dismissed H-1B Case: Information Security

U.S. Citizenship 
and Immigration 
Services 
In Re : 6948648 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S . employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into 
the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not sufficiently establish that: (1) the proffered position qualifies as a specialty occupation, and (2) the 
Beneficiary will be employed in a specialty occupation for the requested period. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova 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 . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. 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. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner indicated that the proffered position is an "Information Security Business Analyst" 
[ISBA], and submitted job descriptions for the proffered position. 2 For instance, the Petitioner 
provided a list of the Beneficiary's job functions, the relative time percentage that he will devote to 
1 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 We acknowledge that the Petitioner submitted additional information for the job duties, and have closely considered and 
reviewed this material, as with all evidence in the record. For example, the Petitioner discussed the Beneficiary's previous 
coursework for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the 
position. However, we are required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 
(Comm'r 1988) ('The facts of a beneficiary's background only come at issue after it is found that the position in which 
the petitioner intends to employ him falls within [a specialty occupation]."). 
2 
each job function, along with underlying job duties for each function, which were reiterated verbatim 
in the mid-vendor's letter submitted in support of the petition. The Petitioner and submitted a labor 
condition application (LCA)3 for the "Computer Systems Analysts" occupational category 
corresponding to the Standard Occupational Classification (SOC) code 15-1121 with a Level II wage. 
The Petitioner maintains that the Beneficiary's proposed H-1 B employment will be arranged for 
through a series of contractual relationships with an intermediary vendor and an end-client, as follows: 
Petitioner ➔ B- (mid-vendor) ➔ M- (end-client). 
As a preliminary matter, we observe that the Petitioner has provided inconsistent information 
regarding the minimum requirements for the proffered position. 
Record of Degree Requirement Experience/Skill Requirement Proceeding 
Petitioner's Bachelor's degree in information None. Mar. 2018 science and technology or a 
Letter related field. 
Petitioner's Bachelor's degree in computer 
Dec. 2018 science, computer information Professional experience gained in application 
Letter systems, engineering or closely development. 
related technical field. 
Professor Bachelor's degree in information 
S-'s science and technology or a None. 
Letter related field ( or its equivalent). 
5+ years of experience supporting IT security 
infrastructure service in 5 or more of the 
End- following technologies (Firewalls, VPN, web 
client's None. filtering proxies, Email Gateways, Anti-Virus, 
Fieldglass Encryption, Privileged Access Management, 
Job Posting DNS, Data Loss prevention, PK.I, Load 
Balancers. Candidate must have at least 5 years 
of networking and security experience. 
The Petitioner has not consistently stated the minimum educational requirement for this position. For 
instance, it initially specified that a bachelor's degree in information science and technology or a 
related field was required. 4 In response to the Director's request for evidence (RFE) it submitted a 
new letter indicating a variety of bachelor's degrees as required for the position, while also requiring 
a candidate to possess professional experience gained in application development without further 
definition. On appeal, the Petitioner submitted the end-clients job posting for the proffered position 
which did not require any academic education, but rather specified that candidates must have 5+ years 
3 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.731(a). 
4 The Petitioner reiterates this requirement on appeal. 
3 
of experience supporting IT security infrastructure service in 5 or more specific technologies, and also 
must have at least 5 years of networking and security experience. As explained above, we interpret 
the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that 
is directly related to the proposed position. The end-client's minimum requirements, for instance -
that at least 5 years of networking and security experience and 5+ years of experience supporting IT 
security infrastructure service in 5 or more technologies - alone indicates that the proffered position is 
not in fact a specialty occupation. 5 The Petitioner must resolve these inconsistencies and ambiguities 
in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
Further, the end-client's work experience requirements submitted on appeal are inconsistent with the 
Petitioner's Level II wage selection in the LCA. The purpose of the LCA wage requirement is "to 
protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary 
foreign workers." 6 It also serves to protect H-lB workers from wage abuses. 7 DOL guidance provides 
a five-step process for determining the proper wage level for the proffered position. 8 Step two of this 
process compares the experience described in the Occupational Information Network (O*NET) Job 
Zone to the requirements for the proffered position. "Computer Systems Analysts" are classified in 
Job Zone 4 with a Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." This SVP rating 
means that the occupation requires "over 2 years up to and including 4 years" of specific vocational 
training. 
