dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
APPEAL OF CALIFORNIA 
SERVICE CENTER DECISION 
J ' 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an IT consulting company, seeks to temporarily employ the Beneficiary as a systems 
analyst under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-1B 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor ' s or higher degree in·the specific specialty (or its equivalent) as 
a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petitiOn concluding the Petitioner did not 
establish that: (1) the Petitioner will engage the Beneficiary in an employer-emplo yee relationship ; 
and (2) the proffered position qualifies as a specialty occupation . 
The matter is now before us on appeal. 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. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § ll84(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: 
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(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). We have 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.fj; 
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). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a systems analyst. The 
Petitioner described the job duties of the proffered position as follows: 
• AIX Server build and application support 
• Perform upgrades of the operating system 
• Performance tuning and' benchmarking 
• Troubleshooting 
• Installation of AIX, fix packs and additional software using NIM server 
• Configuration of LP ARS 
• Migration of AIX OS from .4.3.3 to 5.1, 5.1, 5.2 to 5.3 and 5.3 to 6.1 on pSeries 
servers. 
• Administered the UNIX System for clustered AIX Servers running HACMP and 
dynamic LP ARs. 
• Provide on-call support as needed by the client 
• Interact 
with project team, DBA's, application admins and PM's. 
• Provided technical support for the remote migration team and SAN team. 
• Attend team meetings, change control meetings to update installation progress, and 
for upcoming changes in environment 
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Additionally, in response to the Director's request for evidence (RFE), the Petitioner added the 
following percentage breakdown of the duties for the proffered position: 
Job Duty Percentage of time 
Setup, configuration, maintenance & troubleshooting 70% 
UNIX AIX on Power7/6/5 550 frames 
Working with System Administration related tasks on 10% 
Linux & Windows Servers 
Working with Storage area networking related tasks on 5% 
EMC Clarion System 
Documentation of technical procedures 5% 
Support on Backup Tools, Servers & SAN Systems 10% 
The Petitioner stated that the minimum entry requirement for the proffered position is a "bachelor's 
degree preferably in computer science with progressive corporate experience in similar roles." 
III. UNITED STATES EMPLOYER 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that it 
meets the regulatory definition of a United States employer as that term is defined at 8 C.F.R. 
§ 214.2(h)(4)(ii). Specifically, the Petitioner has not established that it will have "an 
employer-employee relationship with respect to employees under this part, as indicated by the fact 
that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." ld. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant , in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)( 1) ... , 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)(l) . .. . 
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; 
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(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) Bas 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-1B 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) 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)(1)(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)(l), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-1B beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)( 4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H-1B visa classification, even though the regulation describes 
H-1 B beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." !d. Therefore, for purposes of the H-1B 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 
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'has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over \Vhen 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 of the H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
. definition. 1 
Specifically, the regulatory definition of"United States employer" requires H-lB employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
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. § 1002(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 
101 (a)( 15)(H)(i)(b) of the Act, "employment" in section 212(n)( 1 )(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 wh~se 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). 
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importantly, that co~struing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-19. 2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(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-1 B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the \vorker; 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. A1eissner, 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 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 
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 tound to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 , 414 ( 1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to " unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge) ; section 274A of the Act , 8 U.S. C. § 1324a (refen·ing to the employment of 
unauthorized individuals) . 
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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 \Vho 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 ~n 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). 
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-emp:>loyee relationship" with the 
Beneficiary as an H-IB temporary "employee." 
Specifically, in support of the petition, the Petitioner submitted its employment agreement with the 
Beneficiary stating that the Beneficiary "must personally perform all work as directed by Client or 
Employer," and that the Beneficiary's "performance is 'subject to review by both Employer and 
Client." The Petitioner stated that it has complete rights to assign additional work to the Beneficiary 
and that when the Beneficiary is located at the end-client site, it manages the Beneficiary's work via 
daily/weekly status updates, and monthly staff meetings. The Petitioner stated that the Beneficiary 
reports directly to its Director, IT, and that it monitors the Beneficiary's perfmmance and progress 
on each project. In describing how it supervises the Beneficiary's work, the Petitioner stated that the 
Beneficiary is required to attend mandatory weekly and monthly staff meetings chaired by its IT 
Director who also monitors the Beneficiary's assigned work, tools and technology requirements to 
perform the work efficiently, and any other work-related or non-technical issues faced by the 
Beneficiary. 
