dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 8722606 
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 establish that it qualifies as a United States employer with an employer -employee relationship with 
the Beneficiary . 
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. 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. 
(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. 1 See Clackamas Gastroenterology Assocs., PC 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-1 B 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 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, 
1 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. 
2 
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. 2 
The Petitioner, which is located in Texas, indicated that it will assign the Beneficiary to work as a 
"system administrator" for an end-client in Washington for the duration of the validity period 
requested. 3 The asserted contractual chain is as follows: 
Petitioner ➔ R-S- (mid-vendor) ➔ W-L- (prime-vendor) ➔ T-M- (end-client). 
The Director denied the petition, concluding that there was insufficient evidence in the record to 
establish that the Petitioner would exercise control over the Beneficiary's employment at the end­
client location. We agree. Collectively considering the evidence submitted before the Director's 
denial and on appeal, we determine that the Petitioner has provided insufficient and inconsistent 
evidence of the contractual relationships regarding the Beneficiary's proposed off-site employment, 
and the scope and nature of his role within the end-client projects to which he potentially will be 
assigned. As a result, we are not able to fully ascertain how these contractual agreements impact the 
Petitioner's ability to control and direct the Beneficiary's day-to-day work. 
The Petitioner provided third-party supplier agreements between the Petitioner and the mid-vendor, 
which indicate that the nature of the contractual relationships between the parties is one in which the 
mid-vendor has agreed to provide personnel through the prime-vendor to the end-client in order to 
augment the end-client's staff engaged in information technology-related work assignments. Toward 
that end, the mid-vendor agreement with the Petitioner specified that the Petitioner would "provide 
services to [ c ]lients or [ c ]lients' [ e ]nd [ c ]ustomers as per the specifications of [the mid-vendor]." The 
agreement further indicated: 4 
[The mid-vendor's] [c]lient shall have the right to review the qualifications and 
interview [] all personnel [the Petitioner] designates to perform the work under this 
[agreement]. ... [The mid-vendor] reserves the right in its sole discretion to disapprove 
the continuing assignment of [ the Petitioner's] personnel provided hereunder. ... [The 
Petitioner] will promptly remove any personnel performing work hereunder upon 
request by [the mid-vendor], and promptly substitute personnel satisfactory to [the mid­
vendor]. 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical training 
and has provided copies of wage statement for his employment with the Petitioner. 8 C.F.R. §§ 274.a.12( c )(3)(i)(C), 
214.2(t)(l 0)(ii)(C). 
4 The Petitioner also provided a mid-vendor purchase order that sought to place the Beneficiary with the prime-vendor and 
ultimately with the end-client to perform "A WS cloud Operation Engineer" services for a "6+ months" assignment that 
expired prior to the requested start date of H-1 B employment in the petition. 
3 
[The Petitioner] shall submit invoices monthly for the services satisfactorily performed 
and accepted during the month. Invoices submitted for work charged on an hourly 
basis will be supported by approved timesheets duly approved by [the mid-vendor's] 
[c]lient [r]eporting [m]anager and supported by verification by [the mid-vendor's] 
[c]ustomers and/or [e]nd [c]ustomers. [The mid-vendor] shall pay the undisputed 
amount of each correct invoice received from [the Petitioner] in accordance with the 
terms of this [a]greement and the applicable PO/SOW [purchase order/statement of 
work]only upon receipt of [c]lient system approved timesheet and PO terms .... [The 
Petitioner] is entitled to compensation per its invoice only upon - client system 
approved [t]imesheet for that portion of invoice not under dispute, and with no [mid­
vendor] liability otherwise, because [the Petitioner] acknowledges and agrees that [the 
mid-vendor's] [c]ustomer and/or [e]nd [c]ustomer controls the payment of consulting 
fees. 
[The mid-vendor] may terminate [the Petitioner's] employee/contractor without prior 
notice due to misconduct or negligence. If in the first ten (10) business days after the 
execution of the applicable contract, [the mid-vendor's] [c]ustomer or [e]nd [c]ustomer 
desires to release [the Petitioner's] employee/contractor due to nonperformance or any 
valid reason including without limitation work attitude, [the mid-vendor] may do so 
immediately with no compensation to [ the Petitioner] or to [ the Petitioner's] contractor. 