As the end-client's requirements of at least 5+ years of experience supporting IT security infrastructure 
service and at least 5 years of networking and security experience are greater than the experience and 
SVP range for the occupation, this would appear to require raising the wage level to a Level IV wage 
rate of$109,013. The Petitioner indicated it would pay the Beneficiary $82,500 in the petition, a level 
of compensation greater than the prevailing Level II wage certified in the LCA. 9 Here, the position 
requirements presented by the end-client which exceed the level of vocational training consistent with 
a Level II wage rate for the occupational category designated in the LCA, results in a significant pay 
discrepancy. 10 This raises questions regarding whether the LCA corresponds with the petition. 11 
5 As recognized by the court in Defensor, 201 F.3d at 387-88, where, as here, the work is to be performed for entities other 
than the petitioner, evidence of the client company's job requirements is critical. The comt held that the f01mer 
Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner 
to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements imposed 
by the entities using the beneficiary's services. Id. 
6 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
7 A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. See Section 2 l 2(n)(l) of the Act; 
20 C.F.R. § 655.731 (a). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's content corresponds with the H-IB petition. Sec 20 C.F.R. § 655.705(6) ("DHS determines whether 
the petition is supported by an LCA which corresponds with the petition .... "). 
8 See Prevailing Wage Determination Policy Guidance, supra. 
9 For additional information. see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search 
Wizard available at http://www.flcdatacenter.com/OESWizardStart.aspx. (Last visited Apr. 21, 2020.) 
10 Matter of Ho, Dec. at 591-92. 
11 See 20 C.F.R. § 655.705(b). See also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
4 
The Petitioner also submitted an opinion letter from Professors S-, who presents differing position 
requirements. However, the Petitioner does not explain why the position requirements in the opinion 
letter differs from some of the position requirements that it put forth, nor does it explain the reasons for 
(1) its own variances in position requirements within the record, and (2) the variances in the end-client's 
requirements relative to its own position requirements. Professor S- also do not address the differences 
between the minimum requirements for the position as stipulated by the Petitioner, and the end-client 
relative to his own conclusions regarding the position requirements. Therefore, we find the professors' 
opinion letters lends little probative value to the matter here. Matter of Caron Int'!, 19 I&N Dec. 791, 
795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory 
opinion when it is "not in accord with other information or is in any way questionable."). For the sake 
of brevity, we will not address other deficiencies within the professors' analyses of the proffered 
position. 
In summary, we conclude that the inconsistencies in the record erode the Petitioner's ability to 
demonstrate the substantive nature of the proffered position. Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. 12 As the record contains numerous and material inconsistencies 
relative to the Petitioner's minimum requirements for entry into the proffered position, which may 
also impact whether the LCA actually corresponds to the petition, the documentation submitted in this 
regard to establish eligibility for the classification sought lacks probative value and overall 
credibility. 13 For these reasons, the petition may not be approved. 
The Petitioner seeks to deploy the Beneficiary to an end-client's location in Missouri to work as an 
"ISBA" through an intermediary vendor pursuant to contractual agreements. The Petitioner provided 
contractual documentation to illustrate these contractual relationships. Nonetheless, it has not 
established definitive, non-speculative, specialty occupation employment for the Beneficiary. 14 The 
Petitioner indicates that the mid-vendor operates the end-client's managed services program (MSP) to 
support the end-client's procurement of contingent labor from other suppliers, including the Petitioner. 
The Petitioner initially submitted a copy of its agreement with the mid-vendor, which details various 
aspects of the MSP program. The mid-vendor agreement describes a process where the end-client 
issues requisitions and work orders through an electronic "VMS system" in order to specify the actual 
work to be performed, the requirements to perform such work, and the duration of the work 
assignment. The agreement suggests that the mid-vendor manages certain aspects of the end-client 
client's contingent labor procurement efforts, such as vetting candidates submitted by suppliers who 
respond to the end-client's electronic requisitions, to identify the candidates that meet the end-client's 
requirements, and submitting the qualifying candidates to the end-client's hiring managers for 
consideration. Ultimately, the end-client's hiring managers may then elect to submit a work order 
through the VMS system to a supplier for the selected candidate" through the MSP program hiring 
program. 
12 Matter of Ho, Dec. at 591-92. 
13 Matter of Chawathe, 25 T&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 T&N Dec. 77, 79-80 (Comm'r 
1989)). 
14 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(C); 8 C.F.R 214.2(t)(IO)(ii)(C) and has provided copies of wage statements for his 
employment with the Petitioner. 
