dismissed H-1B Case: Information Technology

/ 
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF P-N-A- DATE: JULY28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions company, seeks to temporarily employ the 
Beneficiary as a "software engineer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section TUl(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that it will engage the Beneficiary in an employer-employee relationship or that the 
proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. 
Upon de novo review, we will dismiss the appeal. 
I. UNITED STATES EMPLOYER 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it meets the regulatory definition of a United States employer as 
that term is defined at 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. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
Matter of P-N-A-
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
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 at 8 C.P.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.P.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.P.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 (LCA) with the Secretary of Labor pursuant 
to section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(1). The intending employer is described as 
offering full-time or part-time "employment" to the H-1 B "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 I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1B temporary "employees." 8 C.P.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 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 
' 
2 
Matter of P-N-A-
as being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes of the H -1 B 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. 1ns. 
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: 
"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)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
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 ofthe H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 
1 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l )(A)(i) of the Act, or ,;employee" in section 
3 
Matter of P-N-A-
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-1 B 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. at 318-19.2 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214:2(h).3 
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 -1 B 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 
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. De.f Council, 
Inc., 467 U.S. 837,844-45 (1984). 
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 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
Matter of P-N-A-
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-1B nurses under 8 C.P.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, 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." Specifically, the Petitioner has not provided 
sufficient information to establish that it will actually supervise and control the Beneficiary's day-to­
day work at an end-client location. 
5 
Matter of P-N-A-
On the H-1 B petition, the Petitioner, which is located in Oregon, indicated that the Beneficiary will 
work for an end client, W-S-S-4 (end-client), in Colorado for the duration of the requested 
employment period. 
In support of the petition, the Petitioner submitted an undated employment agreement with the 
Beneficiary, but this agreement does not include any information relating to how the Petitioner will 
supervise or control the Beneficiary's work. Instead, it simply states that the Beneficiary "shall 
perform such duties as Employee's supervisor shall assign to employee from time to time." 
The Petitioner also submitted a letter dated March 2016, in support of the petition, which states that 
"the Beneficiary will be supervised by [Mr. B-M-], Vice President of Delivery from [the 
Petitioner]." Notably, the offer of employment letter to the Beneficiary identifies his supervisor as 
Mr. B-S-.5 The Petitioner must resolve this inconsistency 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). 
The Petitioner's support letter also states that the "Beneficiary will submit the timesheets, 
documenting work performed during the regular pay periods to us for approval," but does not 
indicate how the Petitioner is directing and validating the work performed. In other words, the 
record does not demonstrate how the Petitioner oversees, directs, assigns, reviews, affects, 
supervises, or otherwise controls the Beneficiary's substantive work. The Petitioner further states 
that it will be responsible for "administering his work time, payment of salary, and issue Form W-2." 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Without full disclosure of all of the relevant factors, 
establishing where, how, and to what extent the Petitioner, and not the ultimate end client, will 
supervise and oversee the Beneficiary's daily work, we cannot determine that the requisite 
employer-employee relationship exists between the parties. 
The record contains a letter from the end-client that lists the same duties the Petitioner provided in 
support of the petition. While the end-client claims that the Beneficiary will "perform his services' 
under the supervision and control of [the Petitioner]'s management, there is no indication that any of 
the Petitioner's personnel will be stationed onsite at the client's location, leading to further questions 
regarding who exercises actual control over his work at the client site. The various contractual 
documentation submitted in support of the Beneficiary's assignment is likewise insufficient to 
4 The end-client was also formerly known as 1-. . 
5 Although the Petitioner's organizational chart indicates that both of these individuals hold positions superior to that of 
the Beneficiary, there is no indication that one or both of these individuals will be stationed onsite at the client's offices 
in Colorado. 
6 
Matter of P-N-A-
establish that the requisite employer-employee relationship exists between the parties. Although the 
record demonstrates an ongoing agreement between the Petitioner and the end-client, the 
documentation submitted makes no mention of the Beneficiary and his proposed assignment, and 
further does not delineate the manner in which the Petitioner's employees will be supervised while 
working onsite at the end-client's offices. Absent additional evidence outlining the exact nature of 
the proposed project and the manner in which the Beneficiary's will be assigned and supervised, it is 
unclear how the Petitioner will exercise control remotely from its Oregon offices. It appears more 
likely that the supervisor at the work location, the end-client's employee, will provide the level of 
supervision required for this position. Further, the statement of work (SOW) indicates that the end­
client will provide the tools and resources for the Petitioner's employees. 
Further, we note that the Petitioner classified the proffered position at a Level I wage (the lowest of 
four assignable wage levels). This wage rate indicates that the Beneficiary will be closely 
supervised and his work closely monitored and reviewed for accuracy, and that he will receive 
specific instructions on required tasks and expected results. It is unclear how the Petitioner will 
provide this level of supervision remotely from its Oregon offices. It is more likely that the 
supervisor at the work location, the end-client's employee, will provide the level of supervision 
required for this position. 
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 Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibiliW in this matter. 
II. SPECIALTY OCCUPATION 
The Petitioner also has not established that specialty occupation work exists for the Beneficiary for 
the duration of the requested validity period. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
7 
Matter of P-N-A-
(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.P.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (lst Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "software engineer." 
