dismissed H-1B Case: Information Technology

MATTER OF C-I-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
,) 
DATE: FEB. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting business, seeks to temporarily employ the 
Beneficiary as a "healthcare data analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body of 
highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition concluding that the Petitioner had not 
established an employer-employee relationship with the Beneficiary and had not established that the 
Beneficiary is qualified to perform the duties of the proffered position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and 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 initially listed the duties of the proffered position as follows (paraphrased and bullet 
points added for clarity): 
• Provide strong technical programming support for data management. 
• Provide clinical data standardization and analysis and generate statistical analysis 
files, tables, datasets, listing and graphs. 
• Identify relationships and trends in data, as well as any factors that could affect 
the results of research and develop and test experimental designs, sampling 
techniques, and analytical methods. 
• Prepare data for processing by organizing information, checking for any 
inaccuracies, and adjusting and weighting the raw data and present analyses to 
explain technical details as necessary. 
(b)(6)
Matter ofC-1- , Inc. 
According to the Petitioner, to perform the duties of the position the usual minimum requirement is a 
bachelor's degree in science or a related field. The Petitioner also noted that for a position at the 
level offered, it is common for the incumbent to also hold a master's degree or have a number of 
years of experience of increasing responsibility in science. 
In response to the Director 's request for evidence (RFE), the Petitioner submitted a letter, dated July 
21,2016 , signed by an authorized signatory of the mid-vendor in this matter, the 
company staffing the end client's project. The letter listed the Beneficiary ' s responsibilities on the 
current client proje.ct as (paraphrased): 
• Capture, provisioning, analyzing and reporting the patient medical data for the 
meaningful use stages; 
• Provide the health care agency with reliable information for their medical staff 
and patients ; 
• Analyze the Health Summary documents ; 
and 
• Serve as the Primary point of contact among the hospital , affiliated , and employed 
practices . 
The Petitioner adopts this version of the proffered position's duties in response to the Director's 
RFE. 
On appeal, the Petitioner provides a letter from the technical development manager for the end 
client, the company where the Beneficiary will work. The technical development 
manager notes that the Beneficiar y is currently working on a long-term assignment at its facility and 
has been since July 2013. 1 The end client representative states that the Beneficiary is currently 
performing and will perform through October 31 , 2019, the same duties described by the mid-vendor 
with the addition of the following: 
• Collect, analyze and interpret health care data; coordinate with appropriate team 
member to develop quality of care measurements; and 
• Work with Health Information Exchange to retrieve the patient medical 
information. 
According to the end client the position requires a bachelor ' s degree m computer applications , 
sciences, medical biology, pharmacy, or any related field or equivalent. 
/ 
1 
The record includes information that the Beneficiar y began workin g for the Petitioner in an approved Optional Practical 
Training status on June 25, 2013 , which was extended to Novemb er 25, 2015 . 
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Matter ~fC-I-, Inc. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(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 Seel<.ing 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). 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. 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 pmiies; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
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(b)(6)
Matter ofC-1- , Inc. 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
ld.; see also Clackamas Gastroenterology Assocs., P.C v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
B. Analysis 
In the Petitioner's letter in support of the petition , the Petitioner asserted that the Beneficiary is its 
direct employee , that it retains supervisory control of the Beneficiar y, and the right to control his 
daily activities and the manner and means of his work, if required. The Petitioner, headquartered in 
Virginia, also submitted an itinerary for the Beneficiary which indicated that he would 
perform work in California. The Petitioner claimed that the Beneficiary's supervisor 
was shown on the enclosed organizational chart. However, while the initial record included an 
organizational chart, the ,chart does not identify the proffered position or the Beneficiary and does 
not identify any supervisory individuals by name.2 The initial record further included the 
Petitioner's employee handbook. 