The Petitioner specifically stated that the Beneficiary will be working on an end-client project for 
The Petitioner stated that it has a sub-vendor agreement with 
and that is a client of The 
Petitioner submitted a letter from dated March 7, 2016, indicating that it has a contract 
with the Petitioner who will supply with specialty personnel to provide services to its 
client, on a long-term project. further states that the Beneficiary is an employee 
of the Petitioner and that the Petitioner will have the exclusive authority to hire, pay, fire, and 
supervise or otherwise control the work of the Beneficiary. The Petitioner also submitted its 
Independent Contractor Agreement with the mid-vendor, stating that the Petitioner 
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agrees to provide and/or its clients with technical assistance, products, consulting, or 
other related services as described. It states that the Petitioner agrees to perform work in accordance 
to or its clients' specifications and must consent to changes in personnel 
assigned to it or its clients. 
In response to the RFE, the Petitioner submitted a letter stating that it has a contract with 
and that ~ in is a client 
of ' The Petitioner also submitted a letter from dated June 23, 2016, 
stating that it has a contract with to provide IT consulting services, for which it executed a 
contract with the Petitioner to provide the same. 
On appeal, 
the Petitioner provided a Contract Work Authorization between and 
referencing their Master Service Agreement dated March 27, 2013, for a specific project that expires 
on February 28, 2017. The Petitioner also submitted an updated itinerary for the proffered position 
again listing as the mid-vendor and as the end-client. 
Upon review, we find that the Petitioner has provided inconsistent information pertaining to its mid­
vendor and end-client agreements. The Petitioner stated that its mid-vendor is and the 
end-client is However, the letter from states that it has a contract directly with 
the Petitioner and that its end-client is Further, we note that letter, dated 
March 7, 2016, does not make any reference to and similarly, letter, 
dated June 23, 2016, does not make any reference to The Petitioner did not provide any 
statement directly from to clarify the relationship of all three companies and it remains 
unknown how and if and are related. 
Additionally, we find inconsistencies in the evidence pertaining to the Petitioner's supervision of the 
Beneficiary's work as his employer. The Petitioner stated throughout the record that the Beneficiary 
will be directly supervised by its Director, IT, and that the Beneficiary will be required to attend 
mandatory weekly and monthly meetings with the supervisor at the Petitioner. In the updated 
itinerary, submitted on appeal, the Petitioner lists ' Director IT' as the 
Beneficiary's supervisor at the Petitioner. However, the Petitioner's organizational chart lists 
as the Director/CEO, again subordinate to that under Information Technology , 
subordinate to that under Infrastructure , and subordinate to that under Management. Subordinate to 
under Information Technology, there are four positions, two of which are 
assigned to The remaining two positions are Networking and Training, which 
are assigned to 2 other individuals. Neither the Beneficiary nor the proffered position appear on the 
Petitioner's organizational chart. Further, the Beneficiary's Weekly Status Reports for May and 
June 2016, each list with an e-mail address at as the Beneficiary's supervisor. 
