dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 7305617 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 31, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer-senior quality 
analyst" under the H-lB 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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that: (1) an employer -employee relationship exists between the Petitioner and the Beneficiary; and (2) 
the Petitioner had definitive non-speculative employment in a specialty occupation available for the 
Beneficiary for the requested period of employment. 1 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit. Upon 
de novo review , we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE 
We determine that the Petitioner has not established it will have an employer-employee relationship 
with the Beneficiary. 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer") . According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii) , the term "United States employer" means a person, firm, corporation, 
contractor, organization , or other association in the United States which : 
(1) Engages a person to work within the United States; 
1 The Director also concluded that the record did not establish that the Beneficiary will be employed in a specialty 
occupation but did not discuss this issue within the body of the decision, except when concluding that the record did not 
establish the availability of specialty occupation work throughout the requested employment period . 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully define the term "employee," courts should conclude that the term was "intended to 
describe the conventional master-servant relationship as understood by common-law agency 
doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of agency, 
we consider the hiring party's right to control the manner and means by which the product is 
accomplished. Among the other factors relevant to this inquiry are the skill required; the source 
of the instrumentalities and tools; the location of the work; the duration of the relationship 
between the parties; whether the hiring party has the right to assign additional projects to the 
hired party; the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether the work is 
part of the regular business of the hiring party; whether the hiring party is in business; the 
provision of employee benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 2 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
The Petitioner, a company that "specialize[s] in providing permanent/contract placement services and 
manpower support," located in Virginia, states that the Beneficiary will work at an offsite location for 
I l(end-client) in West Virginia. To establish the contractual chain, the 
Petitioner submits letters from the end-client and a one-sentence acknowledgment of a contact labor 
2 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists 
or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for by the 
common-law test. See Darden, 503 U.S. at 323-24. 
2 
services agreement between the end-client an~ I (vendor), letters from the vendor, 
and a company subcontractor agreement between the vendor and the Petitioner. The contractual path, 
as outlined by the Petitioner, is as follows: Petitioner ➔ Vendor ➔ End-client. The Petitioner claims 
that the Beneficiary will perform the proposed duties at the end-client's location for the entire duration 
of the petition's approval. 
We have reviewed the initial evidence submitted as well as the evidence submitted in response to the 
Director's request for evidence (RFE) and do not find the record sufficient to establish an 
employer-employee relationship between the Petitioner and the Beneficiary. Specifically, the 
Petitioner has not established that it would exercise supervision and control over the Beneficiary's 
work. As the Director noted the record does not include sufficient consistent evidence establishing 
the Petitioner's role in instructing, directing, and supervising the Beneficiary's work. For the 
Petitioner's information and edification when a petitioner is augmenting a third-party's staff: and the 
third-party is the entity who will be actually using a beneficiary's services it is crucial to understand 
who will direct, supervise, and instruct the beneficiary's day-to-day work. This is because the entity 
directing, supervising, and instructing a beneficiary will necessarily influence the type of duties a 
beneficiary will perform. This particular component of the employer-employee relationship is 
especially significant within the H-lB nonimmigrant classification. 
In this matter, the record includes letters from the end-client and the vendor indicating generally that 
the Petitioner will assign work and will control and supervise the Beneficiary. However, the record 
does not include the actual contract between the vendor and the end-client. Thus, we cannot determine 
what limitations and restrictions the end-client and the vendor may have actually agreed to regarding 
the supervision and instruction of the Beneficiary. The record also includes inconsistent information 
as to the individual or position at the Petitioner who will be responsible for the Beneficiary's direction, 
supervision, and control. The Petitioner notes, throughout the record, that the president of the 
company is the Beneficiary's supervisor, project manager. 3 On the Petitioner's initial organizational 
chart, the Beneficiary is depicted as reporting to an account manager, although the HR manager is the 
individual responsible for signing his performance reviews. There is no evidence that these individuals 
are proficient in or have a technical understanding of the duties the Beneficiary is expected to perform. 