5 
The Petitioner did not submit copies of the mid-vendor's agreement with the end-client for the 
administration of its MSP program, or the end-client's underlying requisitions and work orders 
specific to the Beneficiary's proposed employment at the end-client location. The Director noted in 
her request for evidence (RFE) that the Petitioner's initial submission did not contain probative 
evidence of the end-client's off-site employment assignment sufficient to show that the Beneficiary 
will be engaged in services in a specialty occupation at the office location. She requested copies of 
relevant contracts, SOWS, and work orders, and similar documentation to establish the existence of 
specialty occupation-caliber work at the end-client location. 
In response, the Petitioner provided a letter from the mid-vendor, which states that "[the mid-vendor] 
is an [MSP] providing managed services to [the end-client] through a master services agreement 
(MSA). While the MSA [is] confidential, this letter is intended to serve as evidence of the contractual 
relationship." 15 Notably, the record contains no affirmation from the end-client that the mid-vendor's 
agreement with the Petitioner adequately reflects the terms and conditions of the actual agreement 
between the end-client and the mid-vendor. Again, the Petitioner asserts that the Beneficiary is to be 
hired as a contingent worker for the end-client through the MSP program. We conclude that the mid­
vendor's letter is not sufficient to fill the gap in the submitted contractual evidence, as it does not 
sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship. 16 While the letter references the mid-vendor's contractual 
relationship with the end-client, and the Beneficiary's assignment as an ISBA at the end-client 
location, the record lacks evidence of any legal obligation on the part of the end-client to provide the 
position to the Beneficiary as described by the Petitioner in this petition, let alone determine its 
substantive nature so as to ascertain whether it is a specialty occupation. 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is critical because, in this case, the existence of the proffered position 
appears entirely dependent upon the willingness of the end-client to provide it. Absent fully executed 
contracts and accompanying statements of work ( or similar documentation) between the Petitioner 
and mid-vendor, and between the prime-vendor and the end-client, the record lacks evidence of any 
legal obligation on the part of the end-client to provide the position described by the Petitioner in this 
15 The claim a document is confidential does not provide a blanket excuse for a petitioner not providing such a document 
if that document is material to the requested benefit. Although a petitioner may always refuse to submit confidential 
commercial information if it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk 
of a denial. Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his 
claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to cany his burden of persuasion 
with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
16 Matter ofChawathe, 25 T&N Dec. 369, 375-76 (AAO 2010). 
6 
petition. 17 The Petitioner did not document the contractual terms and conditions of the Beneficiary's 
employment as imposed by the end-client. See Defensor, 201 F.3d at 387-88 (where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical). The Director denied the petition, in part, determining that the Petitioner did not establish 
that the Beneficiary will be engaged in specialty occupation-caliber employment at the end-client 
location. 18 We agree. 
On appeal, the Petitioner provides copies of the end-client's "Fieldglass - VMS System" job posting 
and work order for the Beneficiary's off-site employment with the end-client. The work orders 
identify the end-client location and the Beneficiary, and contains a job posting identifier (IS Security 
(General)-Seniorl I for an initial period of employment that commenced in August 
2017, and notes a current work order start date in January 2019 through June 2019. The job posting 
indicates that the position is for "a highly motivated individual who will relish working to improve 
established procedures and strive for operational excellence. Rotational on-call support will be 
required." Beyond the previously discussed years of work experience, the material also notes that the 
individual must have, among other things, "expert level troubleshooting skills all layers of the OSI 
model," and an "advanced level of understanding of TCP/IP and the common network protocols," but 
does not farther delineate the job duties of the proffered position, the end-client's project to which the 
Beneficiary will be assigned, or the Petitioner's role, if any, in the Beneficiary's day-to-day work for the 
end-client. While this work order reflects that the Beneficiary has been assigned to work at the end-client 
location, it does not substantiate the terms and conditions of the assignment sufficient to establish that the 
end-client will offer the Beneficiary specialty occupation caliber work through the contractual 
relationships described in the petition. Id. 
