dismissed H-1B Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY27,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting and software development firm, seeks to 
temporarily employ the Beneficiary as a "business analyst" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
IOI(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner had 
not established that the required employer-employee relationship would exist. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in her 
decision. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
The Petitioner, located in Virginia, indicated that the Beneficiary will be providing services to an 
end-client in New York. According to the information in the record, the contractual chain is as 
follows: the Petitioner contracted with (mid-vendor), who in turn contracted with 
(prime vendor), who has a contract with (end-client). 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from the 
end-client. The end-client stated that the Beneficiary's duties include the following: (note: errors m 
the original text have not been changed): 
• Attended daily serum meetings, planning meetings, retrospective meetings 
• Performed demo on the new functionalities to the SME's 
• Used Jira to keep track of the user stories 
• Created and linked test cases to requirements in ALM 
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Matter of S-, Inc. 
• Developed detailed test scripts to be used in Automation 
• Performed testing using different roles of Retention Representative such as 
Field Rep, In House Rep, RSA Rep, Supervisor/Manager 
• Verified the data coming from Facets to SFDC 
• Logged defects in ALM 
• Performed regression and End-to-End testing before 
releasing the package 
• Analyze our client's existing systems/procedure/data, and propose changes in 
equipment, processes and procedures that would result in overall 
enhancement; 
• Created/managed test cases all phases ofFacets upgradation from 5.1 to 5.3. 
• Defined Functional Test cases, documented, Executed test script in Facets 
system. 
• Involved in testing Member, Provider, Claims Processing, and Utilization 
Management, Contracts and Benefits modules. 
• Compare and Validated the Reports between Facets 5.1 and 5.3. 
• Involved in testing the various Interfaces (Inbound and Outbound) of Facets. 
• Involved in Facets System implementation, Claims and Benefits 
configuration set-up testing, Inbound/Outbound Interfaces and Extensions, 
Load and extraction programs involving HIPP A 83 7 and proprietary format 
files and Reports development. 
• Tested routing of Claims, Claims Adjudication, Claims Processing in Facets. 
• Tested the EOB, COB, benefits, enrollment, membership, facilities and 
reports in Facets. 
• Worked in creating and verifying EDI transactions for Medicaid and Medicare 
claims. 
• Validated the claims status and overrides in Facets 5.1. 
On appeal, the Petitioner submits another letter from the end-client, which describes the duties of the 
proffered position as follows: 
• Analyzing existing systems/procedure/data, and propose changes in 
equipment, processes, and procedures that would result in overall 
enhancement. 
• Evaluate new or modified solutions, data structures, and decision-support 
mechanisms. 
• Be involved in testing Member, Provider, Claims Processing, and Utilization 
Management, Contracts, and Benefits modules. 
• Compare and Validate the Reports between Facets 5.1 and 5.3. 
• Assist cross-functional team in drafting and designing the workflow and 
business operation procedures pertaining to our systems. 
• Analyze functional documents, and develop functional specifications. 
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Matter of S-, Inc. 
• Translate information between business team and technical team of systems 
engineers, analysts or designers using object-oriented models or other 
techniques. 
• Work with claims batch process, external claims and Pended claims in Facets. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
The record does not sufficiently establish that the Petitioner would be a "United States employer" 
having "an employer-employee relationship with respect to employees under this part, as indicated 
by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C.F.R. § 214.2(h)(4)(ii). 1 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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)(1) .... 
The term "United States employer" is defined at 8 C.F .R. § 214.2(h)( 4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with 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). 
1 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of S-, Inc. 
Although "United States employer" is defined in the regulations at 8 C.F .R. § 214.2(h)( 4 )(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H -1 B visa 
classification. Therefore, in considering whether or not one will be an "employee" in an "employer­
employee relationship" with a "United States employer" for purposes of H-1 B nonimmigrant 
petitions, we will look to common-law agency doctrine and focus on the common-law touchstone of 
"control." See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992); Clackamas 
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003). 
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) (defining "servant"). 
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)(1) (adopting a 
materially identical test and indicating that said test was based on the Darden decision); Defensor v. 
