dismissed H-1B Case: Information Technology

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MATTER OF A-I-, INC. 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1B 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-lB program allows a U.S. employer to temporarily employ a qualified 
/ foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the proffered position qualifies for treatment as a specialty 
occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence of 
record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
An occupation is a "specialty occupation" if it 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. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). 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 p-rovide that the proffered position must meet one of the following criteria 
to qualify as a specialty occupation: 
Matter of A-1-, Inc. 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto_ff; 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst." 
In a letter submitted with the petition, the Petitioner provided the following description of the duties 
of the proffered position: 
• Analyze, design, develop, configure/install and maintain web applications/services 
using one or more of the following technologies: ASP, VB components, ASP.Net, 
C#, VB.NET, HTML, DHTML, CSS VB Script, AJAX, XML, XSL, SQL Server 
2000/2005;0racle, HS, and Apache 
• Document all phases of the analysis, design, programming, implementation, and 
maintenance of technical projects; create user documentation for the utilization of 
on-line systems, reports, procedures, and training materials 
• Codes software applications to adhere to designs supporting internal and external 
customer needs 
• Maintains and modifies programs; make approved coding changes per direction of 
technical architect · 
• Works with testers and architects to resolve issues 
• Troubleshoots, resolves or escalates project issues in a timely manner 
• Remains current to developments and issues by researching and analyzing software 
trends and technologies 
• Increases knowledge of business and product 
2 
r--------------------------------------------------- ---
Matter of A-I-, Inc. 
The Petitioner stated that all of those duties require "a bachelor's degree m Computer Science, 
Information Technology, a related degree, or the foreign equivalent." 
Ill. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. I 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 2 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1),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.3 
On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.5 The Handbook states the 
following about the educational requirements of positions located within this occupational category: 
1 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 All of our references are to the 2016-2017 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. 
4 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for ithe occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
cons'ider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
(will be closely supervised and his work closely monitored and rt;viewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing wage determination starts 
3 
Matter of A-1-, Inc. 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers 'who have an associate's degree .. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., 
"Computer Programmers," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-programmers.htm#tab-4 (last visited Jan. 12, 2017). 
According to the Handbook. the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. For example, the 
Handbook states that some employers hire workers who have an associate's degree. Furthermore, 
while the Handbook's narrative indicates that most computer programmers obtain a degree (either a 
bachelor's degree or an associate's degree) in computer science or a related field, the Handbook does 
not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the occupation. The Handbook also reports that employers 
value computer programmers who possess experience, which can be obtained through internships. 
Notably, the Petitioner designated the proffered position as a Level I position on the LCA. As noted, 
in designating the proffered position at a Level I wage, the Petitioner has indicated that the proffered 
position is a comparatively low, entry-level position relative to others within the occupation. Given 
the Handbook's implication that positions located within this occupational category do not require a 
bachelor's degree in a specific specialty, it appears unlikely that an entry-level position with these 
characteristics would have such a requirement. 6 
For all of these reasons, the Petitioner has not established that the proffered position falls within an 
occupational category for which the Handbook, or any other relevant, authoritative source, indicates 
that the normal minimum entry requirement is at least a bachelor's degree in a specific specialty, or 
the equivalent. Consequently, the evidence of record does not support a finding that the particular 
position proffered here, an entry-level position located within the computer programmers 
occupational category, would normally have such a minimum specialty degree requirement, or the 
equivalent. Thy Petitioner therefore has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
6 Given the assertions of record regarding the proffered position, the Petitioner's wage-level designation on the LCA 
raises questions as to whether the LCA actually corresponds to and supports the H-1 B petition. While we will not 
explore the issue of the LCA in depth here, the Petitioner should be prepared to address it in any future H-1 B filings 
because it appears to constitute an additional ground of ineligibility. 
4 
(b)(6)
Matter of A-1-, Inc. 
B. 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 complex 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 
casts its gaze upon the common industry practice , while the alternative prong narrovvs its focus to the 
Petitioner's specific position. 
1. 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, tactors often considered by US CIS 
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 \Vhether 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) 
(quotingHird/BlakerCorp. v. Sava, 712F. Supp. 1095, 1102(S.D.N.Y. 1989)). 
The Petitioner has not established that its proffered position is one for which the Handbook (or other 
independent , authoritative source) reports an industry-wide requirement for at least a bachelor's degree 
in a specific specialty or its equivalent. 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 fi·om similar firms or individuals 
in the Petitioner's industry attesting that such firms "routinely employ and recruit only de greed 
individuals." 
The Petitioner provided an evaluation prepared by Ph.D., an associate professor 
of computer applications and information systems at the 
discussed the duties of the proffered position and concluded , "the described job duties .. . require 
preparation at the Bachelor ' s Degree level in Computer Science , Information Technology , or a 
related area at a minimum." Upon review , we find this evaluation insufficient to establish eligibility. 
reiterated the duty description provided by the Petitioner arid based his opinion on them. 
