dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
' 
MATTER OF V -S-P-, INC. 
' Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 29,2016 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services provider, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified 
- foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition, concluding that the Petitioner did not 
establish that 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 -1 B petition, the Petitioner stated that the Beneficiary will serve as a software developer. In 
the support letter, the Petitioner provided the following job duties for the position: 
• Develop, integrate and implement related applications components, including 
front-end development, server side development and database integration 
• Responsible for all phases of software development life-cycle from conception 
through beta-test, ship and maintenance. 
• Manage computer software applications, specialized utility programs, network 
distribution software and operating system-level software using SQL, UML, C#, 
XML, XSL, HTML, and other updated computer skills 
• Manage websites and web applications, troubleshooting issues as they arise and 
recommending improvements 
(b)(6)
Matter of V-S-P-, Inc. 
• Participate in designing, developing, implementing, modifying, supporting 
software programming applications and support the servers for all web related 
functions 
• Conduct trial runs of software, identify and debug errors in the software and make 
changes to ensure that instructions are correct and desired results are produced 
• Managing software architectural designs/development to . optimize Customer 
Engagement, Quality, Reliability, Development Cost, Operational Cost, 
Scalability, and Extendibility 
• Review, analyze, and modify programming systems to support business 
requirements (Analysis of business application system, technical design, and 
applications programing skills are necessary to properly support our business 
applications) 
On the labor condition application (LCA) 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 15-1132.1 
The Petitioner stated that the proffered posttton requires "the highly advanced technical and 
theoretical underpinnings only grained through the completion of at least a Bachelor's Degree or 
equivalent in computer science, computer information systems, mathematics, engineering (all 
concentrations) or related technical field." Despite its Level I, entry-level wage designation, the 
Petitioner claims on appeal that the proposed duties require an individual with at least five years of 
work experience. 
According to the documentation submitted by the Petitioner, the Beneficiary will be working offsite 
at the offices of (end-client), which executed a master service agreem~nt with the 
Petitioner. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Though the Director premised her denial of the petition solely upon the specialty-occupation issue, 
we have determined in our de novo review of the matter that Petitioner has not established that it 
1 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 R.olicy Guidance, Nonagric . Immigration Programs (rev . Nov . 2009), available at 
http://tlcdatacenter.com /download/NPWHC_Guidance_Revised_11 _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. 
2 
Matter of V-S-P-, Inc. 
meets the regulatory definition of a United States employer. 8 C.F.R. § 214.2(h)(4)(ii). Specifically, 
the Petitioner has· not established that it will have "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." !d. We will address this issue before we address 
the specialty-occupation issue. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines' an H-1B 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)(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 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
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 qf 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-
1 B 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 pursuant to section 212(n)(l) ofthe Act, 
8 U.S.C. § 1182(n)(1 ). 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 
3 
Matter of V-S-P-, Inc. 
as H-lB 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-lB visa classification, even though the regulation describes H-lB beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-lB 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 conventiomii 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, 4901U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee beJ!efits; and 
the tax treatment of the hired party." 
!d.; 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. S171 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
2 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
4 
Matter of V-S-P-, Inc. 
Specifically; the regulatory definition of"United States employer" requires H-lB 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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB 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-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. Cf 
Darden, 503 U.S. at318-19. 3 
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).4 
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-lB 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, 
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 
I 01 (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(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 B 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). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of thes.e 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)). 
4 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 214(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). 
Matter of V-S-P-, Inc. 
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 of beneficiaries' services, are the "true employers" of H -1 B 
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). · 
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 ~orker 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."' Jd at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Upon review of the record of proceedings, 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-1B temporary "employee." 
Matter of V-S,.:P-, Inc. 
1. Summary of Terms of Agreement under which Beneficiary will be Employed 
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 employment under which the Beneficiary will 
be employed. The Petitioner stated that the Beneficiary will work as a software developer for the 
claimed end-client. The Petitioner stated that "[the end-client] has no employment relationship with 
the Beneficiary,' and [the Petitioner] retains all rights to hire, fire, pay, and supervise the 
Beneficiary." The Petitioner also stated that it will be the "sole entity responsible for administering 
the Beneficiary's project work, time and salary payment." 
However, the Petitioner has not submitted a sufficient explanation, corroborated by credible 
evidence, detailing the manner in which the Beneficiary's supervisor would actually oversee, direct, 
and otherwise control the off-site work of the Beneficiary. This is particularly important in light of 
the Petitioner's statement in the LCA that the position is a Level I position wherein the Beneficiary 
will be expected to perform routine tasks that require limited, if any, exercise of judgement, will be 
closely supervised and his work closely monitored and reviewed for accuracy, and will receive 
specific instructions on required tasks and expected results. It is unclear from the record from whom 
the Beneficiary would receive such close scrutiny. 
