dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MA TTEROF T- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting 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)(15)(H)(i)(b), 8 U.S.C. § 1101(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 (1) the Petitioner 
does not qualify as a United States employer with an "employer-employee relationship" with the, 
Beneficiary; and (2) the Petitioner did not establish that the proffered position qualifies as a specialty· 
occupation. 
In its appeal, the Petitioner submits additional evidence. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a programmer analyst. 
On appeal, the Petitioner provided the following job duties for the proffered position, along with the 
percentage of time allocated for each duty: 
Job Duties Technical Term Time 
Allocated 
Develop technical designs Technical 30% of time 
for application Architecture & 
development Design 
Develop and Design Core Development 15% of time 
Applications using 
Enterprise Java Beans 
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Matter ofT-Inc 
Develop and Design with Object Oriented 15% oftime 
different J2EE Design Programming 
Patterns like Singleton, 
DAO, Data Transfer 
Object, Session Fa<;ade, 
Template, Service 
Locator, and Singleton 
Working with Hadoop Big Data 15% oftime 
(MapReduce) GWT/GWT 
SMART, GAE, Google 
Datastore, Google Map 
API 
Write SQL (Structured Data Extraction, 10% oftime 
Query Language) Transformation, Load 
Profound insight of Java Business Processing 5% oftime 
and JEE internals Synchronization 
(Crossloading , Memory 
Management, Transaction 
management) 
Knowledge in XML with Cloud Computing 5% of time 
Java using DOM and 
JDOM 
Web designing using Internet Enabling 5% oftime 
HTML, DHTML , CSS 
and Javascript 
The Petitioner does not state that the proffered position has any particular requirements. In response 
to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary will be 
providing services to (the end-client). 
II. LACK OF STANDING TO FILE THE PETITION 
We reviewed the record of proceeding in its entirety. Specifically , we find that the Petitioner has not 
established that it meets the regulatory definition of a United States employer. See 8 C.F.R. 
§ 214.2(h)(4)(ii). More specifically, the Petitioner has not established that it will have "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." !d. 
A. Legal Framework 
Section 10l(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant , in pertinent part, as an 
individual: 
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Matter ofT-Inc 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 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 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined at 8 C.F.R. § 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, 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 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); 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 regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to 
the United States to perform services in a specialty occupation will have an "intending employer" who 
will file a Labor Condition Application with the Secretary of Labor pursuant to section 212( n )( 1) of the 
Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(1 )(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States 
employers" must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-1B temporary "employees." 8 C.F.R. § 214·.2(h)(l), (2)(i)(A). Finally, the definition of "United 
States employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes ofthe H-1B visa classification, these terms are undefined. 
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Matter ofT-Inc 
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.jor 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. Affiong 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." 
Id; 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 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)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S171 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 1 
1 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). . 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
IOI(a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council. 
Inc., 467 U.S. 837, 844-45 (1984). 
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Matter ofT-Inc 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. C.!: 
Darden, 503 U.S. at 318-19? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h)? 
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-1B petitions, we must focus on the 
common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. § 214.2(h)(4)(ii) 
(defining a "United States employer" as one who "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 .... " (emphasis added)). 
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) of Agency § 220(2) (1958). 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 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-lB 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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Matter ofT-Inc 
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, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See_ Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, 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. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the preponderance ofthe evidence standard, the Petitioner has not established that it will 
be a "United States employer" having an "employer-employee relationship" with the Beneficiary as 
an H -1 B temporary "employee." . 
1. Offer of Employment Letter 
For H-1B classification, the Petitioner is required to submit written contracts between the Petitioner 
and the Beneficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the Beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and 
(B). The Petitioner submitted an offer letter to the Beneficiary for the position of programmer 
analyst to commence employment on October 1, 2016. The Petitioner also submitted an 
employment agreement signed by the Petitioner and the Beneficiary. In the agreement, under 
section D, it states that the "employee agrees that their duties shall be primarily rendered at 
Employer's business premise or at such other places as the Employer shall in good faith require." 
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Matter ofT-Inc 
While an employment agreement may provide some insights into the relationship of a Petitioner and 
a Beneficiary, it must be noted again that the "mere existence of a document styled 'employment 
agreement"' shall not lead inexorably to the conclusion that the worker is an employee. Clackamas, 
538 U.S. at 450. "Rather, ... the answer to whether [an individual] is an employee depends on 'all 
of the incidents of the relationship ... with no one factor being decisive."' !d. at 451 (quoting 
Darden, 503 U.S. at 324). 
2. Supervision 
A key element in this matter is who would have the ability to hire, fire, supervise, or otherwise 
control the work of the Beneficiary for the duration of the H-1B petition. The Petitioner has not 
submitted a sufficient explanation, corroborated by credible evidence, detailing the manner in which 
the Beneficiary's supervisor actually oversees, directs, and otherwise controls the off-site work of 
the Beneficiary. In response to the RFE, the Petitioner stated that the Beneficiary will report to 
business development and HR. The Petitioner also stated that the Beneficiary 
will "telephone or otherwise communicate directly with his [the Petitioner] supervisor no less than 
once a week regarding his progress on the assigned work." It is not clear who is assigning the work 
and whether the Beneficiary is only providing progress reports. If the Beneficiary is reporting work 
completed to the Petitioner, it appears that the Petitioner will have general contact but will not be 
managing the Beneficiary's day-to-day duties at the client site. 