However, this clause would take effect after providing [the mid-vendor] written 
evidence, the sufficiency of which in the sole discretion of [the mid-vendor], from [the 
mid-vendor's] [c]ustomer or [e]nd [c]ustomer. 
The prime-vendor's letter submitted in response to the Director's request for evidence (RFE) 
substantiating the contractual relationships between the parties indicates that the Beneficiary will be 
employed as "a [s]ystem [a]dministrator for the ongoing project Enterprise Data Solutions and that 
this project is expected to last at least until 12/31/2020 with possible extensions." The prime-vendor 
also notes that the Beneficiary's work with the end-client "has been arranged through contracts 
between [the Petitioner, mid-vendor, and the prime-vendor]," but "the [s]ervice [a]greement between 
[the mid-vendor and the prime-vendor] is confidential and will not be disclosed to any third-party." 5 
The prime-vendor details that while working at the end-client location, the Beneficiary "works closely 
with [D-K-, the end-client's operations manager], and his day-to-day project deliverables are reviewed 
by our [p ]roject [ m ]anager to ensure that it conforms to our quality and acceptance standards." While 
5 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. CJ Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had eve1y 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 USCTS. 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). 
4 
the prime vendor asserts that the Beneficiary "remains under the control and overall supervision of his 
own employer," it does not describe the Petitioner's direct involvement, if any, in the Beneficiary's 
ongoing end-client work assignments. 
Additionally, the Petitioner submitted a March 2019 "memorandum of statement of work," (but not 
the actual SOW) between the prime-vendor and the end-client which indicated that the document was 
issued to "memorialize the existence of a [SOW] between the [prime-vendor and end-client] for certain 
work to be performed" for the end-client. The document identified the Beneficiary and noted that he 
would be delivering "certain Cloud DevOPs Operation services" for the end-client's "Enterprise Data 
Solutions [EDS] project." The memorandum stated that the "[prime-vendor] intends to use this 
Memorandum in support of its applications for an H-lB visa for [the Beneficiary]," and "for no other 
purpose," but does not mention or identify the Petitioner and the mid-vendor, and their relative 
contractual roles, if any, in the Beneficiary's end-client work assignment. 
Notably, the end-client's memorandum of statement of work and letter provided to the Director before 
she denied the petition do not discuss or otherwise substantiate that the Beneficiary will be employed 
in the role described by the Petitioner through the contractual relationships between the Petitioner and 
the mid-vendor, and the mid-vendor and the prime-vendor; or, that the Petitioner is to be the 
Beneficiary's employer such that the Petitioner will have direct involvement in the assignment and 
management of the Beneficiary's work at the end-client location. For instance, the end-client's letter 
acknowledges that it "has an on-going contract with [the prime-vendor]," and that the prime-vendor 
"has assigned [the Beneficiary] to work on a project at [the end-client location]." However, the end­
client does not identify the role that the Beneficiary will perform while on assignment and omits 
mention of the involvement of the Petitioner and the mid-vendor in this contractual arrangement. 
The Petitioner has also submitted a letter from R-L- who asserts that he is a program manager at the end-client location 
and seeks through his letter to "confirm" that the Beneficiary "is need[ed] to work at [the end-client location] on the 
Enterprise Data Solutions project [] as a System Administrator." R-L's email profile submitted with the letter indicated 
that he holds a "contractor" position with the end-client. The letter is not written on end-client letter head. R-L- did not 
identify whether he was actually an employee of the end-client, and if so, the position he held within that organization's 
hierarchy that would give him the authority to author such a letter on behalf of the end-client. The Director denied the 
petition, in part, concluding that the unsubstantiated end-client letter was not probative evidence that demonstrates that the 
Petitioner will be a "United States employer" having an "employer-employee relationship" with the Beneficiary. We 
agree. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
The end-client's SOW submitted in response to the Director's RFE specifies the scope and magnitude 
of its project with the prime-vendor, confirming that the project will be under development from 
December 2017 through December 2020, and describes the services to be performed by the prime­
vendor which will include work performed by a "DevOPs Team," which is defined in the SOW as a 
group "with a scrum master, code developers, testers that [will] plan, develop, test and rollout [a] 
defined product. ... " The staffing for this team is further defined in the SOW as including project 
managers, platform architects, bigdata engineers, scrum masters, and A WS architects." Importantly, 
the SOW omits mention of the use of "system administer" positions within the development effort. 
