dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 18,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology development and services company, seeks to temporarily 
employ the Beneficiary as a "systems analyst" under the H -1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The 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, California Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish: (1) that the Petitioner would engage the Beneficiary in an 
employer-employee relationship; and (2) that the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits new evidence and asserts 
that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 1 01 (a )(15)(H)(i)(b) of the Act defines an H -1 B nonimmigrant m pertinent part as an 
individual: 
[S]ubject to section 212(j)(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 
Matter of H-S- Inc 
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 ofany such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking 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 record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application (LCA) with the Secretary of 
Labor pursuant to section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l) (2012). The intending 
employer is described as offering full-time or part-time "employment" to the H-lB "employee." 
Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l)(A)(i), 
(2)(C)(vii) (2012). Further, the regulations indicate that "United States employers" must file a Form 
I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B temporary 
"employees." 8 C.F.R. §§ 214.2(h)(l ), (2)(i)(A). Finally, the definition of "United States employer" 
indicates in its second prong that the Petitioner must have an "employer-employee relationship" with 
the "employees under this part," i.e., the H-lB beneficiary, and that this relationship be evidenced by 
the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the legacy Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes 
2 
Matter of H-S- Inc 
H-lB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." Id. Therefore, for purposes of the H-lB visa classification, these terms 
are undefined. 
The United States Supreme Court has 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 Mutual 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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 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. 
Id.; 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)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context of the H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of"employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
3 
Matter of H-S- Inc 
Specifically, the regulatory definition of "United States employer" requires H-lB employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-319? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes ofH-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
the work performed by the worker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "plainly erroneous or inconsistent 
with the regulation." Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See. e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c )(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of H-S- Inc 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-1B nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the Petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS 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 323-324. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all ofthe incidents of the relationship 
... with no one factor being decisive.'" !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee." Specifically, we find that the 
record of proceedings does not contain sufficient, consistent, and credible documentation confirming 
and describing the circumstances of the Beneficiary's claimed assignment to the Petitioner's client. 
Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has 
not been substantiated. 
The Petitioner asserts that the Beneficiary would work at its direct client's, 
place ofbusiness, and on the Form I-129, the Petitioner provided 
Michigan, as the Beneficiary's work address. The Petitioner submitted an LCA 
certified for this address, as well as the Petitioner's place of business located at 
in Michigan. The Petitioner stated that the Beneficiary will work out 
of the Petitioner's office if the client's project ends earlier than the estimated date. 
5 
(b)(6)
Matter of H-S- Inc 
The record of proceedings contains inconsistent information regarding the Beneficiary's place of 
employment. As indicated above, the Petitioner asserts that the Beneficiary would be working out of 
location in Michigan. The evidence of record, however, indicates that 
operates out of India and Luxemburg. In addition, the itinerary, submitted in response to the RFE, 
states that is headquartered in California. Further, the purchase order from 
also submitted in response to the RFE, states that is located in 
Michigan.
4 
It is unclear to which client the Petitioner is referring on the petition for whom 
the Beneficiary 's would work for at Michigan.5 
In addition, the Petitioner submitted a letter from of Contrary to the 
Petitioner's assertion, states that the Beneficiary would be working out of the 
Petitioner's place of business and makes no reference to the address indicated on the H-lB petition. 
The Petitioner also submitted a letter from of which states that the 
Beneficiary will work on projects at the Petitioner's place of business. Notably, the 
purchase order signed by the representatives of the Petitioner and does not identify a work 
location for the Beneficiary. 
Therefore, the record of proceedings contains inconsistent and insufficient information identifying 
the Beneficiary's work location for the proffered position. "[I]t is incumbent upon the petitioner to 
resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&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. An 
inaccurate statement anywhere on the Form I-129 or in the evidence submitted in connection with 
the petition mandates its denial. See 8 C.F.R. § 214.2(h)(10)(ii); see also id. § 103.2(b)(l). "Doubt 
cast on any aspect of the petitioner 's proof may, of course, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition." Matter ofHo, 19 
I&N Dec. 582, 591 (BIA 1988). 
Moreover, the record of proceedings contains inconsistent and insufficient evidence regarding the 
existence of any work to be performed by the Beneficiary. The Petitioner states that the Beneficiary 
would be working on a project for its direct client, However, the purchase order signed by 
the Petitioner and indicates that IS client. The Petitioner has not submitted any 
contracts or master agreements demonstrating the existence of a direct business relationship with 
itself and 
Furthermore, even if we accept the purchase order as sufficient evidence to demonstrate the 
existence of a project for the Beneficiary, the Petitioner has not submitted a valid contract between 
4 An independent research reveals no results for to demonstrate that it is registered to 
conduct business in Michigan. See http ://www. dleg .state.mi.us /bcs_ corp/sr _ corp.asp (last visited July 20, 20 16). 
