dismissed H-1B Case: Information Technology

MATTER OF SVS-T- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 15,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services and software development company, seeks to 
temporarily employ the Beneficiary as a programmer analyst 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-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, California Service Center, denied the petition, concluding that the Petitioner did not 
sufficiently establish that (1) it qualifies as a United States employer with 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 a brief and additional 
evidence and asserts that the Petitioner qualifies as the Beneficiary's employer, and the proffered 
position qualifies as a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a programmer analyst. In 
the support letter, the Petitioner provided the following job duties for the position: 
In he~ capacity as a Programmer Analyst, Beneficiary will be involved in data 
gathering during the business analysis and planning phase of the project. She will 
develop UI using Angular JS, JSP, JavaScript, CSS and HTML. Beneficiary will 
design and develop service layer using spring with Dependency Injection. She will 
be involved in development of the application using Spring Web MVC, other 
components of the Spring and Hibernate frameworks. Beneficiary will implement 
Web Service in Apache Axis runtime environment using SOA protocol. 
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Beneficiary will develop store procedures and complex queries using tool called 
PLISQL developer. She will use MAVEN automated build scripts to compile and 
package the application. Beneficiary will be responsible for analyzing, identifying, 
and documenting the status and architecture of the current systems. She will ensure 
business requirements, are gathered interacting with enterprise architects and SME's 
through JAD sessions. Beneficiary will be analyzing and documenting the internal 
process of CMS and come up with the best possible solutions to modernize it. 
Beneficiary will be analyzing the consequences of the flaws in the current system 
along with enterprise architects and come up with new strategies and architecture for 
CMS. 
Beneficiary will be documenting and presenting the CMS system after eliminating the 
batch process. She will prepare the Vision and scope documents for the project and 
work closely with the Project Manager and enterprise architects in planning, 
·scheduling, coordinating and implementing methodology. Beneficiary will be 
responsible for designing business model diagrams, conceptual diagrams, and logical 
diagrams for the current existing system and future systems. Beneficiary will assist in 
developing Architecture Diagrams, Context Diagrams and detailed Structured and 
Flow Charts. She will create Use Case Diagrams, Activity Diagrams, Sequence 
Diagrams, and ER Diagrams in MS Visio. Beneficiary will prepare BRD and FRD 
taking the current system and future system into consideration. She will be 
responsible for creating and maintaining documentation related to the project 
~ including defect status report, risk analysis document, mitigation plans, 
supplementary requirements specification document, and impact analysis document. 
The Petitioner did not state any educational requirements for the proffered positon. 
According to the documentation submitted by the Petitioner, the Beneficiary will be working onsite 
at (end-client) who has a subcontractor agreement with (mid-vendor). 
The Petitioner has a subcontractor agreement with the mid-vendor to provide independent 
contractors. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
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Matter of SVS- T- Ltd 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(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 Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.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 individual 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 purs,uant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l). 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 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees 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.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H -1 B visa classification, even though the regulation describes H -1 B beneficiaries as / ... 
1 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes of the H-1B visa classification, these terms are undefined. I 
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. 
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Matter of SVS- T- Ltd. 
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 
oyer 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." 
Id; see also Clackamas Gastroenterology Assocs., P.C v. Wells, 538 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)). 
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. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H -1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of "United States employer" requires H-1B 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, 
1 
While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1 002(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 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(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-1 8 visa 
classification, the telm "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 Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
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Matter of SVS-T- Ltd 
the term "United States employer" not only requires H-IB 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-employe'e relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.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. at318-19? 
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 101(a)(15)(H)(i)(b) of the Act, section 212(n) ofthe Act, and 8 C.P.R.§ 214.2(h)? 
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 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.P.R. 
§ 214.2(h)(4)(ii) (defming 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 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). 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 EEOC Compl. Man. at § 2-III(A)(1)(adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 P.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.P.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
2 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 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 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 2l4(c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c )(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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Matter of SVS- T- Ltd 
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. 
Furthermore, not all or even a majority 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 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, 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 
323-24. For example, while the assignment of additional projects 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 project. 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."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
The Petitioner has not established that it will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-IB temporary "employee." Specifically, the 
Petitioner has not credibly substantiated the manner in which the Beneficiary's supervisor actually 
oversees, directs, and otherwise controls the Beneficiary's off-site work. 
For example, the Petitioner provided inconsistent information regarding who supervises the 
Beneficiary. In 
response to the request for evidence (RFE), the Petitioner submitted a letter from the 
mid-vendor that stated the Beneficiary will report to a supervisor for the mid-vendor. 