Setting aside these foundational deficiencies, we also conclude that the record lacks sufficient 
documentation from the end-client regarding the projects and initiatives to which the Beneficiary will 
be assigned, and the actual work that the Beneficiary would perform to establish the substantive nature 
of the work the Beneficiary will be performing for the end-client, and the associated applications of 
specialized knowledge that their actual performance will require.19 
On appeal, the Petitioner references USCIS policy memorandum 20 asserting that the Petitioner "has 
met the burden presented in the Policy Memorandum, primarily through the signed verification letter 
from the end-client's vendor, [the mid-vendor], [an MSP provider] providing management services to 
[the end-client] through an [MSA]. As stated in the RFE response, the MSA between the [mid-vendor] 
and [the end-client] is confidential. ... "21 Notably, the Director asked for evidence in her request for 
evidence (RFE) as discussed in the USCIS memo, such as copies of relevant signed contracts between 
the parties, detailed statements of work, and letters from the end-client where the Beneficiary will 
17 CJ Galaxy Software Solutions, Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
( describing the petitioner's "fail[ ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
18 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." Id.§ 103.2(b)(14). 
19 Defensor, 201 F.3d at 387-88. 
20 See USCTS Policy Memorandum PM-602-0157, Contracts and Itineraries Requirements for H-JB Petitions Involving 
Third-Party Worksites (Feb. 22, 2018), https://www.uscis.gov/legal-resources/policy-memoranda. 
21 Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977). 
7 
work. However, the Petitioner has not sufficiently addressed this aspect. 22 Here, the Petitioner did 
not provide sufficient evidence of how the Beneficiary's specific job duties relate to the end-client's 
products and services. 23 
The Petitioner indicated in the RFE response that the Beneficiary will "work 40 hours a week, 
primarily on Data Center Migration, Integration of Legacy [end-client] and legacy [end-client] 
environment as well as working with users to resolve their issues related to Security Operations and 
working with business for their project." While the record describes the proffered position with the 
end-client as that of a contract worker hired to augment the end-client's existing information 
technology staff, the evidence in the record specific to the Beneficiary's employment, without more, 
does sufficiently not detail the staffing shortage that his employment will address, or otherwise discuss 
the specific work he will perform. To further illustrate, the Petitioner emphasized throughout the 
proceedings that the Beneficiary will liaise or interact with various end-client personnel and 
stakeholder groups, including: 
• Work[ing] with users to resolve their issues related to [ s ]ecurity [ o ]perations; 
• Working with business for their projects; 
• Coordinate with resources and plan the timelines of the project; 
• Working with users to understand their needs; 
• Work closely with other teams, vendors, and partners to focus on securing all 
aspects of data flow, system controls, and operational procedures; 
• Ensure knowledge transfer of vendor technology to staff; 
• Maintain liaison with internal staff and vendors who have systems design problems 
or requirements; and, 
• Engaging users on the tickets they create related to their issues and working to 
resolve them. 
Though the Petitioner described the job duties of the pos1t10n, the evidence does not show the 
operational structure within the end-client's projects and initiatives in a manner that would establish 
the Beneficiary's role. The submitted material does not communicate the actual work that the 
Beneficiary will perform on a day-to-day basis within the context of the end-client's projects, and the 
correlation between that work and a need for a particular education level of highly specialized 
knowledge in a specific specialty. 
Additionally, considering the listed duties provided by the Petitioner, many items within the job duty 
listings describe general information technology job functions, which lend little insight into the 
relative complexity and specialization of the Beneficiary's day-to-day duties. 24 For instance, job 
22 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. ~ 103.2(6)(14). 
23 We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
24 The mid-vendor's verbatim repetition of the generally-stated duties in its letter outside the context of the actual end-client 
projects that the Beneficiary will provide services for adds little to our understanding of the Beneficiary's actual duties. 
8 
duties such as "[ s ]upport collection and reporting of project and software metrics," "[p ]erform systems 
analysis and design of projects that meet the business needs," and "participate in implementation, 
including maintenance, user allocation, file design, coding, error removal, logic optimization, systems 
re-evaluation, testing, user approval, [ and] final corrections," do not provide sufficient detail regarding 
the work these duties with the end-client will entail, and how these tasks merit recognition of the 
proffered position as a specialty occupation. Therefore, the duties as described by the Petitioner and 
the end-client, outside of the context of the end-client's information technology projects which require 
the Beneficiary's services, do not communicate (1) the actual work that the Beneficiary would 
perform, (2) the complexity, uniqueness, or specialization of the tasks, and (3) the correlation between 
that work and a need for a particular level education of highly specialized knowledge in a specific 
specialty. 25 
Upon review of the totality of the record, we determine it is insufficient to establish the substantive 
nature of the work to be performed by the Beneficiary, which therefore precludes a conclusion that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive 
nature of that work that determines (1) the normal minimum educational requirement for entry into 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 26 The 
Petitioner has not presented evidence or argument sufficient to establish that, more likely than not, the 
proffered position is a specialty occupation as defined by the regulations and the statute. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(1) Engages a person to work within the United States; 
(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. 
