dismissed H-1B Case: Information Technology

MATTER OF K-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY25,20I6 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"senior sharepoint developer" under the H -1 B nonimmigrant classification for specialty occupations. 
See section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-IB 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 and had not established a valid employer-employee· relationship between the 
Petitioner and the Beneficiary. · 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence is 
sufficient to establish eligibility for the benefit sought. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Law 
Section 214(i)(l) of the Act, 8 U .S.C. § I I 84(i)(I), 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. 
(b)(6)
Matter of K-, LLC 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
_ attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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. Chertojf, 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). 
B. Proffered Position 
In the H-1 B petition, the Petitioner stated that the Beneficiary would serve as a "senior sharepoint 
developer." 
1 
On the labor condition application (LCA) submitted in support ofthe H-lB petition, 
the Petitioner designated the proffered position under the occupational category "Computer 
Programmers" corresponding to the Standard Occupational Classification code 15-1131. 
Although the Petitioner is located in 
Beneficiary would work at 
indicates that this is an address of 
Georgia, it stated in the H -1 B petition that the 
m California. Evidence in the record 
the claimed end-client. 
1 The Petitioner submitted documentation to support the H-1 8 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. 
2 
(b)(6)
Matter of K-, LLC 
In a letter submitted at the· time of filing, the Petitioner stated the following as the duties of the 
proffered position: 
• Actively collaborate with technical and non-technical business teams. 
• Gather and document requirements, design solutions, and review with peers. 
• Build and maintain custom solutions for the SharePoint platform using the back-end 
object model and services. 
• Code, test, and release updates in response to SharePoint platform changes in 
partnership with SharePoint Administrators. 
• Develop and maintain a deep understanding of the implications of Microsoft's 
SharePoint/Office 365 strategy as it relates to our past and future custom code 
projects. Recommend when it's time to change approaches, refactor, etc. 
• Provide escalated Share Point support along with the rest of the team. 
• Analyst , [sic] planning and task preparation 
• Development and testing in the test environment 
• Deployment and production support 
• Weekly Change Control meeting with track managers about 
project status and Road 
blocks. 
As to the educational requirements of the proffered position, the Petitioner stated, "[For the proffered 
position] we require a minimum of a bachelor's degree or its equivalent with a minor or 
concentration in any branch of Engineering, Computer Science, Computer Applications, Information 
Systems, or a related field." 
In a letter submitted 
in response to the Director's request for evidence (RFE), the Petitioner stated 
that the contractual path of succession from the Petitioner to the end-client would be, Petitioner 7 
7 7 7 
C. Analysis 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client (in this case, 
to provide sufficient information regarding the proposed job duties to be performed at 
its Iocation(s) in order to properly ascertain the minimum educational requirements necessary to 
perform those duties. In other words, as the nurses in that case would provide services to the end­
client hospitals and not to the petitioning staffing company, the Petitioner-provided job duties and 
alleged requirements to perform those duties were irrelevant to a specialty occupation determination. 
See id. 
In other words, where the work is to be performed for entities other than the petitioner, evidence of 
the client companies' job requirements is critical. In Defensor, 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 
3 
(b)(6)
Matter of K-, LLC 
occupation on the basis of the requirements imposed by the entities using a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as 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 lacks any substantive evidence from the claimed end­
client who would generate work for the Beneficiary to perform and whose business needs would 
ultimately determine what the Beneficiary would actually do on a day-to-day basis? The record 
contains no evidence from pertinent to the duties the Beneficiary would perform, 
the minimum educational credentials necessary to perform them, the period of time during which the 
Beneficiary's duties would be required, or even that had agreed to use the 
Beneficiary's services at the time the petition was filed. The evidence provided does not, therefore, 
establish the substantive nature of the work the Beneficiary would perform if the visa petition were 
approved. 
Also, the record lacks credible evidence that when the Petitioner filed the petition, the Petitioner had 
seemed work for the Beneficiary to perform during the requested period of employment. USCIS 
regulations 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 at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts~ Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 3 
·The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that dete1111ines (1) the 
.2 While the Beneficiary's identification card is acknowledged, it cures none of these deficiencies 
since it does not provide information regarding position including the duties and educational requirements. 
