dismissed H-1B Case: Information Technology

MATTER OF K- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22,2017 
. APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"webmethod developer" under the H-1 B 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 ofhighly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not demonstrate that: (1) it will engage the Beneficiary in an employer-employee 
relationship; and (2) the proffered position is a specialty occupation . 
. The matter is now before us on appeal. On appeal, the Petitioner submits additional evidence and 
contends that the evidence of record satisfies all evidentiary requirements. 
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 "webmethod 
developer" and provided the following description of the duties of the position (note: errors in the 
original text have not been changed1: 
• Analyzing the requirements, procedures, and problems to automate or improve the 
existing systems. 
• Working with Business users/Technology Managers in identifying best possible 
solutions for day-to-day operations. r 
• Interacting with different teams for project integration related activities. 
• Interacting with Business users to create the FSD & Low Level Detail Design for 
the requirements. 
• Writing Detail Technical Design documents based on the Functional Specs. 
• Creating Sequence Diagrams, Flow charts, ER Diagrams. 
(b)(6)
Matter of K- Inc. 
• Participating in Architecture meetings and providing POC's as needed. 
• Developing Application Integration Services for some of the above requirements 
using Webmethods. 
• Developed a batch process to integrate data between DB and SAP Tables. 
• Developed Flow Services with necessary Mappings, Validations, and Business 
Rules for Inbound and Outbound Interfaces. 
• Developed REST, JSON services. 
• Developed web services and its publication with SOAP, XML, WSDL. 
• Configuring JDBC Adapter connections and used adapter services. 
• Working extensively on JDBC adapter services like select, insert, delete, and 
update, Stored Procedures. 
The Petitioner, which is located in Nmih Carolina , explained that the Beneficiary would perform his 
duties for (end-client) in Illinois pursuant to contracts executed between the 
Petitioner and (first vendor) , between the first vendor and 
(second vendor) , and between the second vendor and the end-client. The contractual 
succession , therefore , appears to be as follows: 
Petitioner -7 first vendor -7 second vendor -7 end-client 
According to the Petitioner , the proffered position requires a bachelor's degree in computer science , 
information systems , or a closely related field. 
II. EMPLOYER-EMPLOYEE 
A. Legal Framework 
The first issue before us is whether the Petitioner has established that it has standing to file this H-1 B 
petition as a U.S. employer who would engage the Beneficiary in an employer-employee 
relationship. 
Section lOl(a)(lS)(H)(i)(b) of the Act defines an H-lB nonimmigrant , in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)( 1) ... , 
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 Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
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Matter of K- Inc. 
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 10I(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 pursuant to section 212(n)(l) ofthe 
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)(l)(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 1-129, 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-1 B 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 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." ld Therefore, for purposes of the H-1B visa classification, these terms 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)). The Supreme Court stated: 1 
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Matter of K- Inc. 
"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." · 
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)(l)(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.' 
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, 
the term "United States employer" not only requires H-1 B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
1 While the Darde~ court considere-d only the definition of "employee" under the Employee Retirement Income Security 
Act of I 974 (ERISA), 29 U.S. C. § I 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 Jaw 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 
I 0 I (a)(I5)(H)(i)(b) of the Act, "employment" in section 2 I 2(n)( I )(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 term "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 K- Inc. 
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-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.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. 
C.f Darden, 503 U.S. at318-19. 2 
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) ofthe Act, section 212(n) ofthe Act, and 8 C.F.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.F.R. 
§ 214.2(h)(4)(ii) (defining 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)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.F.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 2 14(c)(2)(F) of 
the Act, 8 U .S.C. § I I 84( c )(2)(F) (referring to ''unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
5 
Matter of K- Inc. 
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 ofth~ incidents ofthe relationship ... with.no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
In applying the Darden and Clackamas tests to this matter, we find 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 -1 B temporary "employee." 
