dismissed H-1B Case: Engineering Services

MATTER OF L-T-S- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 11,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a technology and engineering services company, seeks to temporarily employ the 
Beneficiary as a "technical consultant" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and N::ttionality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that the Petitioner has specialty occupation work available for 
the Beneficiary for the intended employment period and that the Petitioner will have an 
employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: l 
Matter of L- T-S- Ltd. 
(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) Tpe 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 term "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. Cherto,ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In a letter submitted in support of the petition, the Petitioner stated that it had been contracted by a 
third party "to transfer of line form the reverse Medical facility to [the end client's] facility by 2018" 
and that the Beneficiary will perform his duties at the end client's offices. The Petitioner added that 
the Beneficiary's specific responsibilities will include (verbatim): 
• Assisting in Revised Line Layout and capacity modeling[;] 
• Assisting in creation of test method and ensure Quality[;] 
• Ensuring the parameters of LASER machines and validate[;] 
• Capturing the current Process and recommend improvements in future state[;] 
• Performing Process Verification & validation[;] 
• Implementing Fixtures & other improvements to reduce cycle time and increase 
throughput[;] 
• Creating Design Manufacturability (DFM)[;] 
• Working on Test method Qualification[; and] 
• Inspecting criteria standardization[.] 
According to the Petitioner, the proffered "position requires a minimum education of a Bachelor's 
Degree in Electronics, Electrical Engineering, Computer Science, Information Technology or related 
degree." 
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Matter of L- T-S- Ltd. 
In response to the Director's request for evidence (RFE), the Petitioner provided a similar list of 
duties for the same project, but deleted the responsibilities of creating design manufacturability, 
working on test method qualification, and inspecting criteria standardization, and added "Vendor 
Management," "Market analysis for product ," and "Managing sub-assembly line and small project." 
On appeal, the Petitioner submits an unsigned statement of work for a new project with the same end 
client, as well as a letter, dated September 12, 2016, from the end client. In the letter, the end 
client's representative identifies the Beneficiary ' s proposed duties for the projects as 
including (bullet points added): 
• Develop processes validation requirement (IQ, OQ, PQ) and equipment 
qualifications ; 
• Initiate new and revised documentation; 
• Develop risk assessment; 
• Develop physical and functional test methods to ensure specifications are met; 
• Write and/or review design verification and validation protocols and reports; 
• Conduct testing outlined in protocols and test methods ; 
• Perform process improvement , control and monitoring on the manufacturing 
processes; [and] 
• Adhere to procedures on regulatory requirements. 
In the same letter, the end client claims that its "complex projects require the individuals to have the 
minimum of a Bachelor's degree or its equivalent in the relevant technologies and domains" and that 
it understands that this is also an industry standard. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons 'set out below, we determine that the 
Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 
For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1 B caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor ' s degree in a specific specialty , or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. Here, the Petitioner stated on the Form I-129 that it intended to 
employ the Beneficiary from October 1, 2016; to August 25,2019. 
Although the Petitioner asserted that the Beneficiary would be employed offsite at the end client's 
facility in a specialty occupation position, the evidence of the record does not sufficiently support the 
Petitioner 's assertion. As the Director noted, the initial statements of work and descriptions of duties 
submitted were for a project that ended August 2016. While the Petitioner submits an unsigned 
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Matter of L-T-S- Ltd. 
statement of work pursuant to its master services agreement with the same end client on appeal, the 
Petitioner acknowledges that the statement of work is still being negotiated. This new statement of 
work is for the end client's project, and identifies eight engineers, including the 
Beneficiary, who will start work September 1, 2016. The duration of the statement of work for this 
project is six months with an evaluation for additional contract time to occur in February 2017. 
First, even if we considered the information in this statement of work in conjunction with the end 
client's letter, also submitted on appeal, as evidence of the Beneficiary's potential work, the work 
identified expires more than 2 years prior to the end of the Beneficiary's intended employment 
period. Thus, the Petitioner has not established that is has definitive non-speculative work for the 
Beneficiary to perform. 1 Without properly executed agreements and work orders, service 
authorizations, or other similar documentation required by such agreements encompassing the period 
requested in the petition, we cannot find that the Petitioner has demonstrated availability of specific 
work for the Beneficiary at the time the petition was filed that would last for the entire period 
requested. 