The SOW further indicates, among other things, that the provision of services such as "system 
administration and support of DevOps tools and software" are "out of scope for DevOps Services 
under this SOW." While this evidence confirms that the prime-vendor has a contractual relationship 
with the end-client, without more, it does not substantiate the terms and conditions of the Beneficiary's 
5 
employment within the confines of this project, to include the nature of his assignment as a "system 
administrator" therein, and the Petitioner's asserted oversight and control of his employment. 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). 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is important because, in this case, the existence of the proffered position 
appears dependent entirely 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 the mid-vendor; mid-vendor and prime-vendor; and, 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 petition. 6 The Petitioner did not sufficiently document the 
contractual terms and conditions of the Beneficiary's employment as imposed by the end-client. See 
Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000), (where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical). 
Further, the record does not adequately detail how the Petitioning entity, through its asserted 
contractual relationships with two intermediary vendors will affect and oversee the Beneficiary's work 
assignment at the end-client location. The Petitioner maintains on appeal that it "will continue to 
supervise the [B]eneficiary on [an] onsite basis." However as discussed, the prime-vendor states in 
its letter that the Beneficiary "works closely" with the end-client's project manager, D-K-. The 
Petitioner has provided copies of project work emails at the end-client location showing that D-K- and 
the prime-vendor's project manager, N-K-, are guiding the project and that various end-client and 
prime-vendor employees are also assigning work to the Beneficiary and other individuals involved in 
the project. In contrast, the Petitioner does not appear to have been included as one of the addressees 
within these end-client project management communications, and the record does not substantiate the 
Petitioner's claimed direct supervision and control over the Beneficiary's ongoing work assignments. 
For instance, the Petitioner asserts: 
[The Petitioner] has weekly calls/meetings to monitor the [B]eneficiary work progress 
at client site. Annual visits are part of the [P]etitioner's supervision. The [B]eneficiary 
discusses the planned activities for the following week and the project needs on the 
supervision call and the direction, execution and the task assignment is done by the 
Manager from offsite and is tracked via weekly reporting call meetings. Furthermore, 
practically the initial requirements are listed by the end-client and will depend on their 
project needs .... " 
The Petitioner has not substantiated its assertions that it assigns end-client project tasks to the 
Beneficiary at the end-client's location. The Petitioner has submitted copies of the Beneficiary's 
weekly "project status reports" in which he provided status summaries of his work at the end-client 
location to the Petitioner. But, the Petitioner has not established how it gains knowledge of the day­
to-day services the Beneficiary performs for the end-client, if not from the Beneficiary himself, e.g., 
through the Beneficiary's submission of project progress reports, which erodes the Petitioner's claim 
6 Cf Galaxy Sofiware 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"). 
6 
that it actively monitors and supervises the Beneficiary's day-to-day work at the end-client location. 
It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. at 376. Here, the Petitioner has not offered persuasive 
evidence to illustrate how it will supervise and guide the Beneficiary's work assignments for the 
end-client. 
Moreover, since the contractual material in the record suggests that the end-client must approve the 
Beneficiary's timesheet in order for the intermediary vendors, the Petitioner, and ultimately the 
Beneficiary to be paid, there appears to be some level of shared supervision and control between the 
end-client, prime-vendor, mid-vendor, and the Petitioner over the Beneficiary's employment at the 
end-client location. For instance, the mid-vendor's agreement with the Petitioner provides "[the 
Petitioner] is entitled to compensation per its invoice only upon - client system approved 
[t]imesheet[s]." The mid-vendor's agreement also states "if[] [the mid-vendor's] [c]ustomer or [e]nd 
[c]ustomer desires to release [the Petitioner's] employee/contractor due to nonperformance or any 
valid reason including without limitation work attitude, [the mid-vendor] may do so immediately with 
no compensation to [the Petitioner] or to [the Petitioner's] contractor." Therefore, for these reasons 
we must also question the Petitioner's claimed control over the Beneficiary's end-client assignment. 
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. 
Without full disclosure of all 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 at the end­
client location. 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). 7 
II. LABOR CONDITION APPLICATION 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceedings. Nevertheless, we will discuss 
it here with the hope and intention that, if the Petitioner seeks again to employ the Beneficiary or 
7 As the lack of probative and consistent evidence in the record precludes a conclusion that the Petitioner will have and 
maintain the requisite employer-employee relationship with the Beneficiary is dispositive of the appeal, we will not fu11her 
discuss the Petitioner's assertions on appeal. 