The Petitioner, which is located in North Carolina, plans to assign the Beneficiary to work for the 
end-client at an Illinois worksite. We have reviewed the contract executed between the Petitioner 
and the first vendor, as well as the purchase order issued pursuant to that contract. While apparently 
binding between the Petitioner and the first vendor, these documents do not similarly bind the 
second vendor or the end-client. In other words, there is no evidence of any legal obligation on the 
part of the second vendor or end-client to provide any work for the Beneficiary to perform. 4 Absent 
that foundational showing in the record- that there is actual non-speculative work for the Beneficiary to 
perform - we are unable to determine whether such work would entail the Petitioner engaging in an 
employer-employee relationship with the Beneficiary. 
However, even if we set that issue aside we still would find insufficient evidence of an employer­
employee relationship. Even if the Petitioner has secured work for the Beneficiary to perfom1, and 
would assign the Beneficiary to work for the end-client at a remote location as claimed, we would find 
4 
While acknowledged, the brief emails and letters from the second vendor and end-client create no binding obligation. 
6 
Matter of K- Inc. 
that the terms of that employment - and thus the existence of an employer-employee relationship - had 
not been demonstrated. 
The Petitioner's generalized claims that it would control the Beneficiary's employment through 
weekly status reports and performance evaluations are noted. However, the evidence submitted in 
support of those claims is not persuasive. ·First, the overwhelming majority of the information used 
by the Petitioner to compile those reports and perform those evaluations appears to be provided by 
the Beneficiary, which' is not indicative that the Petitioner exercises actual control over the 
Beneficiary's work. Moreover, portion of the evaluation forms that is not Beneficiary-provided 
consists of the list of generalized duties listed above, which is not indicative of a meaningful 
evaluation. In any event, we find that the weekly status reports and performance evaluation process 
do not establish an employer-employee relationship between the Petitioner and the Beneficiary. 
The Petitioner's claims of sole supervision and control are further undermined by the end-client's 
statement that the Beneficiary's duties would not be limited to the duties proposed in the H -1 B 
petition, and that his duties could change over the course of the project. However, this delegation of 
authority to the end-client is not consistent with the Petitioner's claims of supervision and control. 
In addition, when evaluating the employer-employee relationship issue, we must also consider the 
Petitioner's Level I wage designation in the labor condition application (LCA). On the LCA5 
submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the 
occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification code 15-1132.6 
In designating a Level I wage the Petitioner effectively attested to the U.S. Department of Labor 
(DOL) that the Beneficiary would perform routine tasks that require limited, if any, exercise of 
judgment, that he would be closely supervised and his work closely monitored· and reviewed for 
accuracy, and that he would receive specific instructions on required tasks and expected results. The 
5 
The Petitioner is required to submit a certified LCA to USCIS 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 experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
Matter of K- Inc. 
DOL guidance referenced above also states that an employer should consider a Level I wage 
designation when the job offer is for a research fellow, a worker in training, or an internship. 
The Petitioner, therefore, has claimed that the Beneficiary would be "closely supervised" and his 
work "closely monitored," and that he would "receive specific instructions" as he performs routine 
tasks that "require limited, if any, exercise of judgment." However, it is not clear who would closely 
supervise, closely monitor, and specifically instruct the Beneficiary, when the Petitioner (I) is 
located in North Carolina, and the Beneficiary would be working in Illinois; (2) has not indicated 
that it would send a supervisor to Illinois to oversee the Beneficiary's work; and (3) has not provided 
meaningful information as to how it would evaluate the Beneficiary's job performance from afar. 
The lack of any indication as to how the Petitioner .would actually control the Beneficiary's work is 
compounded by the lack of any indication that the Petitioner would play a meaningful role in the 
project upon which the Beneficiary would work. For example, although the record contains 
evidence regarding a project under development at the end-client's location, there is no indication 
that the Petitioner would play any meaningful role in its development beyond providing the services 
of the Beneficiary to work on the project. If the Petitioner's repeated claims that it would maintain 
control and supervision over the Beneficiary are accurate, it seems that the Petitioner would likely 
play at least some role in the project given Levell wage-level designation on the LCA. It is unclear 
how the Petitioner would closely supervise and monitor the Beneficiary without also playing a 
significant role on the project upon which the Beneficiary would work. 
