dismissed H-1B Case: Computer Science

MATTER OF K- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a specialty staffing services company, seeks to temporarily employ the Beneficiary as 
a "programmer analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B 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 establish, as required: (1) that the proffered position is a specialty occupation; and (2) that the 
Petitioner would engage the Beneficiary in an employer-employee relationship. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. 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: 
Matter of K- Inc. 
(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 have consistently interpreted 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. Cherto_ff, 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 v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. See 
Defensor v. Meissner, 201 F.3d at 387-88. 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 beneficiary's services. !d. 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. 
II. PROFFERED POSITION 
The Petitioner stated in the H-lB petition that the Beneficiary will serve as a "programmer analyst" 
and explained that although the company is located in Florida, the Beneficiary would actually 
perform his duties for an end-client in Utah. According to the end-client, the Beneficiary would 
perform the following duties: 
[The Beneficiary] is a Software Development Engineer. [The Beneficiary's] current 
project is a major overhaul of one of [the end-client's] proprietary software programs. 
In this project, [the Beneficiary] is one of two developers refactoring the application 
program interface (API) layer. 
2 
Matter of K- Inc. 
A statement of work (SOW) executed pursuant to a contract executed between the Petitioner and the 
end-client calls for the Beneficiary to work as a software engineer until August 2017.
1 
According to the end-client, the proffered position requires a bachelor's degree m computer 
engineering or a related field and three years of experience. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.3 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA)5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.
6 
1 The end-client's characterizations of the proffered position as a software engineering or software development position 
conflicts with the Petitioner's characterization of position as a computer systems analyst position, and calls into question 
the reliability of the submitted job descriptions. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BJA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support 
of the requested immigration benefit. !d. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the H-1 B 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 All of our references are to the 2016-2017 edition of the Handhook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handhook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handhook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
5 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
3 
Matter of K- Inc. 
The Handbook states, in pertinent part: "A bachelor's degree in a computer or information science 
field is common, although not always a requirement. Some firms hire analysts with business or 
liberal arts degrees who have skills in information technology or computer programming." Bureau 
of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems 
Analysts (2016-17 ed.). The Handbook also states: "Although many computer systems analysts 
have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts 
degrees and have gained programming or technical expertise elsewhere." ld. 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. The Handbook 
specifically states that a bachelor's degree in a related field is "not always a requirement.'' The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
located within this occupational category, including general-purpose degrees such as business and 
liberal arts. As discussed, we interpret the term "degree" to mean a degree in a .spec~fic .specialty 
that is directly related to the proposed position. See Royal Siam Corp., 484 F.3d at 147. Since there 
must be a close correlation between the required specialized studies and the position, a requirement 
of general and wide-ranging degrees in business and liberal arts strongly suggests that a computer 
systems analyst position is not categorically a specialty occupation. See id. C.f Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). While the Handbook indicates that a 
bachelor's degree in a computer or information science field is common, it does not report that such 
a degree in normally a minimum entry requirement. 
According to the Handbook, many individuals who hold positions located within this· occupational 
category have liberal arts degrees and have gained programming or technical expertise elsewhere. It 
further reports that many analysts have technical degrees. We observe that the Handbook does not 
specify a degree level (e.g., associate's degree, baccalaureate) for these technical degrees. Thus, the 
Handbook does not support the claim that this occupational category is one for which the normal 
minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent. 
We acknowledge the Handbook's statement that a master's degree in computer science "may be 
more appropriate" for "more technically complex jobs.'' However, the statement that a given degree 
6 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance'' issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf 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 ofthe Petitioner's job opportunity. !d. 
4 
Matter of K- Inc. 
"may be more appropriate" is not necessarily synonymous with the normal minimum requirement 
standard imposed by the regulation. Moreover, the record does not indicate that the duties proposed 
for the Beneficiary actually constitute one of those "more technically complex jobs." Again, the 
Petitioner has stated that it will pay the Beneficiary a Level I wage, which indicates that the 
Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of 
judgment; that he will be closely supervised and his work closely monitored and reviewed for 
accuracy; and that he will receive specific instructions on required tasks and expected results. Given 
the Handbook's implication that typical positions located within this occupational category do not 
require a bachelor's degree in a specific specialty, it appears unlikely that an entry-level position 
with these characteristics would be "more technically complex'' compared to others within the 
category and therefore carry such a requirement. 
For all of these reasons, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. The Petitioner therefore has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals." See Shanti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) 
(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its protTered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
5 
Matter of K- Inc. 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion 
on the matter. Also, there are no submissions from the industry"s professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry to establish that 
such firms "routinely employ and recruit only degreed individuals." Nor is there any other evidence 
for our consideration under this prong. 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an 
aspect of the proffered position. The Petitioner has not demonstrated how the duties of the proffered 
position as described in the record require the theoretical and practical application of a body of 
highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties it may believe are so complex and unique. While a 
few related courses may be beneficial, or even required, in performing certain duties of the position, 
the Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 
We discussed findings of the Handbook regarding the occupational category into which the 
Petitioner placed the proffered position above. Again, that resource does not indicate that a 
bachelor's degree in a specific specialty, or the equivalent, is normally required for positions located 
within the occupational category designated by the Petitioner. The Petitioner's implications that the 
knowledge and associated entry requirements for the proffered position exceed those of other 
positions located within the occupational category are acknowledged. For example, the Petitioner 
emphasizes the complex nature of the position and its constituent duties throughout the petition, and 
the end-client states that the position requires three years of work experience. However, the 
Petitioner's Level I wage designation undercuts any claim that it satisfies this criterion. 7 In other 
7 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
Matter of K- Inc. 
words, if typical pos1t10ns located within the occupational category do not require a bachelor's 
degree in a specific specialty, or the equivalent, then it is unclear how a position with the Level I 
characteristics described above would, regardless of these assertions. 