5 Information obtained through internet search indicate s that is located at 
Michigan. See (last visited July 20, 20 16). However , the Petitioner doe s not 
assert that is its client. 
6 
(b)(6)
Matter of H-S- Inc 
itself and by which the purchase order is governed. Therefore, we cannot ascertain whether the 
Petitioner will engage the Beneficiary in an employer-employee relationship. In the letter from 
of he states that has a project with that has an ongoing 
requirement for the Beneficiary's services. However, assertion is not corroborated 
by inqependent and objective evidence. The Petitioner has not submitted a valid contract between 
and demonstrating a business relationship between the parties and that 
has been contracted to provide services for Similarly, as indicated above, 
the record of proceedings does not contain a master agreement executed by the Petitioner and 
"[G]oing on 
record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
We acknowledge the letters provided by and but the assertions in these letters are not 
corroborated by independent evidence. Therefore, these letters are insufficient to establish that the 
Petitioner has secured employment for the Beneficiary for the requested period.6 
For the reasons discussed above, we find that the Petitioner has not substantiated the existence of 
any work to be performed by the Beneficiary. Consequently, we are unable to ascertain whether the 
Petitioner would engage the Beneficiary in an employer-employee relationship while working there. 7 
The Petitioner's primary assertion on appeal is that it will have an employer-employee relationship 
with the Beneficiary because the Petitioner will pay the Beneficiary's salary, deduct payroll taxes, 
6 On appeal, the Petitioner submits a one-page document entitled "Secondary Supplier Agreement " that indicates 
and as parties to the agreement. This one-page agreement appears to be incomplete as the page 
ends in mid-sentence and does not contain the parties ' signatures. The Petitioner has not submitted the agreement in its 
entirety. Nor did the Petitioner explain the relevance of this agreement to the proffered position . Therefore , we will not 
consider this document in our analysis. 
7 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-1 B classification is not intended as a vehicle for an 
individual to engage in a job search within the United States, or for employer s 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 individual is properly 
classifiable as an H-1 B 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 individual has the appropriate degree for the occupation. In 
the case of speculative employment, the Service is unable to perform either patt 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 individual 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). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment , e.g., a change in dutie s or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
Matter of H-S- Inc 
review his performance from time to time and offer benefits. 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 
a foreign national 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 will the work be 
located, and who has the right or ability to affect the projects to which the foreign national 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Without full disclosure of all of the relevant factors, we are 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
The evidence of record, therefore, is insufficient to establish that the Petitioner qualifies as a United 
States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the 
Petitioner exercises complete control over the Beneficiary, without evidence supporting the claim, 
does not establish eligibility in this matter. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSo.ffici, 22 I&N Dec. at 165. 
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 Director's decision is affirmed, and the appeal is 
dismissed for this reason. 
II. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
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: 
Matter of H-S- Inc 
(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.F.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.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. 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). 
B. Proffered Position 
In its response to the Director's RFE, the Petitioner submitted the following duties for the proffered 
position (verbatim): 
• Elicit requirements from users and stakeholders and transpose them into 
meaningful functional, data and usability requirements- 12% 
• Process Data using pivot tables: the summarization tool used in visualization 
programs such as spreadsheets and business intelligence - 1 0% 
• Software and automatically sort, count and give the average of the data stored in 
one table or spreadsheet- 5% 
• Business systems strategy and decision making, Strategic planning, competent in 
project management tools like MS Project for status reporting and project 
planning - 8% 
• Analyze the functional requirements and understand the existing system- 5% 
• Finalize the system's software requirements specification (SRS) determining the 
scope of design, development, and testing - 1 0% 
• Design systems/software interface as per SRS - 10% 
• Prepare high level design documents - 5% 
• Participate in design and code reviews - 5% 
• Develop the software according to the specifications and design of the system -
9% 
9 
Matter of H-S- Inc 
• Preparation of test plans for the software interface - 5% 
• Write test cases and test functionality of software with test cases - 6% 
• Preparation of test reports- 3% 
• Participate in weekly status review meetings, reporting progress, issues and any 
metrics available - 7% 
The Petitioner also stated that the position requires a "bachelor's degree (or the equivalent) in the 
same (Computer Science, Computer Information Systems or related field) or related field and/or 
experience." 
C. Analysis 
On appeal, the Petitioner asserts that the Director erred in concluding that the proffered position did 
not qualify as a specialty occupation. 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. Specifically, the record (1) does not demonstrate that the Petitioner has 
non-speculative work for the Beneficiary; (2) does not describe the position's duties with sufficient 
detail; and (3) does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
For H-IB approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. However, the Petitioner has not provided sufficient, credible evidence to 
establish employment for the Beneficiary for the validity of the requested H -1 B employment period. 
