dismissed H-1B Case: Computer Science

(b)(6)
DATE: MAY 0 4 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigrat.ion Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT #: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(H)(1 5)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 11 01 (a)(1 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCfiONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The require ments for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis. gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
www .uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
70-employee "C omputer Consulting Services" business established in In order to employ the 
beneficiary in a position it designates as a "Programmer Analyst (Computer Programmer)" position, 
the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101( a)(15)( H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U. S.C. 
§ 1101 (a)(15 )(H)(i)(b). 
The director denied the petition determining that the record of evidence did not establish (1) that the 
proffered position qualifies for classification as a specialty occupation, and (2) that the beneficiary 
is qualified to perform the duties in a specialty occupation. On appeal, the petitioner asserts that the 
director's bases for denial of the petition were erroneous and contends that the petitioner satisfied all 
evidentiary requirements. 
The record of proceeding before this office includes the following: (1) the petitioner's Form I-129 
and supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's denial letter; and (5) the Notice of Appeal or Motion (Form 
I-290B), a brief , additional and re-submitted documentation. We reviewed the record in its entirety 
before issuing our decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's grounds for denying this petition. Furt hermore, beyond the decision of the director, the 
petitioner has not established that it meets the regulatory definition of a United States employer. 
Accordingly, the appeal will be dismissed, and the petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 38 1 F.3d 143, 145 (3d Cir. 
2004). As a preliminarily matter, we affirm that, in the exercise of our appellate review in this 
matter, as in all matters that come within our purview, we follow the preponderance of the evidence 
standard as specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 
375-376 (AAO 2010). In pertinent part, that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponder ance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
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!d. 
NON-PRECEDENT DECISION 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof . See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (198 7) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
Upon our review of the present matter pursuant to this standard, however, we find that the evidence 
in the record of proceeding does not support the petitioner's contentions that the evidence of record 
requires that the petition at issue be appr oved. Applying the preponderance of the evidence 
standard as stated in Matter of Chawathe, we find that the director's determinations in this matter 
were correct. Upon our review of the entire record of proceeding, and with close attention and due 
regard to all of the evidence, separately and in the aggregate, submitted in support of this petition, 
we find that the petitioner has not established that its claims are "more likely than not" or 
"probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has not 
submitted relevant, probative, and credible evidence that leads us to believe that the petitioner's 
claims are "more likely than not" or "proba bly" true. 
II. FACTUAL AND PROCEDURAL BACKGROUND 
On the Form 1-129, the petitioner indicated that it is seeking the beneficiar y's services as a 
"Programmer Analyst (Computer Programm er)" on a full-time basis at a minimum rate of pay of 
"$60,000+" per year. The petitioner submitted the required Labor Condition Application (LCA) 
certified for a job prospect within the occupational classification of "C omputer Programmers" -
SOC (ONET/OES Code) 15-1131, at a Level I wage. The LCA identifies the beneficiary's work 
locations as Missouri and Missouri. 
Preliminarily we note that this petition identifies three business entities as involved in providing the 
computer programmer work that the petitioner presents as the basis of the H-1B 
specialty-occupation claim. These are: (1) 
(2) ; and (3 ) the petitioner. The petitioner indicated that the 
beneficiary would be working offsite at the location. in Missouri, but that the 
beneficiary could also work remotely from its headquarters, in Missouri. The petitioner 
requested approval of the H-1B petition for the beneficiary for the period of October 1, 20 14 to 
September 25, 20 17. 
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In its letter in support of the petition, dated March 31, 2014, the petitioner stated that it provides "a 
wide range of software engineering services and consultants ranging fr om project management, 
system design and development, internet, web services, client/server, mainframes, databases, 
telecommunications, networking and data management." 
In the same letter the petitioner affirmed its desire to employ the beneficiary in a full-time, 
temporary position of "C omputer Programmer ." The petitioner also noted the position here 
prof fered "i s internally titled Programmer Analyst or Software Engineer." 1 The petitioner also 
provided an overview of the beneficiary's duties of the position as follows: 
He will be part of a team that is responsible for the development and support of 
software applications for our client. He will work with a team that is working to 
accomplish aggressive and exciting goals. He will be developing prototypes and 
performing complex application coding and programming. He will interpret 
end-user business requirements to develop and/or modify the technical design 
specifications for off-the-shelf and/or custom-developed applications. He will also 
analyze and review software requirements to determine feasibility of design within 
time and cost restrain ts. In addition, those in this position perform unit integration 
testing and assist with developing unit test scripts . 
[The beneficiary's] specific duties break down as follows: 
- Code and successfully perform unit and integration testing of software to ensure 
proper and efficient execution as well as compliance with the business and 
technical requirements 
- Work with other programmer analysts to design interfaces between software 
applications in order to complete design requirements 
- Use system traces and debugging tools for problem determination and system 
tuning 
- Participate in the migration of applications to quality assurance and/or the 
production environment 
- Work with managers and team members to develop development standards 
- Perform necessary productio n-support tasks involving on-call responsibilities 
The petitioner also indicated that the beneficiary's duties would encompass working with a number 
of programming languages and technology. The petitioner stated: "t his position requires that an 
applicant have a Bachelor's degree in engineering, computer science, information technology or a 
closely related analytic or scientific discipline, or the equivalent thereof. " The petitioner claimed 
that it required all of its employees in this position to have a bachelor's degree and that it preferred 
that its potential employees also have work experience. 
1 While the petitioner may refer to the proffered position of "computer programmer," internally as a 
"software engineer" and a "programmer analyst," we note that, these are three different occupations and, as 
will be discussed infra, subje ct to different prevailing wages. 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
The documents filed with the Form I-12 9 also included: (1) a letter fr om dated February 20, 
2014, addressing the nature of its agreement with the petitioner; and (2) documentation regarding 
the beneficiary's qualifications. 
The director found the evidence insufficient to establish eligibility for the benefit sought, and issued 
an RFE on May 22, 20 14. The petitioner was asked to submit probative evidence to establish that a 
specialty occupation position exists for the beneficiary, that the petitioner would maintain the 
requisite employer-employee relationship with the beneficiary, and that the beneficiary is qualified 
to perform the duties of the specialty occupation work. The petitioner was also asked to submit 
evidence to establish that the proff ered position qualified as a specialty occupation. 
In a letter dated August 12 , 2014, the petitioner provided its response to the RFE. The petitioner re­
submitted the February 20, 2014 letter fr om and also submitted a copy of a "Su pplier 
Agr eement" between and the petitioner, effective September 12, 2012. Also in response to the 
RFE, the petitioner submitted a letter, dated June 9, 20 14, fr om 
on the letterhead of The letter identifies a particular 
Master Services Agre ement as the contractual agreement governing the 
particulars of the role that plays with regard to "e ach staffing provider [such as the 
petitioner] . "2 The letter states that is "responsible for providing centralized staffing 
management services to and that has agreed to handle for all 
responsibilities related to verifying and administering all matters regarding the eligibility of 
temporary workers who provide services to , including the provision of documentation 
to staffing providers for H-1B candidate positions. Accordingly, necessary information for the 
consideration of any candidate, including the nature of the candidate's employment, assignment 
details, and duration will be confirmed solely by " 
The petitioner also submitted an excerpt from the Department of Labo r's (DOL ) Occupational 
Outlook Handbook (Handbook) regarding the "C omputer Programm ers" occupational group, 
documentation referencing an "employee leasing agreement" between the petitioner and 
and the beneficiar y's curriculum vitae, letters of employment, certificates, a 
certificate and transcript fr om "h igher secondary sch ool," and a letter fr om one of the beneficiary's 
former employers providing an evaluation of the beneficiary's work and education. 
