dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF V -, INC. 
Non-Precedent Decision of the 
Administrative Appeals Qffi,~e 
DATE: FEB. 8, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "Systems Analyst" under the H -1 B nonimmigrant classification. See Immigration 
and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, denied the petition . The matter is now before us on appeal. Upon de 
novo review, we will dismiss the appeal. 
I. ISSUES 
The issues before us are whether (1) the Petitioner will have an employer-employee relationship with 
the Beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
II. PROCEDURAL AND FACTUAL BACKGROUND 
The Petitioner is a 197-employee IT consulting company located in Texas. The Petitioner 
seeks to employ the Beneficiary as a full-time "System Analyst" for a three-year period from 
October 1, 2015, to September 10, 2018, at an annual salary of $65,000. The Petitioner states that 
the Beneficiary will be employed off-site at California. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 15-
1121, "Computer Systems Analysts," from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level I, entry-level, position. 
In a letter of support dated March 30, 2015, the Petitioner stated that the "System Analyst for our 
Company gathers, analyze, develop and test software packages developed in any platforms before it 
goes to the production and distribution [sic]." The Petitioner listed the job duties for the Beneficiary 
as follows (verbatim): 
• Perform unit testing, integration testing and supported the end-to-end testing during 
UAT. 
• Create design document for each task assigned before proceeding with 
implementation. 
(b)(6)
Matter of V-, Inc. 
• Use JavaScript, JQuery with AJAX for dynamic data manipulation on client-side and 
used Html and JSP for design and display. 
• Data Transfer Object (DTO), Data Access Object (DAO), Service interface and 
Service Implementation for each transaction. 
• Work with Oracle 1 Og database and created tables and scripts using SQL. 
• Developunit test cases using JUnit and tested Web Services functions using SOAP 
UI tool. 
In another letter dated March 30, 2015, the Petitioner attested that, as the Beneficiary's employer, it 
will directly pay the Beneficiary's wages, provide him with employment benefits such as paid 
holidays and health insurance, be responsible for all his employment-related taxes and W-2 forms, 
and review his performance on a yearly basis. The Petitioner stated that the Beneficiary "will report 
to HR personal [sic] ... for his project and technology related topics" and other needs. 
In an itinerary also dated March 30, 2015, the Petitioner stated that the Beneficiary "is an active 
employee of [the Petitioner] and currently providing his consulting responsibilities as a System 
Analyst for The Petitioner further stated that the 
Beneficiary "is involved with various application development projects" and listed the specific 
project names as The 
Petitioner provided a breakdown of the Beneficiary's jobs and responsibilities for these projects, as 
follows: 
• Unit testing, integration testing and support end to end testing (30%) 
• Creating table and Scripting in SQL and working with oracle lOg (20%) 
• Unit test cases using Junit and test web services functions using SOAP UI tool (30%) 
• DTO and DAO service interface and service implementation (20%) 
The Petitioner also submitted, inter alia, a Subcontractor Agreement between the Petitioner and 
with an attached Schedule A, the Petitioner's Offer 
Letter and Employment Agreement with the Beneficiary, screen-shots of the Petitioner's website, 
and its organizational chart. 
The Director issued a request for evidence (RFE) requesting additional evidence relating to the 
Petitioner's employer-employee relationship with the Beneficiary and availability of specialty 
occupation work for him. In a letter dated June 30, 2015, submitted in response to the RFE, the 
Petitioner stated that the Beneficiary "reports directly to and that "it is against client 
procedures to provide any type of employment letter to contractors because there is no employment 
relation with them." 
The Petitioner also submitted a letter dated June 26, 2015, from 
confirming that the Beneficiary is working onsite at its client, 
California. This letter states that the Beneficiary "started on 
2 
(b)(6)
Matter of V-, Inc. 
November 19, 2014 in the position of Java Developer" and is performing the following duties 
(verbatim): 
• Involved in Analysis, Design, Coding and Development of custom Interfaces 
• Involved in the feasibility study of project 
• Experience as a programmer in Java!J2ee Developer 
• Experience in test driven development 
• Gathering requirements from the client for designing applications 
• Perform unit testing, integration testing and support the end-to-end testing during 
UAT 
• Use JavaScript, JQuery with AJAX for dynamic data manipulation on client-side and 
used html and JSP for design and display 
• Data Transfer Object (DTO), Data Access Object (DAO), Service interface and 
Service Implementation for each transaction 
This letter further states that "this project [to which the Beneficiary is assigned] is on going with 
multiple phases planned over the next three years." 