3 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 8 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 8 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, 
\998) (to be codified at 8 C.F.R. pt. 214). 
4 
Matter of K-, LLC 
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 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 4.4 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed for this 
reason. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-18 nonimmigrant, m 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)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 2 I 4.2(h)( 4 )(ii) as follows: 
4 
Even if the proffered position were established as being located within the "Computer Programmers" occupational 
category (the occupational classification certified on the submitted LCA), a review of the U.S. Department of Labor's 
(DOL's) Occupational Outlook Handbook (Handbook) does not indicate that, simply by virtue of its occupational 
classification, such a position qualifies as q specialty occupation. More specifically, the information on the educational 
requirements in the "Computer Programmers" chapter of the 2016-17 edition of the Handbook indicates that a bachelor's 
or higher degree in a computer science or a related field may be a common preference, but not a- standard occupational, 
entry requirement. To the contrary, the Handbook specifically states that some employers will hire an employee with an 
associate's degree. See 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-inforrnation-technology/print/computer-programmers. 
htm (last visited May 24, 20 16). 
As such, absent evidence that the position would actually be .one located within the claimed occupational category, and 
that it would satisfY one of the alternative criteria available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the petition could not be 
approved for this additional reason. 
5 
Matter of K-, LLC 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B 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-IB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-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-1 B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the 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-IB 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-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 
6 
Matter of K-, LLC 
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)(IS)(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. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-18 visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.5 
Specifically, the regulatory definition of "United States employer" requires H-18 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-18 "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-18 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 
5 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 
I 0 I (a)(I5)(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. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
7 
Matter of K-, LLC 
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. Cf 6 . 
Darden, 503 U.S. at 318-19. 
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 10l(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h). 7 
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 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 at 388 (determining 
that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-lB nurses under 
8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, because the 
hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the· listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
6 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)). 
7 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). 
8 
(b)(6)
Matter of K-, LLC 
determination must be baseq on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at § 2-III(A)(l ). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on ' all of the incidents of the relationship ... with no 
one factor being decisive.'" !d. at 451 (quoting Darden, 503 U.S. at 324 ). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does not 
establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, we find that the 
record of proceedings does not contain sufficient, consistent, and credible documentation confirming 
and describing the circumstances of the Beneficiary's claimed assignment to the 
claimed end-client. Therefore, the key element in this matter, which is who exercises control over the 
Beneficiary, has not been substantiated. 
We preliminarily incorporate the findings . made above with regard to the Petitioner not 
substantiating the 
existence, at the time of the petition's filing, of non-speculative work to be 
performed by the Beneficiary at the site of Consequently, we are unable to 
ascertain whether the Petitioner would in fact engage the Beneficiary in an employer-employee 
relationship while working there. 
However, even if we were to ignore this foundational deficiency, we would still find the evidence of 
record insufficient to establish the requisite employer-employee relationship between the Petitioner 
and the Beneficiary. This is because the Petitioner, which is located in Georgia, has not explained 
and documented in detail how it would supervise and otherwise control the Beneficiary's day-to-day 
activities while he works for in California. 
The Petitioner asserts on appeal that "[the Beneficiary] will function at all times under exclusive 
direction and control of [the Petitioner's] management Only the senior-level management at [the 
Petitioner] will be responsible for the Beneficiary's job duties and performance." The Petitioner, 
which is located in Georgia, is assigning the Beneficiary to develop software for an end-client 
company, through tlu;ee intermediaries, at the end-client company's location in California. It is not 
9 
(b)(6)
Matter of K-, LLC 
clear how the Petitioner ass1gns the Beneficiary's tasks, and superv1ses and evaluates his 
performance of them. 
We acknowledge the Petitioner's repeated claims that it will maintain control over the Beneficiary. 
However, the evidence of record does not establish that the Petitioner would supervise and otherwise 
exercise control over the Beneficiary's employment. For example, while the Petitioner claims to be 
a 47-employee company, it did not indicate whether any of them would also be working for 
in California, and would, therefore supervise the Beneficiary. In short, the evidence of 
record provides no insight into how , from such a remote location, the Petitioner would control the 
Beneficiary's work on a daily basis. While the Petitioner states repeatedly in its letters that it would 
remain the Beneficiary's employer, it does not substantiate with documentary evidence how it would 
supervise and otherwise control, and evaluate, the Beneficiary ' s work. 
