dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8637017 
Appeal of California Service Center Decision 
Form 1-29, Petition forNonirnrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "Java developer" under the H-IB 
nonimrnigrant 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 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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of intended employment; and (2) an 
employer-employee relationship exists between the Petitioner and the Beneficiary. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a conclusion that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner, an information technology (IT) consulting and development business, located in 
Missouri, filed this petition in April 2019 for the Beneficiary to work as a java developer from October 
1, 2019 to September 16, 2022. The Petitioner indicated on the Form I-129, Petition for a 
Nonimmigrant Worker, that the Beneficiary will work offsite. On the labor condition application 
(LCA) 3 submitted in support of the H-lB petition, the Petitioner identified the Beneficiary's work 
location as inl I The Petitioner initially did not identif the end-client but 
provided photocopied letters from L........,----,---------'- ......... ........,-------,,--- ...................................... ......., 
contractual chain as follows: Petitioner ~~-------~(broker)~.__ _______ _. 
( end-client). 
3 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. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
2 
The initial record includes the Petitioner's master services agreement with the broker and a purchase 
order (PO) wherein the Petitioner agreed to contract the Beneficiary to the end-client beginning 
October 30, 2018. The Petitioner also submitted a statement of work (SOW) between the broker and 
the end-client pursuant to a master services agreement (MSA) between the parties. The SOW is dated 
April 28, 2017 with an effective date of May 1, 2017 and is subject to the terms of the MSA. The 
SOW identifies the objective, in part, as supporting the provisioning of onsite contractors working on 
product engineering and data solutions and "[u]tiliz[ing] contract only candidates as needed." The 
scope of services section on the SOW, in pertinent part, states "a contractor will provide services as 
assigned by [the end-client]." The SOW does not identify the Beneficiary and the planned end date is 
redacted. 
Preliminarily, we observe that without the full chain of contracts in this case, we cannot determine 
whether there is any legal obligation on the part of the end-client to contract for specific resources or 
to continue to need resources to augment its staff As noted above, the record does not include the 
actual contractual agreement obligating the end-client to provide any position(s) which the Beneficiary 
might fulfill. Moreover, the record does not include a SOW or other corroborating evidence 
substantiating that the end-client continues to have a need for resources for work or for project(s) that 
began in May 2017.4 The redaction of the end date on the only submitted SOW from the end-client 
raises credibility concerns regarding the existence of work, let alone H-1 B caliber work, for the 
Beneficiary to perform. The record does not include agreements currently connecting the Petitioner 
to the end-client and legally obligating the end-client or the broker to provide work for the Beneficiary 
to perform during the requested employment period. 
The Petitioner also submitted two letters on the letterhead of the claimed end-client. These letters also 
do not establish that the end-client is legally obligated to provide work for the Beneficiary to perform. 
The letter initially submitted, dated March 21, 2019, indicates that the Beneficiary will perform work 
on a project, that the contract is long term, and expected to last for three years or more. Although the 
letter-writer refers to a project several times within the letter, there is no discussion of the type of 
project, its stages, and how or when the Beneficiary's expected services will change to accommodate 
the different stages of the project. The second letter, dated July 16, 2019, submitted in response to the 
Director's request for evidence (RFE), copies the language verbatim from the broker's two letters 5 
regarding the length of the contract. Both parties state generally that the proposed work is pursuant to 
two contracts between the Petitioner and the broker and between the broker and the end-client and that 
"Our contract is long term and is expected to last for three years or more." There is no evidence 
establishing that the word "Our" refers to the contract between the broker and the end-client, or a 
current SOW corroborating that the end-client continues to need contract workers. We also observe 
that the end-client letters are signed by the delivery manager, OT/PEDS. However, the record does 
not include any evidence that this individual has authority to legally obligate the end-client to provide 
work for the Beneficiary. 
4 Without an agreement obligating the end-client to provide the work, we cannot conclude that the proffered position will 
actually exist and fmther that the Petitioner has actual work for the Beneficiary to perform. Speculative employment is 
generally not permitted in the H-IB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 4, 1998) (to be 
codified at 8 C.F.R. pt. 214). 
5 The broker's letters are dated March 20, 2019 and July 15, 2019. 
3 
The lack of contractual evidence, such as an agreement, SOW, or PO, corroborating the ongoing 
claimed project(s) undermines the credibility of the letters. Further, the lack of contractual 
documentation limits our review of the restrictions and obligations between the broker and the 
end-client regarding the augmentation of staff or provision of services and any effect on a legal 
obligation to provide work for the Beneficiary to perform. As the record does not include probative 
evidence corroborating the availability of work, the record does not establish the existence of specialty 
occupation work for the Beneficiary when the petition was filed. 6 
Setting aside this foundational deficiency, the record here also does not include probative evidence of 
the substantive nature of the claimed work and does not establish that any such work will be H-lB 
caliber work. 
