dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology and software engineering company, seeks to temporarily 
employ the Beneficiary as a "software engineer" under the H-1 B nonimmigrant classification for 
specialty occupations. See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that (1) the proffered position qualities for treatment as a specialty 
occupation position; or (2) the Petitioner had the requisite employer-employee relationship with the 
Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the evidence submitted is sufficient to demonstrate eligibility. 
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 "software engineer." 
On the labor condition application (LCA) 1 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.2 
1 
The Petitioner is required to submit a certified LCA to the U.S. Citizenship and Immigration Services (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 2015). 
2 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). The 
(b)(6)
Matter of S- T-, Inc. 
In the petition, the Petitioner stated that the Beneficiary would work at 
Minnesota from , 2016, to , 2019. Evidence in the record 
indicates that the address is a location of the claimed end-client. The 
LCA was certified for employment there and at the Petitioner's own location in Texas. 
The Petitioner submitted the following description of the duties of the proffered position when it 
filed the petition : 
• Creating java web services for team. 
• Perform application modifications and enhancements based on business needs. 
• Develop clean, high-quality and reusable codes 
based on programming standards. 
• Coordinate with Project manager to clearly understand business requirements and 
expectations . 
• Perform unit testing of application codes. 
• Worked on Spring Framework and Web Services for project. 
• Experience utilizing technologies such as Java, Spring, Web services, Hibernate , SQL 
Shell scripting , perl; Windows and Linux. 
• Involved in Project Build and release of project. 
• Worked on data backup process (Including saving data to desk) 
• Prioritize, plan and handle multiple tasks effectively. 
The evidence of record indicates the path of contractual succession as follows: Petitioner -7 
-7 -7 
II. EMPLOYER- EMPLOY EE RELATIONSHIP 
We will first address the Director's finding that an employer-employee relationship did not exist 
between the Petitioner and the Beneficiary. 
"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 position s for which the Petitioner expects the Beneficiary to have a basic 
understanding of the occup ation . This wage rate indicates: (I) that the Benefici ary 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 instruction s on required tasks and expect ed 
results . U.S. Dep't of Labor, Emp 't & Training Admin ., Prevailing Wage Determination Policy Guidance, Non agr ic. 
Immigration Programs (rev . Nov . 2009) , available at http ://tlcd atacenter.com /download / 
NPWHC_Guidance _Revised _ l1_2009.pdf A prevailing wage determination starts with an entry level wage and 
progres ses to a higher wage level after considering the experience , education , and skill requirements of the Petitioner 's 
job opportunit y. !d. 
2 
Matter of S-T-, Inc. 
A. Legal Framework 
Section 101(a)(15)(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)(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 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-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)(l). The intending employer is described as otiering 
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 tile a Form I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals 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, 
3 
Matter of S-T-, Inc. 
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 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-lB beneficiaries as being "employees" who must have an 
"employer-employee relationship" with a "United States employer." !d. 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. 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: 
"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." 
!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)(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. Sl7106 (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. 3 
3 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (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' 
4 
Matter of S-T-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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 ap "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. C.f Darden, 503 U.S. at 318-19. 4 
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). 5 
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 ernploye·r­
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)). 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping. Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
101 (a)( 15)(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 Jaw 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). . 
4 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)). 
5 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). -
5 
Matter of S-T-, Inc. 
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) ofAgency § 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-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). 
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 atiect 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 inexofably 
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-lB temporary "employee." 
6 
(b)(6)
"Matter of S- T-, Inc. 
To qualify as a United States employer, all three criteria at 8 C.F.R. § 214.2(h)(4)(ii) must be met. 
The Form I -129 indicates that the Petitioner has an Internal Reveime Service Tax Identification 
Number. While the Petitioner's letter of support and offer of employment letter indicate its intent to 
engage the Beneficiary to work in the United States, the additional documentation submitted by the 
Petitioner is insufficient to establish that an employer-employee relationship exists or will exist 
between the Petitioner and the ·Beneficiary. 