These deficiencies are also true of the remaining evidence of record: it provides no insight into the 
specifics of the claimed control that the Petitioner would have ov~r the Beneficiary. In other words, 
the generalized assertions regarding control contained in the record of proceedings lack any degree 
of specificity, and they do not specifically discuss, in probative detail, the degree of supervision, 
direction, or control that the Beneficiary would receive from a long-distance employer. 8 They are 
not sufficient to establish that the Petitioner would supervise or otherwise control the work of the 
Beneficiary. "[G]oing on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings." Matter of Sojjici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft ofCal., 14 l&N Dec. 190 (Reg'l Comm'r 
1972)). 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal arid 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 must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. 
The evidence, therefore, 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). 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. Again, "going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter 
of Soffici, 22 I&N Dec. at 165. The evidence of record does not establish that the Petitioner would 
8 The Petitioner's claims that it would pay the Beneficiary's salary are noted, and the method of payment is a factor to be 
considered. However, in some instances, a petitioner's role is limited to invoicing and proper payment for the hours 
worked by a beneficiary. In such cases, with a petitioner's role limited to essentially the functions of a payroll 
administrator, a beneficiary is even paid, in the end, by the end-client. See Defensor v. Meissner, 201 F.3d at 388. It is 
necessary to weigh and compare on all of the circumstances in the relationship between the parties in analyzing the facts 
of each individual case. 
10 
Matter of K-, LLC 
act as the Beneficiary's employer in that it will hire, pay, fire, or otherwise control the work of the 
Beneficiary. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)( 4 )(ii). 
III. BENEFICIARY QUALIFICATIONS 
As the Petitioner did not overcome the Director's grounds for denying this petition, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings.9 
Specifically, the record does not currently demonstrate that the Beneficiary's combined education 
and work experience is the equivalent of a U.S. bachelor's degree in a specific specialty. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § ll84(i)(2), states that a foreign national applying for 
classification as an H-lB nonimmigrant worker in a specialty occupation must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in [Section 214(i)(l )(B) of the Act, 
8 U.S.C. § 1184(i)(l)] for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, 
and 
(ii) recognition of expertise in the specialty through progressively 
responsible positions relating to the specialty. 
Implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) specifies 
that, to qualify to perform services in a specialty occupation, the foreign national must: 
(/) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
9 In reviewing a matter de novo, we inay 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.O. 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."). 
II 
Matter of K-, LLC 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
( 3) Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have [(!)] education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and [(2)] have recognition of expertise 
in the specialty through progressively responsible positions directly related to the 
specialty. 
The first three criteria are not factors in this appeal. The record reflects that the Beneficiary does not 
hold a U.S. baccalaureate or higher degree from an accredited college or university; a foreign degree 
determined to be equivalent to such a degree; or an unrestricted state license, registration or 
certification authorizing full practice and immediate engagement in a specialty occupation. 
We will apply the fourth criteria, however, as the Petitioner contends that a combination of 
experience and foreign education qualifies the Beneficiary for service in a specialty occupation. 
The fourth criterion specifies two requirements for qualifying under it. The evidence of record must 
establish that the Beneficiary has attained (I) education, specialized training, and/or progressively 
responsible experience that is equivalent to completion of at least a U.S. baccalaureate in the 
specialty occupation, and also (2) recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
The provisions at 8 C.F.R. § 214.2(h)(4)(iii)(D) supplement the degree-equivalency requirement at 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4). First, they define "equivalence to completion of at least a U.S. 
baccalaureate or higher degree." Second, they specify the means for establishing that degree 
equivalency. 
The definitional segment at 8 C.F.R. § 214.2(h)(4)(iii)(D) states: 
[F]or purposes of paragraph (h)( 4)(iii)(C)( 4) of this section, equivalence to 
completion of a United States baccalaureate or higher degree shall mean achievement 
of a level of knowledge, competence, and practice in the specialty occupation that has 
been determined to be equal to that of an individual who has a baccalaureate or higher. 
degree in the specialty .... 
