dismissed H-1B Case: Information Technology

MATTER OF V-T-S- LTD. 
( 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 6, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software and information technology services company, seeks to temporarily employ 
the Beneficiary as an "IT systems analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified 
individual 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 
evidence of record does not establish that: (1) the proffered position is a specialty occupation; and 
(2) the Petitioner would engage the Beneficiary in an employer-employee relationship. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a letter and much of the 
previously provided evidence, and asserts that the Director erred ih her findings. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner would be a 
"United States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-IB nonimmigrant in pertinent part as an · 
individual: 
[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 
Matter of V- T-S- Ltd. 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined 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 organizatio~ 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 Clas.sification 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-lB visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign national 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)(l ). The intending employer is described as offering full-time 
or part-time "employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) 
ofthe 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-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-1 B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C,F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the legacy 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-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 conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. 
2 
Matter of V-T-S- Ltd. 
v. Darden, 503 U.S. 318,322-323 (1992) (quoting Communityfor 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)(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. S 17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context ofthe H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.' 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-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 
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. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
3 
Matter of V-T-S- Ltd. 
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 318-319? 
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).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-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, 
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)(1) (adopting a materially identical test and indicating that 
said tes"t 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" ofH-lB 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the Petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
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 
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-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of V-T-S- Ltd. 
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 
323-324. 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, 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, we find that the evidence of record does 
not establish that the Petitioner would be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee." Specifically, we find that the 
record of proceedings does not contain sufficient, consistent, and credible documentation confirming 
and describing the circumstances of the Beneficiary's claimed assignment to the end-client. 
Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has 
not been substantiated. 
On the H -1 B petition, the Petitioner provided a single work location where the Beneficiary would 
provide his services: Washington. This address 
corresponds to the work location of the claimed end-client, at whose location the Petitioner claims 
the Beneficiary would work pursuant to an agreement executed between the Petitioner and the 
mid-client. 
\ 
In support of its assertion that the Beneficiary would be working on a project at the end-client's 
location, the Petitioner submitted an agreement entitled "Recruitment Services Agreement" executed 
between the Petitioner and the mid-client on April 20, 2010. The Petitioner also submitted an 
undated purchase order, which listed the Beneficiary as the consultant who would work at the end­
client's Washington location with a start date of September 21, 2015. The purchase order stated that 
-~ it was governed by the terms of "Subcontractor Agreement" executed by the Petitioner and the 
mid-client on April 7, 2008. The record of proceedings, however, does not contain the referenced 
2008 subcontractor agreement. Without the said 2008 subcontractor agreement, by which the 
purchase order is governed, we are unable to ascertain whether the Petitioner would in fact engage 
the Beneficiary's services pursuant to this purchase order. 
5 
Matter of V-T-S- Ltd. 
The Petitioner also submitted a document entitled "Amendment No. 003 to Statement of Work No. 
20120125.058.S.045," between the mid-client and the end-client, effective February 1, 2015, to July 
31, 2016.4 Importantly, this statement of work contains a table listing the "supplier resource type," 
but neither table lists the Beneficiary's claimed title of "IT systems analyst."5 Therefore, we are 
unable to ascertain whether this statement ofwork specifically pertains to the Beneficiary. 
Even if the Beneficiary were included in the above statement of work, this agreement ends in July of 
2016. The evidence of record does not contain other contractual agreements between the mid-client 
and the end-client specifically for the Beneficiary's' services beyond 2016. The Petitioner, in 
comparison, is requesting to employ the Beneficiary until 2019. 