Also in support of the RFE response, the Petitioner submitted, inter alia, Weekly Review Reports 
signed by the Beneficiary and his "Supervisor," the Beneficiary's Performance Review, and a more 
detailed organizational chart. 
The Director denied 
the petition, concluding the evidence of record was insufficient to establish that 
the Petitioner has an employer-employee relationship with the Beneficiary, and that the proffered 
position qualifies as a specialty occupation. The Director specifically noted the lack of evidence 
directly from the end-client, pertaining to the Beneficiary's proposed 
employment at their facility. 
On appeal, the Petitioner explains that has a very clear policy not to release any letters for 
vendors or ultimate employers ... [as they] have a Managed Service Provider that is contractually 
bound to perform this task for them." The Petitioner identifies the Managed Service Provider as 
_ and states that "the agreement between IS 
confidential but not needed as is an agent of 
In support of the appeal, the Petitioner submits, 
Beneficiary, job posting and job seeker details 
Agreement between 
3 
inter alia, a Work Order, emails regarding the 
m and a Supplier Master Services 
and 
Matter of V-, Inc. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
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)(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. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with 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-
1 B 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 parHime 
"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 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-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
4 
Matter of V-, Inc. 
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-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law 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 has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) ofthe Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 1 
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). 
Matter of V-, Inc. 
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-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB 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 importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
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 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the 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-IB 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, 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 l(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). 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
Matter of V-, Inc. 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
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 
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 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, 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." 
For H-1B classification, the Petitioner is required to submit written contracts between itself and the 
Beneficiary (or if there is no written agreement, a summary of the terms of the oral agreement under 
which the Beneficiary will be employed). See 8 C.F.R. § 214.2(h)( 4)(iv)(A) and (B). In the instant 
case, the record contains an Employment Agreement between the Petitioner and the Beneficiary, as 
well as the Petitioner's offer letter to him. However, these documents both list the proffered position 
as a "Java/J2EE Developer" at a salary of $74,880. In contrast, the Form I-129, LCA, and other 
documentation list the proffered position as a "Systems Analyst" at a salary of $65,000. These 
(b)(6)
Matter of V-, Inc. 
significant discrepancies undermine the reliability of the Petitioner's documents.4 "[I]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter 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 where the truth lies. 
I d. at 591-92. "Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition." Id. at 591. 
Here, it is critical to note that the Beneficiary is, and has been since November 2014, performing 
services for the end-client, at facilities in California. The 
Petitioner, on the other hand, is located in Texas. The Petitioner has not submitted sufficient reliable 
evidence to establish how it oversees and directs the work of the Beneficiary, and otherwise has the 
right or ability to control his work performed off-site at the end-client's premises. 
For instance, it is not clear who the Beneficiary's direct supervisor is at the petitioning company. 
The Petitioner stated in its March 30, 2015, letter that the Beneficiary "will report to HR personal 
[sic] ... for his project and technology related topics." 5 In the Petitioner's second 
organizational chart submitted with the RFE, the Beneficiary is depicted as being directly 
subordinate to the "Human Resource and Operation Manager," who is depicted in the 
first organizational chart as the "VP - Technology and Project Management." Furthe1more, the 
Petitioner stated in its letter, dated June 30, 2015, that the Beneficiary "reports directly to 
who is depicted in both organizational charts as a senior-level "Business Development" 
manager. The Beneficiary's weekly reports and his performance review are all signed by 
as the Beneficiary's "Supervisor." The Petitioner has not explained who the Beneficiary's 
supervisor is, i.e., whether it is or another unidentified 
individual. Not only do these umesolved discrepancies undermine the credibility of the Petitioner's 
claims that it supervises the Beneficiary's work, but they also undermine the Petitioner's overall 
credibility as well. See id. at 591-92. 
Moreover, the Petitioner has not submitted a sufficient explanation, corroborated by credible 
evidence, detailing the manner in which the Beneficiary's supervisor actually oversees, directs, and 
otherwise controls the off-site work of the Beneficiary. While the Petitioner submitted several 
Weekly Review Reports which summarize the Beneficiary's current and new assignments, these 
documents do not identify the source of the information for "work assigned" and "new 
assignments." That is, the Petitioner has not explained and documented who actually assigned the 
Beneficiary the work stated in the weekly reports.6 Notably, these reports identify the Beneficiary's 
4 Even if the Employment Agreement and offer letter were credible, 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. 
5 The Petitioner's first organizational chart depicts as the "HR Administrator." We question why the 
Beneficiary's first-line supervisor "for his project and technology related topics" would be a human resources 
administrator. 
6 The Petitioner stated in the itinerary that the Beneficiary's responsibilities include providing the Petitioner with "up to 
(b)(6)
Matter of V-, Inc. 