Second, when attempting to ascertain the proposed duties of the proffered position, the duties for the 
new project do not correspond to the Petitioner's initial statement of duties, nor the statement of 
duties submitted in response to the Director's RFE. "[I]t is incumbent upon the petitioner to resolve 
the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 5 82, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Jd. at 591-92. Further, even 
upon review of all the versions of the Beneficiary's proposed duties in the record, the descriptions 
are generic and lack the detail necessary to convey the Beneficiary's actual day-to-day tasks. Thus, 
we are unable to ascertain what actual duties will be expected of the Beneficiary and whether those 
1 
Speculative employment is not permitted in the H-l B program. 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 detennine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214 ). While a petitioner may change its intent with regard to non-speculative 
employment, e.g., a change in duties or job location, it must nonetheless document such a material change in intent 
· through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of L-T-S- Ltd. 
duties will incorporate the theoretical and practical application of a body of highly specialized 
knowledge, associated with the attainment of a'baccalaureate or higher degree in the specific 
specialty, or its equivalent, as the minimum for entry into the occupation as required by section 
214(i)(1) of the Act. Without additional information and documentation establishing the project(s) 
secured for the Beneficiary for the duration of the intended employment period and accordingly, the 
specific -duties the Beneficiary would perform on the projects, we are unable to discern the 
substantive nature of the position and whether the proffered position indeed qualifies as a specialty 
occupation. 
Consequently, the proffered position does not satisfy 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. As the Petitioner has not established that it satisfies any of the 
criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), the proffered position does not qualify as a specialty 
occupation. 
We further find that the Petitioner has not demonstrated that the end client requires a degree in a 
specific specialty to perform the duties of the proffered position. As recognized in Defensor, 201 
F.)d at 387-88, the end client must provide sufficient information regarding the proposed job duties 
to be performed at its location and the requirements to perform those duties. In other words, as the 
nurses in that case would provide services 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. !d. Here, the record of proceedings 
in this case is similarly devoid of sufficient information from the end client. In the September 12, 
2016, letter referenced above; the end client stated that its "complex projects require the individuals 
to have the minimum of a Bachelor's degree or its equivalent in the relevant technologies and 
domains[.]" The end client did not detail what specific specialty is required for the proffered 
positiOn. Without more, it cannot be· determined that the proffered position qualifies for 
classification as a specialty occupation. Royal Siam Corp. v. Chert off, 484 F .3d at 14 7. The vague 
reference to "relevant technologies and domains" is insufficient to establish that the work the end 
client expects the Beneficiary to perform requires a bachelor's or higher degree in a specific 
specialty. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-IB 
employer. The United States Supreme Court determined that where federal law fails to clearly 
define the term "employee," courts should conclude that the term was "intended to describe the 
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Matter of L- T-S- Ltd. 
· conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mut Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative 
Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d. ; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 5~8 U.S. 440,445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship , 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. As noted above, the record of 
proceedings lacks sufficient documentation evidencing exactly what the Beneficiary would do for 
the period of time requested. We also observe that the record does not clearly identify the 
Beneficiary's supervisor or who will instruct the Beneficiary on his daily tasks while located at the 
Petitioner's end client's facility. For example, the Petitioner's organizational chart shows that the 
Beneficiary will report to the Petitioner's program manager. However, the 
proposed statement of work submitted on appeal indicates that key project personnel will report to 
a project manager. It is not clear where and for whom works. 
Moreover, the proposed statement of work references the end client' s responsibilities as providing 
engineering direction and technical guidance. The Petitioner has not clearly set out the parameters 
of the end client's interaction with and instruction of the Beneficiary on particular projects. 2 Given 
this lack of evidence, the Petitioner has not established who has or will have actual control over the 
2 
We recognize that the Petitioner ' s agreement with its end client states that the Petitioner will supervise the activities of 
its personnel , however , this broad statement is 11nsufficient to substantiate that the Petitioner will direct the nature and 
extent of the Beneficiary's work to ens,ure that the Beneficiary will primarily perform specialty-occupation work. 
• Matter of L-T-S- Ltd. 
Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. Without full 
disclosure of all of the relevant factors, we are unable to properly assess whether the requisite 
employer-employee relationship will exist between the Petitioner and the Beneficiary. 
Therefore1 in addition to finding above that the proffered position is not a specialty occupation, we 
will affirm the Director's decision and dismiss the appeal because the record does not establish that 
the Petitioner qualifies as an H-1B employer. 
V. 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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-T-S- Ltd., ID# 161191 (AAO Jan. 11, 2017)