The mid-client's letter states that the Beneficiary's assignment is "long term in nature" and has been 
"extended multiple times in the past." The letter further states that the Beneficiary's assignment is 
expected to get extended beyond the current assignment of three years. But the evidence of record 
does not support these assertions, as there is no valid agreement between the mid-client and the 
end-client beyond 2016, and there are no copies of previous agreements. Similarly, one of the 
end-client's letters stating that the end-client "would like to engage [the Beneficiary's] services for a 
minimum of three years until December 20 19" is not corroborated by other evidence in the record. 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
For all these reasons, we find that the Petitioner has not substantiated the existence of the work to be 
performed by the Beneficiary at the claimed end-client's work site. Consequently, the record is 
insufficient to establish that the Petitioner would in · fact engage the Beneficiary in an 
employer-employee relationship. 6 
4 We note that, despite the Petitioner's assertions to the contrary, the original statement of work that this document seeks 
to amend was not submitted into the record. 
5 The table lists the following resources: test analyst III, senior test analyst, SDET, test lead H, test lead senior, test 
analyst II, and QA & test program manager. Certain information, including the number of resources and each position's 
hourly rate, appears to have been removed from the submitted copies. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
individual 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 individual is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the individual has the appropriate degree for the occupation. In 
the case of speculative employment, the Service is unable to perform either part of this two-prong 
analysis and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, 
6 
(b)(6)
Matter of V-T-S- Ltd. 
However, even if we were to ignore this foundational deficiency, we would still find the evidence of 
record insufficient to establish the requisite employer-employee relationship between the Petitioner 
and the Beneficiary. This is because the Petitioner, which is located in Illinois, has not exphiined 
and documented in detail how it would supervise and otherwise control the Beneficiary's day-to-day 
activities while he works for the claimed end-client in the State of Washington. 
Despite the Petitioner's repeated claims that it would maintain control over the Beneficiary, the 
evidence of record does not sufficiently demonstrate how the Petitioner would supervise and 
otherwise exercise co-ntrol over the Beneficiary's employment. For example, the Petitioner's 
organizational chart does not clearly depict who would supervise the Beneficiary: the chart appears 
to depict the Beneficiary as supervised by unnamed "programmers & software developers and 
analysts." The chart does not contain additional information about these employees' names, job 
duties, and work locations. The Petitioner has not established whether any of these apparent 
supervisors would also be working for the claimed end-client in Washington and could therefore 
supervise the Beneficiary's daily work. 
) 
The Petitione~ submitted copies of its performance review for the Beneficiary's work for the time 
period of July 1, 2014, to June 30, 2015. The performance review identifies the Beneficiary's 
department and division as "information technology" and "network solutions group," respectively. 
However, the Petitioner's organizational chart does not depict an "information technology" 
depart,ment or a "network solutions group." 
Moreover, the Petitioner's performance review lists the Beneficiary's supervisor as who 
is identified elsewhere in the record as the Petitioner's vice president. But the Petitioner has not 
provided further information and evidence 
regarding Mr. employment, such as his job 
duties and work location.7 In fact, Mr. name does not appear in any of the Petitioner's 
quarterly wage and tax records - not even for the quarter ending on June 30, 2015, which 
corresponds to the time period in which he purportedly evaluated the Beneficiary's work as his 
supervisor. We note that, according to the Petitioner's quarterly wage and tax records, only the 
Beneficiary and two other employees, and earned wages in 
the State of Washington in 2015. ·-
-
The Petitioner states in its offer letter that it will review the Beneficiary's performance "at the end of 
[his] first three months of eJ!lployment and annually thereafter." According to this letter, the 
there is no assurance that the individual 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). 
7 Mr. name appears on the Petitioner's federal tax returns (statement 4) as a source of assets. He is not listed 
elsewhere in the tax returns. 
7 
(b)(6)
Matter of V- T-S- Ltd. 
Beneficiary will "provide reports concerning [his] work activities on a weekly basis." Nevertheless, 
the Petitioner has not submitted examples of the Beneficiary's weekly reports for the record.8 
Contrary to the Petitioner's position that one or more of its employees will supervise the Beneficiary, 
the undated purchase order signed by the Petitioner and the mid-client identifies an 
employee of the end-client, as the Beneficiary's "supervisor." The Petitioner has not sufficiently 
explained the relationship between the end-client, mid-client, and Petitioner with respect to the 
actual day-to-day supervision and control of the Beneficiary's work. The test of control hinges upon 
who exercises actual control, not merely the right to control, the Beneficiary's work. Darden, 503 
U.S. at 323-324. 
