dismissed H-1B Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions company, seeks to temporarily employ the 
Beneficiary as a "systems associate" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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. 
. I 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that: (1) the proffered position is a specialty occupation; and (2) it would engage the 
Beneficiary in an employer-employee relationship. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
The Petitioner stated in the H -1 B petition that the Beneficiary will serve as a "syst~ms associate," 
and explained that he would work offsite for the (end-client) for 
the duration of the petition's approval. According to the end-client, the Beneficiary would perform 
the following duties: 
• Design and develop high-volume, low-latency applications for mission-critical 
systems, delivering high-availability and performance 
• Modernization of legacy software systems 
• Work closely with business users and analysts to clarify and estimate business 
requirements and coordinate with other teams' requirements and projects 
• Propose and implement ideas for product architecture evolution 
Matter of M- Corp. 
• Confer with systems analysts, engineers, programmers, and others to design system 
and to obtain information on project limitations and capabilities, performance 
analysis and interface 
• Maintain existing software to correct errors, allow it to adapt to new hardware, or to 
improve its performance, performance monitoring and profiling of the application 
• Store, retrieve, and manipulate data for analysis of system capabilities and 
requirements 
• Problem Analysis/Problem Reporting (analysis of programs/bugs) 
• Handle release related activities · 
• Customer Interaction, Planning tasks allotted to the team and Coordinate 
development activities between onshore and offshore team 
The end-client did not state any educational requirements of its own, but stated that it "understand[ s] 
that [the Petitioner] requires all of its employees in positions similar to that [of the proffered 
position] to possess at least a Bachelor's degree or its equivalent in Computer Science or a related 
field." 
II. SPECIALTY OCUPA TION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) 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 
2 
Matter of M- Corp. 
( 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 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. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
id. 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 
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. 1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation? Before addressing the specialty­
occupation criteria contained at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(J)-( 4), we will briefly note an issue 
which independently precludes a finding that the proffered position is a specialty occupation. 
As noted above, the end-client does not indicate whether it requires an individual with a bachelor's 
degree in a specific specialty, or the equivalent, to perform the duties of the proffered position. 
Instead, the end-client simply repeats its "understanding" of the Petitioner's requirements without 
stating any of its own. In a case such as this, the relevant requirements are those of the end-client 
rather than those of the Petitioner. As the end-client states no educational requirements for the 
position, the Petitioner has not established that the proffered position qualifies as a specialty 
occupation, and the appeal must be dismissed on this basis alone. 
Though this factor precludes a finding that the proffered position is a specialty occupation, we will 
nonetheless review the evidence of record in light of the four specialty-occupation criteria contained 
1 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support 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. 
3 
Matter of M- Corp. 
at 8 C.P.R. § 214.2(h)(4)(iii)(A)(J)-(4) for the purpose of performing a more comprehensive 
analysis. 
1. First Criterion 
We turn first to the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.5 The Handbook states, in 
pertinent part: "Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in computer science 
or a related subject." Bureau of Labor Statistics, U.S. Dep't of .Labor, Occupational Outlook 
Handbook, Computer Programmers (2016-17 ed.). 
According to the Handbook, this occupational category accommodates a wide spectrum of 
educational credentials, including ones that require less preparation than a bachelor's degree in a 
specific specialty, or the equivalent. For example, the Handbook states that some employers hire 
workers who have an associate's degree. Moreover, while the Handbook's narrative indicates that 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 l&N Dec. 542, 545-546 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. 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://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 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 
Matter of M- Corp. 
most computer programmers obtain a degree (either a bachelor's degree or an associate's degree) in 
computer science or a related field, the Handbook does not report that at least a bachelor's degree in 
this field, or its equivalent, is normally required. The Handbook, therefore, does not establish that 
the occupational category is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
·In addition, the Petitioner stated on the LCA that it will pay the Beneficiary a Level I wage, which 
indicates that it is an entry-level position. Given the Handbook's implication that a bachelor's 
degree in a specific specialty, or the equivalent, is not normally required for positions located within 
this occupational category, it seems unlikely that an entry-level position possessing these 
characteristics would have such a requirement. 6 
For all of these reasons, the evidence ofrecord does not support a finding that the particular position 
proffered here, an entry-level position located within the computer programmers occupational 
category, would normally have such a minimum specialty degree requirement, or the equivalent. 
The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two alternative prongs: "The degree require1pent 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the. 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
6 
Recent policy guidance supports this interpretation of the Handbook. USCIS Policy Memorandum PM-602-0142, 
Rescission of the December 22, 2000 "Guidance memo on HI B computer related positions" (Mar. 31, 20 17), 
https:/ /www. uscis.gov /sites/defau lt/files/fi les/nativedocuments/PM -6002-0 142-H-1 BComputerRelatedPositions 
Recission.pdf. 
5 
Matter of M- Corp. 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 
1989)(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion 
on the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the industry to establish that such firms 
"routinely employ and recruit only degreed individuals." Nor is there any other evidence for our 
consideration under this prong. 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an 
aspect of the proffered position. In other words, the Petitioner has not demonstrated how the duties 
of the proffered position as described in the record require the theoretical and practical application of 
a body of highly specialized knowledge such that a bachelor's or higher degree in a specific 
specialty, or its equivalent, is required to perform them. For example, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and establish how 
such a curriculum would be necessary to perform the duties it believes are so complex and unique. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, we find that the Petitioner has not demonstrated how an established curriculum of such 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. 