In response to the Director's RFE, the Petitioner submitted two work orders between the Petitioner 
and identifying the Beneficiary as the consultant who would "be providing services 
related to computer software development and/or implementation " for the end client 
located in California. The work orders reference the master services agreement between 
the Petitioner and but this agreement is not included in the record for our review. 
did provide a letter stating that the Beneficiary is not its employee as it does not pay his salary 
or provide benefits and that "[n]either [it] nor [its] client directly controls or otherwise employs [the 
Beneficiary]." The record included a revised organizational chart identifying the Beneficiary in the 
position of a healthcare data analyst and showing that he reported directly to the president of the 
company. The Petitioner submitted three timesheets signed and submitted by the Beneficiary . 
identified on the previously submitted work orders as "manager," also signed the work 
orders as well as the monthly review of the Beneficiary's work performance provided for the record. 
The Petitioner further submitted a revised itinerary which adopted description of the 
Beneficiary's duties. 
2 The organizational chart identifies the position of president and shows a vice president and a manager reporting to the 
president, as well as five anal yst positions reporting to the manager. The analy st positions do not include the proffered 
position of health care data analyst. 
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(b)(6)
Matter ofC-1- , Inc. 
For the first time on appeal, the Petitioner submits a letter signed by the end client's technical 
development manager. In the letter, the manager states that the end client does not have the ability 
to assign the Beneficiary to another company, and adds that the Petitioner will be reviewing the 
Beneficiary's performance during the assignment. The Petitioner does not include an agreement 
between the end client and the mid-vendor , or any other document, detailing the duties, obligations , 
and restrictions between the mid-vendor and the end client. 
Upon review of the totality of the record, we do not find that the Petitioner has established an 
employer-employee relationship with the Beneficiary as interpreted by the common law definitions 
cited in the legal framework section above. While social security contributions, worker ' s 
compensation contributions, unemployment insurance contributions, federal and state income tax 
withholdings, and other benefits are relevant factors in determining who will control the Beneficiary, 
other incidents of the relationship, e.g., who will oversee and direct the 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 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. 
Here, we do not have the master services agreement between the end client and the mid-vendor. Nor 
do we have the master services agreement between the mid-vendor and the Petitioner. Thus, we are 
unable to review any binding contractual restrictions on the Petitioner's ability to control the 
Beneficiary's employment. Without full disclosure of all of the relevant factors, we are unable to 
properly assess whether the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. Moreover, the record does not include probative , consistent evidence 
of who will instruct the Beneficiary on the work that he is to perform. According to the Petitioner 's 
organizational charts, either the Petitioner's "manager" or its "president" will review the 
Beneficiary's work. However , as both the Petitioner ' s manager and president appear to be located in 
Virginia , and the Beneficiary's daily work will be performed in 
California, we question who will actually oversee and direct the Beneficiary in the performance of 
his daily tasks. 
The record lacks information identifying who will actually instruct the Beneficiary on what work he 
is to perform on a daily basis and what duties will be involved in that work. The Petitioner does not 
consistently identify who he will report to at the Petitioner, and the experience and knowledge of 
that individual. Based on the record, it appears that the Petitioner does not interact with the 
Beneficiary on a daily basis or even on a weekly basis, except to have an administrator sign his time 
sheet. While the record includes the Beneficiary ' s time sheets and a monthly performance review, 
these documents are insuftlcient to establish that the Petitioner instructs the Beneficiary on the daily 
technical and logistical elements of his work. Rather, the Beneficiary's emails show that he interacts 
with the end client's employees and project managers, and not the Petitioner. Moreover, the 
inconsistency between the work orders which identify the Beneficiary's services as "providing 
services related to computer software development and/or implementation " and the various 
descriptions of the Beneficiary 's proposed work provided by the Petitioner , the mid-vendor and the 
end client, adds further ambiguity to the Beneficiary ' s actual work. "[I]t is incumbent upon the 
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Matter ofC-1-, Inc. 
petitioner to resolve the inconsistencies by independent objective evidence." Matter qf Ho, 19 l&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. !d. at 
591-92. 