Thus, it is unclear how any of these individuals will direct, influence, or instruct the Beneficiary 
regarding the type and nature of the duties he will be expected to perform at the end-client facility. 
On appeal, the Petitioner asserts that the president of the company has the power to delegate tasks to 
others within the company and provides a revised organization chart to delineate the "chains of 
command" within the organization. First, we do not dispute that the Petitioner's president has 
authority to delegate tasks within the organization, including who will supervise, direct, and control 
the Beneficiary's work. The president, however, initially does not appear to delegate tasks, rather the 
Petitioner affirmatively stated that this same individual (holding the title of president, supervisor, 
project manager) would be the individual to assign, supervise, direct, and control the Beneficiary's 
work. Our concern is whether the president of a 50-person company would actually be involved in 
the supervision and day-to-day direction of the Beneficiary as it relates to the proposed work or 
whether managers at the end-client facility are the individuals actually performing these duties. The 
3 Throughout the record, the Petitioner indicates that the Beneficiary will report tol I the president of the 
company. This same individual is also referred to intermittently as supervisor, project manager. 
a 
3 
Petitioner apparently understanding this concern revised the company's organizational chart, without 
explanation, reconfiguring departments and hierarchies on appeal. The new organizational chart 
shows five departments reporting to the president, not the initial three, and includes a department 
headed by "technical managers/senior analysts" with QA engineers, validation engineers, business 
analysts, and implementation consultants reporting to them. Even if accepting the revised 
organizational chart as a true depiction of the Petitioner's organizational structure, the record still does 
not include evidence corroborating how the Petitioner whether through the president or a technical 
manager actually assigns, directs, and controls the Beneficiary's work. 4 
In that regard we have reviewed the Petitioner's president's attestation that they will "supervise [the 
Beneficiary] regularly by weekly phone calls, regular email communication, bi-weekly status reports 
and bi-yearly performance reviews." However, the record does not include corroborating evidence of 
phone calls or email communications directing and informing the Beneficiary regarding the manner 
and means in which he is to perform his work. Although the record includes copies of a few of the 
Beneficiary's status reports for a time period prior to working at this end-client's facility, these reports 
do not contain evidence that the Beneficiary is receiving instruction or guidance from the Petitioner 
on his daily work. 
We note that the end-client indicates that the Beneficiary has been assigned to work on thel~--~ 
.__ _______ ____, project. Although the record includes what appears to be some work product 
and an award issued to the Beneficiary from the end-client, we cannot ascertain whether the work 
product or award relate to this particular project. Significantly neither these materials nor other 
information in the record reference the Petitioner or any ongoing role for the Petitioner on this or other 
end-client projects. If the Petitioner has little to no role to play on the projects to which the Beneficiary 
has been assigned it is unclear how it could direct or control the Beneficiary's duties as they relate to 
the project(s). To the contrary, the Petitioner's role appears limited to provision of the Beneficiary's 
services with little room for actual direction of his activities. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the four comers of this 
H-lB petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer 
in the common-law sense, but that it would instead act as a supplier of personnel to temporarily 
supplement the staff of the end-client who would control the content, means, and methods of those 
individuals' work. In this regard, we observe that it appears that not only would the end-client 
determine and assign the Beneficiary's day-to-day work, but that it would also control the 
Beneficiary's access to the systems without which his work could not be done. 
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 the 
work will be located, and who has the right or ability to affect the projects to which the Beneficiary is 
4 The submission of two distinctly different organizational cha1is raises questions regarding the Petitioner's business 
structure and ongoing operations and hierarchy. The Petitioner does not attempt to explain why the first organizational 
chart submitted did not include technical managers/supervisors. Nor does the Petitioner attempt to otherwise resolve the 
significant inconsistency within the record regarding the Petitioner's business structure. 
4 
assigned, must also be assessed and weighed in order to make a determination as to who will be the 
Beneficiary's employer. Based on the tests outlined above, we conclude that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
II. SPECIALTY OCCUPATION 
Even if we set the issue of employer-employee relationship aside, we still would determine that the 
Petitioner has not established it had or has definitive non-speculative specialty occupation work 
available for the Beneficiary for the intended employment period. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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). 
