dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7861907 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 16, 2020 
The Petitioner, an information technology business and consulting services company , seeks to 
temporarily employ the Beneficiary as a "software engineer" under the H-lB 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 H-lB program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both (a) the 
theoretical and practical application of a body of highly specialized knowledge and (b) the attainment 
of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite 
for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that (1) the Petitioner will have an employer-employee relationship with the 
Beneficiary, and (2) the proffered position qualifies as a specialty occupation. On appeal , the 
Petitioner asserts that the Director erred in the decision . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 1 
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. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&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. 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. 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. Id. 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, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the services the Beneficiary will perform. 2 The Petitioner has not established the substantive nature 
of the position, which precludes a determination that the proffered position qualifies as a specialty 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
occupation under at least one of the four regulatory specialty-occupation criteria enumerated at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition application (LCA), 3 that the Beneficiary would work as a software engineer for an end-client 
id I Missouri, for the petition's entire employment period, October 2019 to August 2022. The 
Petitioner indicated the relationship with the end-client as follows: 
The Petitioner ----+ ----+'---------r----------.-.,,..... .__ _________ _. 
(Vendor) (End-client) 
The Petitioner, however, did not submit all the relevant contracts. Notably, the record does not contain 
an agreement between the vendor and the end-client that was in effect prior to the petition's filing 
date. 4 In two identical letters, 5 the vendor stated that the agreement it has with the end-client is 
"confidential and will not be disclosed to any third-party." While a petitioner should always disclose 
when a submission contains confidential commercial information, the claim does not provide a blanket 
excuse for a petitioner not providing such a document if that document is material to the requested 
benefit. 6 Although a petitioner may always refuse to submit confidential commercial information if it 
is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a 
denial. Cf Matter o_f Marques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right 
to assert his claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail 
to carry his burden of persuasion with respect to his application."). 
In response to the Director's request for evidence (RFE), the Petitioner submitted an agreement 
entitled "Staffing Agreement" (SA) executed by the vendor and the end-client, which the Petitioner 
asserts that it is the "extension of Staffing Agreement between [the end-client] and [the vendor]." We 
first note that the SA does not indicate that it is an extension of any previous contracts between the 
parties. Second, this agreement is dated July 8, 2019, almost three months after the petition was filed 
and also post-dates the Director's RFE. 7 As this contract was executed subsequent to filing the 
petition, it does not establish that the Petitioner had secured work for the Beneficiary when the petition 
was filed. 8 Moreover, the SA states that the agreement "shall automatically renew for additional one 
3 A petitioner submits the LCA to the U.S. Department of Labor (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, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
4 The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(6 )(1 ). A visa petition may not be approved at a future date 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 T&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 
5 The letters are dated March 11, 2019 and June 18, 2019. 
6 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
7 The Director's RFE is dated May 23, 2019. 
8 Again, the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to 
be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(6)(1). A visa petition may not be approved at a future 
3 
(1) year terms up to a maximum of three (3) extensions unless and until either party terminates the 
Agreement," and that "either party has the right, exercisable in its sole discretion at any time, to 
terminate this Agreement without cause .... " As such, the SA does not bind either the vendor or the 
end-client to any specific contract for any specific period. 
Further, the SA states that the "scope of services to be provided" by the Beneficiary "shall be defined 
in a Contingent Worker Assignment ... attached and incorporated herein as Schedule A." The record 
does not contain the referenced attachment and the Petitioner does not explain the reason for not 
submitting it. The information contained in the SA is limited in scope and does not adequately 
establish the services to be provided by the Beneficiary such as duties or educational requirements for 
the position. Nor does it establish the period of the Beneficiary's assignment. In sum, the SA has 
little probative weight towards establishing actual work to be performed by the Beneficiary for the 
end-client for any specific period or location. 
The record contains the Petitioner's agreement with the vendor executed in August 2018. However, 
the agreement does not adequately establish the services to be provided by the Beneficiary, but states 
that "[e]ach engagement will be defined in an Addendum," which "will define the nature of the 
engagement, the Contractor's name, the rate and start dates." Further, the "Contractor(s) shall perform 
services for the period of time indicated on the Addendum." The addendum attached as Exhibit A 
identifies the Beneficiary by name as the consultant and indicates the start date as August 27, 2018, 
the hourly rate, the location of the assignment, and the approximate hours per week. However, the 
addendum does not define "the nature of the engagement," does not indicate the position's 
requirements or the end-date of the assignment. Therefore, the agreement between the vendor and the 
Petitioner and the addendum attached as Exhibit A are insufficient to establish the nature of the 
services to be provided by the Beneficiary and have little probative weight towards establishing the 
actual work to be performed by the Beneficiary for the end-client for any specific period. 