"Contact Person at Client Site" as Technical Lead. However, the Petitioner has not 
explained and documented who is and what company he or she works for, as he or 
she is not depicted on the Petitioner's organizational charts. Nor has the Petitioner explained the 
nature of the relationship between and the Beneficiary's supervisor at the petitioning 
company. 7 
The Petitioner also submitted a copy of the Beneficiary's Performance Review from January 2015 to 
March 2015. The Petitioner's March 30, 2015, letter entitled "Re: Employer and Employee" states, 
however, that the Petitioner "reviews all its employees' performance on [a] yearly basis."8 
Regardless of the frequency in which these performance reviews are prepared, these documents do 
not explain in detail how the Petitioner evaluates the Beneficiary's technical and job knowledge, 
"contribution in project performance," and other aspects of his performance that do not occur at the 
Petitioner's worksite. Again, the Petitioner has not explained and documented the nature of the 
relationship between the Beneficiary's "Contact Person at Client Site" and the Beneficiary's 
purported supervisor at the Petitioning company. "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." In re Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft 
ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Also critical to this matter is the lack of sufficient documentation from the end-client receiving the 
Beneficiary's services, or from another authoritative source, regarding the Beneficiary's assignment. 
In other words, the record of proceedings contains insufficient documentation directly from 
or from its Managed Service Provider detailing the 
terms and conditions of the Beneficiary's assignment at '! 
The Petitioner submitted the Supplier Master Services Agreement (SMSA) between and the 
mid-vendor, This document specifically states that "Supplier 
shall perform those Services that are described in the [Statement of Services] SOS and 
shall perform those Services at such time and place specified by 
This document further defines the term "Statement of Services (SOS)" as "[a] document which 
describes in detail the activities which are to be performed on behalf of Customer by the Supplier." 
However, the Petitioner did not submit the Statement of Services, work order, or another similar 
contractual agreement between 
date project progress reports on weekly basis." That the Beneficiary is the one providing such updates to the Petitioner 
about his current and new assignments, as opposed to the other way around, suggests that the Petitioner does not exercise 
regular oversight of the Beneficiary's day-to-day work. 
7 These weekly reports also indicate that the Beneficiary is involved in "internal" team meetings. The Petitioner has not 
further explained and documented whose "internal" team to which the Beneficiary belongs. 
8 This letter also refers to the Beneficiary as ' 
9 While the Petitioner explains that has a very clear policy not to release any letters for vendors or ultimate 
employers ... [as they] have a Managed Service Provider that is contractually bound to perform this task for them," the 
Petitioner has not explained why could not have provided a letter or other adequate documentation. 
9 
(b)(6)
Matter of V-, Inc. 
The Petitioner submitted various documents pertaining to the Beneficiary's assignment at 
. including the Job Posting listing as the "Buyer," the 
Beneficiary's Job Seeker Details for this posting, and the Work Order confirming the Beneficiary's 
selection for this posting. 1° First, we observe that all these documents identify the position's title as 
"Software Architect- Client Server- HS," as opposed to the "Systems Analyst" title on the Form 
1-129 and LCA, or the "Java/J2EE Developer" title on some of the Petitioner's documents. Again, 
"it is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence," and "[d]oubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition." !d. at 591-92. 
Second, and more importantly, these documents do not describe in detail the manner in which the 
Petitioner oversees, directs, and supervises the work of the Beneficiary at With respect to 
the job posting, this document states that the Beneficiary will report to a "Technology Manager." 
Neither the job posting, nor the Petitioner, has provided further information specifically identifying 
the "Technology Manager" referenced in this posting, such as the manager's name, what company 
he or she works for, and the nature of his or her relationship to the Petitioner. 11 In addition, while 
the Beneficiary's Job Seeker details lists the Petitioner as the "Sub-supplier corporation," there is no 
further explanation and documentation regarding the definition and significance of the Petitioner as 
the "Sub-supplier corporation" in terms of the Petitioner's ability to direct, supervise, and control the 
Beneficiary's work at 
The evidence of record also lacks sufficiently detailed, reliable documentation between the 
Petitioner and the mid-vendor regarding the Beneficiary's assignment. The Petitioner 
submitted its Subcontractor Agreement with and the attached Schedule A, which authorizes 
the Beneficiary's assignment to facilities in California. The Petitioner also submitted a 
letter, dated June 26, 2015, from confirming the Beneficiary's assignment as a "Java 
Developer." None of these documents offer additional details regarding the manner in which the 
Petitioner actually directs, supervises, and controls the Beneficiary's work performed at 
premises, either. For instance, the letter dated June 26, 2015, states that the Petitioner 
"provide[ s] all business equipment necessary to effectively complete this assignment," but does not 
further specify what equipment has been and will be provided to the Beneficiary at the client's 
premises in California. The letter also states that the Petitioner "has ultimate right over the control 
of [the Beneficiary]," but does not explain what it meant by the vague phrase "ultimate right over the 
control" as it relates to the actual exercise of control over his daily work at the client's premises. 