However, he does not demonstrate in-depth knowledge of the specific business operations or how 
the duties of the position wo.uld actually be performed in the context of the Petitioner's business 
entel])rise. For instance , there is no evidence that has visited the Petitioner's business, 
observed the Petitioner 's employees , interviewed them about the nature of their work , or 
documented the knowledge that they apply on the job. 
5 
(b)(6)
Matter of A-1-, Inc. 
After reviewing the general duties described by the Petitioner, asserts a general industry 
educational standard for computer programmer or programmer analyst positions, but does not 
reference any supporting authority or empirical basis for his finding. For example, he does not relate 
his conclusion to specific, concrete aspects of the Petitioner's business operations to demonstrate a 
sound factual basis for the conclusion about the educational requirements for the particular position 
here at issue. 
Furthermore, there is no indication that the Petitioner advised that it characterized the 
proffered position as a low, entry-level computer programmer position, for a beginning employee 
who has only a basic understanding of the occupation (as indicated by the wage-level on the LCA) 
relative to other positions within the occupational category. It appears that would have 
found the Petitioner's Level I designation relevant to his analysis and conclusion. In any event, the 
Petitioner has not demonstrated that possessed the requisite information necessary to 
adequately assess the nature of the Petitioner's position and appropriately determine parallel 
positions based upon job duties and responsibilities. For example, in his letter, stated: 
"The duties described above are ... those of a professional employee with a strong background in 
computer science and information technology concepts and principles and a great level of 
responsibility within the company." This description of the proffered position conflicts with the 
Petitioner's characterization ofthe position as a wage Level I position. · 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept or may give less weight to that evidence. Matter of Caron International, 
19 I&N Dec. 791 (Comm 'r 1988). As a reasonable exercise of our discretion we discount 
letter as not probative of any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). For efticiency's 
sake, we hereby 
incorporate the above discussion and analysis regarding letter into our 
discussion of each of the specialty-occupation criteria. 
For all of these reasons, the evidence of record does not establish that a requirement of a bachelor's 
or higher degree in a specific specialty, or its equivalent, is common to parallel positions with 
organizations that are in the Petitioner's industry and otherwise similar to the Petitioner. The 
Petitioner has not, therefore, satisfied the criterion of the first alternative prong of 8 C.F.R . 
§ 214.2(h)(4)(iii)(A)(2). 
2. 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. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
6 
Matter of A-1-, Inc. 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone is insufficient preparation for the proffered position. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, the Petitioner has not demonstrated how an established curriculum of such courses leading 
to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform 
the duties of the proffered position. The description of the duties does not specifically identify any 
tasks that are so complex or unique that only a specifically degreed individual could perform them. 
The record lacks sufficiently detailed information to distinguish the proffered position as more 
complex or unique from other positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. As noted, the Petitioner attested on the LCA that the wage level for the proffered position 
is a Level I (entry-level) wage. Such a wage level is for a position which only requires. the 
performance of routine tasks that require limited, if any, exercise of judgment; close supervision and 
work closely monitored and reviewed for accuracy; and the receipt of specific instructions on 
required tasks and expected results, and is contrary to a position that requires the performance of 
complex duties. 7 It is, instead, a position for an employee who has only basic understanding of the 
occupation. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees less than a bachelor's 
degree and degrees that are not in a specific specialty. In other words, the record lacks sufficiently 
detailed information to distinguish the proffered position as unique from or more complex than 
positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty,' or its equivalent. As the Petitioner did not demonstrate how the profTered position is so 
complex or unique relative to other positions within the same occupational category that do not 
require at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, it cannot be concluded that the Petitioner has satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
7 
The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position from 
classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 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 may be a consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
Matter of A-1-, Inc. 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) requires an employer to demonstrate that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
We have reviewed the evidence submitted by the Petitioner for our consideration under this 
criterion. However, we do not find it persuasive. 
While the Petitioner's spreadsheet listing 11 individuals it claims to have employed as programmer 
analysts is acknowledged, we observe that it only submitted payroll information regarding 3 of them. 
Further, it is not apparent whether these individuals occupied Level I positions requiring only a basic 
understanding of computer programming and performed closely-monitored tasks that required little 
or no exercise of juqgement based on specific instructions. 8 In other words, the Petitioner has not 
explained whether these individuals occupied the type of entry-level position proffered here. 9 This 
evidence, therefore, has not been shown to be directly relevant to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 10 In addition, whether this group of individuals constitutes the entirety of 
the Petitioner's hiring history for programmer analysts is unclear. 
