dismissed H-1B Case: Education

MATTER OF M-E-S- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 24,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an education services provider, seeks to temporarily employ the Beneficiary as a 
"mathematics teacher" under the H-1B nonimmigrant classification for .specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not demonstrate that: (1) the Petitioner qualifies as a U.S. employer having 
an employer-employee relationship with the Beneficiary; and (2) the proffered position qualifies as a 
specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
Matter of M-E-S- Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations prqvide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the terni. "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
In the H -1 B petition, the Petitioner indicated that it "recruits qualified teachers from all over the 
world in critical subject fields such as Science, Math, Special Education, [and] Languages, and 
assigns them in the school systems." The Petitioner indicated that the Beneficiary will serve as a 
"mathematics teacher." The Petitioner provided the following duty description for the position: 
The [Beneficiary] should be teaching the relevant subjects to their assigned students. 
Prepare lesson plans, provide academic instructions, plan and demonstrate strategies 
to facilitate achievement of developmental objectives, monitor and assess students' 
skills, grade students performance, communicate with parents/principals, etc. 
The Petitioner also stated, "To be employed as a teacher, one should have at least a baccalaureate 
degree in Educational and Services or the equivalent thereof." 
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(b)(6)
Matter of M-E-S- Inc. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 1 
In a letter filed with the H-I B petition, the Petitioner indicated that it intends to place the Beneficiary 
"as a Teacher at the located [in Georgia] for the 
academic year." The Petitioner further stated, "Later, we plan to place [the Beneficiary] at the 
located [in Georgia]." The period of requested 
employment in this case is from October 1, 2014, to August 31,2017. 
However, the evidence in the record does not sufficiently demonstrate that the Beneficiary will be 
employed in the proffered position. The Petitioner has an agreement with 
to provide teachers to which in turn places teachers in school 
systems. A work order ratified by the Petitioner and indicates that the Petitioner will provide 
the Beneficiary's services to for three academic years to work at the and 
However, there no evidence to establish that the school systems have 
agreed to employ the Beneficiary for the requested employment period. 
Specifically, the documents from the school systems are either outdated or do not reference the 
Beneficiary. For example, a "Teacher Services Agreement" between and the 
states that it commences "at the beginning of 2008-9 school year, and shall terminate 
on the last teacher workday." It further states that "thereafter, the agreement will automatically 
renew for one additional school year," unless either party should opt not to renew .. The Petitioner 
also provided a similar agreement between and the That 
agreement is for the 2005-2006 school year. 
The Petitioner provided 
work orders in which those school systems agreed to use teachers provided 
by They identify, by name, the specific teachers to be provided. However, they do not 
identify the Beneficiary as a teacher to be employed. 
The Petitioner provided a letter from "to verify [its] anticipated need for the services of (the 
Beneficiary] for the academic years 2015 - 18." However, the agreements between and the 
school system makes explicit that the school system will utilize the services of workers ou 
an "as-needed" basis. They further state that the agreement "does not obligate the school system to 
accept any teachers and the school system shall have the right, in its sole discretion, to 
determine whether it needs any teachers." 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of M-E-S- Inc. 
The Petitioner has submitted insufficient evidence that it has secured a non-speculative position for 
the Beneficiary in the school systems identified, or anywhere else.2 As such, the work, if any, that 
the Beneficiary would perform if the H-lB petition were approved has not been demonstrated. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under 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 proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of'criterion 4. 
The Petitioner has not established that it has satisfied any of the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether or not the Petitioner qualifies as a United States 
employer with standing to file the H -1 B petition. As detailed above, the record of proceedings lacks 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to petition for H-IB classification on 
the basis of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have 
these facts considered in any eligibility determination requested, as the agency may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
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Matter of M-E-S- Inc. 
sufficient documentation evidencing what exactly the Beneficiary would do for the period of time 
requested or where exactly and for whom the Beneficiary would be providing services. Given this 
specific lack of evidence, the Petitioner has not established who has or will have actual control over 
the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner, or any other company which it 
may represent, will have and maintain an employer-employee relationship with the Beneficiary for 
the duration of the requested employment period. See 8 C.F .R. § 214.2(h)( 4 )(ii) (defining the term 
"United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it 
will have and maintain an employer-employee relationship with respect to the sponsored H -1 B 
nonimmigrant worker). As previously discussed, there is insufficient evidence detailing where the 
Beneficiary will work, the specific duties to be performed by the Beneficiary, or for which school 
, the Beneficiary will ultimately perform these services. Therefore, the Director's decision is 
affirmed, and the appeal is dismissed for this additional reason. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fM-E-S- Inc., ID# 96150 (AAO Oct. 24, 2016) 
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