Moreover, the Petitioner designated the proffered position as an entry-level position within the 
occupational category (by selecting a Level I wage). This designation, when read in combination 
with the Petitioner's job description and the Handbook's account of the requirements for this 
occupation, further suggests that this particular position is not so complex or unique relative to other 
computer programmers that the duties can only be performed by an individual with a bachelor's 
degree or higher in a specific specialty, or its equivalent. In other words, if typical positions located 
within the occupational category do not require a bachelor's degree in a specific specialty, or the 
equivalent, then it is unclear how a position with the Level I characteristics described above would, 
regardless of these assertions. 
6 
Matter of M- Corp. 
The Petitioner claims that the Beneficiary is well-qualified for the positiOn, and references his 
qualifications. 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. We find that Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and that it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
record contains no evidence for our consideration under this prong, and the Petitioner does not claim 
to satisfy it. Without more, the Petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We incorporate our earlier discussion and analysis regarding the duties of the proffered position, and 
the designation of the proffered position in the LCA as a Level I position (of the lowest of four 
assignable wage-levels) relative to others within the same occupational category. 7 The Petitioner has 
not demonstrated in the record that its proffered position is one with specialized and complex duties 
to satisfy 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 4 ). 
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. 
7 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
Matter of M- Corp. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address the remaining issue raised by the Director, except to note briefly that we agree with 
her finding that the Petitioner has not sufficiently established an employer-employee relationship 
with the Beneficiary. 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. fhr Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, . , . all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, wh.o will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. 
The current record of proceedings does not support the Petitioner's claims of control over the 
Beneficiary's work. As noted, the Petitioner indicates that the Beneficiary will work offsite for the 
end-client for the duration of the petition's approval. It does not appear as though it would send a 
supervisor to oversee and control the Beneficiary's offsite work. The Petitioner stated in its 
September 2016 letter that it would supervise, control, and evaluate the Beneficiary's work, and also 
control the "manner and means" by which he would produce his work product. On appeal, the 
Petitioner indicates that it would supervise the Beneficiary from offsite, and that his supervisor "will 
8 
Matter of M- Corp. 
be responsible for supervising and directing the Beneficiary's work, through regular status meetings 
and e-mail and telephone correspondence." The Petitioner also referenced its "comprehensive 
employee review process." The Petitioner reiterates these claims in its January 2017 letter submitted 
on appeal. 
However, we do not find these claims persuasive. For example, the Petitioner does not indicate how 
often "status meetings" or the email and telephone correspondence would take place. Nor does the 
Petitioner adequately "flesh out" the nature of these meetings and correspondence. For example, the 
Petitioner does not explain whether "status meetings" exist to provide a forum by which the 
Beneficiary can update the Petitioner on the status of already-completed projects and work, or 
whether it is for the Petitioner to instruct and direct the Beneficiary's future activities. In similar 
fashion, the nature of the email and telephonic discussions is unclear. For example, the Petitioner 
does not explain whether these channels of communication exist for the purpose of answering 
questions from the Beneficiary that arise (e.g., merely maintaining availability), or whether they 
exist so that the Petitioner can manage and direct the Beneficiary's activities before and as they 
unfold on a day-to-day basis. In other words, it is unclear whether these communications are 
Petitioner-driven or Beneficiary-driven. Nor is it apparent whether there is a fixed schedule for these 
meetings, phone calls, and email correspondence. Further, it is unclear who initiates these 
communications. 
These unanswered questions are particularly problematic in light of the Petitioner's Level I wage 
designation. As noted, the Petitioner indicated to DOL that the Beneficiary would perform routine 
tasks that require limited, if any, exercise of judgment; be closely supervised and his work closely 
monitored and reviewed for accuracy; and receive specific instructions on required tasks and 
expected results. The lack of detailed information regarding the nature and frequency of the 
Petitioner's communication with the Beneficiary raises questions as to whether the Petitioner - as 
opposed to the end-client - would actually exercise the close degree of supervision consistent with 
its Level I wage designation. 8 
Though acknowledged, the information regarding the Petitioner's performance evaluation process 
does not fill these gaps, as it is not apparent how the Petitioner gathers the information necessary to 
perform this assessment. For example, it appears as though the information used for generating the 
evaluation is based largely on the "goals" document, which would be generated and submitted by the 
Beneficiary himself. In any event, if the performance evaluation process is driven by after-action 
documentation of already-completed work, then it indicates little role for the Petitioner in managing, 
planning, directing, or otherwise controlling the Beneficiary's activities before they are performed. 
Therefore, the current record of proceedings does not sufficiently demonstrate that the Petitioner 
would have an employer-employee relationship with the Beneficiary. 
8 It also raises questions as to whether the LCA corresponds to and supports the H-1 B petition, as required. We will not 
explore that issue in depth because the petition is not otherwise approvable, but the Petitioner should be prepared to 
discuss it in any future H-1 B filings. 
9 
Matter of M- Corp. 
IV. CONCLUSION 
The Petitioner has not established that (1) the proffered position is a specialty occupation; and (2) it 
would engage the Beneficiary in an employer-employee relationship. 9 
ORDER: The appeal is dismissed. 
Cite as Matter of M- Corp., ID# 384894 (AAO Aug. 14, 2017) 
9 
Because this issue precludes approval ofthe petition we will not address any of the additional issues we have observed 
in our de novo review of this matter. 
10