However, the Petitioner indicated in its response to the RFE that is a supervisor at 
another entity, In the same letter, the Petitioner stated that the Beneficiary 
reports to her supervisor at a different entity, but did not explain the discrepancies. 
Further, the Petitioner submitted individual status reports prepared by the Beneficiary that are 
addressed to multiple individuals. For example, one of the status reports is addressed to an 
individual named but lists a different individual as the project manager, The 
Petitioner's organizational chart does not indicate employees named or 
However, the statement of work (SOW) in the record of proceedings identifies as the 
end-client's employee that will supervise the Beneficiary. On appeal, the Petitioner submitted 
more 
individual status reports that are addressed to the Petitioner's President and CEO, and list 
as the project manager. It is not clear why both sets of status reports are addressed to 
different recipients and project managers. Further, it is not clear why the report will go to the 
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Matter of SVS- T- Ltd 
Petitioner's President and CEO rather than the Beneficiary's direct supervisor as listed on the 
organizational chart, project and business development manager. The Petitioner has 
not credibly 
identified the Beneficiary's supervisor. "[I]t is incumbent upon the petitioner to resolve 
the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 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. !d. at 591-92. 
Furthermore, even if the record had identified a supervisor that the Beneficiary reports to, it does not 
appear that the Petitioner is supervising. the Beneficiary's daily work. In the individual status 
reports, the Beneficiary reports what she "accomplished this week" and "key decisions made" and 
what is "planned for next week." In other words, the Beneficiary is the one providing updates to the 
Petitioner about her current and new assignments, as opposed to the other way around, suggesting 
that the Petitioner does not exercise regular. oversight of the Beneficiary's day-to-day work. Further, 
the work order between the end-client and mid-vendor indicates that "after the necessary information 
is inputted into the and the timesheet is approved by both [the end-client] project manager and 
[mid-vendor], the will generate an invoice that will be electronically submitted by [the end-
client]." Thus, it appears that the Beneficiary's work when at the client site will be approved by the 
end-client and the mid-vendor, and not by the Petitioner. 
In response to the RFE, the Petitioner provided a copy of its performance review document, which 
includes a general description of its performance review processing, along rating scale. Although 
the Petitioner provided a general overview of its performance review process, this document lacks 
information regarding the establishment of work and performance standards, the methods for 
assessing and evaluating the employees' performance, and the specific criteria for determining 
bonuses and salary adjustments. It is not clear exactly how the Petitioner is evaluating the 
Beneficiary's work when she is at the client site. 
For H-1B classification, the Petitioner is required to submit written contracts between the Petitioner 
and the Beneficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the Beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and 
(B). The Petitioner submitted a summary of terms of agreement under which Beneficiary will be 
employed that was signed by the Petitioner but not by the Beneficiary. The agreement states that the 
Beneficiary will hold the position of programmer analyst and will work at the end-client's location 
m Indiana. The agreement also states that the "Employer shall have the right to control 
and direct the Employee in the performance of the duties of the position for the duration of 
employment." · 
However, while an employment agreement may provide some insights into the relationship of a 
Petitioner and a Beneficiary, it must be noted again 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."' 
Id at 451 (quoting Darden, 503 U.S. at 324). 
Matter of SVS- T- Ltd. 
Here, the key element in this matter, which is who exercises control over the Beneficiary, has not 
been substantiated. "[G]oing 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, 165 (Cornrn'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
In addition, the Petitioner has not credibly established that the Beneficiary would be employed for 
the three-year period requested from October 1, 2015, to August 28, 2018. The Petitioner submitted 
a SOW with the mid-vendor. The SOW commencement date is May 4, 2015, and the initial length 
of assignment is only until December 1, 2015. The Petitioner also submitted a printout from the 
end-client that indicates that the Beneficiary's start date is May 11, 2015, and end date is June 25, 
2016. The Petitioner provided some other documentation that stated that assignment will last 
through 2018, but has not explained discrepancies in the record. "[I]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N 
Dec. at 591. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
Petitioner submits competent objective evidence pointing to where the truth lies. Id. at 591-92. 