The identical letters from the end-client confirm the Beneficiary's assignment as a "QA Automation 
Engineer working on thel I Project" at its location in I ,I Missouri and list the duties 
for the position. 9 Notably, the end-client did not provide the details of its project. Instead, the Petitioner 
elaborated on the end-client's project in its letter submitted in support of the petition; and also, in response 
to the RFE, the Petitioner submitted additional information provided by the Beneficiary. 10 We note that 
these documents were prepared by the Petitioner and the Beneficiary and not confirmed by the end-client. 
Furthermore, in the letter of support, the Petitioner mistakenly and repeatedly references the Beneficiary 
in the masculine pronoun case. The record lacks an explanation for this inconsistency. Thus, we must 
question the accuracy of the documents and whether the information provided is correctly attributed 
to this particular Beneficiary and position. 
Moreover, the record does not sufficiently establish the project's duration. As noted above, the record 
does not contain a contract between the vendor and the end-client that was in effect prior to filing the 
petition substantiating the availability of work at the time of filing. The end-client letters state that the 
Beneficiary "has been assigned to [the end-client] since August 27, 2018" and it "expect[s] her to 
date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
l&N Dec. at 249. 
9 The end-client's letters are dated March 20, 2019 and June 17, 2019. 
10 These documents are preceded by a coversheet with a notation "Project description document from the beneficiary." 
4 
provide [the end-client] with continuous service through April 30, 2020, with the likelihood of her 
services being extended given ongoing project needs." However, the SA states that the end-client 
"expressly reserves the right to terminate, at its sole discretion, the assignment of any Contingent Worker 
[(the Beneficiary)] upon notice to [the vendor]." The end-client's expectation that the Beneficiary will 
provide service through April 30, 2020, "with a likelihood of services being extended" for an unspecified 
timeframe does not establish commitment on behalf of the end-client to use the Beneficiary's services. 
Therefore, the end-client's letters do not demonstrate that, at the time of filing the petition, the 
Petitioner had an existing contract to provide services to the end-client during the intended period of 
employment. 
The letters from the vendor also confirm the Beneficiary's assignment at the end-client's location, but 
do not establish the duration of the assignment. The letters state that the vendor expects the 
Beneficiary to perform her duties at the end-client "throughout the next three years" without specifying 
the project's start- and end-dates. The vendor's expectation that the project would last "throughout 
the next three years" is not sufficient to demonstrate that the project will be ongoing throughout the 
entire period of requested employment without probative corroborating material to establish the 
project's actual duration. 
The Petitioner did not submit sufficient evidence such as contracts or similar corroborating evidence 
that the project with the end-client will continue until August 2022, and will require the services of 
the Beneficiary as a software engineer for that entire period. 11 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
at the time the petition is filed. See 8 C .F .R. § 103 .2(b )( 1 ). A visa petition may not be approved based 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). The 
agency made clear long ago that speculative employment is not permitted in the H-lB program. See, 
e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
11 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically. the Service has not granted H-1 B classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB classification is not intended as a vehicle for an alien to engage in 
a job search within the United States, or for employers to bring in temporary foreign workers to meet 
possible workforce needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an H-lB nonimmigrant 
under the statute, the Service must first examine the duties of the position to be occupied to ascertain 
whether the duties of the position require the attainment of a specific bachelor's degree. See section 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-1 B classification. Moreover, there is no assurance that the alien will engage in 
a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4. 1998) 
(to be codified at 8 C.F.R. pt. 214). 
5 
For the reasons discussed above, we conclude that the petition was filed for employment that was 
speculative, and, therefore for which the substantive nature of the associated duties had not been 
established. 
