
required by organizations similar to it for the same position. that it normally requires a bachelor's 
degree. and that the proffered duties of the position are so specialized and complex that the 
knowledge required to perfmm them is usually associated with the attainment of a baccalaureate or 
higher degree. 
Upon de novo review. we will dismiss the appeal. 
I. 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. 
(b)(6)
Matter C?f V-I- Inc. 
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 protTered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) 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). U.S. Citizenship and Immigration Services (USCIS) has consi stently 
interpreted the term ''degree"" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree. but one in a specific specialty that is directl y related to the proposed 
position . See Royal Siam Corp. v. Cherto{t: 484 F.3d 139, 147 (1st Cir. 2007) (describing '·a degree 
requirement in a specific specialty"' as "on e that relates directly to the duties and responsibilities of a 
pat1icular position""); Defensor v. Meissner. 201 F.3d 384, 387 (5th Cir. 2000). 
B. The Proffered Position 
In the H-1 B petition , the Petitioner identified the proffered position as a .. business developm ent 
manager.'' The Petitioner indicated that the Beneficiary would work off-site for a hotel located in 
New Jersey. The initial record submitted in support of the petition included a work order on 
the letterhead of in New Jersey, identifying the Beneficiary as its business 
development manager. 1 The initial record also included the required labor condition application 
(LCA) , on which the Petitioner attested that the occupational classification f()J' the position i s 
'·Business Operations Specialists, All Other ," corresponding to Standard Occupational Classification 
code 13-1199 at a Level II wage. 
In response to the Director's request for evidence (RFE), the Petitioner submitted an overview of the 
occupation of a business development manager and listed a summary of the main duties of a 
business development manager, as follows: 
1 The work order identities as "liJndependently owned and managed by 
2 
(b)(6)
Malfer l~( V-1- Inc. 
• Prospect for potential new clients and turn this into increased business. 
• Cold call as appropriate within your market or geographic area to ensure a robust 
pipeline of opportunities. Meet potential clients by growing, maintaining. and 
leveraging your network. 
• Identify potential clients, and the decision makers within the client organization. 
• Research and build relationships with new clients. 
• Set up meetings between client decision makers and company's practice 
leaders/Principals. 
• Plan approaches and pitches. Work with team to develop proposals that speaks to the 
client's needs, concerns. and objective. 
• Participate in pricing the solution /service. 
• Handle objections by clarifying, emphasizing agreements and working through 
differences to a positive conclusion. Use a variety of styles to persuade or negotiat e 
appropriately. 
• Present an image that mirrors that of the client. 
Also m response to the Director's RFE. the Petitioner submitted. inter alia. another letter from 
stating that the Beneficiary ··will work on various projects of 
through the vendor [the Petitioner] via contract in the position of Business Developm ent 
Manager." The letter further states that the Beneficiary "will work on different ongoing project s and 
will perform the tasks at The letter describes the •·primary role·· of the business 
development manager as to "prospect for new· clients by networking. cold calling. advertising o r 
other means of generating interest from potential clients." and lists the following duties and 
responsibilities: 
Polished communication skills suitable for C level clients 
• Sell deals our delivery team can deliver successfully 
• Be responsible for 2M+ revenue 
• Negotiating agreements with new and existing clients 
• Build and maintain relationships with customers 
• Tracking your pipeline in Salesforce 
• Develop relationships with our main lead channel. account executives at Salesforc e 
• Be responsive to requests from management 
• Know your competition 
• Long range vision of developing markets 
• Perpetually aware of technology changes and improvements 
• Manage involvement of architect resources in our sales funnel. 
The Petitioner also submitted a letter describing similar duties for the Beneficiary involvin g client 
retention. business development planning. and management and research. 
3 
(b)(6)
Malter of V-1- Inc. 
On appeal, the Petitioner submits a letter from confirming the Beneficiary's 
work location at its m New Jersey, and providing the following duties f()r the 
Beneficiary: 
• Work with specific computer systems. such as financial. scientific or engineering 
and tailor such systems to the needs of the employer. 
• Has to coordinate with supervisors to determine company needs and then 
designing a system to meet those needs. 
• Has to prepare cost analyses to assist management in determining the financial 
feasibility of a system as well as work with project managers to ensure that time 
lines are met. 
• Has to design the software program s t()r the new system and then translate the 
designs into various programmin g languages for the computer to follow. 
• Responsible tor testing software to ensure there are no problems and debugging 
programs whenever problems arise. 
• Research and build relation between new clients . 