Here, the Petitioner asserts that the Beneficiary will work onsite at the offices of end-user 
pursuant to an agreement the Petitioner has executed with While we acknowledge that the 
record contains copies of the subcontractor agreement and statement of work (SOW) between the 
Petitioner and there is insufficient evidence to substantiate the claimed relationship between 
and and, consequently, the Petitioner and 
In addition to the contractual documentation with the Petitioner submitted a copy of a letter 
from which claims that "has been contracted by to provide IT services." It 
further indicates that in order to "provide necessary technical expertise," is contracted with the 
Petitioner to assist on the project. The letter further claims that the Petitioner has designated 
the Beneficiary to work on this project, identifying his position as that of a software engineer for a 
period of three years. The letter concludes by asserting the Petitioner, not or have the 
right to control the Beneficiary. 
The Petitioner also provided a letter from the iT program manager of which states that 
will be the end-user of the Beneficiary's services. claims in this letter that it is a 
wholly-owned subsidiary of and that the Beneficiary's services will be rendered onsite at 
offices in Minnesota. 
As evidenced by the claims made and documents submitted, the Beneficiary will spend the majority 
of the validity period working for an end user 1 of a client 1 of the Petitioner's client 
The record does not contain an agreement or other sufficient supporting documentation to 
establish that the claimed relationship between and exists, nor is there any 
documentation to establish the relationship between and either or While two 
letters, written by and are submitted in support of the claimed contractual path 
between these parties, there is no documentary evidence confirming the existence of this claimed 
relationship, nor is there evidence outlining the nature and scope of the Beneficiary's assignment and 
duties. Absent such evidence, the ultimate employment of the Beneficiary, and the element of 
control of the Beneficiary's work, cannot be determined. 
Although the record contains an SOW between the Petitioner and which includes a 
"Confidentiality and Invention Agreement" that acknowledges the Beneficiary's assignment to 
perform services for the fact remains that not is the ultimate end user or end 
client that will benefit from the Beneficiary's services. There is no documentation to support 
claim that it is a wholly-owned subsidiary of Moreover, and of greater importance, 
there is no documentation to demonstrate that would benefit from an agreement between 
and for the Beneficiary's services, regardless of whether it is subsidiary. The 
..., 
(b)(6)
Matter of S-T-, Inc. 
absence of evidence establishing the contractu<;tl relationship between and and 
ultimately and renders it impossible to determine the nature of the Beneficiary's 
employment and who will actually have the right to control his work. 6 
Again, no master agreement or work order between these parties was submitted, nor was a contract 
between and provided which outlined the nature and scope of the Beneficiary's duties. 
The Petitioner simply submitted 
two letters signed by officials of and which alluded to 
a contractual relationship. However, neither of these documents is sufficient to establish the 
existence of such a relationship, nor do they articulate the nature of the project or the scope of the 
Beneficiary's duties. 7 
On appeal, the Petitioner submits another letter from reaffirming its previous claims 
regarding the nature of the Beneficiary's employment onsite at its offices. Again, however, this 
letter is insufficient because there is no evidence linking the end user of the Beneficiary's 
services, to or and therefore there is no evidence to establish that the Petitioner, by way 
of involvement as a third-party in the relationship, has any right to control the Beneficiary ' s work. 
The statements by representative are noted; however, they are not supported by 
documentary evidence demonstrating relationship to any of the claimed parties in this 
contractual arrangement. 
A petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof, particularly when supporting documentary evidence would reasonably be 
available. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing JI.Jatter ofTreasure 
Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter o.fChawathe, 25 I&N Dec. 
369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative , and 
credible evidence. See Matter of Chawathe , 25 I&N Dec. at 376. Since the Petitioner's assertions 
are not supported by documentary evidence that a valid contractual path exists betw·een the 
Petitioner and the ultimate end user, thus allowing the Petitioner the right to control the 
Beneficiary's work, the Petitioner has not established that it meets the definition of a United States 
employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
Therefore, based on the tests outlined above, the Petitioner has not established that it or any of its 
clients will be a "United States employer" having an "employer-employee relationship" with the 
beneficiary as an H-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
6 We note the Petitioner's submission of timesheets for the Beneficiary, which indicate his hours worked on the 
' project, one of the two projects/systems identified by in its letter. These timesheets, however, merely 
act as a log of hours worked, and do not indicate who is· supervising the Beneficiary 's work. Moreover, there is no 
indication that the services on the project are being performed onsite at the offices of 
7 
Although the letter provides a brief overview of two systems it claims are specific to the project in question , the 
lack of evidence establishing the specific parameters of the project and the rights and obligations of the parties renders 
this letter of little probative value. 