The regulation then states that the degree-equivalency "shall be determined by one or more of 
following" five means: 
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Matter of K-, LLC 
(I) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an 
individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONS I); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 10 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that [(a)] the equivalent of the degree required 
by the specialty occupation has been acquired through a combination of 
education, specialized training, and/or work experience in areas related to the 
specialty and that [(b)] the [foreign national] has achieved recognition of 
expertise in the specialty occupation as a result of such training and 
expenence .... 
The means for degree-equivalency determinations identified at 8 C.F.R. §§ 214.2(h)(4)(iii)(D)(2) 
and (h)( 4 )(iii)(D)( 4) will not detain us: there is no evidence of college-level equivalency 
examinations or special credit programs to which those provisions apply. 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks. It must be clearly 
demonstrated [(!)] that the [beneficiary's] training and/or work experience included 
the theoretical and practical application of specialized k;,owledge required by the 
specialty occupation; [(2)] that the [beneficiary's] experience was gained while 
working with peers, supervisors, or subordinates who have a degree or its equivalent 
in the specialty occupation; and [(3)] that the [beneficiary] has recognition of 
expertise in the specialty evidenced by at least one type of documentation such as: 
10 In accordance with this provision, we will accept a credentials evaluation service's evaluation of education 
only, not training and/or work experience. 
13 
(b)(6)
Matter of K-, LLC 
(i) Recognition of expertise in the specialty occupation by at least two 
recognized authori ties in· the same specialty occupation ; 11 .· 
(ii) Membership in a recog nized foreign or United States association or 
society in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, 
trade journals , books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognize d authority has determined to be 
significant contributions to the field of the specialty occupation. 
By its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCJS application and 
determination. Also by the clear terms of the rule, experience will merit a positive determination 
only to the extent that the record of proceeding establishes all of the qualifying elements at 8 C.F .R. 
§ 214.2(h)(4)(iii)(D)(5) - includin g, b~t not limited to, a type of recognition of expertise in the 
specialty occupation. 
B. Analysis 
1. The Evaluation of the Beneficiary's Degree and Work Experience 
The record contains an evaluation prepared by of the 
entitled "Expert Opinion Evaluation of Academics and Work Experience." We shall separately 
address the two major divisions of the evaluation , which introduces with the headings 
"Academics" and "Profession al Experience. " 
a. The "Academics" Portion of the Evaluation 
stated his opinion that it "becomes apparent" . that the Beneficiary "has satisfied 
requirements that are substantially similar to those required toward the completion of three years of 
undergraduate course work toward a four-year Bachelor 's Degree program at an accred ited 
institution of higher education in the United States." 
11 Recognized authority means a person or orga nization with expertise in a part icular field, special skills or knowledge in 
that field, and the expert ise to render the type of opinion requested. 8 C.F.R. § 2 14.2( h)(4)( ii). A recognized authority's 
opinion must state: ( I) the writer's qualificatio ns as an expert ; (2) the w riter's experience giving such opinions, citing 
specific instances where past opinion s have been accepted as authoritative and by whom ; (3) how the conclus ions were 
reached ; and (4) the basis for the conclusions supported by copies or citations of any research materia l used. !d. 
14 
(b)(6)
Matter of K-. LLC 
We are not persuaded that the "Academics" section of the baccalaureate-degree equivalency 
evaluation establishes the Beneficiary's foreign education as equivalent to coursework toward a U.S. 
bachelor's degree, as claims. Specifically, while opinion concludes that the 
U.S. equivalency is "apparent," but it provides no substantive analysis to support that position, and it 
cites no references, sources, or research materials as the basis of its conclusion. "[G]oing on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings." Matter ofSoffici, 22 I&N Dec. 158 at 165 (citing Matter ofTreasure 
Craft of Cal., 14 l&N Dec. 190 (Reg'l Comm'r 1972)). Because the claims in the evaluation's 
"Academics" section are not substantiated, we find that they are insufficient to establish U.S. 
equivalency of the Beneficiary's foreign coursework. 
b. The Evaluation's "Professional Experience" Section 
The second part of "Expert Opinion Evaluation of Academics and Work Experience" 
concludes that the Beneficiary's employment equates to at least one year of U.S. university-level 
coursework in computer information systems. As we shall now discuss, we do not agree. 