The Petitioner initially provided a broad overview of the proposed duties of the position as follows: 
• Requirement Gathering and System Analysis - 15% 
• System Architect and Design- 15% 
• Software Development including Coding & Testing- 40% 
• Data Validation, Data profiling and Implementation - 10% 
• Continual Process Implementation, Value Creation Activities, Maintenance & 
Support, Addressing Business Critical issues and solutions - 20% 
The duties described by the broker and the end-client copy the Petitioner's version of duties and 
allocation of time verbatim. These duties as generally described could fall within the parameters of a 
number of technology occupations. 
In response to the Director's RFE, the Petitioner elaborates on the initial duties, adding narrative under 
each category of the above tasks and indicating that the Beneficiary must have a strong or working 
knowledge of different technology tools, environments, software, and systems. The Petitioner also 
notes that the Beneficiary has more than 3+ years of experience in several enterprise technologies. 
The Petitioner also references several courses taken by the Beneficiary as pertinent to the duties in two 
of the five categories. The broker and the end-client again copy the descriptions, the technology 
environments, experience, and coursework listed by the Petitioner verbatim. 
We have reviewed the sub-categories and lengthy narrative indicating that the Beneficiary will work 
with business users and application stakeholders to gather and understand business requirements and 
will identify tasks required to migrate each integration pattern, and prepare roadmaps for server 
migration, as well as automate onboarding of servers-based integration. These duties when viewed in 
their totality are insufficient to demonstrate the occupational role and level of responsibility of the 
proffered position. Although the Petitioner claims that the Beneficiary will also create processes, 
procedures, templates, and associated documentation for team members and stakeholders education 
6 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). See also Altair ProductDesign, Inc. v. DHS, No. 18-13493, 18-13967, 2019 
WL 5394998, at *4 (E.D. Mich. Oct. 22, 2019) (in the absence of contracts, service agreements, work orders, statements 
of work, etc., the record did not establish the actual work to be completed and that the beneficiaries would perform services 
in a specialty occupation). 
4 
and reference purposes, such duties are also provided without particular context. That is, the record 
does not include discussion of specific teams and does not provide information regarding goals or 
specific deliverables. Without the context of specific project(s) or deliverables, it is not clear whether 
the duties will be the duties of a wage Level II "Software Developer, Applications" position, as 
designated on the LCA, or will incorporate the duties of one or more other occupations. This is 
important because the duties and level of responsibility necessarily impact the choice of occupation 
and wage level designated on the LCA. 7 It is the lack of context and broad description that prevent 
an analysis of the actual duties and level ofresponsibility that will be required in the proposed position. 
Neither the Petitioner nor the end-client adequately address the nature of the proposed position and 
describe why the duties require a bachelor's degree in a specific specialty to perform them. 8 There 
are technology occupations that may be performed with a general degree ( either at the bachelor or 
associate's level) and certifications or undefined experience in a particular environment or third party 
software. There are also technology occupations that may require special skills, specific certifications, 
advanced knowledge, or that incorporate the duties of more than one occupation. Here, the record 
does not include sufficient evidence to establish the nature of the proffered position and the minimum 
requirements needed to perform the duties of the position. 9 The Petitioner has not provided relevant 
corroborating evidence sufficient to support its testimonial claims. 
We review the actual duties the Beneficiary will be expected to perform to ascertain whether those 
duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as required for 
classification as a specialty occupation. To accomplish that task, we must analyze the actual duties in 
conjunction with specific work or project(s) to which the Beneficiary will be assigned. To allow 
otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. Here, the Petitioner has not provided sufficient details regarding the nature and 
scope of the Beneficiary's employment or any substantive evidence regarding the actual work that the 
Beneficiary would perform. Without a meaningful job description, the record lacks evidence 
sufficiently probative and informative to demonstrate that the proffered position requires a specialty 
occupation's level of knowledge in a specific specialty. 
7 This is significant because if the duties of the proposed position include duties that more closely correspond to or overlap 
with a higher paying occupation, such as the "Software Developers, Systems Software" or "Computer Network Architects" 
occupations, for example, the Petitioner would be required to submit a certified LCA for the higher paying occupation. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009). 
8 For example, although the Petitioner and the end-client refer to the Beneficiary's experience and a few courses in a data 
science and business analytics degree, it is not the skill set or education of a proposed beneficiary that establishes a position 
as a specialty occupation, but whether the duties themselves require bachelor's-level study in a specific discipline, or its 
equivalent. The record, here, does not include probative information relevant to a detailed course of study leading to a 
specialty degree and does not establish how such a curriculum is necessary to perform the generic duties of the position. 
While a few related courses may be beneficial in perfmming certain duties of the position, 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. 