5 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation 
work. The Petitioner also has not established that the job duties require an educational background, 
or its equivalent, commensurate with a specialty occupation. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. As discussed above, the record includes letters from the end-client and the vendor, as well 
as the company subcontracting agreement between the Petitioner and the vendor. The record does not 
include the complete contract, a purchase order, or a statement of work from the end-client. Without 
the full chain of contracts demonstrating the end-client had a legal obligation to contract proposed 
work to the vendor, we cannot conclude that there is a legal obligation on the part of the end-client to 
provide the position described in this petition. 5 
We reviewed the work order6 listing the Beneficiary, identifying the "buyer" as the end-client, 
categorizing the proposed position as "IT - Quality Consultant - Senior," and indicating that the 
minimum education requirement is a "Bachelor's Degree." The work order also lists the location as 
the end-client's site and indicates the service is temporary with a start date of July 30, 2018 and an 
end-date of February 28, 2019. Thus, this work order expires only a few months into the requested 
employment period. 7 The record does not include any other work orders, either from the end-client 
or the vendor. 
On appeal, the Petitioner asserts that it is common in the industry to issue work orders for specific and 
short-term durations that do not cover the entire scope of contracted placement and that the Director 
should be well aware of this fact. 8 However, here the record does not include evidence of a binding 
legal obligation on the part of the end-client to use the Beneficiary's services during the intended 
employment period. 9 That is, the record does not include a task or work order or a statement of work 
5 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 Tt appears this work order is between the Petitioner and vendor, as part of the vendor-Petitioner subcontracting agreement; 
however, it is a computer printout and is not signed. Thus, it is not clear how this document would legally bind the 
end-client to approve this Beneficiary for placement at its facility to use the Beneficiary's services. 
7 The Petitioner's intended employment period for the Beneficiary is for a time period beginning September 14, 2018 and 
ending September 13, 2021. 
8 On appeal, the Petitioner appears to suggest that it is the Director's responsibility to verify the placement and authenticity 
of letters and to go on a fact-finding mission to validate the Petitioner's claims. First, as in all visa petition proceedings, 
the burden of proof rests with the Petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The Director is not required to 
submit evidence into the record to validate or disprove a petitioner's claim. Consistent with 8 C.F.R. § 103.2(b)(16)(ii), 
the Director is limited to the information contained in the record of proceedings in making the determination of statutory 
eligibility. 
9 The end-client's letters do not fill this gap. Although the end-client indicates in the September 14, 2018 letter that it 
anticipates that the0project will continue for three years, the January 23, 2019 letter does not include any references to 
the ongoing nature of this project or the end-client's plans to continue to requisition resources for this or other projects. 
6 
from the end-client describing the type of resource it requires. 10 Additionally, when the Petitioner 
responded to the Director's RFE, on February 5, 2019, it would seem that it would have some 
documentation from the end-client or the vendor that the work order would be extended. Certainly, 
when the Petitioner submitted the appeal on May 24, 2019, and was aware of the Director's concern 
regarding the speculative nature of the proposed work, it could have demonstrated the work was 
ongoing, if the work order had indeed been extended. 
Without the foll chain of contracts in this case, and corresponding work orders or requisitions for 
services, we cannot determine that there is a legal obligation on the part of the end-client to provide 
the position described in this petition. Even if we set aside the speculative nature of the proffered 
position entirely we would still have significant questions as to the proffered position's actual, 
substantive nature due to the inconsistencies, discrepancies, and unanswered questions contained 
within the record. 
On the labor condition application (LCA), 11 the Petitioner designated the proffered position under the 
"Computer Occupations, All Other" occupational category, Standard Occupation Classification (SOC) 
code 15-1199. 12 The initial record includes a broad description of the proposed duties of the position. 13 
For example, the description includes tasks such as: "[a]ssists in problem solving in areas such as 
system design, input/output requirements and procedural flow between departments when developing 
and implementing administrative systems; "[r]esponds to user questions regarding reports and 
products, including sources and meaning of data, and simplifies technical concepts for users;" 
"[c]oordinate[s] with PM and IT director on matters oftest data and test plans to maximize efficiency 
across test phases;" 14 and "[ c ]ommunicating with business partners, Management & Development 
Team on daily conference calls." In response to the Director's RFE, the Petitioner adds narrative, 
re-organizes the duties into categories, and allocates the Beneficiary's time to those categories. 