As evident in the regulatory description, to merit consideration for the beneficiary-qualification path 
at 8 C.P.R. § 214.2(h)(4)(iii)(D)(l), a petitioner must submit an evaluation of training and/or 
experience that satisfies certain requirements. As well as being an accredited U.S. college or 
university,.the evaluator's educational institution must: 
1. Operate a program for granting college-level credit for training and /or experience; and 
2. Have designed that program to include granting of college-level credit in the relevant 
specialty- which claims to be computer information systems. 
Also, the evaluator of the training and/or experience must be an official whom the college or 
Ul).iversity has authorized to grant college-level credit in the relevant specialty, as part of a program 
for granting college-level credit for training and/or experience in that specialty. 
submitted a letter from the Dean of the School of Business. It 
states in pertinent part that 
the 
is "authorizes the granting of 'life experience' credits through 
degree completion program offered through the. 
However, there is no evidence of the extent of the Business School Dean's participation in or 
personal knowledge of the program, which the Dean's own letter acknowledges as one 
administered by an entity other than his Business School , namely, the 
The record, however, does not include a submission from the Dean of the 
or documentation that the Dean of the Business School is authorized 
to speak for the with regard to its program and the authority 
that it has delegated under that program. We find that these aspects of the record are sufficient 
reasons for us to accord no significant weight to the letter from the Dean of the Business School, 
particularly as this Dean presents no substantive information or documentation to support his 
15 
(b)(6)
Matter of K-, LLC 
conclusory declaration that is "authorized and qualified to grant 'life experience credits' 
through the degree-completion program." 
We also find that the totality of the evidence does not indicate course offerings or degrees in 
computer information systems that would be available through the program. Thus, the 
evidence of record establishes neither that the program awards college-credit in the relevant 
specialty nor that has authority to award college-credit in the relevant specialty. 
Further, we find that, even taken at face value, the letter from the Business School Dean does not 
establish that involvement in the qualifies 
him as "an official who has authority to grant college-level credit for training and/or experience in 
the specialty" in a "program for granting such credit based on an 
individual's training and/or work experience." Specifically, the Dean of the Business School states 
that is authorized to grant "life experience" credits, not "college-level credit" and not 
"college-level credit in the [pertinent] specialty" as specified at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
We will not speculate as to the riature, qualifying grounds, or academic weight of what is meant by 
"life-experience" credits, and the record of proceeding throws little light on this aspect of the 
program. It is the petitioner's burden to establish both what constitutes "life experience" as defined 
for credit-assessment in the program, and that "life experience" evaluated for credit in the 
program is substantially the same as "training andior work experience" which must be the 
basis of college-credit awarded by a person whom a petitioner holds out as qualifying as an 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(l) official. For this reason, too, we find that the Petitioner has not established 
that is an official who has authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college of university which has a program in granting 
such credit based on an individual's training and/or work experience. 
In addition to the material deficiencies noted above, we also find that the evaluation misinterprets 
and misapplies the so-called "three-for-one" rule. stated that USCIS has "established that 
three years of work experience and/training is equivalent to one year of university-level training." 
This statement is an erroneous simplification. 