Moreover, the mid-vendor documents all indicate that the Beneficiary will be assigned to to 
perform work on a single project. The Subcontractor Agreement states that the agreement is valid 
"through completion of the Project" and that "Subcontractor agrees that the individual employed to 
10 website, available at (last visited Feb. I, 20 16), describes as "a 
cloud-based Vendor Management System (VMS) to manage contingent workforce and services procurement programs." 
11 The job posting states that there is the possibility of converting the Beneficiary to a full-time employee. 
10 
(b)(6)
Matter of V-, Inc. 
work on this project, as set forth above, will remain on this Project until completion of the same 
(emphasis added)." letter similarly states that the Beneficiary is working as part of"[t]his 
project" in the singular. In contrast, the Petitioner's itinerary lists several projects for the 
Beneficiary, specifically, 
Further, the Weekly Review Reports list even more projects assigned to the Beneficiary that are not 
listed in the itinerary, such as These discrepancies, when considered with all 
the other discrepancies discussed above, undermine the credibility of the Petitioner's claims and 
evidence. See id. at 591-92. 
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 control over the Beneficiary, without sufficient evidence supporting the claim, does not 
establish eligibility in this matter. While the Petitioner repeatedly asserts that it has an employer­
employee relationship with the Beneficiary because the Petitioner is directly responsible for paying 
his salary, employee benefits, and employment related taxes, these factors, even if true, are not 
determinative in assessing who will control the Beneficiary. Other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, 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. 
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). Accordingly, the Director's decision must be affirmed and 
the petition denied on this basis. 
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 three-year period requested from 
October 1, 2015, to September 10, 2018. 
The record of proceeding contains evidence that conflict with the Petitioner's claim that the 
Beneficiary will be assigned to for the entire three-year period. More specifically, the 
Work Order lists the term of the Beneficiary's particular assignment to as from 
November 19,2014, to November 17,2015, with a total of2,080 hours (equal to 52 weeks at 40 hours 
per week) spent on this particular assignment. The Petitioner has not explained and submitted 
competent objective evidence to reconcile this inconsistency. 
In view of the foregoing, the Petitioner has not overcome the Director's first basis for denying the 
petition, and it has also not established that the petition was filed for non-speculative work for the 
1 1 
Matter of V-, Inc. 
Beneficiary, for the entire period requested, that existed as ofthe time ofthe petition's filing.12 USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). The 
petition must be denied on this additional basis. 
IV. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
12 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-18 classification on the basis of speculative, or 
undetennined, 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) ofthe 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). 
12 
Matter of V-, Inc. 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-IB petitions for qualified 
13 
(b)(6)
Matter of V-, Inc. 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
The petition must also be denied because the Petitioner has not established that the proffered 
position qualifies for classification as a specialty occupation. As recognized in Defensor v. 
Meissner, 201 F.3d 384, 387-8 (5th Cir. 2000), it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location 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. 
Here, the record of proceedings is similarly devoid of sufficient information from the end-client, 
or from its Managed Service Provider, , regarding the job duties to be performed by 
the Beneficiary. The Petitioner did not submit any documentation directly from 
nor did the Petitioner submit a Statement of Services, work order, or another similar contractual 
agreement between and the mid-vendor 
14 
(b)(6)
Matter of V-, Inc. 
The Job Posting in provides a "Position Overview" that is overly broad and insufficient to 
illuminate the specific tasks to be performed by the Beneficiary. For example, the posting states that 
the Beneficiary will be required to "[ c ]ontribute to task identification, work effort estimates, and 
work schedules for development and maintenance activities." There is no further explanation as to 
what particular tasks the Beneficiary will perform on a day-to-day basis (e.g., what is meant by 
"[c]ontribute," and what specific development and maintenance activities are involved), the 
complexity of such tasks, and the substantive application of knowledge involved. The posting also 
states that the Beneficiary will "[ s ]upport production legacy applications" but does not provide any 
particular details regarding the demands, level of responsibilities and requirements necessary for the 
performance of this duty (e.g., the nature of the "support" that will be provided and the types of 
"legacy applications" involved). The posting does not identify a specific project or projects for the 
position. 
