dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 2817724 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 23, 2020 
The Petitioner, an information technology outsourcing company, seeks to temporarily employ the 
Beneficiary as a "blue prism developer" 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 Form I-129, Petition for a Nonirnmigrant 
Worker, concluding that the Petitioner did not establish that it would engage the Beneficiary in an 
employer-employee relationship . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. BACKGROUND 
The Petitioner, an information technology company located in Texas, proposes deploying the 
Beneficiary to an end-user located in 9hio pursuant to a series of contracts executfd between the 
Petitioner and I _ (first vendor), ,fil<l~..en.JillLll.I:.SI..Y.eJilill:!LllD.'d _ I 
0 (second vendor), between the second vendor and end-client), and 
between the end-client and the actual user of the Beneficiary's services ,.__ _________ __. 
I tend-user). The contractual path of succession between the five actors in this case therefore 
appears to flow as follows: 
Petitioner ➔ First vendor ➔ Second vendor ➔ End-client ➔ End-user 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). 
II. SPECIALTY OCCUPATION 
Before addressing the basis for the Director's denial - that the Petitioner would not engage the 
Beneficiary in an employer-employee relationship - we will first consider the more foundational issue 
of whether the record of proceedings is sufficient to establish that the proffered position is a 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. 
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 offered 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. 2 
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"). 3 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 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"). 
2 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 4 In particular, the Petitioner has not 
established the substantive nature of the position, which precludes a determination that the proffered 
position qualifies as a specialty 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). 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of the end-user to provide 
it. And if we cannot determine whether the proffered position as described in this petition would 
actually exist then we cannot ascertain its substantive nature, let alone determine whether it is a 
specialty occupation. 
As noted, the contractual path of succession between the five actors at play in this matter flows as 
follows: 
Petitioner ➔ First vendor ➔ Second vendor ➔ End-client ➔ End-user 
The Petitioner filed this petition in April 2018 and claimed that the Beneficiary would work at the end­
user's Ohio location from April 2018 until March 2021. To support that claim the Petitioner submitted 
a contract it executed with the first vendor and an associated purchase order that described very briefly 
a project ending in April 2019. That document, however, created no legal obligation on the part of 
any of the remaining three actors to provide any work for the Beneficiary to perform. 
The record contains references to contracts executed between the first vendor and the second vendor, 
between the second vendor and the end-client, and between the end-client and the end-user. However, 
no such documentation is contained in the record. As it currently stands, the record contains no 
evidence of a legal obligation on the part of the end-user to actually provide the position the Petitioner 
has proposed with this H-1 B petition. 5 
Again, ifwe cannot determine whether the proffered position as described will actually exist, then we 
cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 6 
4 The Petitioner submitted documentation to support the H- IB 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. 
5 There are indicia in the file that these contracts were not submitted over confidentiality concerns. Although a petitioner 
may always refuse to submit confidential commercial information ifit is deemed too sensitive, a petitioner must also satisfy 
the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 T&N Dec. 314 (BIA 1977). 
6 Speculative employment is not permitted in the H-1 B program. See, e.g., 63 Fed. Reg. 30419 (proposed June 4, 1998). 
3 
Though acknowledged, the letters from the vendors and the end-user are not sufficient to establish any 
legal obligation on the part of any of these actors to provide the position described by the Petitioner 
either. We therefore conclude that the Petitioner has not established the existence of definitive, non­
speculative employment for the Beneficiary. In other words, the current record is not even sufficient 
to establish that the proffered position actually exists, let alone establish its substantive nature so as to 
allow us to ascertain whether it is a specialty occupation. 7 
Even ifwe set this foundational deficiency aside we would still find the record insufficient to establish 
the substantive nature of the proffered position so as to determine whether it is a specialty occupation. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. The Petitioner has not. 
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. 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the nurses in that case would provide services to the end-client hospitals and not to the petitioning 
staffing company, the Petitioner-provided job duties and alleged requirements to perform those duties, 
when not corroborated by the end-user, were not sufficient for a specialty occupation determination. 
See id. 
The record of proceedings in this case is similarly devoid of sufficient information from the end-user, 
.__ ____________ _____, regarding the specific job duties to be performed by the 
Beneficiary for that company. Though acknowledged, the end-user's description of the Beneficiary's 
proposed duties is not sufficient because it lacks the detail necessary to explain what the Beneficiary 
would actually be doing. For example, many of the duties - including the top three - contain the 
acronym "RP A," but that term is not defined. Given the apparent overall importance of "RP A" to this 
job description, we consider this a significant omission. 8 In addition, we observe that the end-user's 
7 Cf Galaxy Sofiware Solutions, Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
8 The court in Sagarwala v. Cissna, 387 F.Supp.3d 56 (D.D.C. 2019), criticized an H-lB petitioner's jargon-heavy job 
description, stating that "[i]t was [the petitioner's] burden to explain what these duties actually entail. Incoherence does 
4 
job description is nearly identical to the one provided by the Petitioner - at times awkwardly so. For 
example, the Petitioner spoke of "the client" multiple times. The end-user, who is presumably that 
"client," also referred to the ways in which the Beneficiary would work for "the client." This unusual 
phrasing leads us to question whether the end-user actually prepared this letter. 9 If not, then we 
question who did. If the end-user did prepare this letter, then we question whether there are even more 
actors at play in this matter than the five already-identified companies (in other words, we question 
who these "clients" are). 