Overall, the evidence of record provides insufficient insight into how, from a remote location, the 
Petitioner would control the Beneficiary's work on a daily basis. While the Petitioner states 
repeatedly in its letters that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with 
the Beneficiary while he works at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative 1detail of the degree of supervision, direction, or 
control that the Beneficiary would receive from a long-distance employer. 
For all of these reasons, the evidence of record does not sufficiently demonstrate the requisite 
employer-employee relationship between the Petitioner and the Beneficiary. While social security 
contributions, worker's compensation contributions, unemployment insurance contributions, federal 
and state income tax withholdings, and other benefits are still relevant factors in determining who 
will control a foreign national 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 foreign 
national 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, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
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). Thus, the Petitioner has not demonstrated that it will have 
an employer-employee relationship with the Beneficiary. 
8 We further note that the offer letter identifies the Beneficiary's position as that of a software engineer and not an IT 
systems analyst as claimed on the H-1 B petition and other supporting documentation. 
8 
Matter of V-T-S- Ltd. 
IL SPECIALTY OCCUPATION 
The second issue before us is whether' the evidence of record demonstrates that the Petitioner would 
employ the Beneficiary in a specialty occupation position. 
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: ' 
' 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F .R. § 214.2(h)( 4 )(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 
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-T-S- Ltd. 
B. Proffered Position 
The Petitioner identified the proffered position as an "IT systems analyst" on the H -1 B petition, and 
indicated that he would work off-site at the end-client's Washington location. In a letter of support, 
the Petitioner stated that the Beneficiary would perform the following duties: 
• Consulting with peers and business users to determine the requirements of the current 
and future systems. 
• Analyze, plan and test the lOT notifications rules engine by coding XMLIJA VA 
scripts to support customer/client/system notifications which includes but not limited 
to plan changes, feature changes, device changes, usage, porting, subscriber number 
changes and account moves. 
• Install, program, configure and test the Mobility customer offer rules engine by coding 
XMLIJAVA scripts to generate the wireless offers for National Retail Front Ends. 
• Analyze the existing lOT notification engine and the customer offers engine to 
improve system performance. 
• Write complex SQL scripts using TOAD and AQUA STUDIO to, validate data in 
ORACLE database, to pull appropriate data for clients UAT effort and to ensure data 
integrity across different databases. 
• Help debug data, user and code issues by analyzing server logs by writing UNIX 
scripts. 
• Used Contivo Analyst to analyze and handle complex mapping challenges and to 
support multiple versions[.] 
• Analyze client's requirement, worked with architects, Business and development to 
provide robust client solutions[.] 
• Work with BA' s to run proof of concept tests; worked with designers enhance existing 
functionality[.] 
• Analyze performance reports and worked with designers and developers to improve 
performance points 
• Executing test plans to produce actual results, working with business Analyst/clients to 
validate actual test results to expected results and ensure the test requirements are met. 
• Responsible for training the busi.ness users and write project documentation. 
In response to the Director's request for evidence (RFE), the Petitioner stated that it "regularly 
requires at least a Bachelor's degree holder to fill ,;available IT Systems Analyst and related 
positions." The mid-client and end-client provided the same duties listed above, and stated that 
"[t]he minimum education, training, and experience necessary to perform the job duties is a 
Bachelor's degree or equivalent in the related field." 
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. 
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(b)(6)
Matter of V-T-S- Ltd 
For H -1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1B caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, the Petitioner indicated that the Beneficiary would be employed at the end-client's 
location as an IT systems analyst. However, we find that the Petitioner has not provided sufficient, 
credible evidence to establish the Beneficiary's employment for the entire validity period requested 
(March 2016 through March 2019). For example, and as already discussed, the contractual 
agreements between the Petitioner, mid-client, and end-client do not extend beyond 2016. Further, 
the statement of work between the mid-client and the end-client does not contain any reference to the 
Beneficiary's job title as a "IT systems analyst." 