The Petitioner in this matter has not submitted probative evidence demonstrating that it will oversee 
and direct the Beneficiary's work, and that it provides the tools and instrumentalities for his work. 
The record does not include the master services agreements between the Petitioner and the 
mid-vendor or the mid-vendor and the end client and thus we are unable to determine if there are 
additional contractual restrictions limiting the Petitioner's ability to exercise control of the 
Beneficiary's work. 
For these reasons, the key element in this matter, which is who exercises actual control over the 
Beneficiary and his work, has not been substantiated. While the record contains multiple assertions 
from the Petitioner regarding its claimed right to control the work of the Beneficiary, a petitioner's 
unsupported statements are of very limited weight !and normally will be insufficient to carry its 
burden of proof. See Matter of Sqffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft qf Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, 
and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
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). Thus, the Petitioner has not demonstrated that it will have 
an employer-employee relationship with the Beneficiary. Therefore, the Director's decision is 
affirmed, and the appeal is dismissed for this reason. 
III. SPECIALTY OCCUPATION 
Although the second issue before us is whether the Beneficiary is qualified to perform the duties of 
the proffered position, the Beneficiary's qualifications are relevant only when the job is found to be 
a specialty occupation. Therefore, we must first examine the duties of the proffered position and 
determine whether the proffered position qualifies for classification as a specialty occupation. As 
will be discussed, the record does not establish that the proffered position requires a baccalaureate or 
higher degree in a specific specialty or its equivalent. 
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 
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Matter ofC-1-, Inc. 
(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 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.P.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.P.R. § 214.2(h)( 4 )(iii)( A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 
484 P.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 P.3d 384, 387-88 (5th Cir. 2000). 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 
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 
Here the Petitioner has submitted multiple descriptions of the Beneficiary's proposed work. The 
Petitioner's initial description of the proposed duties is broad and indicates generally that the 
Beneficiary will provide programming support, as well as standardize data and generate statistical 
analysis. The Petitioner does not allocate the amount of time the Beneficiary will spend on any of 
(b)(6)
Matter ofC-1-, Inc. 
the described duties, further limiting our ability to ascertain what the Petitioner expects the 
Beneficiary to do in the proffered position. The Petitioner also accepts a bachelor's degree in the 
general field of science as sufficient to perform the duties it described.3 A bachelor's degree in the 
general field of scien<;e, without more, will not suffice to qualify a position as a specialty 
occupation.4 Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title; such as science, without further 
specification, does not establish the position as a specialty occupation. (_'f J\fatter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
As noted above, however, the work will be performed for entities other than the Petitioner, thus, 
evidence of the client companies' job requirements is critical. Here, the record includes various 
descriptions from the mid-vendor and the end client. While the Petitioner adopts a portion of the 
revised descriptions as the duties of the proffered position, it does so without explanation. Again, "it 
is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Afatter of Ho, 19 I&N Dec. at 591. Moreover, the end client also finds that a degree in the general 
field of "sciences" is acceptable to perform the duties of the proffered position at its facility. The 
fields of computer applications, medical biology, pharmacy, and all of the sciences have not been 
demonstrated to be closely related specialties, and the record does not establish how these fields are 
directly related to the duties and responsibilities of the proffered position.5 While these fields may 
3 While the Petitioner also asserts that it is common for an incumbent to hold a master's degree and/or possess a number 
of years of experience and increasing responsibility in the field of science, the Petitioner classified the proffered position 
at a Level I wage (the lowest of four assignable wage levels) on the certified labor condition application (LCA) 
submitted in support of the petition. The "Prevailing Wage Determination Policy Guidance" issued by the DOL 
provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the 
Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be 
closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific 
instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC~Guidance~Revised~ll~2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 "Sciences" include fields as diverse as computer science and social sciences. However broadly or narrowly defined, 
the field of"Sciences" includes a wide array of subjects and does not, per se, constitute a specific specialty. 