7 
another individual as an H-lB employee in the proffered position, it will submit sufficient independent 
objective evidence to address and overcome this additional ground in any future filing. 
We conclude that the Petitioner has submitted inconsistent evidence regarding the substantive nature 
of the proffered position which may impact whether the LCA corresponds with the petition. On the 
labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner designated 
the proffered position under the occupational category "Network and Computer Systems 
Administrators" corresponding to the Standard Occupational Classification (SOC) code 15-1142 with 
a Level II wage. 8 The petition indicates that the Petitioner seeks to employ the Beneficiary as a 
"systems administrator," and the Petitioner has submitted evidence which suggests that the Petitioner 
will provide DevOps-related services for the end-client. However as discussed, the end-client's SOW 
states that "system administration" services are outside the scope of the prime-vendor's services within 
the end-client's project. Specifically, the SOW lists a variety of information technology positions that 
will be needed to execute the contractual services scoped in the SOW, but specifically states that the 
provision of services such as "system administration and support of DevOps tools and software" are 
"out of scope for DevOps Services under this SOW." Further, the Petitioner has also submitted several 
documents, such as the end-client memorandum of statement of work, and the mid-vendor's letter and 
purchase order, which reference the proffered position as an "A WS Cloud DevOps Engineer," or a 
"Cloud DevOps Engineer," and not as a "system administrator." 9 The inconsistencies in the record 
erode the Petitioner's ability to demonstrate that the proffered position is one that is analogous to the 
"Network and Computer Systems Administrators" occupational category. 10 
Moreover, while the Petitioner submitted material describing the duties of the proffered position, it is 
insufficient to demonstrate that the position falls solely within the "Network and Computer Systems 
Administrators" occupational category. For instance, the Petitioner initially provided a list of ten 
bulleted job duties and later included the percentage of time that the Beneficiary will devote to each 
job duty in response to the Director's RFE. 11 Based on these descriptions, it appears that the position, 
as described, is more akin in large part, to a software developer position rather than a system 
administrator position. To illustrate, the U.S. Department of Labor's (DOL) Occupational Outlook 
8 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB 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 experience and qualifications who are performing the same services. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
9 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 T&N Dec. at 591-92. 
10 Id. The DOL's Occupational Information Network (O*NET) Summary Report for "Network and Computer Systems 
Administrators," may be viewed athttps://www.onetonline.org/link/summary/15-1142 (last visited Apr. 21, 2020). 
11 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. For instance, the Petitioner discussed the Beneficiary's academic credentials 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]."). 
8 
Handbook (Handbook) chapter for "Software Developers" indicates that they typically do the following: 
12 
• Analyze users' needs and then design, test, and develop software to meet those 
needs. 
• Recommend software upgrades for customers' existing programs and systems. 
• Design each piece of an application or system and plan how the pieces will work 
together. 
• Create a variety of models and diagrams (such as flowcharts) that show 
programmers the software code needed for an application. 
• Ensure that a program continues to function normally through software 
maintenance and testing. 
• Document every aspect of an application or system as a reference for future 
maintenance and upgrades. 
• Collaborate with other computer specialists to create optimum software. 
In determining the nature of a proffered position, the critical element is not the title of the position, 
but the duties of the underlying position. 13 Though the proffered position is called "system 
administrator," the Petitioner has not established that the following duties which together comprise 
40% of the Beneficiary's worktime are consistent with the "Network and Computer Systems 
Administrators" occupational category (verbatim): 14 
• Designs and defines A WS architecture for new cloud computing systems or 
existing systems migrating to cloud architectures. Ability to review client's 
application architectures and help to map those to A WS as a platform and its 
Services. (20%) 
• Performs expert-level systems AWS development and design work that may 
include logical system design; I/O design, cloud architecture analysis and 
12 We review the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as a resource for the 
duties and educational requirements of the wide variety of occupations that it addresses. All of our references to the 
Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook 
is the exclusive source ofrelevant information. 
13 See Defensor v. Meissner, 201 F.3d 387-88 (5th Cir. 2000). 
14 The U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) states that "Network and 
Computer Systems Administrators" typically: 
• Determine an organization's system needs and install network hardware and software. 