On the LCA6 submitted in support of the H-1B petition, the Petitioner designated the proffered 
position under the occupational category "Software Developers, Applications" corresponding to the 
Standard Occupational Classification code 15-1132. 7 
As mentioned, the Petitioner stated that the Beneficiary would work at the end-client's office in 
Colorado, from October 2016, to September 2019. 
6 
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). 
7 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). 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 ofthe 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://tlcdatacenter.com/download/ 
NPWHC_Guidance_Revised_ll_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. 
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Matter of P-N-A-
The Petitioner submitted the following description of the duties of the proffered position when it 
filed the petition: 
• Involve in designing new applications, documenting high level and low level 
designs for the applications; 
• Develop Functional Design documents and Technical design documents for all 
the enhancements in the application for non-Agile Projects; 
• Develop and maintain applications based on requirement and technical design 
document received; 
• Develop and perform unit testing on web based projects in E-governance and 
Telecommunications domain; 
• Involve in performance tuning of query and application in order to improve the 
overall system performance; 
• Involve in coordinating with business analysts and onsite coordinators on project 
requirements; 
• Work in all phases of Software Development Life Cycle in Waterfall and Agile 
Methodologies; 
• Update the task completion and hours consumed to ensure right metrics are 
arrived for the project dashboard; 
• Participate in retrospectives, Daily stand up, sprint reviews or sprint planning 
sessiOns; 
• Prioritize the backlog and estimate the effort to implement User Stories; 
• Work with the change management and gain approval on the changes to be 
promoted in production environment; and 
• Provide support during acceptance testing and fixing Production Issues. 
The Petitioner claimed that the proffered position required "at least a Bachelor's degree or 
equivalent in Computer Science, Computer Information Systems, Computer Applications, 
Information Technology, and Electrical Engineering or related technical field." 
The Petitioner also submitted contractual documents in support of the assertion that the Beneficiary 
would be performing services onsite at the end-client's offices. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not (1) describe the position's duties with sufficient detail; (2) establish 
9 
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Matter of P-N-A-
that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation; and (3) establish a non-speculative employment for the Beneficiary.
8 
We find that the Petitioner has not established the substantive nature of the duties the Beneficiary 
would perform if the H-1 B petition were approved. While the letters from the end-client provide the 
same description of duties set forth by the Petitioner in its letter of support, these duties shed little 
light on what type of software engineering duties the Beneficiary would perform for the end-client. 
The duties are presented in abstract and generalized terms such as "designing new applications " and 
"coordinating with business analysts and onsite coordinators on project requirements," and do not 
sufficiently communicate what the Beneficiary would do on day-to-day basis or what bodies of 
knowledge are required to perform these duties.9 The letter also omits any ~ducational requirements 
as a prerequisite for the position. 
We note that, 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. 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. 
Further, we note that the Petitioner did not sufficiently establish a project, upon which the 
Beneficiary would apparently work. On appeal, the Petitioner submits a SOW to supplement the 
contractual documentation in the record, but this SOW is insufficient to establish the availability of 
specialty occupation work for the Beneficiary. 
For example, the SOW outlines a project between the Petitioner and the end-client was identified as 
' which commences in July 2015. 10 Although the Petitioner claims that this SOW, 
executed pursuant to two previously executed master services agreement , defines the scope of the 
Beneficiary's assignment , we disagree. According to Section 3 of the SOW, all services to be 
executed under the SOW will be' ordered through individual work requests (work request) issued by 
the end-client. Under Section 5 of the SOW states that "[the Petitioner] will resource this team .. . 
identified in the work requests. Although the Petitioner submitted a work request on appeal , this 
8 The Petitioner submitted documentation to support 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. 
9 On appeal, counsel for the Petitioner provides an expanded description of duties , but it is not substantiated by 
documents from the end-client Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980)). Counsel's statements 
must be substantiated in the record with independent evidence. , ' 
10 
Notably , this SOW is signed in February 2016 , raising question as to if it was prope rly executed and valid at the time 
of its effective date of July 2015 . 
10 
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Matter of P-N-A-
request is dated January 1, 2017, approximately eight months subsequent to the filing ofthe petition. 
In addition, this work request is vague and provides no insight to what resources or personnel are 
required, and there is no evidence that the Beneficiary will be assigned to this project. Moreover, the 
letter from the end-client makes no mention of the project. 
The evidence of record does not adequately est,ablish that the Beneficiary would work at the end­
client's location during the period of requested employment. Although the record contains 
previously executed master services agreements (MSAs), as well as a SOW and work request, the 
documents do not sufficiently substantiate the Beneficiary's claimed employment. None of these 
documents outline with specificity the duties to be performed by the Beneficiary, the project upon 
which he would work, the nature of his supervision on such project, and the duration of the claimed 
· II assignment. 
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 profiered 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. 
11 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a veh.icle 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 8 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 8 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). 
II 
Matter of P-N-A-
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
The Petitioner has not demonstrated that it will engage the Beneficiary in an employer-employee 
relationship or that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-N-A-, ID# 494603 (AAO July 28, 2017) 
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