We reviewed the letter submitted by.__ ______ _. a professor atl !university and find 
his opinion of the proffered position conclusory without sufficient analysis of the position at the 
end-client. According tol J the "position of 'Software Engineer at [the Petitioner] 
describe a position that cannot be properly performed without Bachelor's or higher level training ( or 
the equivalent) in a relevant technical field, such as Computer Science, Information Technology, or a 
closely related field." I I stated that to form his opinion, he reviewed the documents 
provided by the Petitioner and the Beneficiary. However, I I did not discuss the proffered 
position at the end-client. The absence of any substantive discussion of the duties specific to the 
end-client's project raises doubts about his level of familiarity with the proffered position and also 
undermines his conclusion regarding the degree requirement of the position. We may, in our discretion, 
use opinion statements submitted by the Petitioner as advisory. Matter o_fCaron Int'!, Inc., 19 I&N Dec. 
791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Id. 
The Petitioner has not established the substantive nature of the Beneficiary's work. Therefore, we are 
unable to evaluate whether 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
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." 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; 
6 
(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 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services 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. 12 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-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas factors to this matter, 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-1 B temporary "employee." Specifically, we conclude that the Petitioner 
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. 
7 
has not submitted sufficient documentation regarding relevant aspects of the Beneficiary's 
employment. 
As noted above, the record does not contain all the relevant contracts, therefore, we cannot determine 
all the terms and conditions of the Beneficiary's assignment at the end-client. The Petitioner contends 
that it has an employer-employee relationship with the Beneficiary because it performs numerous 
administrative functions pertaining to the Beneficiary's employment such as hiring, firing, and 
providing her with benefits. Social security, worker's compensation, and unemployment insurance 
contributions, as well as federal and state income tax withholdings, and providing other employment 
benefits are relevant factors in determining who will control a beneficiary. Such factors may appear 
to satisfy a cursory review that a petitioning entity might be an individual's employer; however, these 
elements are not sufficient to provide a foll appraisal of the requisite relationship. We must also assess 
and weigh other factors to determine who will be a beneficiary's employer. For example, we must 
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 is assigned, among other factors. A petitioner must sufficiently address the relevant 
factors to enable us to evaluate whether the requisite employer-employee relationship will exist 
between a petitioner and a beneficiary. 
The Petitioner repeatedly asserts that it will maintain supervision and control over the Beneficiary 
while she performs her duties for the end-client. However, the Petitioner has not documented that a 
sufficient process exists in which it can objectively monitor and evaluate personnel it places with 
end-clients. As we discussed above, the record does not sufficiently document the nature and scope of 
the Beneficiary's employment at the end-client's location. The manner of the Petitioner's claimed 
supervision is largely in the form of weekly status reports that the Beneficiary provides to the Petitioner, 
rather than the Petitioner providing her with the necessary information on the project and assigning her 
daily work. 
While the letters from the vendor and the end-client make generalized assertions regarding the Petitioner's 
right to control the Beneficiary, the vendor also states that the Beneficiary's "day-to-day project 
deliverables are reviewed by [the vendor's] Project Manager to ensure that it conforms to [their] quality 
and acceptance standards," which undermines the assertions made regarding the Petitioner's role in 
supervising and monitoring the Beneficiary's work. While the vendor goes on to say that the Beneficiary 
"remains under the control and overall supervision of her own employer's manager," it does not elaborate 
on what constitutes "control and overall supervision" by the Petitioner. Therefore, the letters from the 
end-client and the vendor are insufficient to establish the employer-employee relationship between the 
Petitioner and the Beneficiary. 
Furthermore, the SA between the vendor and the end-client states "VENDOR shall screen all candidates 
for contingent worker placement to determine qualifications and competence of such individuals for 
assignment" including "[r]eview of education experience and licensure or certification for the applicable 
jurisdiction," "[c]onducting a comprehensive personal interview," and "[c]onducting at least one 
professional reference check," raising questions regarding the hiring process and who has the hiring 
authority. 
8 
Overall, the evidence of record provides insufficient insight into how the Petitioner would direct and 
control the Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. While the 
Petitioner repeatedly asserts that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with the 
Beneficiary while she works at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative detail of the degree of supervision, direction, or control 
that the Beneficiary would receive from the Petitioner. Without disclosure of all relevant factors, we 
are unable to properly assess whether the requisite employer-employee relationship will exist between 
the Petitioner and the Beneficiary. 
Based on all the factors detailed 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 
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 the 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