dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, LLP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology business, seeks to temporarily employ the Beneficiary as a 
"QA tester" under the H-IB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section !Ol(a)(15)(H)(i)(b), 8 U.S.C. § l!Ol(a)(l5)(H)(i)(b). The H­
IB 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 
proffered position is not a specialty occupation and that the Petitioner did not establish that it would 
have an employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in her decision. 
Upon de novo 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. 
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The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds~ 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). U.S. Citizenship and Immigration Services (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. Cherto.fj; 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. The Proffered Position 
In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary 
will be employed off-site as a "QA tester" at from October 1, 2015, to September 
13,2018. The Petitioner initially stated in its support letter that the project entailed "wi-fi testing" 
and described the proffered duties as follows: 
• Recognize and adopt best practices in software engineering: design, testing, 
version control, documentation, build, and deployment - all with an emphasis on 
software quality; 
• Utilize in-depth understanding of formal software development processes and 
procedures; 
• Learn about new technologies and new test methodologies through actively 
reading, training, and sharing information with other engineers; 
• Write test plans and test cases that are high quality, high value, and maintainable; 
• Create and improve test automation scripts; 
• Address testing and process problems at their roots; 
• Develop pragmatic solutions; 
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• Implement flexible/scalable processes and choose simple, straightforward 
solutions over more complex ones; 
• Utilize a broad range of testing methodologies and software testing techniques, 
such as equivalence class partitioning, boundary value testing, domain analysis 
testing, orthogonal arrays, etc.; 
• Anticipate and prevent future problems from occurring; 
• Adopt solutions that get code to production and that do not make continued 
testing after release (regression testing) difficult, labor intensive, or impossible; 
• Understand the features and detailed functional requirements in order to ensure 
that end users' needs are accounted for throughout the product lifecycle; 
• Collaborate to ensure that decisions are based on the merit of the proposal; 
• Communicate clearly both verbally and in writing with the team and other groups; 
and 
• Translate detailed technical problems into communicable messages. 
The Petitioner also stated that it requires "at least a Bachelor's degree in Engineering, Computer 
Science, Business Administration, Information Systems or a related field and relevant work 
experience." The Petitioner further stated that "[a]ll of our QA Testers are required to have at least 
the minimum of a Bachelor's degree in the specific field of endeavor." 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (I) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 1 
I. The Petitioner Does Not Require a Bachelor's Degree in a Specific Specialty 
As a preliminary matter, it must be noted that the Petitioner's claimed entry requirement of at least a 
bachelor's degree in "Engineering, Computer Science, Business Administration, Information 
Systems or a related field" for the proffered position, without more, is inadequate to establish that 
the proposed position qualifies as a specialty occupation. In general, provided the specialties are 
closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in 
more than one specialty is recognized as satisfying the "degree in the specific specialty (or its 
equivalent)" requirement of section 214(i)(I)(B) of the Act. In such a case, the required "body of 
highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
1 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. 
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Matter ofS-, LLP 
a mm1mum entry requirement of a degree in two disparate fields, such as philosophy and 
engineering, would not meet the statutory requirement that the degree be "in the specific specialty 
(or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties 
and responsibilities of the particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation of these different specialties. Section 214(i)( I )(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties, provided that the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
In this case, the Petitioner claims that the duties of the proffered position can be performed by an 
individual with a bachelor's degree in engineering, business, computer science or information 
systems or related field. The issue here is that it is not readily apparent that engineering, business, 
and computer science are closely related or that the field of business or engineering is directly 
related to the duties and responsibilities of the particular position proffered in this matter. 
Here and as indicated above, the Petitioner, who bears the burden of proof in this proceeding, has not 
established either (I) that business, engineering, and computer science are closely related fields or 
(2) that the field of business or engineering is directly related to the duties and responsibilities of the 
proffered position. Absent this evidence, it cannot be found that the particular position proffered in 
this matter has a normal minimum entry requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, under the Petitioner's own standards. 