However, the descriptions do not provide sufficient detail to illuminate the substantive application of 
knowledge involved or any particular educational requirement associated with such duties. It is not 
possible to ascertain the nature and level ofresponsibility of the proposed position, including whether 
the duties as generally described correspond to the occupation designated on the LCA. That is, the 
duties are so generally described that they appear to fall within the parameters of more than one 
technology occupation. 15 
10 As the record does not include a copy of the contractual agreement between the vendor and the end-client, we are unable 
to detennine what restrictions, conditions, and obligations have been agreed to between these two paities. The record 
includes no basis for understanding the placement process and requirements between these two entities. 
11 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. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
12 In response to the Director's RFE, the Petitioner indicated that the proffered position is a "Software Quality Assurance 
Engineer," an occupation that is a sub-category of the "Computer Occupations, All Other" category. 
13 The vendor and end-client provide the same 13-bullet points to describe the proposed duties. The Petitioner indicates 
that the Beneficiary will "[w]rite recommendations for program/process corrections and improvements, testing" and also 
paraphrases several of the vendor and end-client's descriptions. 
14 The Petitioner's version of this paiticular task is "[c]oordinating with SA, DEV, BA, UAT, Test Data team and QA team 
on deliverables, issues, risks, and estimates." 
15 This is significant because if the duties of the proposed position include duties that more closely correspond to or overlap 
with a higher paying occupation, such as a "Computer Systems Analyst" occupation, for example, the Petitioner would be 
7 
Moreover, the descriptions do not establish that performing the duties would require the theoretical 
and practical application of highly specialized knowledge and attainment of at least a bachelor's degree 
in a specific specialty or its equivalent. In this matter, although the end-client claims that the minimum 
requirement to perform the position is a bachelor's degree of computer science or computer related 
fields, the work order and the vendor indicate that these same duties require only a general bachelor's 
degree. We also observe that the Petitioner asserts that the proffered position "requires the skills of a 
professional who holds at least a Bachelor's in Computer Science or computer related fields;" but 
when describing the duties in response to the Director's RFE, lists three business courses, SQL Server, 
and an accounting and auditing course as the courses associated with the duties described. The 
Petitioner does not explain how a few courses in business is the equivalent of a bachelor's degree in 
computer science. The inconsistencies in the record regarding the minimum requirements to perform 
the duties of the proffered position undermine the Petitioner's claim that the duties require a bachelor's 
degree in a specific discipline, or its equivalent. 
The inconsistent and ambiguous information in the record when viewed in its totality does not establish 
the substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
it is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for entry into the particular position, which is the focus of criterion 1; (2) industry 
positions which are parallel to the proffered position and thus appropriate for review for a common 
degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. The Petitioner has not established that the proffered position is a 
specialty occupation under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner also has not 
established that the proposed position satisfies the definitions of specialty occupation as set out in the 
statute and regulation. 
III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that it has 
definitive, non-speculative H-1 B caliber work available for the Beneficiary or that, more likely than not, 
the proffered position is a specialty occupation as defined by the regulations and the statute. The 
Petitioner also has not established that the required employer-employee relationship exists with the 
Beneficiary. We do not reach the deficiencies regarding the Beneficiary's qualifications 16 to perform a 
required to submit a certified LCA for the higher paying occupation. See U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). 
16 The Beneficiary has a three-year foreign academic degree and although the record includes evaluations of the 
Beneficiary's foreign degree and experience, the basis of the evaluator's assessment of experience as well as the basis and 
process for assessing any experience is questionable. 
8 
specialty occupation position as the conclusions on the other issues in this matter are dispositive of the 
appeal. 
ORDER: The appeal is dismissed. 
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