For instance, the record of proceedings does not contain sufficient documentary evidence such as 
master agreements or statements of work demonstrating that the Petitioner has procured any specific 
assignments for the Beneficiary to perform. Therefore, the evidence of the record does not support 
the conclusion that the Petitioner has definite, non-speculative work for the Beneficiary. Rather, the 
evidence of record indicates that the Beneficiary will be assigned to one or more undetermined 
end-clients. 
A petition must be filed for non-speculative work for the Beneficiary for the entire period requested 
that existed as of the time of the petition's filing. 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.P.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). Here, the Petitioner has not 
submitted sufficient credible documentary evidence that it had specialty occupation work available 
for the Beneficiary, as of the time of filing, for the duration of the requested time period. 
10 
Matter of H-S- Inc 
Nevertheless, we will analyze the evidence of record to determine whether the proffered position as 
described would qualify as a specialty occupation. 8 
1. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), 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 ofLabor'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.9 
On the LCA submitted in support of the H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Computer Systems Analysts" corresponding to the Standard 
Occupational Classification code 15-1121 at a Level I wage. 10 The Handbook subchapter entitled 
"How to Become a Computer Systems Analyst" states, in pertinent part: "A bachelor's degree in a 
computer or information science field is common, although not always a requirement. Some firms 
hire analysts with business or liberal arts degrees who have skills in information technology or 
computer programming." U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook 
Handbook, 2016-17 ed., "Computer Systems Analysts," http://www.bls.gov/ooh/computer-and­
information-technology/computer-systems-analysts.htm#tab-4 (last visited July 20, 2016). The 
Handbook also states: "Although many computer systems analysts have technical degrees, such a 
degree is not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere." Id. 
8 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. 
9 All of our references are to the 2016-2017 edition of the Handbook, available at 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. 
10 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four 
assignable wage levels) 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_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 ofthe Petitioner's job opportunity. !d. A Levell wage should be considered for research fellows, workers 
in training, or internships. !d. 
II 
(b)(6)
Matter of H-S- Inc 
The Handbook indicates that a bachelor's degree in a computer or information science field may be 
common, but not that it is a requirement for entry into these jobs. In fact, this chapter reports that 
"many" computer systems analysts may only have liberal arts degrees and programming or technical 
experience, but does not further qualify the amount of experience needed. The Handbook also notes 
that many analysts have technical degrees, but does not specify a degree level (e.g., associate's 
degree) for these degrees. The Handbook further specifies that such a technical degree is not always 
a requirement. Thus, this passage of the Handbook reports that there are several paths for entry into 
the occupation. 
In response to the RFE, the Petitioner submitted an opinion letter prepared by of 
listed the duties of the proffered position as described by 
the Petitioner in its letter of support, and concluded that the proffered position is a specialty 
occupation that requires a bachelor's degree in computer science, computer information systems, or 
a related degree. 
Upon review of the opinion letter, we find that there is no indication that possesses 
sufficient knowledge of the Petitioner's proffered position and its business operations. There is no 
evidence that has visited the Petitioner's business, observed the Petitioner's 
employees, interviewed them about the nature of their work, or documented the knowledge that they 
apply on the job. He does not demonstrate or assert in-depth knowledge of the Petitioner's specific 
business operations or how the duties of the position would actually be performed in the context of 
the Petitioner's business enterprise. 
Furthermore , it does not appear that is aware of the Petitioner's designation of the 
proffered position as a Level I (entry) position (the lowest out of four assignable wage-levels) in the 
LCA. As previously discussed, this designation is indicative of a comparatively low, entry-level 
position relative to others within the occupation and signifies that the Beneficiary is only expected to 
possess a basic understanding of the occupation. It appears that would have found 
such information relevant for his opinion letter. Accordingly, the Petitioner has not demonstrated 
that possesses the requisite information necessary to adequately and accurately assess 
the nature of the Petitioner's position.
11 
11 We note that references the Occupational Information Network (O*NET) OnLine Summary Report for 
"Computer Systems Analysts. " The summary report provides general information regarding the occupation ; however , it 
does not support the Petitioner ' s assertion regarding the educational requirements for the occupation . For example , the 
Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. 
An SVP rating of7 to less than(" <") 8 indicates that the occupation requires "[o]ver 2 years up to and including 4 years " 
of training. Further, while the SVP rating indicates the total number of years of vocational preparation required for a 
particular position, it is important to note that it does not describe how those years are to be divided among training, 
formal education, and experience- and it does not specify the particular type of degree , if any, that a position would 
require. 
Further, the summary report provides the educational requirements of " respondents ," but does not account for I 00% of 
the "respondents. " The respondents ' positions within the occupation are not distinguished by career level (e.g. , entry­
level, mid-level , senior-level). Additionally, the graph in the summary report does not indicate that the "education level" 
12 
(b)(6)
Matter of H-S- Inc 
For the reasons discussed, we find that opinion letter lends little probative value to 
the matter here. Matter a_[ Caron lnt'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is "not in accord with 
other information or is in any way questionable."). 