The director reviewed the information provided by the petitioner to determine whether the petitioner 
had established eligibility for the benefit sought. On October 23, 2014, the director denied the 
petition. 
On appeal, the petitioner contends that the director's findings were erroneous. In support, of this 
contention the following documentation was provided: 
2 The petitioner has not submitted either the Master Services Agreement or a comprehensive explanation of 
its terms and conditions relevant to the day-to-day control over the day-to-day determination, assignment of 
duties, and evaluation of work-product quality and efficiency of workers that might be accepted by for 
assignment to a particular project. 
(b)(6)
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NON-PRECEDENT DECISION 
• A duplicate copy of an excerpt from the Handbook regarding the "Computer 
Programmer" occupational group and a copy of an excerpt fr om the Handbook 
regarding the occupational group of "Accountants and Auditors. " 
• Copies of job postings for the positions of "SAS Program mer," "Com puter 
Programmer" (3), and "Sof tware Engineer." 
• Diplomas and resumes of several unrelated individuals.3 
The petitioner asserts that it is the beneficiary's employer and that it has a valid employer-employee 
relationship with the beneficiary and the right to control the beneficiary as established by the above 
documents. The petitioner asserts further that the proffered position is a specialty occupation and 
ref erences the Handbook, the job postings submitted, and other employees it has hired to perform 
work on the project. The petitioner claims further that the prof fered position 
incorporates the duties of a computer programmer, references the Handbook, in support of this 
assertion, and contends that even if the Handbook lists more than one degree as acceptable for the 
occupation, this does not mean that the list of acceptable degrees are not in the specific specialty. 
The petitioner also submitted additional letters fr om the beneficiary's previous employers. 
III. EVIDENTIARY OVERVIEW 
One consideration that is necessarily preliminary to the issue of whether a prof fered position 
qualifies as a specialty occupation, is whether the petitioner has provided substantive inform ation 
and supportive documentation sufficient to establish that, in fact, the beneficiary would be 
performing services for the type of position for which the petition was filed (here, a computer 
programmer). Another such fundamental preliminary consideration is whether the petitioner has 
established that, at the time of the petition's filing, it had secured non-speculative work for the 
beneficiary that accords with the petitioner's claims about the nature of the work that the beneficiary 
would perform in the prof fered position. 
In that regard, we make the following material findings. The Form I-129 and the accompanying 
LCA specified that the petition was filed to secure H-1B employment for the beneficiary as a 
Computer Programm er. However, nowhere in the record does or for that matter, 
confirm, endorse, adopt, or in any way acknowledge those duties as comprising the work that the 
beneficiary specifically would perform for any period. In comparing the petitioner's list of duties 
with the content of the February 20, 2014 letter, we find the letter (1) does not identify 
any specific duties particular to any project that may be the subject of a Job Offer to 
Staffing Suppliers like the petitioner, and (2) does not establish that it is referring to any position 
that would comport with the computer programmer position and its duties as described in the 
petition. 
3 The petitioner claims that these individuals are its employees. However, the record does not include 
sufficient probative documentary evidence establishing their employment by the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
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Also, the letter does not deal with computer programmers or programmer analysts. Rather the 
letter addresses positions with different occupational titles and higher prevailing-wage levels than 
those that the petitioner has ascribed to the proffered position. The petition was filed for a Level I 
entry-level4 position within the Computer Programmers occupational group. However, the 
letter identifies potential positions that might be staffed by the petitioner's candidates as "S enior and 
Mid-Level Software Engineers." We find that there is insufficient evidentiary support in the record 
that Senior and Mid-Level Software Engineer positions are equivalent to or interchange able with 
the prof fered position, which the petitioner has identified as that of an entry-level computer 
programmer meriting only a Level I prevailing-wage.5 We find that these conflicts between the 
letter and the proffered position as otherwise described in the petition materially undermine 
the credibility of the petitioner's claim as to the type of work that would engage the beneficiary if 
this petition were approved . We also find that those conflicts are neither addressed nor resolved 
anywhere in the record of procee ding. The petitioner is obligated to clarify inconsistent and 
conflicting testimony by independent and objective evidence. Matter of Ho, 19 I&N Dec. 58 2, 591-
92 (BIA 19 88). 
4 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _1 1_ 2009. pdf. 
5 That is, if the occupational classification is for a computer programmer at a Level I wage in 
, Missouri, the prevailing wage, when the petition was filed is $48,464 annually. For more 
information regarding the prevailing wage for computer programmers in 
Missouri, see the All Industries Database for 7/2013 - 6/2014 for Computer Programmers at the Foreign 
Labor Certification Data Center, on the Internet at 
http://www .flcdatacenter .com/OesQuickResults.aspx? code= 15 -1 13 1&area=41 180&year= 14 &source= 1 (last 
visited Apr. 22, 2015). If the occupational classification is for a programmer analyst, a subset of the 
occupational classification of computer systems analysts at a Level I wage in 
Missouri, the prevailing wage, when the petition was filed is $55,765 annually. For more information 
regarding the prevailing wage for computer systems analysts in Missouri, see 
the All Industries Database for 7/2013 - 6/2014 for Computer Systems Analysts at the Foreign Labor 
Certification Data Center on the Internet at http://www.flcdatacenter.com/OesQuickRes ults.aspx?code=15-
11 21 &area=411 80&year=14&source=1 (last visited Apr. 22, 2015). Thus, the petitioner's proffer of an 
annual salary of "$60,000+" would fall within the required prevailing wage for the occupations of computer 
programmer or programmer analyst. If, however, the occupational classification is for a software developer, 
applications at a Level I wage in Missouri, the prevailing wage, when the 
petition was filed is $63,294 annually. For more information regarding the prevailing wage for software 
developers (applications) in Missouri, see the All Industries Database for 
7/2013 - 6/2014 for Software Developers (Applications) at the Foreign Labor Certification Data Center on 
the Internet at http://www .flcdatacenter .com/OesQuickResults.aspx? code= 15-
11 32&area=4 11 80&year=14&source=1 (last visited Apr. 22, 201 5). Accordingly, the petitioner's LCA 
would not correspond to the petition. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
According to the petitioner, it would provide the beneficiary to in order for to, in turn, 
assign the beneficiary to It then would be that would generate whatever 
Infor mation Technology (IT) and computer-related proj ect to which the beneficiary would be 
assigned at its offices in Missouri. We have reviewed the following documents and find 
the documents submitted do not assist in establishing eligibility for this visa classification. 