Further, we note that the Petitioner indicates that a bachelor's degree in business administration is 
sufficient to perform the duties of the proffered position. However, the requirement of a bachelor's 
degree in business administration is inadequate to establish that a position qualifies as a specialty 
occupation. 2 A petitioner must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in question. Since there must 
be a close correlation between the required specialized studies and the position, the requirement of a 
degree with a generalized title, such as business administration, without further specification, does 
not establish the position as a specialty occupation. See Royal Siam Corp. v. Chert off, 484 F .3d at 
2 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertof(, 484 F.3d at 147. 
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147 (recognizing a business administration degree as a general-purpose degree); c.f Matter of 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) (the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation). The 
Petitioner has not demonstrated that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. Without more, the Petitioner's statement 
alone indicates that the proffered position is not in fact a specialty occupation. The Director's 
decision must therefore be affirmed and the appeal dismissed on this basis alone. 
2. The Petitioner Has Not Sufficiently Established the Nature and Scope of the Beneficiary's 
Employment 
The record of proceedings contains discrepancies and misleading information that undermine the 
Petitioner's claims regarding the proffered position. For example, in this case, the Petitioner is 
located in New Jersey. The Petitioner indicated that the Beneficiary will be working 
for the in Illinois, for the duration of the requested employment period. 
However, the evidence in the record of proceedings does not support its claims. 
Specifically, with the Form 1-129, the Petitioner submitted a Master Services Agreement (MSA) 
with effective September 17, 2014, along with a work order 
for the Beneficiary's services to work at for 12 months starting on October 1, 2015. 
However, the work order was issued by and did not match 
the MSA submitted. 
On appeal, the Petitioner submits a copy of a staffing services supplier agreement with 
to provide staffing services to client, However, this 
agreement was signed in June 2015, after the petition was filed. Further, the Petitioner does not 
provide copies ofany contracts that may exist between and 
Also on appeal, the Petitioner submitted a letter purportedly from the End Client, 
However, the letter from the End-Client, dated December 7, 2015, is not on the company letterhead. 
Further, even if we assume that the letter is from the End-Client, the letter does not include sufficient 
information regarding the project or detail the BenefiCiary's actual day-to-day duties for that project. 
For example, the letter from the End-Client states that the Beneficiary's responsibilities include 
"analyzing and testing for financial and insurance applications," "creating and executing test scripts 
in QTP through keyword review and expert view," and "preparing requirements traceability matrix . 
. 
. . " Such generalized information does not in itself establish a correlation between any dimension 
of the proffered position and a need for a particular level of education, or educational equivalency, in 
a body of highly specialized knowledge in a specific specialty. Therefore, it is not evident that the 
duties as described in this record of proceedings, and the position that they comprise, merit 
recognition of the proffered position as a specialty occupation. The duties as described give very little 
insight to actual tasks that the Beneficiary would perform on a day-to-day basis. Furthermore, we find 
that the Petitioner has not supplemented the job and duty descriptions with documentary evidence 
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Matter of S-, LLP 
establishing the substantive nature of the work that the Beneficiary would perform, whatever practical 
and theoretical applications of highly specialized knowledge in a specific specialty would be required to 
perform such substantive work, and whatever correlation may exist between such work and associated 
performance-required knowledge and attainment of a particular level of education, or educational 
equivalency, in a specific specialty. Specifically, the letter does not state educational requirement for 
the project. While it states experience requirements such as "expertise in black box testing, 
functional testing, integration testing, back-end testing, grey box testing, and regression testing," it 
does not specify that the expertise must be equivalent to a bachelor's degree in a specific specialty. 
In addition, as discussed above, states on appeal that the End-Client's work for the Beneficiary 
is only confirmed for 12 months. The Petitioner does not submit further documents to establish that 
another work or purchase order has been issued covering the duration of the Beneficiary's requested 
employment pGriod, from October 1, 2015, to September 13, 2018. Therefore, we are unable to 
determine if the Beneficiary will be working on the project for the requested employment period. 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. Without copies of the contracts covering the 
duration of the period of employment requested, we are not able to ascertain what the Beneficiary 
would do, where the Beneficiary would work, as well as how this would impact circumstances of her 
relationship with the Petitioner. 3 Thus, even if it were found that the Petitioner would be the 
Beneficiary's United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the 
Petitioner has not demonstrated that it would maintain such an employer-employee relationship for 
the duration ofthe period requested. 