• Work with technical staff and other [nternal colleagues to meet customer needs. 
C. Analysis 
As a preliminary matter. neither the Petitioner nor the claimed end-client in this matter has specified 
whether the protTered position requires a bachelor's degree in a specific specialty, or its equivalent, 
to pertonn the duties of the proffered position .2 Although on appeal the Petitioner references a 
requirement of a bachelor's degree to perform the job duties . the Petitioner docs not specify that the 
bachelor ' s degree must be in a specific field. We thus find. based on the evidence in the record. that 
the minimum entry requirement 
for this position is a general bachelor's degree. 
The Petitioner's minimum entry requirement for the proffered position of a general bachel or's 
degree is inadequate to establish that the proposed position qualities as a specialty occupation. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position ; thus, the mere requirement of a degree. 
without further specification. does not establish the position as a specialt y occupation. (_'l Muller ol 
Michael Herlz Assoc.\·., 19 I&N Dec. 558, 560 (Comm·r 1988) (''The mere requirement of a college 
degree for the sake of general education. or to obtain what an employer perceives to be a higher 
caliber employee, also does not establish eligibility.''). Thus, while a general-purpose bachelor' s 
degree may be a legitimate prerequisite for a particular position, requiring such a degree. without 
more. will not justify a finding that a particular position qualifies for classification as a specialty 
2 As recognized by the court in Defensor , 201 F.3d at 387-88 . where the work is to be performed for entitie s other than 
the Petitioner. evidence of the client companies ' job requirements is critical. 
4 
~Hatter of V-I- Inc. 
occupation. 3 Royal Siam Corp. v. Cherf(?{J: 484 F.3d at 147. The Director's decision must therefore 
be affirmed and the appeal dismissed on this basis alone. 
In addition, we cannot find that the proffered position qualities as a specialty occupation. as the 
Petitioner has not adequately established the substantive nature of the proffered position and its 
associated job duties. For instance, the initial record in this matter did not include any description of 
the Beneficiary's proposed duties as a business development manager. In response to the Director's 
RFE, the Petitioner submitted a vague overview of the duties of a generic business development 
manager. These generalized job duties do not specifically relate any job duties for the Beneficiary in 
the context of the claimed end-client's hotel operations. The claimed end-client letter states that the 
Beneficiary's .. primary role" would be to .. prospect for new clients by networking. cold calling. 
advertising or other means of generating interest from potential clients." The letter further lists job 
duties such as .. [s]ell deals our delivery team can deliver successfully" and .. [n]egotiating 
agreements with new and existing clients." However. there is no further explanation of what types 
of services, products. or agreements the Beneficiary \Vould sell on behalf of the hotel. 
On appeaL the Petitioner submits a revised description of the Beneficiary's proposed duties that 
contains, for the first time, express software design. programming, and testing duties for him. For 
example. the Beneficiary's proposed duties provided on appeal include ··design the software 
programs for the new system and then translate the designs into various programming languages" 
and ·'testing software to ensure there are no problems and debugging programs whenever problems 
arise." The Petitioner has not explained how these computer-related duties and responsibilities 
provided on appeal correspond to the duties of the position as previously stated.
4 
Nor has the 
Petitioner explained how these computer-related duties correspond to the .. Business Operations 
Specialists. All Other'' occupational classification selected here. Subsequent to filing the initial 
petition, the Petitioner cannot otTer a new position to the Beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy. the associated job 
3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example. an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field. or a bachelor's or higher degree in business administration combined with relevant 
education, training. and/or experience may. in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. \'. Cherh!{t: 484 F.3d at 14 7. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor\'. 1\,feissner. 20 I F.3d 
384. 387 (5th Cir. 2000). Instead. the record must establish that the performance of the duties of the proffered position 
requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty. or its equivalent. as the minimum for entry into the 
occupation. See section 214(i)(l) of the Act: 8 C.F.R. * 214.2(h)(4 )(ii) (defining the tenn "specialty occupation"). 
4 We acknowledge that the Petitioner describes itself as a "software and development services" company on the H-1 B 
petition. We also acknowledge the Petitioner's master services agreement with the end-client's management company 
identifying the services the Petitioner will perform pursuant to the agreement as "software development services." 
However. these documents are not specific to the Beneficiary. and thus are insufficient to establish that the Beneficiary's 
claimed sales-related duties are consistent with his claimed software development duties. 