A. The etitioner Supplier Agreement 
The record of proceeding contains a copy of a formal contract-document entitled "S upplier 
Agre ement," executed by and the petitioner, with an effective date of September 12, 20 12. 
The document was first introduced into the record as part of the petitioner's RFE response. 
It is important to note that this petitioner Supplier Agr eement provides an umbrella of terms 
and conditions which would apply to any agr eement between and the petitioner. Neither the 
Supplier Agr eement nor any other document within the record of proceeding constitutes an offer -
let alone a contractual acceptance - by or for the beneficiary to perform any 
particular type of work, for any specific period, as either a computer programmer or in any other 
capacity. Thus, we find that all of the documents submitted into the record are indefinitely 
prospective, or speculative, with regards to the substantive nature and duration of any position that 
the beneficiary might perform. As will be later discussed, this aspect itself is a major obstacle to 
both establishing the requisite employer-employee relationship between the petitioner and the 
beneficiary and also establishing that, by the petition's filing, the petitioner had actually secured 
work for the beneficiary that it claims is specialty occupation work. 
The Supplier Agreement identifies the petitioner's role as that of a "S taffing Supplier" that would 
supply "C ontract Workers" to provide "t emporary Contract services under the direction of 
' The petitioner Supplier Agreement's introductory para graph indicates (1) that 
"has been selected to provide centralized management services to 1 in connection 
with use of temporary contract workers ", and (2) that would "eng age with 
Staffing Suppliers to provide such temporary contract worker s." 
We also note that the Supplier Agreement refers to a Master Services Agre ement ("MSA") -
ref erenced in the Supplier Agreement as the · Agreement " - "pursuant to which 
will provide centralized supplier management services to We reiterate that the record 
contains neither a copy nor a comprehensive explanation of the substantive terms of this 
MSA as they would relate to the control of any person accepted fr om the 
petitioner or other Staffing Suppliers to perform contract work for While we will not 
speculate as to the particular contents of the MSA, we do find that the content of the Supplier 
Agre ement clearly indicates that in collaboration with would play a substantial 
role in selecting and there after managing any candidates proposed by the petitioner or any other 
staffing supplier. That is, the Supplier Agreement specifically stipulates that will be 
"provid[ ing] centralized management services to pursuant to whatever undisclosed 
terms of the MSA may be. 
The Supplier Agreement also reveals that, as a "S taffing Supplier, " the petitioner may be contacted 
(b)(6)
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Page 9 
by if so directed by "at option and sole discreti on," to solicit 
candidates for temporary-staffing positions at The solicitations would be issued in the 
form of "Job Postings for available contract worker positions" which would issue to 
and which, in turn, would publish "in the System managed by or the designated 
Systems Administrator. " As stated in the Supplier Agreement, as a Staffing Supplier, the petitioner 
would be: "g ranted access to the System for the purpose of reviewing open Job Postings available to 
Staffing Supplier, entering inform ation regarding proposed candidates to fill such positions, and 
updating and reviewing inform ation regarding Contract Workers on Assignment with ., 
According to the Supplier Agre ement, neither nor would be obliged to accept any 
candidate that the petitioner might prof fer for service as a Contract Worker in response to a Job 
Posting. 
The Supplier Agreement also indicates that, for the petitioner to be responsive to whatever 
substantive requirements might be set forth in any particular Job Offer, the petitioner would have to 
include not only the person's resume and job qualifications and the proposed billing rate, but also 
"s uch other inform ation as may be required in the Job Posting for such assignment or in the Staffing 
Supplier Manual." As it appears that would be issuing multiple Job Offers during the 
term of the Supplier Agreement, to begin to assess the substantive nature, the associated educational 
requirements, and the lines of day-to-day management and relative degrees of supervisory control 
over any person to be employed at pursuant to the Supplier Agreement, we would have 
to review the content of the related Job Offer, and at least whatever Staffing Supplier Manual terms, 
procedures, and processes would be incorporated into the contractual obligations of the petitioner 
and None of those details are provided in this record of proceeding. 
The Supplier Agreement indicates that the contents of the aforementioned Staffing Supplier Manual 
would likely have information relevant to the question of the actual extent of control, if any, that the 
petitioner would be allowed to exercise during the beneficiary's day-to-day work pursuant to any 
assignment that might approve for him at a proj ect. This is a 
reasonable conclusion based upon the following indications that the Manual contains binding 
policies and procedures that would regulate whatever role the petitioner might have with regard to 
its assigning the beneficiary to any Job Offe r work for which would select him to 
perform for 
• The "De finitions" section of the 
Manual as follows : 
petitioner Supplier Agreement defines the 
1
1 Staffing Supplier Manual 11 means the document detailing the required 
operational procedures which may be updated from time to time by 
setting forth policies and procedures to be followed by the Staffing Supplier 
in using the System and providing Contract Workers or potential Contract 
Workers under this Agre ement. The policies and procedures set forth in the 
Staffing Supplier Manual will be applicable to all services provided by 
Staffing Supplier, and Staffing Supplier agrees to comply with such policies 
and procedures. 
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NON-PRECEDENT DECISION 
• The Supplier Agreement's clause 4, Order Process, at subparagraph (b), 
Proposed Candidates, includes the following language: 
will notify Staffing Supplier if Staffing Supplier's candidate has been 
preliminarily selected to fill an available Job Posting. Upon receipt of such 
notice, Staffing Supplier shall undertake the pre-Assignment steps set forth in 
the Staffing Supplier Manual, satisfying the standards and any 
additional standards set forth in the Job Posting .. .. 
Notably, the petitioner has not submitted a copy of the aforementioned Staffing Supplier Manual for 
our review, even though the Supplier Agre ement indicates that the Manual's contents would be 
relevant to the employer-employee and potentially the specialty occupation and educational 
requirement issues. 
B. The February 20, 20 14 Letter 
The initial documents submitted with the Form I-12 9 included a two-page, February 20, 2014 letter 
to U.S . Citizenship and Immigration Services (USCIS) from the Director of Global Operations at 
writing fr om Maryland. The express purpose of the letter is to confirm that, as "the 
Onsite Vendor Management Company, for "has a valid current contract with 
[the petitioner] to provide Information Technology Services resources for ' However, 
review of the document reveals nothing by which we can conclude that the "valid current contract" 
to which the letter alludes is other than the above-discussed rpetitioner Supplier Agreement. 
Like that Agreement, the letter does not refer to any contract by which or had 
awarded any particular project-work for the beneficiary to perform, whether as a computer 
programmer or otherw ise. Like the Supplier Agreement, this document does not indicate that by the 
date of its signing the petitioner had secured any definite, non-speculative work for the beneficiary 
with regard to any pro ject. Thus, like the Supplier Agre ement, this letter also is 
not probative evidence that the petitioner and the beneficiary would have the employer-employee 
relationship claimed in the petition or that the potential work to be performed by the beneficiary 
would be specialty occupation work. 
