dismissed H-1B Case: Information Technology

.
MATTER OF A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29, 2017 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting and software development company, seeks to 
temporarily employ the Beneficiary as a "computer systems engineer" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1 B program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that it has an employer-employee relationship with the Beneficiary. 
In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. 
Upon de novo review, we will dismiss the appeal.' 
I. PROFFERED POSITION 
The Petitioner stated that it provides "professional engineering, E-Business and IT solutions to 
clients in various business areas." The Petitioner, located in Texas, indicated that the Beneficiary 
would provide services to an end-client, m Ohio. The record 
reflected the following contractual chain: 
Petitioner -7 (mid-vendor 1) -7 (mid-vendor 2) -7 
( end-client). 
1 We follow the preponderance of the evidence standard as specified in Mauer olChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
.
Matter of A- Inc. 
The Petitioner submitted letters from both mid-vendors and the end client describing the 
Beneficiary's duties as follows: 
• To read all the documents and understand what needs to be tested. 
• Develop test cases and prioritize testing activities 
• Execute all the test cases and reporting defects in Quality Center as per 
Standards. 
• Define severity and priority for each defect 
• Involved in investigating from where the defect in occurring 
• Involved in changing Infomatica mapping where it 
needs to be fixed 
• Need to pass unit tests and acceptance tested for the changes made for particular 
mappmg. 
• Carry out regression testing every time when changes are made to the code to fix 
defects. 
• Designed automated test scripts into three Functional , Characteristics and 
Comparison tests. 
• Comparison tests are automated test scripts where we do data check between our 
sources /Database. 
In support of the petition, the Petitioner stated that the position requires a "bachelor's degree, or 
equivalent, in computer science, management information systems (MIS) , business administration or 
a related field." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will 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 10l(a)(15)(H)(i)(b) of the Act defines an H-IB 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) .... 
2 
Matter of A- Inc. 
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 organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re.\pect 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-lB visa classification. Section 10l(a)(l5)(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) 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-1B "employee.'' Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act 
8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that ''United States 
employers" must file a Form 1-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(1), (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, tire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer''). 
Neither the former Immigration and Naturalization Service nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship'' by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1B 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 tails 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: 
3 
Matter of A- Inc. 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
ld; 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) ofthe Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the tetm 
"United States employer" to be even more restrictive than the common law agency definition? 
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-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
2 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of ''employer" in section 
10l(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. Instead, in the context of the H-1 B visa 
classification, the term "United States employer'' was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. De( Council. 
Inc., 467 U.S. 837,844-45 (1984). 
4 
Matter of A- Inc. 
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.Y: 
Darden, 503 U.S. at 318-19. 3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1 B nonimmigrant petitions, we 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) 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 ofbeneticiaries' 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 
3 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)). 
4 
That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See. e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers'' supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
Matter of A- Inc. 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-Ili(A)(l). 
Furthermore, when examining the factors relevant to determining control, we must assess and weigh 
each actual factor itself as it exists or will exist and not the claimed employer's right to int1uence or 
change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' ld. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
As a preliminary matter, the Petitioner has not adequately established that it has secured definite, 
non-speculative specialty occupation work for the Beneficiary for the entire validity period 
requested. On the Form 1-129, the Petitioner requested that the Beneficiary be granted H-1 B 
classification from October 1, 2016, to September 7, 2019. However, the Petitioner has not 
submitted sufficient documentation to substantiate that the Beneficiary would work for the end-client 
for the entire period of the requested visa. 
For instance, the only letter from the end-client submitted on appeal does not indicate duration of the 
project. The letter only states that the Beneficiary will be assigned to a project from November 12, 
2015 "through the foreseeable future," but further notes that "this assignment may be terminated or 
extended upon mutual agreement between [mid-vendor 2] and [the end-client]." In addition, the 
letters from mid-vendor 2 provide conflicting information regarding the length of the project. For 
example, a letter dated March 2016 states that the assignment will be ''an ongoing one with a 
potential of extension for the next 2 years." However, in another letter dated October 2016, mid­
vendor 2 states that the assignment "has a potential of extension for the next 3 years." In both 
letters, the mid-vendor indicated that they "reserve the right to either deny the project extension 
without any notice or cancel the project at any time with at least 10 days of notice." The Petitioner 
otherwise submits no contractual documentation, such as work or purchase orders, statements of 
work, or other contractual documentation from the end-client or mid-vendor 2, to substantiate that 
the Beneficiary would be engaged on a project for the end-client for the entire validity period. 