Assigning duties and supervising performance is central to an employer-employee relationship. 
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 a 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. 
Finally, we observe that the purchase order executed between the Petitioner and the first vendor 
covers only 12 months ofthe nearly-3-year-period ofH-lB approval requested in the petition. Thus, 
the only evidence of any legally binding obligation on any of the four actors involved here is a 12-
month purchase order executed between the Petitioner and the first vendor. There is no evidence of 
any similar legally binding obligation on the part of the second vendor or the end-client - regardless 
of length. Accordingly, we find that the Petitioner has not established that the petition was filed for 
non-speculative work for the Beneficiary, for the entire period requested, that existed as of the time of 
the petition's filing. 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 )( 1 ). 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 J&N Dec. 248 
(Reg'l Comm'r 1978). Thus, even if it were found that the Petitioner would be the Beneficiary's. 
8 
Matter of K- Inc. 
United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not 
demonstrated that it would maintain such an employer-employee relationship for the duration of the 
period requested. 7 
For all of these reasons, we find that the Petitioner has not demonstrated that, if the H-1 B petition 
were approved, it would exercise an "employer-employee relationship'' with the Beneficiary. The 
Beneficiary has not, therefore, demonstrated that it has standing to file the instant H-1 B petition as 
the Beneficiary's U.S. employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
Upon review of the record in its totality and for the reasons set out below, we dete1mine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 8 
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 
7 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien .is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "'Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to 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). 
8 The Petitioner submitted documentation to support the H-1 B petition, incll)ding evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
9 
Matter of K- Inc. 
(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). 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 Cmp. v. Chertof(; 
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, 201 F.3d at 
384, 387. 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) 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. 
The record of proceedings in this case does not contain sufficient information from the end-client 
regarding the job duties to be performed by the Beneficiary and the requirements for the position. 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its Jocation(s) 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. 
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Matter of K- Inc. 
Specifically, where the work is to be performed for entities other than the Petitioner, evidence of the 
client companies' job requirements is critical. In Defensor, the ·court held that the former 
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 a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. 
Here, while the letters from the Petitioner, the first and second vendors, and the end-client are 
acknowledged, without a contract that outlines the substantive nature of the Beneficiary's work for 
the end-client, we are unable to determine that the Beneficiary will be employed in the capacity 
specified in the petition for the duration of the requested employment period. Specifically, all letters 
submitted contain identical statements of duties to be performed by the Beneficiary. However, the 
letters do not provide any particular details regarding the demands, level of responsibilities and 
requirements necessary for the performance of these duties, and the record of proceedings does not 
contain a contract with the end-client. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. Matter ofChawathe, 25 I&N Dec. at 369, 376 (AAO 2010). 
In addition, we highlight once more the speculative nature of the Petitioner's employment proffer, 
which precludes a determination that the position is a specialty occupation. Again, the only 
evidence of any legally binding obligation on any of the four actors involved here is a 12-month 
purchase order executed between the Petitioner and the first vendor. There is no evidence of any 
similar legally binding obligation on the part of the second vendor or the end-client - regardless of 
length. The Petitioner has not established that the petition was filed for non-speculative work that 
existed as of the time of the petiti~n's filing. Again, 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. Michelin Tire Corp., 
17 I&N Dec. at 248. 
Finally, we observe that the list of duties provided by the Petitioner is unreliable, because the end­
client has stated that it retains the ability to change them. The extent to which the end-client would 
change the Beneficiary's duties is not stated, nor is the timetable for doing so. As such, the 
substantive nature of the duties the Beneficiary would perform at any time during the period of 
requested employment has not been established. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
II 
Matter of K- Inc. 
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. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-Ine., ID# 65618 (AAO Feb. 22, 20 17) 
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