In fact, the letter reflects that there was no binding agreement by or to definitely 
employ the beneficiary or any other person that the petitioner might propose for work. 
The letter speaks only of "rec ruiting and presenting" endeavors in which the petitioner would 
engage in the future and also of "[ a]work order" to be "c ompleted at the start for each 
contractor that will be placed at Further, the letter states that the petitioner's 
recruitment and candidate-presentation efforts would be directed at "Senior and Mid-Level Software 
Engineers" which materially conflicts with the type of position specified in the LCA, that is, a 
Level-l (entry) prevailing-wage position for a Computer Programm er. 
It is also important to note that this letter, dated February 20, 2014, does not mention any 
degree or objective degree-equivalency requirement for any of the Senior and Mid-Level Software 
Engineer positions for which it foresees the petitioner would provide candidates. 
(b)(6)
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Page 11 
C. Letter from Sourcing & Supplier Management, dated June 9, 2014 
This one-page letter, which was first introduced into the record in response to the director's RFE, is 
the record of proceeding's only document fr om It confirms the role of which the 
letter describes as "r esponsible for providing centralized staffing management services to 
" The letter also identifies as the sole party for confirm ing "necessary information 
for the consideration of any candidate, including the nature of r a l candidate's employment, 
assignment details, and durations." This letter also references the agreement as 
defining the scope of the role, conveying that operates "pursuant to the terms and 
conditions of the Master Services Agreement between and dated April 26, 
2012 ." However, the record does not include the MSA and this short, 
two-paragraph letter provides no substantive details with regard to the terms and conditions in that 
MSA. Moreover, this letter makes no mention of the petitioner, the beneficiary, or any pro ject wo"rk 
that has been awarded to the petitioner. 
D. Conclusion Regarding the Above Documents 
As is evident fr om the discussion of these three documents above, we find that the evidence of 
record does not establish that as of the time of the petition's filing the petitioner had secured any 
definite work that would be available for the beneficiary at if the petition were 
approved. This alone is a material flaw that fatally undermines the petitioner's efforts both to 
establish the requisite employer employee relationship and to qual ify the proffered position as a 
specialty occupation. Upon review of the three documents analyzed in this section, we find that the 
petitioner has not established that it had specialty occupation work available for the beneficiary to 
perf orm as the beneficiary's employer when the petition was filed. The petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § 103 .2 (b)(l). A visa 
petition may not be approved at a future date 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. Comrn 'r 197 8). 
IV. EMPLOYER-EMPLOYEE 
Beyond the decision of the director, we believe it necessary to continue with our analysis of the 
evidence and discuss in further detail whether the petitioner has established that it meets the 
regulatory definition of a "United States employer" and whether the petitioner has established that it 
will have "a n 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" as set out at 8 C.F.R. § 21 4. 2(h)(4)(i i). 
As already noted in our evidentiary overview, the record contains assertions in the petitioner 
Supplier Agreement, in the af orementioned letters from and in the letter fr om 
to the effect that the petitioner is the employer and/or sole employer of whatever 
persons it would provide as a Staff Supplier to work at : We have considered all such 
assertions both individually and as part of the totality of evidence bearing on the 
employer-employee issue. However, while those statements are factors to be considered, there is 
(b)(6)
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Page 12 
insufficient indication that they were based upon application and analysis of the common-law 
employer-employee test which governs determinations of the employer-employee relationship in 
the H-1B specialty-occupation context. Thus, those assertions regarding the petitioner as employer 
merit little to no prob ative weight towards resolving the employer-employee issue before us. 
Section 101( a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212 0)(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 
certif ies 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 in the Code of Federal Regulations at 8 C.P.R. 
§ 21 4.2(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 also 56 Fed. Reg. 61111 , 61 121 (Dec. 2, 199 1). 
The record is not persuasive in establishing that the petitioner will have the requisite 
employer-employee relationship with the beneficiary. The evidence of record is not sufficiently 
comprehensive to bring to light all of the relevant circumstances that pertain to the parties among 
themselves and also with relation to the beneficiary with regard to the project. 
Although "United States employer" is defined in the regulations at 8 C.P.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 alien 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)( 1) (20 12). 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 21 2(n)(2)(C)(vii) 
of the Act, 8 U.S .C. § 1182(n)(1 )(A)(i), (2)(C)(vii) (201 2). Further, the regulations indicate that 
"United States employers" must file a Form 1-129 in order to classify aliens as H-1B temporary 
"employees." 8 C.P.R. § 214 .2(h)(1), (2)(i)(A). Finally, the definition of "United States employer" 
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indicates in its second prong that the petitioner must have an "e mployer-employee relationship" with 
the "e mployees 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.P.R. § 214. 2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for pur poses of the H-1B visa 
classification, even though the regulation describes H-1B beneficiaries as being "employees" who must 
have an "e mployer-employee relationship" with a "United States employer." !d. Therefore, for 
purposes of the H -1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. 
Co. v. Darden, 503 U.S. 318 , 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative 
Non-Violence v. Reid, 490 U.S. 730 (19 89)). 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 �ssign 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. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 75 1-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 America, 390 U.S. 254, 258 (19 68)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "e mployer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 21 2(n)(1)(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, 199 0); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
19 90). 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.6 
6 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(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 
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Specifically, the regulatory definition of "United States employer" requires H-lB 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-1B "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. Cf 
Darden, 503 U.S. at 318 -3 19. 7 
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 10l(a)(15)(H)(i)(b) of the Act, section 212 (n) of the Act, and 8 C.F.R. § 214.2(h). 8 
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 nonimmigrant petitions, USCIS 
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), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, 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)(1)(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-1B 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
7 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
8 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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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must focus on the common-law touchstone of "c ontrol." 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 323-324; Clackamas, 538 U.S . at 
445; see also Restatement (Second) of Agency § 220(2) (19 58). 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 New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A )(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "t rue employers" of H-lB nurses under 8 C.F.R. § 21 4.2( h), 
even though a medical contract service agency is the actual 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. 
Furthe rmore, not all or even a major ity 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 448-449; New Compliance Manual at § 2-III(A )(l). 
Furth ermore, when examining the factors relevant to determining control, USCIS 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 323-32 4. For example, while the assignment of additional proj ects 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 proj ect. 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." ' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it 
will be a "United States employer" having an "e mployer-employee relationship " with the 
beneficiary as an H-lB temporary "employee." 
We note the petitioner's assertion that the beneficiary will work at the offices of in 
Missouri; and we further note the petitioner's contentions that at all times it will maintain 
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Page 16 
an employer-employee relationship with the beneficiary. However, the record of proceeding does 
not establish what proj ect(s) would require the beneficiary to perform the duties and responsibilities 
that the petitioner ascrib ed to the proff ered position. 