The Petitioner, therefore, has provided insvfticient evidence to satisfy the third criterion. 
D. 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 are 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 equivalent. 
Relative specialization and complexity have not been suffi,ciently developed by the Petitioner as an 
aspect of the proffered position. The duties of the proffered position, such as analyzing, designing, 
developing, coding, troubleshooting, installing, maintaining, and modifying web applications; and 
documenting all phases of the process; contain insufficient indication of a nature so specialized and 
8 In this regard, we observe that many of these individuals' resumes indicate substantial training and experience. 
9 
The DOL guidance referenced above states that a Level I wage should be considered when the job offer is for a 
research fellow, a worker in training, or an internship. Again, the Petitioner does not indicate whether the eleven 
referenced individuals also occupied this type of position. 
10 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perform any occupation as long as the employer artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific specialty or its equivalent. See D~lensor, supra, 20 I F. 3d at 387. In other words, if a petitioner's 
degree requirement is only symbolic and the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a specialty 
occupation. See section 214(i)( I) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "'specialty occupation"). 
'g 
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Matter of A-1-, Inc. 
complex that they require knowledge usually associated with attainment of a m1mmum of a 
bachelor's degree in a specific specialty or its equivalent. 
Further, as was noted above, the Petitioner filed the petition for a wage Level I computer 
programmer position, a position for a beginning-level employee with only a basic understanding of 
computer programming. Again, in classifying the proffered position at a Levell (entry-level) wage, 
the Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that 
require limited, if any, exercise of judgment, that he would be closely supervised and his work 
closely monitored and reviewed for accuracy, and that he would receive specific instructions on 
required tasks and expected results. 11 The DOL guidance referenced above states that an employer 
should consider a Level I wage designation when the job offer is for a research fellow, a worker in 
training, or an internship. 
This does not support the proposition that the nature of the specific duties of the proffered position is 
so specialized and complex that their performance is usually associated with the attainment of a 
minimum of a bachelor's degree in a specific specialty or its equivalent, directly related to computer 
programming, especially as the Handbook indicates that some computer programmer positions 
require no such degree. 
In other words, the proposed duties have not been described with sufficient specificity to show that 
they are more specialized and complex than computer programmer positions that are not usually 
associated with at least a bachelor's degree in a specific specialty or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. Nevertheless, we note that, in any future 
proceedings, the Petitioner must establish that it meets the regulatory definition of a United States 
employer. 8 C.F.R. § 214.2(h)(4)(ii). 12 
The United States Supreme Court 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. 
11 
Again, the Petitioner's designation of this position as a Level 1, entry-level position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
12 
In reviewing a matter cf,e novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
9 
(b)(6)
Matter of A-1-, Inc. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 
730 (I 989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common lav.· 
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 f01mula 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 lV'LRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
Although the Petitioner is located in Illinois , the Beneficiary would provide his services to an end­
client in Arizona pursuant to an agreement between the Petitioner and (vendor). In its 
support letter, the Petitioner stated that it would directly supervise the Beneficiary. However, a letter 
from the vendor submitted in response to the Director ' s request for evidence (RFE) stated that the 
Beneficiary would work "under [its] direct supervisioq _and support ." In another letter submitted in 
response to the RFE, the vendor stated that its managing director would coordinate the Beneficiary ' s 
activJtJes. The record, therefore, contains contradictory assertions as to ~who would "directly 
supervise" the Beneficiary as he works in Arizona. "[I]t is incumbent upon the petitioner to resolve 
the inconsistencies by independent objective evidence." j\1atter of Ho, 19 I&N Dec. 582,· 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to \Vhere the truth lies. Jd. at 591-92. 
Further complicating the matter of supervision and control is the Petitioner 's Level I designation . 
Again, that wage-level designation indicates that the Beneficia,ry will perform routine tasks that 
require limited , if any, exercise of judgment ; will be closely supervised and his work closely 
monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks 
and expected results . Thus, while it is clear someone will be supervising the Beneficiary closely, 
given the large distance between Illinois and Arizona it is not apparent that the Petitioner would be 
the one to do it. 
While social security contributions, worker ' s compensation contributions , unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant tactors 
in determining who will control a 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 , 
10 
Matter of A-1-, Inc. 
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. 
Therefore, the current record is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). The Petitioner should be prepared to address this 
issue in any future filings. 
V. CONCLUSION 
Because the Petitioner has not established the substantive nature of the work the Beneficiary would 
perform if the H-1 B petition were approved, and because the Petitioner has not satisfied any one of 
the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it ·has not demonstrated that the proffered position 
qualifies as a specialty occupation. 
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. 
ORDE,R: The appeal is dismissed. 
Cite as Matter of A-1-. Inc., ID# 211457 (AAO Jan. 13, 2017) 
II