8 
Matter of S-T-, Inc. 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1 184(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: 
(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). 
It should be noted that for purposes of the H-1 B adjudication, the issue of bona fide employment is 
viewed within the context of whether the Petitioner has offered the Beneficiary a position that is 
viewed as a specialty occupation. Of greater importance to this proceeding, therefore, is whether the 
Petitioner has provided sufficient evidence to establish that the services to be performed by the 
Beneficiary are those of a specialty occupation. 
9 
(b)(6)
Matter of S-T-, Inc. 
B. 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 qualities as a specialty occupation. 
Specifically, the record (1) does not describe the position ' s duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 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. For example , the Petitioner's description of 
duties in its letter of support, which is identical to a statement of duties appended to the Petitioner's 
offer of employment letter to the Beneficiary, present the duties of the proffered position in abstract 
and generalized terms such as "coordinate with Project Manager to clearly understand business 
requirements and expectations" and "prioritize, plan and handle multiple tasks effectively ." These 
tasks as described do not communicate what the Beneficiary would do on day-to-day basis or what 
bodies of knowledge are required to perform these duties. 
The letter submitted from also reiterates the duty descriptions provided by the Petitioner but 
states that the Beneficiary will work as an "IT consultant," which differs from 
the proffered position. 
Moreover, a review of the Petitioner's organizational chart, submitted in support of the petition, 
identifies the Beneficiary's position as that of a "programmer analyst" and further indicates that he 
reports to a superior whose position is identified as that of a "software engineer," which is the same 
position the Petitioner 
asserts will be held by the Beneficiary. "[I]t is incumbent upon the petitioner 
to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
On appeal, the Petitioner submits a new letter from the claimed end user of the Beneficiary's 
services, which provides a new description of job duties for the Beneficiary ditierent and distinct 
from the previous description submitted prior to the Director's adjudication. Upon review of the 
Petitioner's brief in support of the appeal, these new duties are also repeated by the Petitioner , who 
allots a percentage of time the Beneficiary will devote to each duty. 
Upon review, we note preliminarily that this new statement of duties is broader than the one initially 
submitted, and includes virtually all new duties not previously identified in the record. For example, 
the Petitioner and claim that the Beneficiary 's duties include "creating Web Services for 
HTTP responses in the form of JSON format to use in UI," "creating vision documents based 
business changes if required ," and "creating branches and merging branches for every month 
releasing using SVN." While we acknowledge that the new list of duties is sufficiently more 
detailed than the prior list, it nevertheless constitutes a material change to the duties of the position. 
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. 
10 
(b)(6)
Matter of S-T-, Inc. 
On appeal, the Petitioner cannot offer a new position to the Beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy, the associated job 
responsibilities, or the requirements of the position. The Petitioner must establish that the position 
offered to the Beneficiary when the petition was filed merits classification for the benefit sought. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978). A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See A1atter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
In addition, the record remains devoid of evidence establishing that is a valid end user of the 
Beneficiary's services pursuant to the agreement behveen the Petitioner and This fact, 
coupled with the vague duties originally identified for the Beneficiary, prohibit a finding that there is 
sufficient specialty occupation work available for the Beneficiary. Again, there are no master 
service agreements or end-client letters between and or and to confirm 
the existence of this claimed contractual relationship. Absent evidence to the contrary, the 
Petitioner, therefore, has not shown that the Beneficiary will work at during the requested 
validity period, and has likewise established the substantive nature of the duties the Beneficiary 
would perform there during that period. 
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 
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 spec1alty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii){A), because it is the substantive nature of that \vork 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 
2; (3) the level of complexity or uniqueness of the proffered position, \vhich 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. 
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. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternative basis for the decision. The burden is on the Petitioner to show eligibility for the 
11 
Matter of S-T-, Inc. 
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 ofS-T-, Inc., ID# 96979 (AAO Dec. 29, 2016) 
12