We now tum to the end-client's letter listing the Beneficiary's "projects." According to this letter, 
the only "current" project, was performed throughout the first and 
second quarters of 2016 (through June 30, 2016). All other projects that the Beneficiary would 
purportedly be assigned to - from the first quarter of 2016 through the fourth quarter of 2018 
(through December 31, 2018)- are specifically identified as "proposed" or "future" projects. The 
terms "future" or "proposed" indicate that these projects have not yet been secured. Thus, the 
Petitioner has not adequately established that it has non-speculative work for the Beneficiary for the 
entire period requested that existed as of the petition's filing date. USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.F.R. 103.2(b)(l). 
Without additional information and documentation establishing what projects have been secured, 
and accordingly, the specific duties the Beneficiary would perform on these projects, we are unable 
to discern the substantive nature of the position and whether the position indeed qualifies as a 
specialty occupation. Consequently, we are precluded from 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 the particular position, 
which is the focus of criterion I; (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. As the 
Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. 
I I 
Matter of V-T-S- Ltd. 
Moreover, the Petitioner's and the-client's claim that a bachelor's degree is a sufficient minimum 
requirement for entry into the proffered position is inadequate to establish that the proposed position 
qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly and closely to the position in 
question. There must be a close correlatiop between the required specialized studies and the 
position; thus, the mere requirement of a degree, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to 
obtain what an employer perceives to be a higher caliber employee, also does not establish 
eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp. v. Cherto.ff, 484 
F.3d at 147. 
; 
The Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's 
degree, without further requiring that _that degree be in any specific specialty. Without more, the 
Petitioner's statement alone indicates that the proffered position is not in fact a specialty 
occupation. The Director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. 
Nevertheless, we will analyze the evidence in the record to determine whether the proffered position 
as described would qualify as a specialty occupation.9 To that end and to make our determination as 
to whether the employment described above qualifies as a specialty occupation, we tum to the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 10 
1: First Criterion 
We will first review the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a 
baccalaureate or higher degree in a specific specialty; or its equivalent, is normally the minimum 
requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source 
on the duties and educational requirements of the wide variety of occupations that it addresses.11 
9 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
10 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
11 
All of our references are to the 2016-17 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
12 
(b)(6)
Matter of V-T-S- Ltd. 
The Petitioner attested on the required LCA that the occupational classification for the position is 
"Computer Systems Analysts," corresponding to the Standard Occupational Classificatiol}-(SOC) 
code 15-1121 at a Level II wage. 12 The Handbook subchapter entitled "How to Become a Computer 
Systems Analyst" states, in pertinent part: "A bachelor's degree in a computer or information 
science field is common, although not always a requirement. Some firms hire analysts with business 
or liberal arts degrees who have skills in information technology or computer programming." U.S. 
Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited Oct. 4, 2016). The Handbook also 
states: "Although many computer systems analysts have technical degrees, such a degree is not 
always a requirement. Many analysts have liberal arts degrees and have gained programming or 
technical expertise elsewhere." !d. 
The Handbook indicates that a bachelor's degree in a computer or information science field may be 
common, but not that it is a requirement for entry into these jobs. In fact, this chapter reports that 
"many" computer systems analysts may only have liberal arts degrees and programming or technical 
experience, but does not further qualify the amount of experience needed.13 The Handbook also 
notes that many analysts have technical degrees, but does not specify a degree level (e.g., associate's 
degree) for these degrees. The Handbook further specifies that such a technical degree is not always 
a requirement. Thus, ,this passage of the Handbook reports that there are several paths for entry into 
the occupation. 