Furthermore, while the Job Posting states that a "Bachelor's degree [is] required in Computer 
Science or related field," it also lists duties and requirements for the position as including "providing 
technical guidance and mentoring to junior team members," and the "[a]bility to work independently 
with limited supervision." The Job Posting additionally lists "6-8+ years of experience in real-world 
Java development" and "6-8+ years of experience with web-based technologies" as other minimum 
requirements for the position. However, the Petitioner has designated the proffered position as a 
Level I position on the LCA. In designating the proffered position at a Level I, entry-level wage 
rate, the Petitioner has indicated that the proffered position is a comparatively low, entry-level 
position relative to others within the occupation, in which the Beneficiary is only required to have a 
basic understanding of the occupation and perform routine tasks that require limited, if any, exercise 
of judgment. 13 The Petitioner's designation of the proffered position as a Level I, entry-level 
position thus undermines the reliability of the descriptions of the proffered position contained in the 
Job Posting. 14 
13 The wage levels are defined in the Department of Labor's "Prevailing Wage Determination Policy Guidance." A 
Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
14 The Petitioner's designation of this position as a Level I, entry-level position undermines the reliability of the Job 
Posting. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a 
specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain 
occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's 
15 
(b)(6)
Matter of V-, Inc. 
Finally, we find that the letter from and the Petitioner's own letters describing the duties and 
requirements of the proffered position are entitled to little probative weight. Aside from the fact that 
they were not issued directly by the end-client or its Managed Service Provider, these documents 
contain insufficient, inconsistent descriptions of the proffered duties as well. 
For instance, the Petitioner 's itinerary states that the Beneficiary will spend 100% of his time on the 
following duties: "[ u ]nit testing, integration testing and support end to end testing," "[ c ]reating table 
and Scripting in SQL and working with oracle lOg," "[u]nit test cases using Junit and test web 
services functions using SOAP UI tool," and "DTO and DAO service interface and service 
implementation." However, the Petitioner stated in 
its March 30, 2015, letter entitled "Re: Support 
Letter for I-129 Application for [the Beneficiary]" that a "System Analyst for our Company gathers, 
analyze, develop and test software packages [sic]." letter similarly lists duties for the 
Beneficiary such as "[i]nvolved in Analysis, Design, Coding and Development of custom interfaces" 
and "[g]athering requirements from the client for designing applications." The Petitioner did not 
allocate any of the Beneficiary's time to design and development-related duties in the itinerary. 
Furthermore, the Petitioner's documents and letter do not describe in detail the specific 
duties, demands, level of responsibilities and requirements necessary for the proffered position. 
Instead, they too provide vague job descriptions that do not convey the specific tasks to be 
performed, the complexity of such tasks, and the substantive application of knowledge involved. 15 
Notably, the Petitioner's documents and letter do not specify the minimum educational 
requirement for the proffered position. At most, letter states that the position requires a 
"Bachelor's degree in a related field and relevant experience," but does not further specify what it 
considers to be an acceptable "related field" and "relevant experience." Overall, based upon the 
limited, inconsistent evidence in the record, we cannot find that the Petitioner has established the 
substantive nature of the work to be performed by the Beneficiary. 16 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as a computer systems analyst for the duration of the requested 
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 relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 214(i)(I) of the Act. 
15 In this respect, we observe that the duties of the proffered position, as listed in the Petitioner's March 30, 2015, letter 
and itinerary, are the same as the Beneficiary's previous work experience as listed in his resume. 
16 The Petitioner's March 30, 2015, letter states only that "[the Beneficiary's] education qualifications and experience 
fully satisfy our Company's minimum requirements for the position." 
While the test to establish a position as a specialty occupation is not the skill set or education of a proposed beneficiary , 
we note that , in any event , the Beneficiary possesses only "[m]ore than I years ' experience in computer hardware and 
software
" according to his resume . When considered with the Job 
Posting's requirement for "6-8+ years" of relevant 
experience , we are further precluded from understanding the substantive nature of the proffered position. 
16 
Matter of V-, Inc. 
employment period. As 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 determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its 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. Accordingly, as the Petitioner has 
not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it cannot be 
found that the proffered position qualifies for classification as a specialty occupation. For this 
additional reason, the appeal will be dismissed and the petition denied. 
V. CONCLUSION 
As set forth above, we find that the evidence of record does not establish an employer--employee 
relationship between the Petitioner and the Beneficiary. The evidence of record also does not 
demonstrate that the proffered position qualifies as a specialty occupation. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of 
Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-, Inc., ID# 15711 (AAO Feb. 8, 2016) 
1'7