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Matter l?( V-1- Inc. 
responsibilities. or the requirements of the position. The Petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. i.e .. that the position offered to the Beneficiary \vhen 
the petition was tiled merits classification for the benefit sought. 8 C.F.R. § 1 03.2(b)(l ). See Maller 
(?(Michelin Tire Co1J7 .• 17 I&N Dec. 248.249 (Reg'l Comm'r 1978). lfthe Petitioner seeks to offer 
a new position to the Beneficiary. the Petitioner must file a new petition. 5 
Even if the Petitioner's duties provided in response to the RFE and on appeal were consistent it still 
would not be readily apparent what types of services the Beneficiary would perform on behalf of the 
claimed end-client. That is. the Petitioner has not sufficiently explained what types of software 
development services the Beneficiary would purportedly perfom1 and sell on behalf of the hotel. 
More generally. the Petitioner has not explained what need for software development services the 
hotel has and would like to sell by ··[prospecting] for potential new clients'' and .. [ c ]old call as 
appropriate.·· 
In addition. the end-client's letter states that the Beneficiary would be working on --various·· and 
.. different ongoing projects'' at the hotel. However, there are no additional details about these 
.. projects, .. such as the names. nature. and length of these projects. ..[ G Joing on record without 
supporting documentary evidence is not sutlicient for purposes of meeting the burden of proof in 
these proceedings:· i\Jatter (?f S(?ffici. 22 I&N Dec. 158. 165 (Comm 'r 1998) (citing Mauer l?( 
Treasure Crafi (?(Cal.. 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
Overall, we find that the descriptions of duties submitted for the record are insufficient to convey the 
nature of the Beneficiary's services and the actual tasks he would perform on a day-to-day basis. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, we arc precluded from finding that the profTered 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 protlcred 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. 
Moreover, as previously stated, the Petitioner has not established whether the proffered position 
requires the theoretical and practical application of a body of highly specialized knowledge. and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
5 The regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) states, in pertinent part, the following: .. The petitioner shall file an 
amended or new petition, with fee. with the Service Center where the original petition was filed to rellect any material 
changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original 
approved petition ... 
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1"fatter (?f V-1- Inc. 
the occupation. For all ofthe above reasons. we find the evidence of record insufficient to establish 
the proffered position as a specialty occupation. 
The lack of consistent information regarding the proposed duties and the lack of inf()rmation 
regarding the Petitioner's or the end clienfs academic requirements to perform the duties of the 
position preclude the approval of this petition. Nevertheless for the Petitioner's information only. 
we will brief1y review the new information submitted on appeal. 
The Petitioner. in support of its assertion that a bachelor's degree requirement is common to the 
Petitioner's industry in parallel positions among similar organizations. submitted copies of four 
advertisements as evidence that a degree requirement is standard amongst its peer organizations for 
parallel positions in the software and development services industry. However. none of the 
advertisements submitted provide sutlicient information regarding the advertising organizations to 
establish that they are similar to the Petitioner and in the Petitioner's industry. Additionally. all hut 
one of the submitted advertisements states a requirement for a general bachelor's degree.
6 
As such. 
the advertisements do not establish that a requirement of a bachelor's or higher degree in a specific 
:ipecialty. or its equivalent. is common to the industry in parallel positions among similar 
organizations. 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The Petitioner also submitted a list of the names. job titles. and visa statuses for its II claimed 
employees. 7 However. the Petitioner has not demonstrated the reliability and relevance of this 
information. For instance. out of these 11 claimed employees. only 2 of them have the job title of 
.. business analyst." The Petitioner did not identify the duties of these two ··business analyst"" 
positions or of the other positions to establish that they are the same as the proffered position.s 
Moreover. the Petitioner provided evidence of the educational credentials tor only one of these 
employees. 9 The Petitioner has not demonstrated what statistically valid inferences. if any. can be 
drawn from this limited information. See Kenerally Earl Babbie. The Practice ol Social Research 
186-228 (7th ed. 1995). Even if some of these individuals have H-1 B status. the positions approved 
for H-1 B classification could not be compared to the Petitioner's position that is the subject of this 
petition.
10 
Therefore, the evidence submitted on appeal does not demonstrate that the Petitioner 
6 
The only advertisement that requires a more specific degree calls for a ··[b]achelor"s degree in a technical area:· but 
does not clarify the term ··technical area." 
7 
In contrast. the Petitioner claimed to have only eight employees on the H-1 B petition. 
8 
The other claimed employees have the job titles of Ul developer. programmer analyst, wcbsphere administrator. and 
tableau developer. 