Meissner, 201 F.3d at 388 (determining that hospitals, as the recipients ofbeneficiaries' services, are 
the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract 
service agency is the petitioner, because the ~ospitals 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). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the record does not establish 
that the Petitioner will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-1B temporary "employee." Specifically, we find that the Petitioner has 
not submitted sufficient, consistent, and credible documentation regarding salient aspects of the 
Beneficiary's employment. Therefore, the key element in this matter, which is who exercises 
control over the Beneficiary, has not been substantiated. 
Preliminarily, we must note that the record of proceedings does not contain copies of any contracts 
executed between the Petitioner and the end-client or either of the vendors and the end-client. 
Without full disclosure of the terms and conditions of the contractual agreement between the parties, 
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Matter of S-, Inc. 
we are unable to adequately assess whether the Petitioner has the requisite employer-employee 
relationship with the Beneficiary. 
Further, the record lacks sufficient, detailed documentation describing how the Petitioner would 
supervise and otherwise 
control the Beneficiary's day-to-day activities at the end-client's premises in 
New York. On appeal, the Petitioner identifies a "technical project 
manager II" as the Beneficiary's direct supervisor. The Petitioner states that also 
"directly manag[ es] and supervis[ es] all the QA Testers, Business Analysts, and Programmer 
Analysts assigned by [us] working at our client locations." The Petitioner did not provide the 
number of individuals supervises or the number of different client sites these 
individuals are assigned to. Without further information, we are unable determine how 
would supervise the Beneficiary and all other employees assigned to client locations. The Petitioner 
generally states that "the supervision will take place on a weekly basis through status reports, weekly 
meetings and emails," but does not provide additional information such as who will participate in the 
meetings and provide the status reports. 
The Petitioner further states that it utilizes a time management application to monitor and control its 
employees' working hours. The Petitioner indicates that "since the actual may be varied based upon 
the budget agreed between [us] and clients, as well as the progress of the client projects, the working 
hours of each employee are at variance. Therefore, it is necessarily required for our employees to 
enter their working hours into [the time management application] on a weekly basis." The Petitioner 
states that its HR manager will review and approve the employees' working hours, but does not 
further describe the review process or how it monitors and controls the hours that the employees are 
recording themselves. We must also note an email from the end-client, which identifies 
described as its team lead, as the Beneficiary's current supervisor, and the Beneficiary's use 
of the end-client's domain name in his email address. The record also contains email 
communications exchanged between the Beneficiary and the end-client's employees regarding 
project tasks without evidence of the Petitioner's involvement. These details indicate that the 
Beneficiary appears to be functioning at the end-client site as though he were an integrated member 
of its regular staff and operating independently of any day-to-day control by the Petitioner over his 
project tasks. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the record leads us to 
conclude that the Petitioner would not operate as the Beneficiary's employer in the common law 
sense, but that it would instead act as a supplier of personnel to temporarily supplement the stafl of 
organizations such as the end-client who would control the content, means, and methods of those 
individuals' work. The Petitioner's fulfillment of such administrative functions is insufficient to 
demonstrate the requisite employer-employee relationship. See Defensor, 201 F.3d at 388 (with the 
Petitioner's role limited to essentially the functions of a payroll administrator, the Beneficiary is 
even paid, in the end, by the end-client). 
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Matter of S-, Inc. 
We also find that the Petitioner has not established that the petition was filed for non-speculative 
work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. Specifically, the initial task order between the mid-vendor and the Petitioner indicated a start 
date of March 14, 2016, and lists the project's length as six months. While we acknowledge the 
Petitioner submitted a new task order dated October 28, 2016, in response to the RFE, and a letter 
from the end-client on appeal, we note that the Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied at the time of filing. 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). Further, the record does not contain evidence of any 
contracts or related documents between the end-client and the Petitioner, or even the end-client and 
the vendors to demonstrate the availability of the proffered position for the entire three years the 
Petitioner requested. Thus, even if it were found that the Petitioner would be the Beneficiary's 
United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not 
demonstrated that it would maintain such an employer-employee relationship for the duration of the 
period requested. 2 
Overall, the record of proceedings lacks sufficient documentation regarding who has or would have 
actual control over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's 
services. Thus, the Petitioner has not established that the requisite employer-employee relationship 
would exist between the Petitioner and the Beneficiary. 