First, the record of proceeding does not establish the existence of any work that would 
definitely be awarded to the beneficiary, or any other worker that the petitioner might, in response 
to a Job Offer not yet made, propose to as a candidate for assignment at 
In this regard we hereby incorporate our earlier comments and findings with regard to 
the documentary evidence that the petitioner submitted as indicia of its business relationships with 
various companies. As there reflected, the record of proceeding does not contain persuasive 
evidence that the . 'petitioner Supplier Agreement had even produced any Job Of fers for which 
the beneficiary has been proposed as a candidate for selection to work at Certainly the 
record of proceeding includes no copy of any such Job Offer and no copy of any or 
document confirming the acceptance, and associated terms and conditions, of the bene ficiary 
or any other candidate proposed by the petitioner for work at Additionally, as noted 
above, the evidence of record does not establish that the petitioner or any of its staff would 
determine, assign, and evaluate the beneficiary's day-to-day work during any assignment at 
Absent a Job Offer or other document, delineating the contractual 
terms and conditions relevant to the employer-employee common law touchstone of control - we 
are unable to determine that balancing all of the relevant indicia of control would favor the 
petitioner - rather than one of the other parties - so as to establish the requisite employer-employee 
relationship. 
Further, the petitioner has provided inconsistent inform ation with respect to the duration of the 
relationship between the parties and the location( s) where the beneficiary will work for the duration of 
the requested H-1B employment period. More specifically, on the Form 
I-129, the petitioner requested that the beneficiary be granted H-1B classification fr om October 1, 
2014 to September 25, 20 17. However, the February 20, 2014 letter fr om indicates that "the 
projects can be up to two year s." 
We find, therefore, that the evidence of record does not establish that, by the date of the filing of the 
petition, the petitioner had yet secured definite, non-speculative work for the beneficiary for the 
period of employment specified in the petition. In this respect, we also find that the record does not 
support a finding that the beneficiary's services would be required for the previously quoted duties 
that the petitioner claimed for the proff ered position. The record of proceeding simply lacks 
documentary evidence from the asserted end-client . of the existence of, or details 
regarding, any particular pro ject to which the beneficiary would be assigned in the United States. 
Also, because the evidence of record does not establish either an actual offer-and- acceptance by 
related to the beneficiary for any work at the actual scope of any services 
to be performed remains merely speculative and, therefore, not a sufficient basis to support a 
determination that the petitioner would be engaging the beneficiary for actual work in the United 
States, as would be required to establish the petitioner as a United States employer in accordance 
with the provision at 8 C.P.R. § 214.2 (h)(4)(ii). 
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Next, we note that 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 an alien 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 alien beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. 
We make several findings regarding the record's indicia of the petitioner's control with regard to the 
beneficiarv and his work - that is, if the beneficiary should be accepted by for 
work at It appears that the petitioner would be responsible for paying for liability 
insurance, social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings. Also, through its Professional 
Employment Organization (or "PEO"), the petitioner would distribute pay to the 
beneficiary. However, there will be no work and no pay absent an express agreement 
by acting for , to accept and pay for services fr om the beneficiary. Under certain 
circ umstances, the petitioner could unilaterally transfer or remove the beneficiary after assignment 
to a pro ject, and it would retain the authority to fire the beneficiary. However, the 
record establishes that and would always retain the power to insist - with the 
prospect of contract cancellation for non-compliance - that the petitioner remove any assigned 
worker. 
We now note numerous aspects of the evidence of record that are factors which weigh against a 
favorable determination on the petitioner's claim that it satisfies the employer-employee 
requirement. The record indicates that, if in fact the beneficiary were selected for a particular 
project pursuant to the candidate-selection process, he would be assigned to a location 
� Missouri) other than the petitioner's office address (in 
Missouri). There is insufficient evidence that the petitioner would maintain any supervisory 
presence at the work-location. In contrast, we see that, as noted in the February 20, 
2014 letter, would serve as "Onsite Management Company," with the 
reasonable implication being that - rather than the petitioner or any other Staffing Provider -
would provide whatever general management would be required for projects 
temporarily staffed by Staffing Suppliers. We also note that the Supplier Agreement appears to 
allow the petitioner, as a Staffing Supplier, to reassign workers that it supplied, under certain 
conditions (i.e., in accordance with the terms at paragraph 4(g), Assignment Rule). However, it is 
clear that retains the absolute right to fire any assigned worker and to do so at its sole 
discretio n. In particular, the paragra ph 4(f), Removal of Contract Workers, includes the following 
language: 
Staffing Supplier acknowledges that the Contract Workers shall be subject to the 
continuing approval of If at any time in its reasonable 
judgment, determines that a Contract Worker is inadequate, unsatisfactory, or has 
failed to comply with rules, regulations, or policies, will so 
advise Staffing Supplier and Staffing Supplier shall immediately take action to 
correct the situation by removing the Contract Wor ker. Failure by Staffing Supplier 
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Page 18 
NON-PRECEDENT DECISION 
to remove an unsatisfactory Contract Worker shall be a breach of this agreement and, 
in such event[,] will have the right to terminate this Agreement upon written 
notice to the Staffing Supplier. 
Again, paragraph 4(f), Removal of Contract Workers, in the aforementioned petitioner/ 
Supplier Agreement indicates that workers whose services are accepted by fr om the 
petitioner, or any supplied by any Staffing Supplier, would always remain both subject to 
evaluation and removal. 
The record of proceeding does not contain sufficient probative evidence that the petitioner would 
play any substantial role in determining the particular duties and tasks that any worker accepted for 
assignment at would perform in the day-to-day work associated with such assignment. 
Evidence indicating that such a role would not be likely includes the letter's 
descriptions of as the provider of "centraliz;ed management services for and the 
self-description as "the Onsite Vendor Management Company." Moreover, we find that the 
record of proceeding contains insufficient documentary evidence fr om either 
allocating any immediate supervisory duties to the petitioner or including the petitioner in day-to­
day determinations and evaluations of tasks to be performed by workers assigned to 
The evidence of record reflects that would, more likely than not, ultimately generate 
and determine the substantive scope and duration of any work of the type that the petitioner asserts 
as the basis of the petition. There is no evidence that any work to which the beneficiary might be 
assigned would require the petitioner to provide its own proprietary information or technology, or 
that the petitioner would play any active role in supervising and guiding the beneficiary's work at 
- that is, if he were accepted by . for assignment to 
The totality of the evidence reflects that the beneficiary's work would inherently require access to 
and use of the end-client's IT instrumentalities (such as its own IT systems, computer programs, and 
software applications). 
As indicated in the letter, any worker supplied for within the scope of the duties 
described in that letter would not be used to produce an end-product for the petitioner's own use or 
distribution/sale to the public or any of its clients. Rather, the totality of the evidence indicates that 
whatever work-products might be produced by any such worker would be solely for the end-client 
petitioner's. 
use and benefit and would have to conform to requirements - not the 
The petitioner has not provided detailed inform ation from either the MSA or the 
Staffing Supplier Manual for our review, documents which information in the record of proceeding 
suggests as likely having content bearing upon the extent of the petitioner's role and authority with 
regard to any person accepted by for temporary contract work. 