For example, the Petitioner did not submit any documentation regarding the Beneficiary's supervisor 
or otherwise explain how the Petitioner will control the Beneficiary's work and administer his work 
assignments while the Beneficiary is working off-site. In reviewing the statement of work (SOW) 
submitted on behalf of the Beneficiary, we note that the Petitioner stated project reporting would 
occur via weekly timesheets that the Beneficiary emails to the Petitioner. However, it appears that 
the Beneficiary reporting completed work to the Petitioner; 'thus, we cannot determine if the 
Petitioner will assign and control the Beneficiary's work at the client site. It is not clear exactly how 
the Petitioner is supervising the Beneficiary's day-to-day duties when he is at the client site. A 
petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
2. SOW and Project Plan 
The Petitioner also submitted a SOW executed between the Petitioner and the end-client. The SOW 
stated that the Beneficiary will provide services as a software developer to the end-client 
commencing on October 1, 2014. The estimated term of assignment is "up to September 30th, 2017 
or as per client requirements." The SOW also provided a brief job description of the duties to be 
performed by the Beneficiary. However, the SOW provided very little detail of the type of work to 
be performed by the Beneficiary, and lacked a detailed explanation of how the Petitioner will control 
the work performed by the Beneficiary. Again, a petitioner's unsupported statements are of very 
I 
Matter of V-S-P-, Inc. 
limited weight and normally will be insufficient to carry its burden of proof. See Matter of Soffici, 
22 I&N Dec. at 165; see also Matter ofChawathe, 25 I&N Dec. at 376. The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. 
at 376. 
On appeal, the Petitioner submits a project plan that does not list any company names or the 
Beneficiary. It is not clear whether the Beneficiary will be working on this project. Notably, this 
project started in August 2013 and has an end date of December 2016. The project plan does not 
provide sufficient detail or explanation of what the Beneficiary will be doing for the end client. 
3. Master Services Agreements 
The Master Service Agreements of record do little to establish the existence of an employer­
employee relationship between the Petitioner and the Beneficiary, as they default to the SOW. 
4. Letters from End-Client 
The Petitioner also submitted letters from the end-client, which confirm that it executed a master 
service agreement with the Petitioner, that the Beneficiary will be assigned as a software developer 
to an "ongoing project that require development, customization, support and implementation, and 
that the B~neficiary will perform required co-ordination and development activities." 
However, they do not discuss in sufficient de~ail the nature and manner in which the Petitioner will 
supervise or otherwise control the Beneficiary's work performed on the end-client's premises. In 
addition, the letters do not explain in any meaningful detail the project upon which the Beneficiary 
will work and the duties he will perform until the end of his1 H -1 B requested period of employment. 
5. Conclusion 
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 ana that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
Again, this is particularly important in this case given the Petitioner's attestations made in the LCA 
regarding the close level of supervision the Beneficiary would receive. 
Based on the tests outlined above, 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." 8 C.F.R. § 214.2(h)(4)(ii). 
Even if it were found that the Petitioner would be the Beneficiary's 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 three-year period requested 
from October 1, 2014, to August 31, 2017. USCIS regulations affirmatively require a petitioner to 
8 
Matter of V-S-P-, Inc. 
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 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 ofthe following criteria to qualify as a specialty occupation: 
(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). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
9 
Matter of V-S-P-, Inc. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-88. 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 the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
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 proceeding 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 who will be 
working for the end-client in the position of software developer. 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 
"development, customization, support and implementation"; "manage computer software 
applications, specialized utility programs, network distribution software and operating systems-level 
software using SQL, UML, C#, XML, XSL, HTML, and other updated computer skills"; and, 
"manage, develop, integrate and implement related applications components, including front-end 
development, server-side development and database integration." 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 m~ant by "manage computer software applications"). 
Nor is there a detailed explanation regarding the demands, level of responsibilities, complexity, or 
requirements necessary for the 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 a project but does not specifically 
explain the project and the Beneficiary's specific role for this project. 
. 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. 
10 
Matter of V-S-P-, Inc. 
We also observe some job duties listed by the Petitioner indicate that the Beneficiary will have 
managerial-level responsibilities. For example, the Petitioner stated that the Beneficiary would be 
"responsible for all phases of software development life-cycle from conception through beta-test, 
ship and maintenance"; "manage computer software applications, specialized utility programs, 
network distribution software and operating system-level software using SQL, UML, C#, XML, 
XSL, HTML, and other updated computer skills"; and, "manage websites and web applications, 
troubleshooting issues as they arise and recommending improvements. We observe further that the 
Petitioner states that the duties can only be performed by an individual with five years of work 
experience. However, as noted above, in designating the proffered position at a Level I, entry-level 
wage rate, the Petitioner indicated that the proffered position is a comparatively low, entry-level 
position relative to others within the occupation, in which the Beneficiary is only required to have a 
basic understanding of the occupatiop and perform routine tasks that require limited, if any, exercise 
of judgment. This apparent inconsistency raises further questions regarding the reliability of the 
Petitioner's job description. 
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 software developer 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, which therefore precludes a finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work 
that determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which _is the focus of criterion 4. Accordingly, as the Petitioner has 
not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be 
found that the proffered position qualifies for classification as a specialty occupation. 
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.
6 
6 As these findings preclude appro viii of the petition we need not address any of the issues we have observed on appeal, 
except to note that given the Petitioner's statements regarding the duties and responsibilities of the proffered position, as 
well as its requirement for five years of work experience, it is not apparent that the LCA, which was certified for a Level 
I, entry-level position, actually corresponds to and supports the H-1 B petition. The Petitioner should be prepared to 
address this matter in any future filings. 
II 
Matter of V-S-P-, Inc. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the 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 ofV-S-P-, Inc., ID# 22929 (AAO Nov. 29, 2016) 
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