dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6220873 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2020 
The Petitioner, an information technology solutions and consulting company, seeks to temporarily 
employ the Beneficiary as a "software developer" under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation. 1 
Upon de nova review, we will dismiss the appeal. 2 
I. SPECIAL TY 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. 
1The Petitioner submitted documentation to support the H-lB 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. 
2A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). 
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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe 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. 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"). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 3 
Specifically, we conclude that the Petitioner has not established the substantive nature of the work that 
the Beneficiary will perform due to insufficient evidence regarding the availability of non-speculative 
work, a lack of specificity in its description of the duties to be performed and the specialized 
knowledge required to perform them, and material inconsistencies contained within the record of 
proceeding. The failure to establish the substantive nature of the work to be performed by the 
Beneficiary precludes us from determining whether the proffered position satisfies any of the 
regulatory specialty-occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
1. Speculative Employment 
We first conclude that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. The Petitioner filed this petition in April 2018 and requested that it 
be approved for a three-year period from October 2018 through September 2021. The Petitioner seeks 
to deploy the Beneficiary to an end-client location pursuant to a series of contracts executed between 
3 The Petitioner submitted documentation to suppmt the H-lB 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 
the Petitioner and.__ ______ __,(mid-vendor) and between the mid-vendor and .... l _____ _. 
( end-client). 
The Petitioner has provided inconsistent information about the length of the project upon which the 
Beneficiary will work. In a letter dated in March 2018, which the Petitioner submitted with its initial 
filing of the petition, the end-client stated that the project would be ongoing until the end of 2019. In 
its response to the Director's request for evidence (RFE), the Petitioner submitted evidence which 
indicates various durations for the project. For instance, in a work order/purchase order dated 
September 2018, the project duration is estimated to run for twenty-four months from October 2018 
and includes a possible extension. In the Schedule No. 2 document between the mid-vendor and the 
end-client, the duration of the project is until January 2021. Further, an October 2018 mid-vendor 
letter states that the project will last for three years, while an October 2018 end-client letter states that 
the project is ongoing with the potential for multiple extensions. Finally, the Petitioner's November 
2018 RFE response stated that the length of the project was for the next three years and that the 
Petitioner expects to receive a new work order around October 2020. These varying estimates suggest 
that the parties do not share the same understanding of the project duration. It is unclear when the 
project will end, as well as whether and for how long there will be specialty occupation work for the 
Beneficiary to perform. 
The contractual documents between the parties does not lend clarity to this issue and in fact, we lack 
complete contractual documentation between each entity. The Petitioner submitted only parts of the 
Schedule No. 2 document between the mid-vendor and the end-client and only the signature page of 
the Master Services Agreement between them. These documents provide little information concerning 
the obligations of these parties to provide work to the Beneficiary. The Petitioner submitted mid­
vendor and end-client letters confirming the existence of the project, where the Beneficiary will work, 
and the Beneficiary's duties as articulated by the Petitioner, however none of the letters create any 
contractual obligations. While there is an agreement for services document between the mid-vendor 
and the Petitioner, it does not mention specific projects or employees and therefore this document 
provides no definitive information concerning specialty occupation work for the Beneficiary to 
perform. Though the work order/purchase order documents do provide more specific information 
relating to the Beneficiary, these documents alone are not sufficient to overcome the contractual gaps 
in other parts of the record. 
Adding to the confusion, the Petitioner stated that if a situation arises in which the end-client no longer 
requires the Beneficiary's services at their site, that the Beneficiary does not become unemployed, but 
rather the Petitioner will provide the Beneficiary with different projects. Not only does this suggest 
that it is possible the project with this specific end-client could end during the employment period 
requested on the petition, but this statement also suggests that the Beneficiary's projects could 
materially and substantially change. Because a petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
through adjudication, 4 a visa petition may not be approved at a future date after a petitioner or 
beneficiary becomes eligible under a new set of facts. 5 As such, eligibility for the benefit sought must 
be assessed and weighed based on the facts as they existed at the time the instant petition was filed. 
4 8 C.F.R. § 103.2(b)(l). 
5 See Matter of Michelin Tire COip., 17 l&N Dec. 248 (Reg'l Comm'r 1978). 
3 
In order for a petitioner to comply with 8 C.F.R. § 103.2(b)(l) and USCIS to perform its regulatory 
duties under 20 C.F.R. § 655.705(b), a petitioner must file an amended or new petition, along with a 
new LCA certified by DOL, in order to capture any material changes in terms or conditions of 
employment or the beneficiary's eligibility. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform 
due to insufficient evidence in the record concerning the availability of specialty occupation work. 