.
Matter of A- Inc. 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. It is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirhall 
Cultural Ctr., 25 J&N Dec. 799, 806 (AAO 2012). USCIS regulations affirmatively require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp. , 17 I&N Dec. 248 (Reg ' l Comm'r 1978). Thus, even if it were found that the 
Petitioner would be the Beneficiary's United States employer as that term is defined at 8 
C.F.R. 
§ 214.2(h)( 4 )(ii), the Petitioner has not demonstrated that it would maintain such an employer­
employee relationship for the duration of the period requested. 5 
Furthermore, applying the Darden and Clackamas tests to this matter, we find that the evidence does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-1 B temporary "employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent , and credible 
documentation substantiating and describing who exercises control over the Beneficiary. 
As noted, the Petitioner states that the Beneficiary will work for the end-client, at its work-site in 
Ohio. The Petitioner asserts that it will maintain an employer-employee relationship 
with the Beneficiary; however, the Petitioner has submitted little supporting documentation to 
corroborate that it will have control over the Beneficiary while assigned to the end-client location. 
First, the Petitioner has not provided sufficient evidence to substantiate that the Beneficiary would 
be under its supervision and control. Although the Petitioner indicates that the Beneficiary will 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts . To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute , the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor ' s degree. See section 214(i) of the Immigration and Nationality Act (the ''Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification . Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F .R. pt. 214) . While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment , e.g., a change in duties or job location , it must nonethele ss 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) . 
Matter of A- Inc. 
report to its "Manager-Operations," the Petitioner does not identify the Beneficiary's proposed 
supervisor by name, or indicate how, when, and in what form this supervision will take place nor the 
tools or instrumentalities it will provide. The lack of evidence of the Beneficiary's control and 
supervision is particularly noteworthy since the record reflects that the Petitioner has been assigned 
to the end-client location since November 2015. 
In contrast, the Petitioner submitted substantial evidence indicating that the Beneficiary would likely 
be under the direction of the end-client or its mid-vendors during her assignment. For instance, the 
Petitioner stated in a support letter that its client-based employees report back to the company 
through monthly timesheets, and stated that it retained the right to control the "manner and means of 
her work, !f required (emphasis added)." Indeed, the Petitioner regularly references its "right" to 
control the Beneficiary, including in reference to its employee hand book, but does not indicate that 
it has, and will, exercise daily supervision and control over the Beneficiary. As discussed above, we 
must examine who has actual control, not just the right to control, the Beneficiary's work. See 
Darden, 503 U.S. at 323.
6 
Thus, even if the Petitioner reserves the right to control the Beneficiary's 
work, if mid-vendors or the end-client exercise actual control over his work on a daily basis, then we 
cannot find the Petitioner to be the Beneficiary's "employer" for H-1 B purposes. Notably, the 
Petitioner states directly that it will only hear from the Beneficiary, at most, monthly; therefore, it 
appears that it will not be aware of her daily activities or provide her with daily supervision. 
The evidence also reflects that the Beneficiary is being placed pursuant to a staffing arrangement, 
rather than for the provision of a specific set of predetermined services, suggesting that the nature of 
her work will be determined by client direction. To illustrate, a letter from mid-vendor 1 states that 
the end-client will evaluate the Beneficiary's performance. In addition, the Petitioner submits emails 
reflecting the Beneficiary engaging directly with, and taking direction from, the end-client. The 
Petitioner does not provide similar evidence to demonstrate that the Beneficiary regularly takes 
direction from one of its supervisors. In fact, the end-client letter submitted on appeal, in apparent 
conflict with the Petitioner's assertions, states that "[mid-vendor 2] is responsible for the terms of 
[the Beneficiary's] assignment as directed and supervised by their [mid-vendor 2]'s manager on the 
[end-client] engagement." This evidence directly suggests that the Beneficiary will not be 
supervised and controlled by the Petitioner's manager or supervisor, but by the mid-vendor. The 
Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As such, the evidence strongly suggests that the Beneficiary acts largely autonomous from the 
Petitioner, reacting to client requests as they arise, and in essence, under the direction of the end­
client. Although it appears that the Petitioner will pay the Beneficiary"s wages and administer her 
ns, addressed to Service Center Directors. However, this memorandum merely articulates internal guidelines for Service 
Center Directors and their personnel; it does not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 
231 F.3d 984, 989 (5th Cir. 2000). An agency's internal personnel guidelines ·'neither confer upon [a] petitioner 
substantive rights nor provide procedures upon which [they] may rely." Ponce-Gonzele::: v. INS, 775 F.2d 1342, 1346 
(5th Cir. 1985). 