The record indicates that the Beneficiary's workplace would be located in a different state from the 
Petitioner's office. The Petitioner submitted an LCA certified at a Level I wage. DOL guidance states 
that a Level I (entry) 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: ( 1) 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.4 A 
Level I wage should be considered for research fellows, workers in training, or internships.5 
Without more, it would appear that an employee performing routine tasks that must be closely 
supervised and monitored would require more supervision than a weekly status update, and it does not 
appear as though the Petitioner would be in a position to be the one to provide it. 
In addition, the Petitioner stated that it will conduct performance reviews to evaluate the 
Beneficiary's work. However, the Petitioner did not explain how the Petitioner evaluates the 
Beneficiary's work. It is not clear how the Petitioner reviews the Beneficiary's daily work, and 
whether the Petitioner has staff located at the end-client site to review the Beneficiary's work 
4 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 
_I 1_2009.pdf. 
5 !d. 
7 
.
Matter ofT-Inc 
performance. Thus, we cannot determine if the Petitioner will assign and control the Beneficiary's 
work at the client site. 
Furthermore, the Petitioner submitted an itinerary that indicated that the "supervisor at end client" is 
senior manager.6 Thus, it appears that the end client will be supervising the 
Beneficiary's work. 
3. Master Services Agreement 
The Petitioner explained that it has a contract with (end-client). The agreement 
between the Petitioner and states that the Petitioner will provide qualified candidates 
to indicating that the entire tenor of the agreement is a contract for staff 
augmentation. The Beneficiary will be assigned to the'end-client to support its staff, a role which is 
indicative of day-to-day control by the end-client, whose staff is normally subject to the end-client's 
direction. 
4. Purchase Order 
The Petitioner submitted a purchase order (PO) between itself and The PO states 
that the Beneficiary will provide services as a programmer analyst from October 1, 2016 until 
September 19, 2019. The PO did not provide sufficient detail of the type of work the Beneficiary 
will perform, and lacked a detailed explanation of how the Petitioner will control the work 
performed by the Beneficiary. 
5. End-Client Letter 
The Petitioner submitted a letter from (the end-client). The letter confirms that the 
Beneficiary will work as a programmer analyst to work on the project. 
The letter further states that the Beneficiary will be managed by the Petitioner even while at the 
client site, but did not indicate how the Beneficiary will be supervised/managed by the Petitioner. 
6. Conclusion 
The evidence, therefore, 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). Merely claiming in its letters that the Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
Based on the tests outlined above, 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." 8 C.F.R. § 214.2(h)(4)(ii). The appeal is dismissed for this reason. 
6 The end-client indicates that is the Manager of Operations & Finance. 
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Matter ofT-Inc 
III. SPECIALTY OCCUPATION 
We will now address another basis tor denial of the petition, namely the Director's finding that the 
Petitioner did not establish that it would employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
Section 214(i)(l) of the Act, 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 have consistently interpreted the term "degree" 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 directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 
13 9, 14 7 (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 
387-88. 
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Matter ofT-Inc 
B. Analysis 
As a preliminary matter, the Petitioner did not claim that the there are any particular requirements 
for the proffered position. 7 Thus, we cannot find that the proffered position qualifies as a specialty 
occupation. 
Further, the petition must also be denied because the Petitioner has not established that the proffered 
position qualifies for classification as a specialty occupation. As recognized in Defensor, it is 
necessary for the end-client to provide sufficient information regarding the proposed job duties to be 
performed at its location in order to properly ascertain the minimum educational requirements 
necessary to perform those duties. Defensor, 201 F.3d at 387-88. In other words, as the employees 
in that case would provide services to the end-client and not to the petitioning staffing company, the 
Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a 
specialty occupation determination. !d. 
Here, the record of proceedings does not provide sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary. The Petitioner submitted letters 
from the end-client confirming that the Beneficiary will be working as a programmer analyst. The 
letters desc!ibe the Beneficiary's job duties in brief, generalized terms that do not convey the 
substantive nature of the proffered position and its constituent duties. The record of proceedings does 
not contain a more detailed description explaining what particular duties the Beneficiary will 
perform on a day-to-day basis for the end-client. Nor is there a detailed explanation regarding the 
demands, level of responsibilities, complexity, or requirements necessary for the performance of 
these duties (e.g., explain what specific systems and applications are involved, and what body of 
knowledge is required to perform the duties). 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as a programmer analyst for the duration of the requested 
employment period. As the Petitioner has not established the substantive nature of the work to be 
performed by the Beneficiary, it precludes a finding that the profiered position satisfies any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat 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. Accordingly, as the Petitioner has not established 
7 
The record contains a letter from which specifies the end-client's requirements for the position but the 
Petitioner did not confirm that this statement reflects the Petitioner's own requirements. 
10 
Matter ofT-Inc 
that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that the 
proffered position qualifies for classification as a specialty occupation. 
IV. CONCLUSION 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT- Inc, ID# 283339 (AAO Apr. 24, 2017) 
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