This is particularly important in a case such as this, where the very existence of the proffered position 
is dependent entirely upon the willingness of an end-client to provide it. If we cannot ascertain the 
proffered position's substantive nature, then we cannot determine whether it is a specialty occupation. 
2. Substantive Nature of the Position 
Even if we were to set aside the Petitioner's failure to demonstrate the existence of non-speculative 
work, we would still be unable to determine the substantive nature of the proffered position. On the 
labor condition application (LCA) 6 submitted in support of the H-1 B petition, the Petitioner designated 
the proffered position under the occupational category "Software Developers, Applications," 
corresponding to the Standard Occupational Classification code 15-1132. 7 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. We conclude that the duties as 
described are vague and general. For example, "[p ]erform benchmark testing with Test DFSO, 
Terasort, Teragen and perform granular functional testing" does not help us understand what tasks the 
Beneficiary will actually perform when carrying out this duty, nor do we know what this testing does 
or why it is important to the end-client's operations. Another duty, "[d]eveloping cluster monitoring 
tools that would make the monitoring process easier" does not provide us insight into what types of 
tools the Beneficiary would develop and why this work would require specialized knowledge. A 
farther example is "[p ]erforming the root cause analysis on the job failures," which only provides a 
general idea of what the Beneficiary will do, but is too vaguely described to permit us to sufficiently 
understand any complexity, uniqueness, or specialization. 
In addition to duties being described in vague and general terms, other duties do not readily appear to 
require any specialized knowledge. For instance, the Beneficiary will log the work he performs in 
Zira and document critical problems in SharePoint. As described, these duties appear to require little 
skill to perform, but rather appear to be perfunctory or clerical in nature. Moreover, we read that the 
Beneficiary will provide "24/7 on call support" and "[s]chedule for backups and active directory 
6 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB 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 duties, expenence, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
7 The Petitioner classified the proffered position at a Level III wage. A wage determination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education. and skill 
requirements of the Petitioner's job oppmiunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://t1cdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
4 
synchronization." These duties suggest work pertammg to staffing coverage, rather than work 
requiring a bachelor's degree in a specialized field. Additionally, these duties, as well as others such 
as "[r ]esolve end user tickets to completion," appear to fall into the non-specialty occupation category 
of a computer user support specialist, a role which focuses on incident tickets, resolving end user 
issues, and customizing commercial programs for internal needs. 8 As currently articulated, the 
Petitioner has not clearly identified whether its proffered position includes specialty-occupation work 
and therefore we are unable to ascertain its substantive nature. 
Moreover, many of the duties appear to involve significant usage of third-party or open source 
technologies that will be customized or operated upon for use by the end-client. The Petitioner has 
not explained whether use of these technologies requires specialized knowledge or whether knowledge 
of them could be obtained through methods other than a bachelor's degree program in a specific 
specialty. Though the Director's RFE specifically requested a detailed description of the Beneficiary's 
duties, in addition to information on the skill required to perform the work, we have little information 
from the Petitioner concerning this. Without more this information, we cannot determine the 
substantive nature of the position. 
The Director also requested information on the source of the instrumentalities and tools of the work 
to be performed. The information the Petitioner provided in response to this inquiry, however, related 
to the technical and system experience required to perform the duties, rather than the source of the 
tools and systems themselves. The Petitioner did not indicate whether it will provide the required 
equipment, tools, workstations, or access to systems and third-party technologies in order for the 
Beneficiary to perform the work, whether the mid-vendor will provide this, or whether the end-client 
will provide this. As such, the Petitioner has not clarified what instrumentalities and tools are required 
for the Beneficiary to perform his work or the source of the Beneficiary's access to what he requires. 
We have little information concerning the minimum qualifications required to perform the duties of 
the position and why this education is required. The Petitioner stated that this is "a professional level 
position and that the performance of the [] duties requires an individual with advanced education in 
the field." The Petitioner does not directly identify what field(s) it requires. Rather, we gain this 
specific information solely through an end-client letter provided in the Petitioner's RFE response, 
which states that "at least a Bachelor's degree ( or the equivalent) in [] Computer Science or Computer 
Engineering" is required. Neither the end-client letter, nor the Petitioner provide cogent explanations 
as to how this education relates to the duties and why it is required. Without this information, we 
cannot ascertain the nature of the position. 