The Petitioner claims that the Beneficiary is well-qualified for the posttwn, and references his 
qualifications repeatedly. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. We find that Petitioner did not 
sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and 
that it did not identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates, 
but is necessitated by the actual performance requirements of the position. The record does not 
establish this. 
The record contains information regarding the Petitioner's other employees. However, it does not 
satisfy the third criterion, because it is not apparent that these individuals hold the type of Level I 
position proffered here. For example, these individuals' pay statements indicate hourly wages of 
$55, $43.85, $70, $60, $41, $51, $46.87, $54.31, $38, $49.15, and $35. The Beneficiary, on the 
other hand, has been offered a wage starting at $23 per hour. 
In addition, we observe that most of these individuals hold foreign degrees, and the Petitioner does 
not submit evidence to establish that their foreign degrees are equivalent to a U.S. bachelor's degree 
in a specific specialty, or the equivalent. 
While a petitioner may assert that a proffered position requires a specific degree, that statement 
alone without corroborating evidence cannot establish the position as a specialty occupation. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
Matter of K- Inc. 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that he would be closely supervised and her work closely 
monitored and reviewed for accuracy, and that he would receive specific instructions on required 
tasks and expected results. 8 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(-I). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
E. Speculative Employment 
In addition, we find that the Petitioner has not established that the petition was filed for non-speculative 
work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. As noted above, the SOW calls for the Beneficiary to work for the end-client through August 
2017. However, the Petitioner requested H-1B approval through September 2019. 
The regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). 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 (Reg'] Comm'r 1978). 
It was made clear long ago that speculative employment is not permitted in the H-lB program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1 B 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 
8 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
Matter of K- Inc. 
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 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 part of this two­
prong analysis and, therefore, is unable to adjudicate properly a request for H-1 B 
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). While a petitioner is certainly permitted 
to change its intent with regard to non-speculative employment, e.g., a change in duties or job 
location, it must nonetheless document such a material change in intent through an amended or new 
petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address the remaining issue raised by the Director, except to note briefly that we agree with 
her finding that the current record does not demonstrate that the Petitioner qualifies as an H-1 B 
employer. The United States Supreme Court 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)). 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 ofthe hired party:' 
!d.; see also Clackamas Gastroenterology Assocs., P.C v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
9 
Matter of K- Inc. 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
As such, 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, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or 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. 
The current record of proceedings does not support the Petitioner's claims of control over the 
Beneficiary's work. As noted, the Petitioner, which is located in Florida, proposes to send the 
Beneficiary to Utah in order to work for the end-client. It does not appear as though it would send a 
supervisor to oversee and control this offsite work. 
While noted, we do not find the Petitioner's claims of control persuasive, as it does not explain in 
any meaningful detail how such control would occur. For example, the Petitioner does not indicate 
how often it would contact the Beneficiary in order to assign tasks or otherwise direct his 
employment. Nor does the Petitioner indicate whether there is any timetable by which the 
Beneficiary is expected to report his progress on completing such tasks. Regardless, the Petitioner 
does not explain how it will control the Beneficiary's activities before and as they unfold on a day­
to-day basis. 
These unanswered questions are particularly problematic in light of the Petitioner's Level I wage 
designation. As noted, the Petitioner indicated to DOL that the Beneficiary would perform routine 
tasks that require limited, if any, exercise of judgment; be closely supervised and his work closely 
monitored and reviewed for accuracy; and receive specific instructions on required tasks and 
expected results. The lack of detailed information regarding the nature and frequency of the 
Petitioner's communication with the Beneficiary raises questions as to whether the Petitioner - as 
opposed to the end-client - would actually exercise the close degree of supervision consistent with 
the Level I wage designation. 
9 
Regardless, we find that the current record of proceedings does not overcome the Director's 
concerns regarding the employer-employee issue. 
9 It also raises questions as to whether the LCA corresponds to and supports the H-1 B petition, as required. We will not 
explore that issue in depth because the petition is not otherwise approvable, but the Petitioner should be prepared to 
discuss it in any future H-1 B filings. 
10 
Matter of K- Inc. 
V. CONCLUSION 
The Petitioner has not established that the proffered position is a specialty occupation. 10 
ORDER: The appeal is dismissed. 
Cite as Matter of K- Inc., ID# 334503 (AAO June 29, 2017) 
10 Because these issues preclude approval of the petition we will not address any of the additional issues we have 
observed in our de novo review of this matter. 
II