9 
This individual possesses a U.S. master of business administration degree and a foreign degree in a computer 
engineering. The Petitioner did not submit an evaluation of his or her foreign education. The Petitioner did not submit 
or explain the educational credentials of its other claimed employees. 
10 If the previous nonimmigrant petitions were approved based on the same unsupported and contradictory assertions that 
are contained in the current record. the approvals would constitute material and gross error on the pa11 of the Director. 
We are not required to approve petitions where eligibility has not been demonstrated. merely because of prior approvals 
that may have been erroneous. See Afatter of Church Scientology lnt'l, 19 I&N Dec. 593. 597 (Comm ·r 1988). It would 
be "absurd to suggest that fUSCIS] or any agency must treat acknowledged errors as binding precedent." Sussex Eng ·g. 
Ltd. v. Afontgomery. 825 F.2d 1084. 1090 (6th Cir. 1987). 
Alatter (?f V-1- Inc. 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
The Petitioner also has not developed relative complexity, uniqueness. or specialization as aspects of 
the profTered position and its associated job duties. The Petitioner does not establish how the 
inconsistently and generally described duties of its business development manager elevate the 
protTered position to a specialty occupation. The overall responsibilities for the proffered position 
do not provide sufficient information regarding the particular work. and associated educational 
requirements. into which the duties would manifest themselves in their day-to-day performance 
within the Petitioner's or its end client's operations. Thus. the Petitioner has not demonstrated how 
the duties ofthe proffered position would be so complex. unique. or specialized so as to require the 
attainment of a bachelor's or higher degree in a specific specialty, or its equivalent. 8 c.r.R. 
§ 214.2(h)(4)(iii)(A)(2), (.f). 
Upon review of the record in its entirety, including the evidence submitted on appeal. the Petitioner 
has not established the substantive nature of the work to be performed by the Beneficiary and has not 
established that the proftered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). The 
Petitioner has not established that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also find that the Petitioner has not demonstrated that it qualities as a United States employer 
having an employer-employee relationship with the Beneficiary. 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant, m pertinent part as an 
individual: 
[Sjubject to section 212(j )(2 ), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214( i )( 1) .... who 
meets the requirements for the occupation specified in section 214(i)(2) .... and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Moreover, while a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific 
specialty, that opinion alone without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements. then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the 
employer artificially created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty or its equivalent. See Defensor v. Meissner. 20 I F. 
3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the protTered position does not in 
fact require such a specialty degree or its equivalent to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. ~ 214.2(11)(4 )(ii) (defining the 
term ··specialty occupation"). 
8 
A1atter (?f V-1- Inc. 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term .. United States employer .. is defined at 8 C.F.R. § 214.2(h)(4)(ii), as follows: 
United .'-,'tales employer means a person. tirm. corporation. contractor. or other 
association. or organization in the United States which: 
( 1) Engages a person to work within the United States: 
(2) Has an employer-employee relationship with respect to employees 
under this part. as indicated hy the .fact that it may hire. pay . .fire. 
supervise. or othenrise control the work (~lany such employee: and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added): see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act. 56 Fed. Reg. 61.111.61.121 (Dec. 2. 1991) (to be codified at 8 C.F.R. pt. 214). 
Although .. United States employer .. is defined in the ref:,rulations at 8 C.F.R. § 214.2(h)(4)(ii). the tem1s 
.. employee .. and .. employer-employee relationship .. are not defined for purposes of the H-1 B visa 
classification. Therefore, in considering whether or not one will be an .. employee .. in an .. employer­
employee relationship .. with a '·United States employer" for purposes of H-1 B nonimmigrant 
petitions. USCIS will look to common-law agency doctrine and focus on the common-law 
touchstone of .. control... See Nationwide Mut. Ins. Co. v. Darden. 503 U.S. 318 (1992 ): Clackamas 
Gastroenterolof.,ry Assocs .. P.C. v. Wells. 538 U.S. 440 (2003). 
The factors indicating that a worker is or will be an ··employee" of an .. employer .. are clearly 
delineated in both the Darden and Clackamas decisions. Darden. 503 U.S. at 323-24: Clackamas. 
538 U.S. at 445: see also Restatement (Second) (~l Agency § 220(2) (1958) (defining .. servant'"). 
Such indicia of control include when, where. and how a worker performs the job: the continuity of 
the worker's relationship with the employer: the tax treatment of the worker: the provision of 
employee benefits; and whether the work performed by the worker is part of the employer's regular 
business. See Clackamas, 538 U.S. at 445: see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a 
materially identical test and indicating that said test was based on the Darden decision): Defensor v. 