Finally, several inconsistencies in the title of the project and the Beneficiary's position within it, raise 
questions as to the substantive nature of the work performed by the Beneficiary. The Petitioner stated 
that the proffered position is a "software developer," however documents in the record also refer to 
the Beneficiary as a "Hadoop Administrator" in addition to a "BigData/Hadoop Administrator," 
whereas the Schedule No. 2 document refers to employees generally as "Hadoop developers." The 
8 For more information, visit the O*NET Online Summary Report for "15-1151.00 - Computer User Support Specialists" 
https://www.onetonline.org/link/summary/15-l 151.00 and the Bureau of Labor Statistics, U.S. Dep't of Labor. 
Occupational Outlook Handbook, for "Computer Support Specialists," which may be accessed at 
https://www.bls.gov/ooh/computer-and-information-technology/computer-support-specialists.htm#tab-2 (last visited Apr. 
27, 2020). 
5 
Petitioner has not stated how these differently titled roles are the same as or different than the proffered 
position and whether they have the same or similar duties associated with them. Additionally, the 
project upon which the Beneficial will work is not clearly identified due to titles varying from 
"BI/Hadoop project" to 'i I EIM - Hadoop Infrastructure Support" to "EIM BI & Reporting 
Hadoop Support." As with the Beneficiary's title, we do not know whether these projects refer to the 
same work or different work or subprojects within other projects. As such, the Petitioner has not 
clearly defined the substantive nature of the project or the Beneficiary's role in it.9 
3. Summary of Substantive Nature Issues 
We cannot determine the substantive nature of the position and the work that the Beneficiary will 
perform due to (1) insufficient evidence regarding the availability of non-speculative work; (2) a lack 
of specificity in the duties to be performed and the specialized knowledge required to perform them; 
and (3) material inconsistencies contained within the record. We conclude that the Petitioner has not 
sufficiently described the proffered position and its duties such that we may discern the nature of the 
position, and whether the position actually requires the theoretical and practical application of a body 
of highly specialized knowledge attained through at least a baccalaureate degree in a specific 
discipline. Because we cannot determine the substantive nature of the position or whether it exists, 
we are unable to determine whether the proffered position is a specialty occupation. The petition 
therefore cannot be approved. Though not discussed as a basis for the Director's decision, we conclude 
that another issue precludes approval of this petition: namely, the Petitioner's failure to demonstrate 
that it would engage the Beneficiary in an employer-employee relationship. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 10 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States 
employer" means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(I) 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.) 
9 We acknowledge the printouts about the Petitioner's business, as well as the various PowerPoint slides and project 
information submitted for our review. These printouts, while providing a broad overview, do not detail the Beneficiary's 
role in the project, what duties he will carry out, or how these duties require specialized knowledge. 
10 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring 
to the "intending employer"). 
6 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that where federal law does 
not helpfully 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." 11 Thus, to interpret these terms, USCIS will apply common law agency principles which 
focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, 12 USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the 
parties; the petitioner's right to assign additional projects to the hired party; the extent of the 
beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's 
role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the 
provision of employee benefits; and the tax treatment of the beneficiary. 13 We will assess and weigh 
all of the factors of the relationship, with no one factor being decisive. 
B. Analysis 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability to hire, fire, remunerate, supervise, and otherwise control his work. The Petitioner 
further claims it will perform numerous administrative functions pertaining to the Beneficiary's 
employment. Social security, worker's compensation, and unemployment insurance contributions, as 
well as federal and state income tax withholdings, and the provision of other employment benefits, are 
relevant factors in determining who will control a beneficiary. While such factors might appear to 
satisfy a cursory review that a petitioning entity could be an individual's employer, these elements are 
not necessarily sufficient to provide a full appraisal of the relationship between the parties. We must 
also assess and weigh other factors to determine who will be a beneficiary's employer. For example, 
we consider who will oversee and direct a beneficiary's work, who will provide the instrumentalities 
and tools, where the work will be located, and who has the right or ability to affect the projects to 
which a beneficiary will be assigned, among other factors. A petitioner must sufficiently address all 
of the relevant factors to enable us to evaluate whether the requisite employer-employee relationship 
will exist between a petitioner and a beneficiary. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. The vendor and end-client claim that the Beneficiary will be employed by the 
Petitioner, and while the Petitioner does appear to retain the right to hire, fire, supervise, or otherwise 
11 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)); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). 