4 The Petitioner refers to this company as ' 
letterhead , it appears that the company is named ' 
simply ' 
8 
' however, based on the company's 
We will refer to this company as 
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Here, the Petitioner has not provided corroborating evidence to demonstrate that it directly monitors 
and supervises the Beneficiary's work as his employer. ' 
The Petitioner contends that the Beneficiary is employed by the Petitioner and that the Petitioner 
controls the Beneficiary's salary and conditions of employment. While social security contributions, 
worker's compensation contributions, unemployment insurance contributions, federal and state 
income tax withholdings, and other benefits are still relevant factors in determining who will control 
the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, W_hO will provide the instrumentalities and tools; where will the work be located, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be 
assessed and weighed in order to make a determination as to who will be the Beneficiary's 
employer. Without full disclosure of all of the relevant factors, we are unable to find that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
Further, we cannot conclude that the claimed work for the Beneficiary will continue to exist for the 
duration of the requested H-1B status period.5 In its initial letter of support and in response to the 
RFE, the Petitioner specifically stated that the proffered position is for a project at the end-client site 
and provided information for the same. The letter from specifically states that the 
Beneficiary "is expected to work ... on a long-term project until the end of the Hl B duration" and 
the Petitioner's itinerary states that "the contract is expected to be a multi-year long-term contract" 
with the assignment's expected duration at "about 36 months." The letter from 
specifically states that the project on which the Beneficiary is working "is expected to last for 
multiple years with extensions thereafter given the size and scope of the project." The Petitioner's 
Independent Contractor Agreement with is dated January 12, 2015 (signed by both 
parties on December 30, 2014), but it does not indicate a period of time for which the contract is 
valid. The Petitioner did not submit a copy of a contract \Vith nor did it submit a copy 
of a contract between and The copy of the Contract Work Authorization 
behveen and was executed for a specific project that expires on 
February 28,2017, which is only 4 months after the requested start date in the H-1B petition. 
The duration of the Petitioner's contract with and the duration of contract 
with is unknown. The terms and duration of the Petitioner's contract with IS 
also unknown. Although and letters state that the project is multi-year 
or long-term, the contracts do not reflect the same. Furthermore. the Petitioner's statement 
(provided for the first time on appeal) that ~he Beneficiary will also work on an in-house project, is 
insufficient to establish that the proffered position will continue to exist. Based on the limited 
information provided, we cannot conclude that the in-house project translates to the same work of 
the proffered position. 
5 
On the Form 1-129, the Petitioner requested that the Beneficiary be granted H-IB classification from October I, 2016, 
to August 3 L 2019. 
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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. 6 Merely 
claiming in its letters that the Petitioner exercises complete control over the Beneficiary, without 
evidence supporting the claim, does not establish eligibility in this matter. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
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 -1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). The appeal will be dismissed for this reason. 
IV. SPECIALTY OCCUPATION 
For the reasons set out below, we have also determined that the Petitioner has not demonstrated that 
the proffered position qualifies as a specialty occupation. Specifically, the record (I) does not 
describe the actual proffered position with sufficient detail; and (2) does not establish that the job 
duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 
For H-IB approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H -1 B caliber work for the Beneficiary for the period of employment requested in 
the petition. It is incumbent upon the Petitioner to demonstrate it has sut1icient work to require the 
services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to perform 
6 The agency made clear long ago that speculative employment
1 
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 worktorce 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 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). 
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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. 
As discussed above, we find that the Petitioner has not established that the petition was filed for non­
speculative work for the Beneficiary, for the entire period requested, that existed as ofthe time of the 
petition's filing. 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. I 03.2(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'! Comm'r 1978). 
Further, the record of proceedings lacks documentation regarding the Petitioner's business activities and 
the actual work that the Beneficiary will perform to sufficiently substantiate the claim that the Petitioner 
has H-1 B caliber work for the Beneficiary for the period of employment requested in the petition. The 
Petitioner submitted several invoices to for the Beneficiary's services provided to 
for the months of January through June of 2016. However, these invoices do not provide any 
infonnation detailing the work being perfonned by the Beneficiary on behalf of the Petitioner for the 
clients or the products being provided by the Petitioner to the clients. 
Without detailed work orders, statement of works, or similar documentation describing the specific 
duties the Petitioner requires the Beneficiary to perfonn, as those duties relate to specific projects, we 
are unable to discern the nature of the proffered position and whether the position indeed requires the 
theoretical and practical application of a body of highly specialized knowledge attained through a 
baccalaureate program. 
Consequently, we are precluded from finding that the proffered position satisfies an,_, criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that detennines: (1) the 
nonnal 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 profiered 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. The appeal will be dismissed for this additional reason. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
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(b)(6)
Matter of' 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 150910 (AAO Feb. 28, 2017) 
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