I 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of S-, Inc. 
III. LABOR CONDITION APPLICATION 
Further,' we find that the record contains inconsistencies regarding the occupational classification the 
Petitioner selected for the proffered position on the labor condition application (LCA), and therefore, 
the LCA does not appear to support the petition. · 
A. Legal Framework 
The regulations require a petitioner to obtain a certified LCA from the Department of Labor (DOL) 
in the occupational specialty in which the H-JB worker will be employed (emphasis added). 
See 8 C.P.R. § 214.2(h)(4)(i)(B), (iii)(B)(l). According to the regulation at 20 C.P.R.§ 655.705(b), 
"[t]or H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL­
certified LCA attached. In doing so, the DHS determines whether the petition is supported by an 
LCA which corresponds with the petition .... " 
With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET 
occupational code classification. 3 The "Prevailing Wage Determination Policy Guidance" states that 
"[i]n determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET 
description that corresponds to the employer's job offer shall be used to identify the appropriate 
occupational classification." It further indicates that "[i]f the employer's job opportunity has worker 
requirements described in a combination of O*NET occupations, [the employer] should default 
directly to the relevant O*NET-SOC occupational code for the highest paying occupation." 
B. Analysis 
Regarding the certified LCA filed in support of the petition, the Petitioner attested that the proffered 
position is a "business analyst" position corresponding to the occupational category "management 
analysts" with SOC Code 13-1111.4 As mentioned, for purposes of the LCA, the Petitioner is 
required to select the occupational category and code that best represent the nature of the job offer, 
which in turn determines the appropriate prevailing wage. Thus, through the certified LCA, the 
Petitioner represented that the proffered position corresponds to the "management analyst" 
occupational classification, and that the Beneficiary will be appropriately compensated for 
performing those duties. 
3 
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_ll_2009.pdf 
4 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services to demonstrate that it 
will pay an H-1 8 worker the higher of either the prevailing wage for the occupational classification in the "area of 
employment" or the actual wage· paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
7 
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Matter of S-, Inc. 
The DOL's Occupational Information Network (O*NET)5 summarizes the general duties of 
management analysts as follows, in part: "[ c ]onduct organizational studies and evaluations, design 
systems and procedures, conduct work simplification and measurement studies, and prepare 
operations and procedures manuals to assist management in operating more efficiently and 
effectively .... " 6 The DOL's Occupational Outlook Handbook (Handbook) states that 
"management analysts ... propose ways to improve an organization's efficiency. They advise 
managers on how to make organizations more profitable through reduced costs and increased 
revenues." 
The documents in the record indicate that the Beneficiary's duties may be a combination of different 
occupational categories. For example, the Petitioner submitted emails between the end-client and 
the Beneficiary which indicate that the Beneficiary has been working for the end-client as a "quality 
assurance analyst." Notably, "quality assurance analyst" falls under another occupational category 
"Computer Occupations, All Other."7 Further, the letters from the end-client indicates that the 
Beneficiary "performed demo on the new functionalities to the SME's," "created and linked test 
cases to requirements in ALM," and "developed detailed test scripts to be used in Automation," 
which appear consistent with duties as a quality assurance analyst. 
Other documents in the record further suggest that the Beneficiary's duties may encompass more 
occupational categories. Specifically, the "Professional Services Agreement" with the mid-vendor 
states that the Petitioner will provide individuals "who are qualified computer/data processing 
professionals" to "perform[] professional computer consulting and programming services." The 
letter from the prime vendor states that it "has been utilizing the technical consulting service" of the 
Beneficiary who "will be focused on the development, implementation and ongoing support for our 
client's application." 
Management analysts, quality assurance analysts and programmer analysts are three distinct 
occupations. 8 The Petitioner has not sufficiently established that the profTered position corresponds 
5 We recognize both O*NET and the Handbook as authoritative sources on the duties of the wide variety of occupations 
that they address. O*NET is accessed online at https://www.onetonline.org/. The Handbook, which is also available in 
printed fonn, may be accessed at http://www.bls.gov/oco/. All our references to the Handbook are to the 2016-17 edition 
currently available online. 