9 We again reviewed the letters of the end-client regarding the minimum requirements necessary to perform the position 
described. The end-client initially did not identify any requirement to perform the duties. In its second letter, the end-client 
copied the broker's letter which stated "[i]n our opinion, we believe that the position requires a Bachelor's Degree in 
Computer Science, Information Technology, or Data Science." There is no discussion or analysis to support the 
end-client's new claim that the position requires or should require such a degree. 
5 
Given the deficiencies in the record regarding the Beneficiary's assignment and duties, the Petitioner 
has not demonstrated the substantive nature of the actual work to be performed by the Beneficiary. 
This precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 
The record does not establish the substantive nature of the proffered position's duties or demonstrate 
that performing such duties would require both the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent, as the minimum for entry into the occupation. See section 214(i)(l) of the 
Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also conclude that the Petitioner has not established it will have an employer-employee 
relationship with the Beneficiary. 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). 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: 
(]) 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.) 
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." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
6 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
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." 
Darden, 503 U.S. 318, 322-23. 10 See Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( 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-lB beneficiaries). We will assess and weigh all the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
We have reviewed the initial evidence submitted as well as the evidence submitted in response to the 
Director's RFE and do not find the record sufficient to establish an employer-employee relationship 
between the Petitioner and the Beneficiary. Specifically, the Petitioner has not established that it will 
exercise supervision and control over the Beneficiary's work. When a petitioner is augmenting a 
third-party's start: and the third-party is the entity who will actually use a beneficiary's services it is 
crucial to understand who will direct, supervise, and instruct that beneficiary's day-to-day work. This 
is because the entity directing, supervising, and instructing a beneficiary will necessarily influence the 
type of duties a beneficiary will perform. This particular component of the employer-employee 
relationship is especially significant within the H-1 B nonimmigrant classification. 11 
In this matter, the record includes letters from the end-client and the broker indicating generally that 
the Petitioner will assign work and will supervise and manage the Beneficiary. However, the record 
does not include the actual contract between the broker and the end-client. Thus, we cannot determine 
what limitations and restrictions the end-client and the broker may have actually agreed to regarding 
the supervision and instruction of the Beneficiary. Moreover, the SOW between the broker and 
end-client indicates that it is the end-client that will assign work for the onsite contractors. The record 
10 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. 
11 See Defensor v. Meissner, 201 F.3d at 387-388. 
7 
also includes ambiguous information as to the individual or position at the Petitioner who will be 
responsible for the Beneficiary's direction, supervision, and control. The Petitioner includes an 
organizational chart that shows the Beneficiary reports to an ERM executive. The Petitioner does not 
include evidence of this individual's location or how they supervise, direct, manage, and assign the 
Beneficiary's daily work. 
The record includes the Beneficiary's past weekly status reports which are signed by the HR manager. 
These reports do not include evidence that the Petitioner is directing the Beneficiary's daily work but 
demonstrate only that the Beneficiary provides updates on work he has completed. Moreover, the 
record does not include evidence that the HR manager is proficient in or has a technical understanding 
of the duties the Beneficiary is expected to perform, raising farther questions regarding the likelihood 
that the Petitioner will direct, supervise, manage, or control the Beneficiary's work. Further, the record 
does not include corroborating evidence of phone calls or email communications directing and 
informing the Beneficiary regarding the manner and means in which he is to perform his work. It is 
unclear how the Petitioner will direct, influence, or instruct the Beneficiary regarding the type and 
nature of the duties he will be expected to perform at the end-client facility. 
On appeal, the Petitioner asserts that the letters it provided from the end-client should be sufficient to 
confirm that it controls the Beneficiary's work. However, we have concerns regarding the authenticity 
of the end-client letters. The record does not include information establishing the letter-writer has the 
authority to issue statements on the end-client's behalf. Further, it appears that the letter-writer is 
unaware of the provisions of the SOW between the broker and the end-client which indicates that it is 
the end-client that will assign work for the onsite contractors. Finally, the letters from the end-client 
and broker are almost verbatim which raises additional concerns that the letter-writers may have signed 
documents that they themselves did not write. 
The record does indicate that the Petitioner will handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the four comers of this 
H-lB 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 the end-client who would control the content, means, and methods of those 
individuals' work. In this regard, we observe that it appears that not only would the end-client 
determine and assign the Beneficiary's day-to-day work, but that it would also control the 
Beneficiary's access to the systems without which his work could not be done. 
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, 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. Based on the tests outlined above, we conclude that 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). 
8 
III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that more likely 
than not, the proffered position is a specialty occupation as defined by the statute and regulations and that 
the Beneficiary will perform H-lB caliber work during the requested employment period. The Petitioner 
also has not established that the required employer-employee relationship exists with the Beneficiary. 
ORDER: The appeal is dismissed. 
9