We have also reviewed the opinion letter authored by based his opinion 
on his education and his professional and academic experience working in the academic setting and 
with various companies. 
repeats the Petitioner's overview of the duties of the proffered position and opines that 
"it is apparent that an IT systems analyst with the specific duties listed ... would be considered a 
professional position and would normally be filled by a graduate with a minimum of a Bachelor's 
Degree in Computer Science, Electronics Engineering, or a related area, or the equivalent." He 
further states that "the nature of these specific responsibilities and duties is so specialized and 
12 The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage levels. A 
. Level II wage rate is for a petitioner who expects its employee to perform moderately complex tasks that require limited 
· judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http:/ lflcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009 .pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of a petitioner's job opportunity. /d. 
13 On appeal, the Petitioner asserts that "every reference to a non-computer degree in the Computer Systems Analyst 
OOH occupation description is accompanied by a reference to also requiring information technology or computer 
programming experience, expertise, or skill." However, as previously stated, the Handbook does not specify the amount 
of technical or programming experience needed. Therefore, the Handbook does not establish whether the required 
technical or programming experience, combined with a liberal arts degree, would be equivalent to a bachelor's degree in 
a specific specialty. 
13 
(b)(6)
Matter of V-T-S- Ltd. 
complex that knowledge required to perform these duties is usually associated with the attainment of 
a Bachelor's Degree in one of these fields." concludes that the duties as described "are 
not those of a lower-level employee performing tasks such as those duties performed by a 
Technologist or an IT-support employee, but rather those of a professional employee with a strong 
IT and engineering background and a much greater level of responsibility within the company." 
Upon review of the opinion letter, we find that characterization of the proffered 
position as "specialized and complex" and one of "a much greater level of responsibility" appears , 
inconsistent with the Petitioner's designation of the position as a Level II (qualified) wage position. 
As noted above, a Level II position requires the performance of moderately complex tasks that 
require limited judgment. 14 It is unclear if was informed of the Petitioner's attestation 
on the LCA that the proffered position was a Level II wage position. The omission of any 
discussion of the wage designation diminishes the evidentiary value of this opinion as the opinion 
does not appear to be based on a complete understanding of the proffered position. 
For the reasons discussed, we find that opinion letter lends little probative value to the 
matter here. Matter of Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is "not in accord with 
other information or is in any way questionable."). 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(J). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "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 cdmplex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
14 It must be noted that a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., doctors or lawyers), a Level II position would still require a minimum of a bachelor's degree in a specific specialty, 
or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation 
qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's 
degree in a specific specialty, or its equivalent. That is, a position's wage-level designation maybe a relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act 
14 
Matter of V-T-S- Ltd. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by USC IS 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit 
only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) 
(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or another authoritative source) reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the previous 
discussion on the matter. Also, there are no submissions from the industry's professional association 
indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did 
not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry 
attesting that such firms "routinely employ and recruit only degreed individuals." See id. 
We have reviewed the printouts of the online job announcements submitted by the Petitioner. This 
documentation, however, does not establish that the advertising organizations are in the same 
industry as the Petitioner and for parallel positions. 
The advertising organizations include IT providers and an international management consulting firm. 
The positions advertised are for an IT business systems analyst, an IT systems analyst, and a senior 
IT sy~tems engineer. While the proffered position and the descriptions of duties for the advertised 
positions include some of the same duties, it is not possible to ascertain that the advertised positions 
are parallel to the proffered position. For example, the senior IT systems engineer position requires 
at least 5 years of broad IT work experience, along with at least four years of experience with 
logging, lAM, security technologies, and Redhat Linux, in addition to a_general bachelor's degree. 
The IT business systems analyst requires 3-5 years of experience in addition to a four year college 
degree in information technology. As previously noted, the Petitioner designated the proffered 
position at a Level II wage rate, indicating the Petitioner expects the Beneficiary to perform 
moderately complex tasks that require limited judgment. 
Moreover, the posting for the IT systems analyst position indicates that it will accept a candidate 
holding a broad array of degrees, including computer science, engineering, business, finance and 
health. This posting, like the posting for the senior IT systems engineer, which simply requires a 
bachelor's degree with no specification, do not support the Petitioner's assertion that similar firms 
within the Petitioner's industry routinely employ and recruit only specialty-degreed individuals. 