6 For more information regarding this occupational category, see https://www.onetonline.org/link/summary/13-IIII.OO 
(last visited July 26, 20 17). 
7 For more information regarding this occupational category, see https://www.onetonline.org/link/summary/15-1199.00 
(last visited July 26, 20 17). 
8 For purposes of the LCA, when a position involves duties of more than one occupational classification, the employer 
should choose the relevant occupational classification for the highest-paying occupation. As indicated on the certified 
LCA, the prevailing wage for a Level I "Management Analyst" position is $30.86 per hour. The prevailing wage for a 
Level I, "Computer Systems Analyst" occupation is $30.68 per hour. The prevailing wage for "Computer Occupations, 
All Other," is higher at $37.00 per hour. For more information, see 
http:/ !flcdatacenter.com/OesQuickResults.aspx?area=· &code= 15-1199&year= 16&source= I (last visited July 26, 
20 17). If the proffered position were to encompass duties of all three occupations, then the Petitioner should have 
chosen "Computer Occupations, All Other" for the occupational category on the LCA. 
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Matter of S-, Inc. 
to the "management analyst" occupational category. The Petitioner must resolve these 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Without independent, objective evidence that 
the Petitioner provided the most appropriate occupational classification for the proffered position, 
the Petitioner has not established that the petition is supported by an LCA which corresponds with 
the petition as required by the regulation at 20 C.P.R. § 655.705(b). 
IV. SPECIALTY OCCUPATION 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not (1) sufficiently established the substantive nature of the proffered 
position; and (2) that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 
0 
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.P.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 
0 
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. 
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Matter of S-, Inc. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto,[f, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor, 201 F.3d at 387. 
The court in Defensor, 201 F.3d at 387-88, held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring a petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using a beneficiary's services (emphasis added). In other words, it is not the 
Petitioner, but rather the end-client, who must provide the requirements, including the minimum 
education requirement, to establish that the proffered position qualifies as a specialty occupation. 
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 
First, the Petitioner has not sufficiently established the substantive nature of the proffered position. 
Specifically, the record contains inconsistencies that undermine the Petitioner's claims regarding the 
Beneficiary's position. 
As discussed, while the Petitioner attested that the proffered position is a "business analyst" position 
corresponding to the occupational category "management analysts" with SOC Code 13-1111, the 
documents in the record suggest that the designated occupational category may not be the most 
appropriate classification for the proffered position. The deficiencies and inconsistencies in the 
record preclude us from understanding such aspects as (1) the actual work that the Beneficiary will 
perform on a daily basis; (2) the complexity, uniqueness or specialization of the tasks; and (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty, or its equivalent. 
Accordingly, the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary. We are therefore precluded from finding that the proffered position qualifies as a 
specialty occupation under 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 
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. 
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Matter of S-, Inc. 
Further, the· Petitioner has not established that the proffered position reqmres an educational 
background, or its equivalent, commensurate with a specialty occupation. 
As noted in Defensor, where the Beneficiary is providing services to an end-client, the end-client 
must provide the minimum education requirement, to establish the proffered position as a specialty 
occupation. In this matter, while the record contains two letters from the end-client, neither letter 
establishes educational requirements to qualify the proffered position as a specialty occupation. For 
example, an undated letter submitted in response to the RFE, indicates that the minimum education 
requirement for the proffered position is a "[b]achelor's degree or its educational/experiential 
equivalent in a relevant specialty occupation." However, a petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the mere requirement of a degree without further specification, does not 
establish the position as a specialty occupation. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general 
education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 
F.3d at 147. 
On appeal, the Petitioner submits another letter from the end-client. The letter, however, does not 
specify the requirements for the proffered position. 
As the Petitioner has not provided sufficient documentation from the end-client documenting that the 
proffered position requires, at a minimum, a bachelor's degree in a specific specialty, the Petitioner 
has not established that the proffered position qualifies for classification as a specialty occupation. 
V. CONCLUSION 
The Petitioner has not sufficiently established that 1) the required employer-employee relationship 
would exist; (2) the petition is supported by an LCA which corresponds with the petition; and 3) the 
proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 421322 (AAO July 27, 2017) 
II