The only section of the H-1 B beneficiary-qualification regulations that provides for application of a 
three-for-one ratio is the provision at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). However, that provision 
reserves its application exclusively for USCIS agency-determinations. 12 Further, that provision 
12 That the application is exclusively a measure for USC IS is clear in the language of the regulation. Additionally, the 
supplementary comments to the Final Rule that first introduced the ratio into agency regulations include the following 
statements: 
For the benefit of petitioners and applicants who may have difficulty in seeking and obtaining a 
determination of equivalency through authoritative sources, the Service adopted its own standard for 
substituting specialized training and/or experience for college-level training, and for assuring that the 
alien is recognized as a member of the profession. The three-for-one formula which will be used is 
16 
Matter of K-, LLC 
requires substantially more than simply equating any three years of work experience in a specific 
field to attainment of a year's worth of U.S. college credit in that field or specialty. In fact, the 
provision inserts a number of elements of proof into the experience and/or training equation that 
both evaluators have overlooked. The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)- which, as we 
have seen, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) introduces as one of the avenues 
towards establishing a beneficiary's qualifications- reads as follows: 
A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and that · 
the alien has achieved recognition of expertise in the specialty occupation as a result 
of such training and experience. For purposes of determining equivalency to a 
baccalaureate degree in the specialty, three years of specialized training and/or work 
experience must be demonstrated for each year of college-level training the alien 
lacks .... It must be clearly demonstrated [(I)] that the ,[beneficiary's] training and/or 
work experience included the theoretical and practical application of specialized 
knowledge required by the specialty occupation; [(2)] that the [beneficiary's] 
experience was gained while working with peers, supervisors, or subordinates who 
have a degree or its equivalent in the specialty occupation; and [(3] that the 
[beneficiary] has recognition of expertise in the specialty evidenced by at least one 
type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association or 
society in the specialty occupation; 
(iii) Published material by or about the [beneficiary J in professional 
publications, trade journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation m a 
foreign country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
based on a survey of relevant precedent decisions which reflect the number of years of experience held 
by aliens who did not have degrees, but were . regarded by the Service as members of their 
profession . ... 
55 Fed. Reg. 2606,2016 (Jan. 26, 1990)(Final Rule). 
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(b)(6)
Matter of K-, LLC 
(Emphasis added.) 
. Neither evaluation, the documents accompanying it, nor any other part of the record of 
proceedings provides sufficient work-experience evidence for us to reasonably conclude that the 
Petitioner has satisfied the 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) requirements for application of the 
"three-to-one ratio." Accordingly, we cannot conclude that the evidence of the Beneficiary's work 
experience qualifies for recognition of any years of college-level credit by correct application of the 
H -1 B beneficiary-qualification regulations' "three- for-one" standard. 
We also find that the evaluation's misapplication of a truncated and materially incomplete version of 
the true "three-for-one" rule is in itself sufficient grounds for dismissing the appeal and denying the 
petition, for the ultimate opinion expressed in evaluation depends in material part upon 
that misapplication. 
We may, in our discretion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 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. !d. USCIS is ultimately responsible for making the 
final determination regarding an alien's eligibility for the benefit sought; the submission of expert 
opinion letters is not presumptive evidence of eligibility. !d.; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not 
purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to 
understand the evidence or to determine a fact in issue.'"). 
2. No Basis for Service Determination of College Credit under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(D)(5) 
As the application of the so-called three-for-one rule is a matter solely for USCIS determination, on 
our own initiative we have considered whether the documentary evidence of the Beneficiary's work 
experience would support USCIS assigning college-level credit to the Beneficiary on the basis of the 
so-called "three for one" rule at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). We find that the totality of the 
evidence, including all of the previous employment letters in the record on appeal, does not establish 
the recognition of expertise required by 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
Neither evaluation, the documents accompanying it, nor any other part of the record of 
proceedings provides sufficient evidence for us to reasonably conclude that the work-experience 
evidence satisfy the 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) requirements for application of the "three-to­
ratio." Accordingly, we cannot conclude that the evidence of the Beneficiary's work experience 
qualifies for recognition of coliege-level credit by correct application of the H-1 B beneficiary­
qualification regulations' "three-for-one" standard. 
Therefore, based upon the findings articulated above, we conclude that the totality of the evidence 
regarding the Beneficiary's foreign education and work experience does not satisfy any criterion at 
18 
Matter of K-, LLC 
8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). For this additional reason, the petition may not be 
approved. 
IV. PRIOR H:l B APPROVALS 
We recognize that this is an extension petition. The Director's decision does not indicate whether 
she reviewed the prior approvals of the previous nonimmigrant petitions filed on behalf of the 
Beneficiary. If the previous nonimmigrant petitions were approved based on the same evidence and 
deficiencies contained in the current record, those approvals would constitute material and gross 
error on the part of the Director. We are not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 
1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, I 090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). A prior approval does not compel the approval of a subsequent 
petition or relieve the petitioner of its burden to provide sufficient documentation to establish current 
eligibility for the benefit sought. 55 Fed. Reg. 2606,2612 (Jan. 26, 1990). 
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; Matter ofOtiende, 26 l&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-, LLC, ID# 17120 (AAO May 25, 2016) 
19