25 Matter of Chawathe, 25 l&N Dec. at 376. 
26 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
9 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" 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 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 
490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services 
(USCIS) will apply common law agency principles which focus on the touchstone of control. 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion over 
when and how long to work; the method of payment; the hired party's role in hiring and 
paying assistants; whether the work is part of the regular business of the hiring party; 
whether the hiring party is in business; the provision of employee benefits; and the tax 
treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 27 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-lB beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we also conclude that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-lB temporary "employee." The Petitioner has not submitted sufficient, 
consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. 
Therefore, as we will further explain, the Petitioner has not substantiated key elements in this matter, 
including who exercises control over the Beneficiary. 
27 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it 
exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for 
by the common-law test. See Darden, 503 U.S. at 323-24. 
10 
The Director denied the petition, in part, concluding that there was insufficient evidence in the record 
to establish that the Petitioner would exercise control over the Beneficiary's day-to-day employment. 
We agree. On appeal, the Petitioner references the previously submitted mid-vendor letter 
highlighting that the mid-vendor and the end-client "will not be the [B]eneficiary's employer, and do 
not have the ability to assign the Beneficiary to a different entity, position, or work location." 
However, we conclude that the submitted contractual documentation does not sufficiently demonstrate 
how the Petitioner exercises control over the Beneficiary's off-site employment. The documents 
stipulate that the Beneficiary will perform services as a contingent worker at the end-client location. 
We note that the mid-vendor's agreement incorporates a "responsibility matrix" which suggests that 
the mid-vendor will coordinate on behalf of the end-client interactions between suppliers such as the 
Petitioner and the end-client's hiring and operational managers concerning matters related to 
contingent workers, such as distributing end-client requisition to potential suppliers, evaluating the 
qualifications of submitted candidates compared to end-client requisition requirements, scheduling 
interviews, ensuring that candidates are brought on board according to end-client guidelines, 
conducting contingent worker "issue management (i.e. performance, policy violations, [and] safety 
violations)," and notifying suppliers of work assignment end-dates. Here, the record does not 
adequately detail how the Petitioning entity, through its asserted contractual relationships with an 
intermediary vendor and end-client will impact and oversee the Beneficiary's work assignment at the 
end-client location. 
Moreover, since the contractual material in the record suggests that the end-client must approve the 
Beneficiary's timesheet in order for the Petitioner, and ultimately the Beneficiary to be paid, there 
appears to be some level of shared supervision and control between the end-client, mid-vendor, and 
the Petitioner over the Beneficiary's employment at the end-client location. For instance, the mid­
vendor's agreement provides that "[the Petitioner] will cause each of its Contingent Workers to 
comply with the VMS System procedures to submit time on a weekly basis for all work completed, 
and to secure the approval of the [end-client] for all hours worked. [The mid-vendor] will only pay 
[the Petitioner] for those hours approved in the VMS system." Therefore, for these reasons we must 
also question the Petitioner's claimed supervision and control over the Beneficiary's employment. 
Considering the evidence in its totality, we conclude that the Petitioner has not demonstrated that it 
exercises actual control over the Beneficiary's day-to-day work. It appears that the Petitioner's role 
and responsibilities are essentially limited to the administration of the Beneficiary's payroll and other 
related benefits, including the filing of immigration benefits. While social security contributions, 
worker's compensation contributions, unemployment insurance contributions, federal and state 
income tax withholdings, and other benefits are still relevant factors in determining who will control 
the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, who will provide the instrumentalities and tools, where the work will be located, and who 
has the 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. 
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Without full disclosure of all of the relevant factors, we are unable to conclude that the requisite 
employer-employee relationship will exist between the Petitioner and the Beneficiary. The Petitioner 
has not corroborated 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 it 
will have and maintain the requisite employer-employee relationship with the Beneficiary. 28 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-lB nonimmigrant worker). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered 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. The Petitioner 
has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
28 Matter of Chawathe, 25 l&N Dec. at 376. 
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