We also find that the petitioner has undermined the credibility of the petition by its statements, 
made in its March 31, 20 14 letter of support and repeated on appeal, that "[ a]ll activities, including 
managerial supervision and hiring and firing decisions as well as performance evaluations are 
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Page 19 
controlled by [the petitioner]" and that "[ the petitioner's] clients have no managerial authority over 
our employees and our employees do not fill positions at client sites." If, as the context suggests, 
the petitioner includes within the scope of its "em ployees" any persons whom it would assign to 
pursuant to the 'petitioner Supplier Agreement, then the petitioner's statements are 
materially inconsistent with information presented in that Supplier Agreement as well as in the 
letters fr om and Going on record without supporting documentary evidence is 
not sufficient for pur poses of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
19 0 (Reg. Comm. 19 72)). It is further noted that the petitioner provided no explanation for the 
inconsistencies. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 591 -92. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. !d. 
We fully considered all of the submissions fr om the entities involved, including the letters 
submitted by representatives of and Based upon our review, we reiterate our 
finding that the only contract-document submitted into the record is the petitioner Supplier 
Agreement and that, neither it or any other documentary evidence provides specific inform ation 
with regard to the actual supervisory and management fr amework that would determine, direct, and 
supervise the beneficiary' s day-to-day work at if he were selected to work there. Based 
upon this fact and upon all of the aspects of the record that we have discussed as bearing on the 
employer-employee issue, we conclude that the evidence of record is inconclusive on the issue of 
whether it is more likely than not that the petitioner and the beneficiary would have the requisite 
employer-employee relationship in the context of the work to be performed if this petition were 
approve d. We reach this conclusion based upon the application of the above-discussed common 
law principles to the totality of the evidence of record. As it is the petitioner's burden to establish 
that an employer-employee relationship exists, and the petitioner has not met this burden, this is an 
additional reason the petition will be denied. 
Without full disclosure of all of the relevant factors relating to the end-client, including evidence 
corroborating the beneficiary's actual work assignment, we are unable to find that the requisite 
employer-employee relationship will exist between the petitioner and the beneficiary; and, of 
course, such disclosure is necessarily precluded where, as here, there is no definite employment. 
The evidence of record, theref ore, is insufficient to establish that the petitioner qualifies as a 
"United States employer," as defined by 8 C.P.R. § 214.2 (h)(4)(ii). Merely claiming in its letters 
that the beneficiary is the petitioner's employee does not establish that the petitioner exercises any 
substantial control over the beneficiary and the substantive work that he performs. Nor do clauses 
in overa�ching agreements such as the letters fr om or carry prob ative weight in 
the absence, as here, of specific contractual documents that bring such agreements into play with 
regard to work for which it is shown that the beneficiary would be employed. 
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The petitioner's reliance on claims that it would set wages, control the beneficiary's work locations, 
and manage and evaluate the beneficiary's performance is misplaced. As we have noted, the 
existence of actual work for the beneficiary has not been established. The record of proceeding 
before us does not document the full panoply of employer-employee related terms and conditions 
that would control the beneficiary's day-to-day work; therefore, we do not have before us a 
sufficiently comprehensive record to identify and weigh all of the indicia of control that should be 
assessed to resolve the employer-employee issue under the above discussed common law 
touchstone of control. 
Additionally, as we already noted, the evidence of record does not establish the petitioner as 
perf orming the essential U.S. employer function of engaging the beneficiary to come to the United 
States for actual work established for the beneficiary at the time of the petition's filing. 
The petitioner has not established that, at the time the petition was submitted, it had H-1B caliber work 
for the beneficiary that would entail performing the duties as described in the petition, and that was 
reserved for the beneficiary for the duration of the period requested. We theref ore cannot conclude 
that the petitioner has satisfied its burden and established that it qualifies as a United States 
employer with standing to file the instant petition in this matter. See section 214 ( c )(1) of the Act 
(requiring an "Importing Employer"); 8 C.F.R. § 21 4.2(h)(2)( i)(A) (stating that the "United States 
employer ... must file" the petition); 56 Fed. Reg. 61111 , 6111 2 (Dec. 2, 19 91) (explaining that 
only "United States employers can file an H-1B petition" and adding the definition of that term at 
8 C.F.R. § 214.2 (h)(4)(ii) as clarification). 
Full consideration of the totality of the evidence leads us to conclude that the petitioner has 
established no more than, at least in the factual context of this petition, (1) that it is a staffing firm 
that locates suitable candidates for available positions and (2) that it filed the petition in anticipation 
of a Job Of fer that had not yet been extended but for which it intended to proffer the beneficiary as 
a candidate for to accept as a temporary contract worker for 
As discussed above, the petitioner has not established the requisite employer-employee relationsh ip 
between the petitioner and the beneficiary. For this reason the petition must be denied. 
V. SPECIALTY OCC UPATION 
Next we will address whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. Based upon a complete review of the 
record of proceeding, including the evidence submitted on appeal, and for the specific reasons 
described below, we agree with the director and find that the evidence does not establish that the 
position as described constitutes a specialty occupation. 
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A. The Law 
NON-PRECEDENT DECISION 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 21 4(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "s pecialty 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2 (h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214. 2(h)(4)(iii)(A) must logically be read together 
with section 214 (i)(l) of the Act and 8 C.F.R. § 214.2 (h)(4)(ii). In other words, this regulatory 
(b)(6)
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Page 22 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is prefe rred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S . 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.P.R. 
§ 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 214. 2(h)(4)(iii)( A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d at 387. To avoid this result, 8 C.P.R. § 21 4.2 (h)(4)(iii)(A) must therefore be read as 
providing supplemental criteria that must be met in accordance with, and not as alternatives to, the 
statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 21 4(i)(1) of the Act and the regulation at 8 C.P.R. 
§ 214.2 (h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.P.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 proffered position. See Royal Siam Corp. v. Chertoff, 
484 F.3d at 147 (describing "a degree requirement in a specific specialty" as "one that relates 
directly to the duties and responsibilities of a particular position"). Applying this standard, USCIS 
regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certif ied public accountants, college prof essors, and other such occupations. 
These prof essions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H-1B 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the prof fered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually 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 the occupation, as required by the Act. 
B. Analysis 
The petitioner's specialty-occupation claim resides in the work that the petitiOner asserts the 
beneficiary will provide per contractual agreement between the petitioner and another entity, or 
entities. Thus, to meet its burden of proof, it is incumbent upon the petitioner to provide evidence 
of the pertinent contractual requirements that is sufficient to show that their actual perf ormance 
would require the theoretical and practical application of at least a bachelor's degree level of a body 
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of highl y specialized knowledge in a specific specialty - in compliance with the "specialty 
occupation" definition at section 214(i)(1) of the Act and the regulation at 8 C.P .R . 
§ 214.2 (h)( 4)(ii). Further, the petitioner must establish that the petition was filed on the basis of 
definite, non-speculative employment that had been secured for the beneficiary by the time the 
petition was filed. Again, USCIS regulations affirmati vely 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 19 78). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 19 98). 