Further, the SOW did not list the duties the Beneficiary will perform for the mid-vendor or the end­
client. The SOW stated that the Beneficiary's "role will be as a Subcontractor performing computer 
programming and information systems technical services or other specialized services as an 
independent contractor to [the mid-vendor] at [the end-client]." Without sufficient information 
regarding the Beneficiary's duties and duration of the project, this document does not establish 
availability of continued, non-speculative employment for the Beneficiary for the entire H-1B 
validity period.4 
4 The agency made clear long ago that speculative employment is not permitted in the H-18 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-18 classification on the basis of speculative, or 
undetermined, prospective employment. The H-18 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-18 nonimmigrant under the statute, the Service must first examine the duties ofthe 
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 is certainly permitted to 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 SVS-T- Ltd 
In the RFE, the Director also asked the Petitioner to provide information regarding the beneficiary's 
role in hiring and paying assistants. The Petitioner elected not to address this issue or provide any 
information in response to this material request for evidence. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
1 03.2(b )(14). 
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. Without full disclosure of all of the relevant factors, we are 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary 
· is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
USCIS regulations affirmatively 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)(l). 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'l 
Comm'r 1978). 
III. 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: 
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Matter of SVS- T- Ltd 
(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. 
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. 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 
The Petitioner has not established that the proffered position qualifies for classification as a specialty 
occupation. As recognized in Defensor v. Meissner, 201 F.3d 384, 387-8 (5th Cir. 2000), it is 
necessary for the end-client to provide sufficient information regarding the proposed job duties to be 
performed at its location in order to properly ascertain the minimum educational requirements 
necessary 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. See id 
Here, the .record of proceedings does not provide sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The 
Petitioner submitted a letter from the end-client, confirming that the Beneficiary is a contractor 
working there as a programmer analyst. The end-client letter describes the Beneficiary's job duties 
in brief, generalized terms that do not convey the substantive nature of the proffered position and its 
constituent duties. For example, the end-client letter lists duties such as "[i]nvolved in Analysis, 
Design, Coding and Development of IEDSS"; "design and implements technical solution using java 
framework like FAST4J, Next Gen"; and, "under general direction, performs difficult and 
specialized IT work." The record of proceedings does not contain a more detailed description 
explaining what particular duties the Beneficiary will perform on a day-to-day basis (e.g., what is 
meant by "performs different and specialized IT work"). Nor is there a detailed explanation 
regarding the demands, level of responsibilities, complexity, or requirements necessary for the 
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Matter of SVS- T- Ltd 
performance of these duties (e.g., explain what specific systems and applications are involved, and 
what body of knowledge is required to perform the duties). 5 In addition, the end-client states that the 
Beneficiary will work on the "Indiana eligibility determination services and system" project but not 
specifically explain the project and the Beneficiary's specific role for this project. 
In addition, the Beneficiary's job duties as listed by the end-client appear different from those job 
duties listed by the Petitioner.6 For example, the job duties provided by the Petitioner has the 
Beneficiary utilizing certain tools and computer programs that are never mentioned in the end-client 
letter. For example, the Petitioner stated the Beneficiary will "develop store procedures and 
complex queries using tool called PLISQL developer"; will use "MAVEN automated build scripts" 
and "analyze the documenting the internal process of CMS and come up with the best possible 
solutions to modernize it." At no time does the Petitioner mention the project at the end-client as 
discussed above. The Petitioner has not explained how its stated job duties are consistent with those 
listed by the end-client. Again, it is incumbent upon the Petitioner to resolve inconsistencies in the 
record. See Matter of Ho, 19 I&N Dec. at 591. 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as a programmer analyst for the duration of the requested 
employment period. As the Petitioner has not established the substantive nature of the work to be 
performed by the Beneficiary, it therefore precludes a finding that the proffered position satisfies any 
criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A). 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. Accordingly, as the Petitioner has not established 
that it has satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it cannot be found that the 
proffered position qualifies for classification as a specialty occupation. For this additional reason, 
the appeal will be dismissed. 
5 While the end-client letters state the educational requirements for this position (i.e., a bachelor's degree or equivalent in 
engineering), this general statement regarding the minimum educational requirement is insufficient to explain what body 
of knowledge is required to perform each of the listed job duties. As explained above, USC IS interprets 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. 
6 To clarify, we are not relying upon the Petitioner's descriptions as evidence of the Beneficiary's actual job duties for 
the end-client. In general, petitioner-provided job duties are not relevant to determining a beneficiary's specific duties 
for an end-client. Rather, we are considering the Petitioner's job descriptions here for the more limited purpose of 
highlighting the differences between the job descriptions. 
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Matter of SVS-T- Ltd 
IV. CONCLUSION 
As set forth above, we find that the evidence of record does not establish an employer-employee 
relationship between the Petitioner and the Beneficiary. The evidence of record also does not 
demonstrate that the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofSVS-T- Ltd., ID# 17912 (AAO Sept. 15, 2016) 
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