Meissner. 201 F.3d at 388 (detennining that hospitals, as the recipients of beneficiaries· services. are 
the "true employers" of H-18 nurses under 8 C.F.R. § 214.2(h). even though a medical contract 
service agency is the petitioner. because the hospitals ultimately hire. pay. tire. supervise. or 
otherwise control the \vork of the beneficiaries). 
B. Analysis 
Here. the Petitioner has not demonstrated that it qualifies as a United States employer having an 
employer-employee relationship \vith the Beneficiary. 8 C .F .R. § 214.2(h)( 4 )(ii ). 
9 
(b)(6)
Maller 4 V-1- Inc. 
As detailed above, the record of proceedings lacks sufficient consistent documentation evidencing 
what exactly the Beneficiary would do for the period of time requested or where exactly and for 
whom the Beneficiary would be providing services. Moreover. despite the Petitioner's claim that the 
and/or would be the end-client in this matter through a contractual 
agreement with the Petitioner, the record includes conflicting infom1ation sometimes referring to the 
and/or as the Beneficiary's actual employer. and sometimes referring 
to the Petitioner as the actual employer. 
For example, the record includes an .. H-I B Visa Checklist & Application Form'' that identified the 
Beneficiary's employer as The Petitioner also submitted an employment 
ofter to the Beneficiary on letterhead. signed by the Beneficiary and the hotel's general 
manager, oftering the Beneficiary employment with as a business development 
manager. This letter goes on to briefly state the Beneficiary's employment date. salary . and the 
hotel's policies regarding performance reviews , holidays, vacations. other benefits. and restrictions 
on the terms of the Beneficiary's employment among other provisions . 
On the other hand, the record contains letters from both and 
attesting that they do not have any employment relationship with the Beneficiary. and that the 
Beneficiary is an employee of the Petitioner. The record also contains an ofter of employment and 
an employment agreement between the Petitioner and Beneficiary. The Petitioner has not explained 
these discrepancies and established, through competent objective evidence. the truth of the matter. 
'·[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence ... Mafler o(Ho , 19 I&N Dec. 582. 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. /d. at 591-92. 
Furthermore, in a document identifying the Petitioner's claimed ··organization Structure ... the 
Beneficiary is shown as ultimately reporting to the president of a different company. The Petitioner 
has not explained the nature of the relationship between itself: this other company , and the 
Beneficiary. 
The Petitioner also has not consistently explained and documented the manner through which it will 
purportedly control the Beneficiary's work. For instance. the Petitioner states that its "IT services 
manager'' will supervise the Beneficiary on-site. but has not explained in detail the role of its IT 
manager at the end-client's hotel. Moreover. the Petitioner's assertion that it '"has full control [over 
the Beneficiary's] work on a day to day basis" is undermined by other evidence in the record. such 
as the master service agreement between itself ( .. Vendor") and the end-client ( .. Company") which 
specifically states that '·[d]uring the term of their assignment to COMPANY or COMPANY's 
Client(s) facilities, all consulting personnel assigned by VENDOR shall be under the guidance of 
COMPANY for work and project schedules.'' In addition, the Petitioner states that the Beneticiary 
.. will use the proprietary software, methodology, Quality Controls established by the Client" and 
.. will use the tools, instruments. and other proprietary information that is available at the client site ... 
10 
/Walter l?[ V-1- Inc. 
These factors indicate that the Petitioner will not have '"full control"' over the Beneficiary"s work. as 
claimed. 
Given the insutlicient and inconsistent evidence in the record. the Petitioner has not sufficiently 
corroborated who has or will have actual control over the Beneficiary's work or duties. or the 
condition and scope of the Beneficiary's services. In other words. the Petitioner has not established 
whether it has made a bona fide offer of employment to the Beneficiary based on the evidence of 
record or that the Petitioner, or any other company which it may represent. \Vill have and maintain 
the requisite employer-employee relationship with the Beneficiary for the duration of the requested 
employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term '"United States employer"' and 
requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an 
employer-employee relationship with respect to the sponsored H-1 B nonimmigrant worker). There 
is insufficient. consistent evidence detailing where the Beneficiary will work, the specific projects to 
be performed by the Beneficiary. or for which company the Beneficiary \Viii ultimately perform 
these services. The petition cannot be approved for this additional reason. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361: Matter l~{Otiende. 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o{V-1- Inc .. ID# 16716 (AAO June L 2016) 
11