To reiterate, when determining whether a proff ered position qualifies as a specialty occupation, 
USCIS must determine, inter alia, whether the petitioner has (1) provided sufficient evidence to 
establish that the beneficiary will perform the duties of the proffered position as stated in the 
petition; and (2) established that, at the time of filing, it had secured non-speculative work for the 
beneficiary that is in accordance with the petitioner's claims about the nature of the work that the 
beneficiary would perform in the proffered position. For the reasons we shall now discuss, the 
evidence of record is insufficient to meet either of these requirements. 
The record does not establish that, by the petition's filing, the petitioner had secured any work that 
would require the beneficiary to perform the duties of the proffered position for the period specified 
in the petition. Although the petitioner has established a contractual relationship with the 
claim in this petition is that the beneficiary will work for a third-party employer through that 
agreement with However, the agreement between and the end-client, has 
not been provided. 
That is to say that, without follow-on contractual commitments for specific work in such forms as 
Statements of Work, Work Authorizations, Schedules, Job Off ers, or Purchase Orders, as 
confirmed it would have in its February 20, 20 14 letter, the documents in the record do not indicate 
that the petitioner has secured any definite work to be performed for any particular period. We find 
that, while the documents discussed above indicate tbat the petitioner has a business relationship 
with who in turn has an agreement with again, they do not establish that those 
relationships actually had generated work that the beneficiary would perform in accordance with the 
duties and responsibilities that the petitioner ascribed to the prof fered position. The record is also 
devoid of any documentation establishing in-house work that would require the beneficiary to 
perform the duties and responsibilities that the petitioner has attributed to the proff ered position. 
Th us, as discussed in the previous section of this decision, the petitioner has not established that the 
petition was filed for non-speculative work for the beneficiary that existed as of the time the H-1B 
petition was filed. The petitioner did not submit sufficient, probative evidence corroborating that, 
when the petition was filed, the beneficiary would be assigned to perform services pursuant to any 
specific contract(s), work order(s), and/or statement(s) of work (or other probative evidence) for the 
requested validity period and/or that the petitioner had a need for the beneficiary's services during 
the requested validity dates. There is insufficient documentary evidence in the record corroborating 
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what the beneficiary would do, where the beneficiary would work, and the availability of work for 
the beneficiary for the requested period of employment. For an H-1B petition to be granted, the 
petitioner must provide sufficient evidence to establish that it will employ the beneficiary in a 
specialty occupation position. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158 at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 19 0). 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide ser vices to 
the end-client hospitals 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. See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient inform ation fr om the 
end-client, regarding the specific job duties to be perform ed by the beneficiary for that 
company. The petitioner has not established the substantive nature of the work to be performed by 
the beneficiary, which therefore precludes a finding that the proff ered 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 the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proff ered position and thus appropriate 
for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the 
level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
As the petitioner premised its specialty occupation claim on an assignment for 
computer programmer work for the record's failure to substantiate that such an 
assignment had been secured for the beneficiary is dispositive of the specialty occupation issue. 
Theref ore, we need not address additional evidentiary deficiencies which we have observed in the 
record that would preclude recognition of the proff ered position as a specialty occupation if the 
petitioner had established that the beneficiary would be working as a computer programmer for 
That said we here will briefly address the petitioner's assertions and documentation submitted on 
appeal with regard to the specialty occupation issue. The petitioner asserts : "[o]ne could not 
perform the duties of a Computer Programmer positio n without education in a 
technology-based field such as Computer Science or Engineering. " [Emphasis in original.] The 
petitioner then ref erences the Handbook's chapter on Computer Programmers as describing duties 
and skills that require knowledge of computer science. We agree that a computer programmer 
requires knowledge of computer science, however, the Handbook does not report that "Computer 
Programmers" comprise an occupational group for which at least a bachelor's degree in a specific 
(b)(6)
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specialty, or its equivalent, is normally the minimum requirement for entry. 9 In this matter, the 
petitioner has not established why a few related courses or industry experience alone is insufficient 
preparation for the proff ered position. 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 proff ered position. 
We have reviewed the subchapter of the Handbook entitled "How to Become a Computer 
Programme r" and reiterate that it 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. 10 
Rather, the Handbook indicates that an associate's degree is also an acceptable avenue to attain a 
position as a computer programmer. We also observe that "most" is not indicative that a computer 
programmer position normally requires at least a bachelor's degree, or its equivalent, in a specific 
specialty (the criterion at 8 C.P.R. § 214.2 (h)(4)(iii)( A)(l)), or that a computer programmer position 
is so specialized and complex as to require knowledge usually associated with attainment of a 
baccalaureate or higher degree in a specific specialty (the criterion at 8 C.P.R. 
§ 214. 2(h)(4)(iii)(A)(4)). 11 The Handbook does not provide information that can be construed to 
allow only certain limited exceptions to a standard entry requirement. 
Additionally, when reviewing the Handbook, it also must be noted that the petitioner designated the 
proff ered position as a Level I (entry) position on the LCA. 12 The wage levels are defined in DOL's 
9 All of our references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls. gov/OCO/. 
10 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Computer 
Programmers, http://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-4 (last visited Apr. 22, 2015). 
11 
The first definition of "most" in Webster 's New College Dictionary 731 (Third Edition, Hough Mifflin 
Harcourt 2008) is "[ g]reatest in number, quantity, size, or degree." As such, if merely 51% of computer 
programmer positions require at least a bachelor's degree in computer science or a closely related field, it 
could be said that "most" computer programmer positions require such a degree. It cannot be found, 
therefore, that a particular degree requirement for "most" positions in a given occupation equates to a normal 
minimum entry requirement for that occupation, much less for the particular position proffered by the 
petitioner. Instead, a normal minimum entry requirement is one that denotes a standard entry requirement 
but recognizes that certain, limited exceptions to that standard may exist. To interpret this provision 
otherwise would run directly contrary to the plain language of the Act, which requires in part "a ttainment 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." Section 21 4(i)(l) of the Act. 
12 Wage levels should be determined only after selecting the most relevant O*N ET code classification. Then, 
a prevailing wage determination is made by selecting one of four wage levels for an occupation based on a 
comparison of the employer's job requirements to the occupational requirements, including tasks, knowledge, 
skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. 
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"Prevailing Wage Determination Policy Guidance." 13 A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer' s methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
pur poses. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a resea rch fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:// www .foreignlaborce rt.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
· prof fered position is a comparatively low, entry-level position relative to others within the 
occupation. The low-level computer programmer position designated by the petitioner, coupled 
with the Handbook's indication that a baccalaureate degree in a specific field is not the normal 
minimum entry requirement, is further evidence that the position proff ered here does not fall within 
the parameters of a specialty occupation position. 
The petitioner also submitted five advertisements on appeal to establish that the degree requirement 
is common to the industry in parallel positions among similar organizations. First, we note that the 
petitioner did not provide any independent evidence of how representative these job advertisements 
are of the particular advertising employers' recruiting history for the type of jobs advertised. 