5 We have reviewed the opinion prepared by submitted in response to the Director's RFE and her 
revised opinion submitted on appeal. bases her opinion on the Petitioner's initial description of the duties of the 
proffered position in order to conclude that the proffered position requires a bachelor's degree in healthcare management 
systems or a healthcare-related field. As discussed, the Petitioner has revised this description and appears 
unaware that the Beneficiary will work at an end client who has provided a third and different description of the 
proposed duties. Additionally, appears unaware that the Petitioner and the end client find a bachelor's degree in 
the general field of the "sciences" acceptable to perform the duties of the proffered position. She does not offer an 
explanation or analysis of how such a general degree supports a conclusion that the position is a specialty occupation. 
also references the Beneficiary's formal education and experience as evidence that the proffered position is a 
specialty occupation. However, the test to establish a position as a specialty occupation is not the education or 
experience of a proposed beneficiary·, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. Here, the Petitioner did not sufficiently and consistently develop relative complexity or 
" 
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(b)(6)
Matter ofC-1-, Inc. 
share some' basic courses, the Petitioner did not establish that the required "body of highly 
specialized knowledge" is essentially the same. Accordingly, as such evidence does not establish a 
minimum requirement of at least a bachelor's degree in a specific specialty, or its equivalent, for 
entry into the occupation , it does not support the proffered position as being a specialty occupation. 6 
In this matter, the Petitioner has provided inconsistent -descriptions of the Beneficiary's proposed 
duties and there is insufficient substantive information to establish the relative complexity , 
uniqueness, and/or specialization of the proffered position. Accordingly, we are unable to discern 
the nature of the actual position and whether the tasks described entail the need for a particular level 
of education, or educational equivalency, in a body of highly specialized knowledge in a specific 
specialty. 
The Petitioner's inconsistent and broad descriptions of the proffered position, preclude a finding that 
the Petitioner has satisfied 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 )¥hich 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, the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), and it cannot be found that the proffered position qualifies for classification as 
a specialty occupation. 
uniqueness as an aspect of the duties of the position , and it did not identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. We may, in our discretion , use opinion statements submitted 
by the Petitioner as advisory . Matter of Caron lnt'l , Inc., 19 I&N Dec. 791, 795 (Comm 'r 1988). However, where an 
opinion is not in accord with other infonnation or is in any way questionable, we are not required to accept or may give 
less weight to that evidence. /d. has not provided a position evaluation based on the totality of the record 
before USC IS and thus, has not provided a sufficient foundation to support her opinion . . 
6 In general, provided the specialties are closely related, e.g., chemistry and biochem .istry, a minimum of a bachelor's or 
higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its 
equivalent)" requirement of section 214(i)( I )(B) of the Act. In such a case, the required "body of highly specialized 
knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly 
specialized knowledge" and the position, however , a minimum entry requirement of a degree in two disparate fields, 
such as computer applications and pharmacy, for example , would not meet the statutory requirement that the degree be 
"in the specific specialty (or its equivalent), " unless the Petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position such that the required "body of highly specialized knowledge" is 
essentially an amalgamation of these different specialties . Section 214(i)( I )(B) of the Act (emphasis added) . 
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Matter o.fC-1-, Inc. 
IV. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, a beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. As discussed in this decision, the Petitioner has 
not established that the proffered position requires a baccalaureate or higher degree in a specific 
specialty, or its equivalent. Therefore, we need not and will not address the Beneficiary's 
qualifications further. 
V. CONCLUSION 
The Petitioner has not demonstrated that it will have an employer-employee relationship with the 
Beneficiary; therefore, the Director's decision is affirmed, and the appeal is dismissed for this 
reason. The burden is on the Petitioner to show eligibility for the immigration benefit sought. 
Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fC-1-, Inc., ID# 220141 (AAO Feb. 28, 2017) 
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