12 When examining the factors relevant to determining control, we 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. 
13 Darden, 503 U.S. at 324; Clackamas, U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (even though a medical 
staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" because they 
ultimately hire, pay, fire, supervise, or otherwise control the work of the H-IB beneficiaries). 
7 
control the Beneficiary's work, the Petitioner has not sufficiently explained the actual manner in which 
it provides such instructions and oversight. 
The record contains some information regarding the project upon which the Beneficiary would work 
for the end-client, which appears to be on the end-client's systems, although this is not clearly stated. 
However, there is little information regarding any ongoing role for the Petitioner on that project. As 
previously stated, we have little substantive information on how the mid-vendor engages with the end­
client as the Petitioner only submitted the signature page of the MSA between these two entities and 
the Schedule No. 2 is also missing pages in addition to being redacted in parts. Neither the MSA nor 
the Schedule No. 2 mention the Petitioner. Moreover, the work order/purchase orders, though signed 
by the Petitioner, do not indicate an ongoing role for the Petitioner in the project upon which the 
Beneficiary would work, nor do the mid-vendor and end-client letters. If the Petitioner has little to no 
role to play on the project, then it is unclear how it could feasibly direct the Beneficiary's day-to-day 
duties as they relate to this project, particularly considering the geographical distance between the 
Petitioner and Beneficiary. The documentation indicates that the Petitioner's role is limited to the 
provision of the Beneficiary's services with little room for actual direction of his activities. 
The Petitioner provided an employee agreement, employment offer letter, and copies of the 
Beneficiary's performance appraisals. Though helpful for understanding the general employment 
practices and expectations of employees, the documents provide little insight into how the Petitioner 
oversees the day-to-day work of the Beneficiary. These documents are formulaic handouts and do not 
represent actual supervision of the Beneficiary. Though the Petitioner provided performance appraisal 
printouts, the appraisals feature a numbered rating in each category and do not include a narrative 
description of the Beneficiary's work. These documents do not evidence concrete knowledge on the 
part of the Petitioner concerning the Beneficiary's duties and performance. 
In the few contractual documents we have to review, we read that the mid-vendor determines the types 
of services that the Petitioner can provide via the Beneficiary, that the Beneficiary's duties and the 
nature of his work are controlled by the work orders set forth by the mid-vendor and end-client, as 
well as that the Beneficiary must perform the work in accordance with the business practices set forth 
by the mid-vendor. The mid-vendor reserves the right to interview the Beneficiary and has the right 
to reject the Beneficiary based on the mid-vendor's assessment of the Beneficiary's skills or 
background. The contract between the mid-vendor and the Petitioner also states that the mid-vendor 
can control which end-client the Beneficiary will work for and stipulates that if the end-client disagrees 
with the selection of the Beneficiary or disapproves of the Beneficiary's work, the mid-vendor can 
terminate the statement of work. Finally, we read that the mid-vendor does not pay the Petitioner until 
the end-client pays the mid-vendor, as well as that the mid-vendor dictates the insurance that the 
Petitioner must pay, including the types of policies it must select and the amount of coverage. In 
summary, it appears as if the mid-vendor and end-client have decision-making authority as to whether 
and how the Beneficiary can perform work, but that the Petitioner has little contractual power in this 
regard. 
If there is no provision for the Petitioner's input, then we question whether it actually controls the 
Beneficiary, as claimed. Having the full set of contracts executed between the actors might have shed 
light on this question, but they were not submitted. From the documentation we have to review, the 
contractual arrangement appears to resemble a staff augmentation scheme with little provision for 
8 
input by the Petitioner on the Beneficiary's daily tasks. The Petitioner has provided insufficient 
information concerning how it would determine, assign, and supervise the Beneficiary's day-to-day 
work, particularly considering the geographical distance between the Petitioner and Beneficiary. 
The record appears to indicate that the Petitioner acts merely as a conduit for administrative and 
personnel logistics, thereby relieving the burden of such responsibilities from the other entities. Our 
review of the four comers of this H-1 B petition 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 staff of organizations, such as the end-client, who 
would then control the content, means, and methods of those individuals' work. Finally, though not 
clearly stated, it appears as if the end-client would also control the Beneficiary's access to the systems 
utilized, without which, the Beneficiary's work could not be done. 
The evidence of record is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
9