Without detailed information regarding the proffered position and additional evidence regarding the 
15 
Matter of V-T-S- Ltd. 
duties and responsibilities of the advertised positiOns, it is not possible to conclude that the 
advertised positions are parallel to the proffered position, either in terms of duties or qualifications. 
Even if all of the job postings indicated that a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner 
does not demonstrate what statistically valid inferences, if any, can be drawn from these limited 
number of advertisements with regard to the common educational requirements for entry into 
parallel positions in similar organizations, or even into the advertising organizations themselves. 
We note that the Petitioner did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employers' recruiting history for the type of jobs 
advertised. Further, as they are only solicitations for hire, they are not evidence of the employers' 
actual hiring practices. Based upon a complete review of the record of proceedings, the Petitioner 
has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so. complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We reviewed the Petitioner's statements regarding the proffered position; however, in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. Further, the 
Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. Thus, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In response to the RFE, the Petitioner submitted three job advertisements soliciting the services of a 
technology analyst and a computer analyst. Upon review, we find that there is no indication that 
these vacancy announcement~. are for positions akin to that of the proffered position in this matter, 
an IT systems analyst. For instance, the job duties for the advertised positions are different from the 
duties of the proffered position as stated in the record. Thus, the advertisements are irrelevant to the 
instant matter. 
The Petitioner also submitted a list of four individuals, along with copies of their academic 
credentials. Notably, the list indicates that there is only one other individual in the position of IT 
16 
Matter of V-T-S- Ltd. 
systems analyst and that this individual has a master's in business administration. 15 The Petitioner 
did not provide the job duties and day-to-day responsibilities for this individual. The Petitioner also 
did not submit any information regarding the complexity of the job duties, supervisory duties (if 
any), independent judgment required or the amount of supervision received. Accordingly, it is 
unclear whether the duties and responsibilities of this individual is the same or similar to the 
proffered position. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Therefore, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its eq,uivalent. 
' In support of this criterion, the Petitioner provided a description of the duties of the proffered 
position and information regarding· its business operations, such as an organization chart. The 
Petitioner claims that the nature of the specific duties of the position in the context of the Petitioner's 
business operations is so specialized and complex that the knowledge required to perform the duties 
is usually associated with the attainment of a bachelor's degree. However, relative specialization 
and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than other positions in the occupational category that are 
not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. We 
also reiterate our earlier comments and findings regarding the implications of the position's wage 
level designation on the LCA. Thus, the Petitioner has not demonstrated in the record that its 
proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
III. PRIOR APPROVALS 
Finally, it is noted that the Beneficiary currently holds H-IB status. However, a prior approval does 
not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide 
sufficient documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 
2612 (Jan. 26, 1990). A prior approval also does not preclude USCIS from denying an extension of 
15 
The Petitioner submitted the foreign academic credentials of this individual. However, the Petitioner did not provide 
an academic credential evaluation to establish that the foreign degree is equivalent to a U.S. bachelor's degree in a 
Specific specialty: In addition, the Petitioner did not submit evidence establishing that it employs this individual (e.g., 
pay statements, tax documents). 
17 
Matter of V- T-S- Ltd 
an original visa p~tition based on a reassessment of eligibility for the benefit sought. See Texas 
A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). We are not required 
to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology Int 'l, 19 I&N 
Dec. 593, 597 (Comm'r 1988). If the previous nonimmigrant petitions were approved based on the 
same unsupported and contradictory assertions that are contained in the current record, the approvals 
would constitute material error on the part of the Director. 16 
IV. CONCLUSION 
The evidence of record does not establish: (1) that the Petitioner would engage the Beneficiary in an 
employer-employee relationship; and (2) that the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe 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\T-S- Ltd, ID# 9112 (AAO Oct. 6, 2016) 
16 Our authority over the service centers is comparable to the relationship between a court of appeals and a district 
court. Even if a service center director had approved nonimmigrant petitions on behalf of a beneficiary, we would not be 
bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
18