Further, as they are only solicitations for hire, they are not evidence of the employers' actual hiring 
practice s. 
Second, upon review of the documentation, the advertisements do not provide sufficient 
inform ation regarding the advertising organizations to establish that they are similar to the 
petitioner. Moreover, the advertisements do not appear to be for a position comparable to the 
computer programmer position described by the petitioner. Although three of the advertised 
positions are titled "C omputer Programmer, " the brief descriptions of duties for the computer 
programmer positions do not correspond to the petitioner's overview of the prof fered position. 
13 Prevailing wage determinations start with a Level I (entry) and progress to a wage that is commensurate 
with that of a Level II (qualified), Level III (experienced), or Level IV (fully competent) after considering the 
job requirements, experience, education, special skills/other requirements and supervisory duties. Factors to 
be considered when determining the prevailing wage level for a position include the complexity of the job 
duties, the level of ju dgment, the amount and level of supervision, and the level of understanding required to 
perform the job duties. DOL emphasizes that these guidelines should not be implemented in a mechanical 
fashion and that the wage level should be commensurate with the complexity of the tasks, independent 
ju dgment required, and amount of close supervision received. 
(b)(6)
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Additionally, one of the computer programmers advertised, lists a bachelor's degree but does not 
indicate if it is preferred or required, does not specify that the degree be in a specific specialty, and 
the only general requirement is that the successful incumbent "be prepared to develop software 
effectively." The second computer programmer advertisement again provides only a brief overview 
of the position. This advertisement simply indicates that a "Bachelor's degree, pref erably with an 
Information Systems degree" and two plus years of experience is required. The third computer 
programmer advertisement indicates that a minimum of an undergraduate degre e in computer 
science or computer engineering is required but does not detail the duties successful applicant will 
perform to require such the degree. The next advertisement for an "SA S Programme r, " likewise 
includes only a brief description of duties which also does not correspond to the petitioner's 
overview of the proff ered position. Additionally, this advertisement indicates that a bache lor's 
degree in Inform ation Systems, Computer Science or equivalent work experience in the requested 
field as the requirements to perform the advertised position. However, the advertiser does not 
provide its parameters for determining equivalent work experience. The last advertisement 
submitted for consideration is for a software engineer. The description of duties for the software 
engineer does not correspond to the petitioner's description of duties for the proff ered position. 
Additionally, it requires 84 months of experience in inform ation tech nology or a related field in 
addition to a bachelor's degree in engineering. Again, as the petitioner characterized the proffered 
position as a Level I (entry) position on the LCA, it appears that any requirement for experience 
would further disqualify the advertised positions fr om a consideration that the positions are parallel 
to the proff ered position. 
Lastly, the petitioner on appeal provided copies of the foreign degrees, transcripts and resumes of 
ten individuals to demonstrate that it normally requires a bachelor's degree in a specific specialty, or 
its equivalent, for the position. However, the record does not include sufficient probative evidence 
that the petitioner these three individuals in a position similar to the proff ered position. Moreover, 
the petitioner has not provided an academic evaluation of these individuals' foreign diplomas 
demonstrating the foreign degrees are equivalent to a bachelor's degree issued by an accredited U.S. 
university. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings . Matter of Soffici, 22 I&N Dec. at 165. 
Although the petitioner may desire to hire an employee with a strong background in various 
software tech nologies, the petitioner does not substantiate that only a bachelor's degree in the fields 
of computer science and engineering would provide the knowledge to perform the duties it ascribes 
to the proffered position. 14 Therefore, the petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214. 2(h )(4)(iii)(A). 
14 The field of engineering is a broad category that covers numerous and various specialties, some of which 
are only related through the basic principles of science and mathematics, e.g., nuclear engineering and 
aerospace engineering. Therefore, besides a degree in electrical engineering, it is not readily apparent that a 
general degree in engineering or one of its other sub-specialties, such as chemical engineering or nuclear 
engineering, is closely related to computer science or that engineering or any and all engineering specialties 
are directly related to the duties and responsibilities of the particular position proffered in this matter. 
Here, the petitioner, who bears the burden of proof in this proceeding, has not established either (1) that 
computer science and engineering in general are closely related fields or (2) that engineering or any and all 
engineering specialties are directly related to the duties and responsibilities of the proffered position. Absent 
(b)(6)
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The petitioner on appeal indicates that it does not believe that the position of computer programmer 
proffered here is not more complex or unique than that of an ordinary computer programmer 
position. If that is the case, the findings of the Handbook, which report that less than a bachelor's 
degree in a specific specialty is acceptable to perform entry-level duties, support a determination 
that the position proff ered here is not a specialty occupation. The petitioner also acknowledges that 
the February 20, 2014 letter fr om does not specify an educational requirement but lists the 
skills necessary to per form the job. As set out in detail above, there is insufficient probative 
evidence in the record to demonstrate that the beneficiary's job performance would include the skills 
listed in the letter. However, we also obser ve that the generally described duties in the 
letter do not comprise the duties of a particular specialty occupation. 
Based upon a complete review of the record of proceeding, we conclude that the evidence does not 
establish that the position as described more likely than not constitutes a specialty occupation. The 
petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 214. 2(h)( 4)(iii)(A) 
and, theref ore, it cannot be found that the prof fered position qualifies as a specialty occupation. For 
this additional reason, the appeal will be dismissed. 
VI. BENEFICIARY QUALIFICATIONS 
In the instant matter, the director found that the beneficiary would not be qualified to perform 
services of a specialty occupation. However, we do not need to examine the issue of the 
beneficiary's qualifications, because the petitioner has not provided sufficient evidence to 
demonstrate that the position is a specialty occupation. In other words, the beneficiary 's 
qualifications to perform a particular job are relevant only when the job is found to be a specialty 
occupation. As discussed in this decision, the petitioner did not provide sufficient evidence of the 
beneficiary's actual day-to-day tasks, if selected to work at thus it has not provided a 
basis to substantiate any specific coursework that would be necessary to perform the duties of the 
position. That is, other than the petitioner's conclusory statements, the record does not include 
evidence of specific bachelor's level coursework that is directly related to particular duties. The 
record of proceeding does not include sufficient probative evidence regarding the proff ered position 
to determine that it is a specialty occupation and, therefore, the issue of whether it will require a 
baccalaureate or higher degree in a specific specialty, or its equivalent, also cannot be determined. 
VII. CONCL USION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
this evidence, it cannot be found that the particular position proffered in this matter has a normal minimum 
entry requirement of a bachelor's or higher degree in a specific specialty or its equivalent under the 
petitioner's own standards. Accordingly, as the evidence of record does not establish a standard, minimum 
requirement of at least a bachelor's degree in a specific specialty or its equivalent for entry into the particular 
position, it does not support the proffered position as being a specialty occupation and, in fact, supports the 
opposite conclusion. 
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2001), affd, 345 F.3d 683 (9 1h Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumer ated 
gr ounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 35 1 F.3d 1177, 1183 (D.C. Cir. 2003) 
("W hen an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable." ). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 20 13). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.