8 
Matter of A- Inc. 
benefits, the preponderance of the evidence indicates that the Beneficiary will primarily be under the 
direction of the end-client and its mid-vendors and that she will only occasionally check in with the 
Petitioner as to her progress. While payroll, tax withholdings, and other employment benefits are 
relevant factors in determining who will control the Beneficiary, other aspects of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Here, we find that the preponderance of 
the evidence demonstrates that the Beneficiary will be primarily under the control of the end-client 
and the mid-vendors and not the Petitioner. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer'' 
as defined at 8 C.F .R. § 214.2(h)( 4 )(ii). 
III. SPECIALTY OCCUPATION 
The appeal must also be dismissed as the Petitioner has not demonstrated by a preponderance of the 
evidence that the Petitioner will 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: 
(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 
9 
Matter of A- Inc. 
( 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. 
We have consistently interpreted the term "degree" to mean not just any baccalaureate or higher 
degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. 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, 201 F.3d at 387. 
B. Analysis 
We determine that the evidence is insufficient to establish that the proffered position qualifies for 
classification as a specialty occupation. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. ld. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to 
perform that particular work. 
The record of proceedings does not contain sufficient information from the asserted end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The end­
client letter is verbatim from the Petitioner and mid-vendors' letters, and only provides general 
duties that make no reference to the specifics of the project and do not convey the substantive nature 
of the proffered position and its duties. For example, the duties include "read all the documents and 
understand what needs to be tested," "develop test cases and prioritize testing activities," and 
"involved in investigating from where the defect is occurring.'' The duties, as described, do not 
contain sufficient information about their level of difficulty, complexity, uniqueness, and/or 
specialization. Given this lack of evidence, we cannot determine the substantive nature of the work 
to be performed by the Beneficiary. 
We are therefore precluded from finding that the profiered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree, or its 
10 
Matter of A- Inc. 
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. 
We are also precluded from finding that the proffered position qualifies as a specialty occupation, as 
that term is defined in section 214(i)(l) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii), because the record 
does not establish the correlation between the proffered job duties and a need for a particular level 
education of highly specialized knowledge in a specific specialty. The letter from the end-client 
states that the proffered positon requires "a bachelor's degree or work experience equivalent in 
Computer Science, Computer Information Systems, Electrical Engineering, and Systems Test 
Engineer experience." However, the record does not contain sufficient information on how a degree 
in electrical engineering, is directly related to the duties and responsibilities of the particular 
position. 
Further, the end-client's requirements differ from the Petitioner's requirements for the proffered 
position, which is a "bachelor's degree, or equivalent, in computer science, management information 
systems (MIS), business administration or a related field." Notably, the Petitioner's claim that a 
bachelor's degree in business administration 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. Since there must be a 
close correlation between the required specialized studies and the position, the requirement of a 
degree with a generalized title, such as business, 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). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized tield of study or its 
equivalent. As discussed, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to 
require a degree in a specific specialty that is directly related to the proposed position. Royal Siam 
Corp, 484 F.3d at 147. The Petitioner has not established that the education requirements for the 
proffered position qualify as a specialty occupation. 
IV. CONCLUSION 
The record does not establish that, more likely than not, the Petitioner will have an 
employer-employee relationship with the Beneficiary, and the proffered position is a specialty 
occupation 
ORDER: The appeal is dismissed. 
Cite as Matter of A- Inc., ID# 384559 (AAO June 29, 2017) 
II