We note that, as recognized by the court in Defensor, 201 FJd 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 
3 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 8 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 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 individual is properly 
classifiable as an H-1 8 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) ofthe 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 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 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). 
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Matter ofS-, LLP 
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. See Defensor v. Meissner, 201 F.3d at 384. 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. As noted above, the 
Petitioner did not submit copies of all the relevant contracts and work orders and the letter that is 
purportedly from the End-Client is not on a letterhead. Further, as discussed, the letter does not 
contain sufficient information about proposed duties and the requirements for the position. 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate that the proffered position qualifies as a specialty occupation. Therefore, we cannot 
determine that description of the proffered position communicates: (I) the actual work that the 
Beneficiary would perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or 
(3) the correlation between that work and a need for a particular level education ofhighlyspecialized 
knowledge in a speci fie specialty. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently precludes a finding 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: (I) the normal 
minimum educational requirement for the particular position, which is the focus of criterion I; 
(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 as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether or not the Petitioner qualifies as an H-lB employer. 
The United States Supreme Court has detennined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty . .for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general 
common Jaw 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 
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Matter ofS-, LLP 
location of the work; the duration of the relationship between the parties; whether the 
hirjng 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." 
Jd; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden , 503 U.S. at 323). As the common-law test contains ''no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal· and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, 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 Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer .. 
The record in this matter does not include probative evidence establishing the Petitioner 's 
mechanism to control and direct the Beneficiary's work while offsite. According to the statling 
services supplier agreement, "[the Petitioner] will assign certain employees ("CLRs") with the skills 
Client requests, to perform Client's work." Importantly, the Exhibit A (accompanying the staffing 
agreement) defines the term "CLR" as referring to "individuals [who] provide Contingent Labor 
Services on a temporary basis for . 
. . and take day to day direct instruction from their 
manager." Further, Exhibit A-7 (also accompanying the staffing agreement) similarly states that 
"CLRs shall work under the direct supervision and control of. a project manager, as designated by 
in the Purchase Order," and "[ w ]hen a CLR is working under a Purchase Order, the 
project manager identified in the Purchase Order shall take delivery of the Deliverables of that 
Purchase Order." From this evidence, it appears that supervises the Beneficiary's work on a 
day-to-day basis. 
Further , under the copy of the employment agreement the Petitioner submits on appeal, the 
"[e]mployee agrees to maintain records of the hours that services have been performed on a bi­
monthly basis as per the policies and procedures of [the Petitioner] and/or the client of [the 
Petitioner] and have a representative of the client, where the employee is situated ... verify and 
approve Employee's hours worked .... " Therefore, it appears that it is the End-Client who will 
ultimately verify the Beneficiary's work and validate the hours worked. These documents do not 
sufficiently explain the manner through which the Petitioner will supervise the Beneficiary's offsite 
work. 
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We find that the Petitioner has not provided sufficient evidence with regard to how the Petitioner 
remotely controls the manner and means by which the services are provided. It cannot be concluded, 
therefore, that the Petitioner has satisfied its burden and established that it qualifies as a United 
States employer with standing to file the instant petition in this matter. See section 214( c )(I) of the 
Act (requiring an "Importing Employer"); 8 C.F.R. § 214.2(h)(2)(i)(A) (stating that the "United 
States employer ... must file" the petition); 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) (explaining 
that only "United States employers can file an H-18 petition" and adding the definition of that term 
at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met4 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, LLP, ID# 17131 (AAO May 31, 2016) 
4 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any of the additional 
grounds of ineligibility we observe in the record of proceeding, including whether the Petitioner has complied with the 
itinerary and LCA requirements. 
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