• Make needed upgrades and repairs to networks and ensure that systems are operating correctly. 
• Maintain network and computer system security. 
• Evaluate and optimize network or system performance. 
• Add users to a network and assign and update security permissions on the network. 
• Train users in the proper use of hardware and software. 
• Interpret and solve problems when a user or an automated monitoring system alerts them that a problem exists. 
See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Network and Computer Systems 
Administrators, https://www.bls.gov/ooh/computer-and-information-technology/network-and-computer-systems­
administrators.htrn#tab-2 (last visited Apr. 21, 2020). 
9 
design; and systems engineering and ensures security is integrated into all cloud 
architectural solutions. (15%) 
• Development of complex programs and mappings and integrating them into 
workflows and scheduling them using Informatica BDM (BigData 
Management) or through control-m scheduler. (5%) 
In considering the evidence in its totality, we conclude that the Petitioner has provided inconsistent 
evidence regarding whether the proffered position properly falls within the "Network and Computer 
Systems Administrators" occupational sub-category corresponding to SOC code 15-1142, or within 
one of the "Software Developers" occupational categories (i.e., the occupational category for 
"Software Developers, Applications" under SOC 15-1132, or the occupational category for "Software 
Developers, Systems Software" under SOC 15-1133). 15 
The regulation at 20 C.F.R. § 655.705(b) requires that U.S. Citizenship and Immigration Services 
ensure that an LCA actually supports the H-lB petition filed on behalf of the Beneficiary. According 
to Department of Labor guidance on the LCA, if a proffered position involves a combination of 
different occupational classifications, then the petitioner should select the relevant occupational code 
for the highest-paying occupation. 16 For purposes of the LCA, the Petitioner is required to select the 
occupational code that best represents the nature of the job offer, which in tum determines the 
appropriate prevailing wage. 17 Thus, through the certified LCA, the Petitioner represented that the 
duties of the proffered position would be "Network and Computer Systems Administrators" 
occupational classification corresponding to SOC code 15-1142 and provided a position description 
partially consistent with this occupational category. However, it has also famished evidence 
describing the nature of the position as substantially a software development position. If the Petitioner 
believed its position to be a combination of both "Network and Computer Systems Administrators," 
and the higher paying "Software Developers" occupational classifications, then the Petitioner should 
have submitted an LCA for a position under one of the "Software Developers" occupational codes and 
classifications. Here, the Petitioner has not done so, and has not sufficiently explained why the 
"Network and Computer Systems Administrators" occupational category is appropriate for the 
proffered position. 18 
We note that both of these "Software Developers" occupational categories have higher prevailing 
wages than for the "Network and Computer Systems Administrators" occupational category. 19 The 
Petitioner indicates that it will pay the Beneficiary $90,000, a rate that exceeds the prevailing wage 
15 The O*NET position summaries for these occupational categories may be viewed at 
https://www.onetonline.org/link/summary/15-1132.00; https://www.onetonline.org/link/summary/15-1133.00; (last 
visited (Apr. 21, 2020.) 
16 See Prevailing Wage Determination Policy Guidance, supra. 
11 Id. 
18 Matter of Ho, 19 I&N Dec. 591-92. 
19 For instance, the prevailing wage in the area and time period of intended employment for "Software Developers, 
Applications" at a Level II wage is $113,318 per year, and for "Software Developers, Systems Software" is $101,837 per 
year. The prevailing wage for "Network and Computer Systems Administrators" as stipulated on the instant LCA in the 
area and time period of intended employment is $81,266 per year. For more information on prevailing wages generally, 
see the FLC Data Center at http://www.flcdatacenter.com/OESWizardStart.aspx (last visited Apr 21, 2020). 
10 
for the "Network and Computer Systems Administrators" occupational category, but is substantially 
less than the prevailing wages for the "Software Developers" occupational categories. 
As the record contains numerous and material inconsistencies relative to the substantive nature of the 
proffered position, which may 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. 20 It is crucial that an LCA must correspond to the petition in 
all material aspects, including the occupational category certified therein. 21 Here, the Petitioner has 
not done so, and the petition may not be approved for this additional reason. 
III. CONCLUSION 
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. 
20 Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 
1989)). 
21 See Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 
11