The Petitioner also referenced the Dictionary of Occupational Titles (DOT). More specifically, the 
Petitioner submitted a printout of the DOT's "030.167-014 SYSTEMS ANALYST (profess. & 
kin.)" job description, which indicates the occupational title of "Systems Analyst" has an SVP of 7. 
It is important to note, however, that DOT was last updated in 1991 (approximately 20 years prior to 
the submission of the H -1 B petition) and has been superseded by the O*NET. 6 Further, we find that 
the assignment of SVP 7 is not indicative of a specialty occupation. This is obvious upon reading 
Section II of the DOT's Appendix C, Components of the Definition Trailer, which addresses the 
SVP rating system. The section reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
for the respondents must be in a specific specialty. For additional information, see the O*NET Online Help webpage 
available at http:// www.onetonline.org/help/online/svp. 
6 See U.S. Dep't of Labor, Off. of Admin. L. Judges, Dictionary of Occupational Titles Fourth Edition, (rev. 1991), 
available at http://www.oalj.dol.gov/libdot.htm (last visited Aug. 16, 20 16): 
The Dictionary of Occupational Titles (DOT) was created by the Employment and Training 
Administration, and was last updated in 1991. It is included on the Office of Administrative Law 
Judges (OALJ) web site because it was a standard reference in several types of cases adjudicated by 
the OALJ, especially in older labor-related immigration cases. The DOT, however, has been 
replaced by the O*NET. 
(Emphasis in the original). 
13 
Matter of H-S- Inc 
a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction of 
a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Time 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 1 0 years 
Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
As previously discussed, an SVP rating of 7 indicates "[ o ]ver 2 years up to and including 4 years" of 
training. Again, this does not indicate that at least a four-year bachelor's degree is required for an 
occupational category that has been assigned such a rating or, more importantly, that such a degree 
must be in a specific specialty directly related to the occupation. Rather, the SVP rating simply 
indicates that the occupation requires over 2 years up to and including 4 years of training of the wide 
variety of forms of preparation described above, including experiential training. Accordingly, DOT 
does not indicate that at least a bachelor's degree in a specific specialty (or its equivalent) is 
normally the minimum requirement for entry into these positions. Although Petitioner referenced 
DOT, it fails to establish its relevancy to establish the current educational requirements for entry into 
the occupation. Therefore, the DOT is not probative evidence to establish that the proffered position 
is a specialty occupation. 
14 
Matter of H-S- Inc 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner 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 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates 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. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: 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 attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp. 1095, 1102(S.D.N.Y.1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other 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 Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." Thus, the Petitioner has not 
satisfied the first alternative prong of8 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. 
15 
Matter of H-S- Inc 
We reviewed the Petitioner's statements regarding the proffered position; however, in the appeal 
brief, the Petitioner does not assert that it satisfies this prong of the second criterion. Further, the 
Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. Thus, 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. 
As discussed, the Petitioner has not established a non-speculative employment for the Beneficiary 
and therefore, it has not established an end-client who normally hires individuals with a bachelor's 
degree in a specific specialty. Further, the Petitioner did not submit information regarding 
employees who currently or previously held the position. The record does not establish that the 
Petitioner, or end-client, normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. Therefore, the Petitioner has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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. 
In support of this criterion, the Petitioner provided a description of the proffered position and 
information regarding its business operations, including copies of its 2013 and 2014 income tax 
returns, and an organizational chart. The Petitioner asserts that the proffered position is specialized 
and complex. 
While the Petitioner may believe that the proffered position meets this criterion of the regulations, it 
has not sufficiently demonstrated how the position as described requires the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. For instance, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the tasks. While a few related courses may be 
beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an 
established curriculum of such courses is required. The evidence in the record does not refute the 
Handbook's information to the effect that a bachelor's degree in a specific specialty, or its 
equivalent, is not required for entry into the occupation. Without more, the record lacks sufficiently 
detailed information to distinguish the level of judgment and understanding necessary to perform the 
duties as specialized and complex. 
16 
Matter of H-S- Inc 
Further, the Petitioner designated the proffered positiOn as an entry-level positiOn within the 
occupational category (by selecting a Level I wage). 12 This designation, when read in combination 
with the Petitioner's job description and the evidence, further suggests that the particular position is 
not so specialized and complex that the duties can only be performed an individual with bachelor's 
degree or higher in a specific specialty, or its equivalent. 
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 itselfrequires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner has not demonstrated in the record 
that its proffered position is one with duties sufficiently specialized and complex 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. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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; Matter o[Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-S- Inc, ID# 18007 (AAO Aug. 18, 2016) 
12 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly specialized and complex 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. 
1 "7