Moreover, the abstract level of information provided about the proffered position and its constituent 
duties is exemplified by the end-client's assertion in an undated letter that the Beneficiary will perform 
the following duties: 
• Design and develop solutions utilizing RP A tools and maintain technical responsibility for 
project delivery as the sole technical resource on a project or the leader of a delivery team. 
• Drive the strategic and tactical roll-out of the RP A solution to Client Business 
Units/department/functions consult with Business and IT partners to provide functional and 
technical expertise in areas including solution design, development, testing and risk 
identification/mitigation. 
• Research, evaluate, analyze and recommend enterprise Architecture standards. Typically areas 
included enterprise resource planning, customer relationship management, RP A process 
document management and RP A configure tools and methodologies. 
• Work with stakeholders and teams to understand technical, operational and user requirements. 
• Take responsibility for automation activities including work estimation, planning, stakeholder 
management and project quality. 
• Comply with the client's design and coding standards, policies and procedures. 
• Fix bugs, reduce risk, and improve quality while working collaboratively with project team 
during the product test and UAT phase. 
• Develops new processes/tasks/objects using RPA Software and workflow principles that are 
efficient, well structured, maintainable and easy to understand. 
• Direct efforts to define technical, operational and user requirements. 
• Design conceptual architecture and technical solutions and lead efforts to develop and 
implement client-approved solution. 
• Own partnership with cross-functional technology and design teams to ensure consistent, 
beneficial client interaction and solution delivery. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the proffered 
position's duties sufficiently that we may discern the nature of the position, and whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge 
attained through at least a baccalaureate degree in a specific discipline. We conclude that the Petitioner 
has not done so. The end-client has described the proposed duties in terms of generic functions that 
did not sufficiently convey substantive information to establish the relative complexity, uniqueness, 
not equate to complexity." Id. at 68. "[T]he most complex-sounding of those duties were heavy on jargon. The company 
failed to provide any accessible explanation of what those responsibilities actually entailed." Id. at 70. 
9 The end-user is an insurance company. It is not self-evident that it would be providing information technology solutions 
to its clients, or "comply with" its clients' "design and coding standards, policies and procedures." 
5 
and/or specialization of the proffered position or its duties. These deficiencies raise yet more questions 
as to the actual, substantive nature of the proffered position. Again, if we cannot ascertain the 
position's substantive nature we cannot determine whether it is a specialty occupation. 
For all of these reasons, we conclude that the Petitioner has not established the substantive nature of 
the work that the Beneficiary will perform. This 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: (1) the normal minimum educational requirement for the particular position, which 
is the focus of criterion one; (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 
two; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion two; ( 4) the factual justification for a petitioner normally requiring 
a degree or its equivalent, when that is an issue under criterion three; and ( 5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion four. Therefore, 
we cannot conclude that the proffered position qualifies for classification as a specialty occupation. 
III. EMPLOYER-EMPLOYEE 
The petition cannot be approved because the record of proceedings is not sufficient to demonstrate 
that the proffered position is a specialty occupation. However, because the Director did not deny the 
petition on that basis, we will briefly address the Director's determination that the Petitioner did not 
demonstrate that it would engage the Beneficiary in an employer-employee relationship while he is 
deployed to the end-user's Ohio worksite. 
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 10l(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: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully define the term "employee," courts should conclude that the term was "intended to 
6 
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)); Clackamas Gastroenterology Assocs., P.C. v. 
Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the 
parties; the petitioner's right to assign additional projects to the hired party; the extent of the 
beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's 
role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the 
provision of employee benefits; and the tax treatment of the beneficiary. 10 Darden, 503 U.S. at 324; 
Clackamas, U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (even though a medical staffing 
agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" 
because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-lB 
beneficiaries). We will assess and weigh all of the factors of the relationship, with no one factor being 
decisive. 
B. Analysis 
Upon application of the common law tests articulated in Darden and Clackamas, 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 find that the 
Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant 
aspects of the Beneficiary's employment. Therefore, the key element in this matter, which is who 
exercises supervision and control over the Beneficiary, has not been substantiated. 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability to hire, fire, remunerate, supervise, and otherwise control his work. The Petitioner 
further claims it will perform numerous administrative functions pertaining to the Beneficiary's 
employment. Social security, worker's compensation, and unemployment insurance contributions, as 
well as federal and state income tax withholdings, as well as the provision of other employment 
benefits, are relevant factors in determining who will control a beneficiary. While such factors might 
appear to satisfy a cursory review that a petitioning entity could be an individual's employer, these 
elements are not necessarily sufficient to provide a full appraisal of the relationship between the 
parties. We must also assess and weigh other factors to determine who will be a beneficiary's 
employer. For example, we 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 will be assigned, among other factors. A petitioner must 
10 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it 
exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for 
by the common-law test. See Darden, 503 U.S. at 323-24. 
7 
sufficiently address all of the relevant factors to enable us to evaluate whether the requisite employer­
employee relationship will exist between a petitioner and a beneficiary. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. For example, while all five actors appear to claim that the Beneficiary would 
be employed by the Petitioner, and the Petitioner does appear to retain the right to hire, fire, supervise, 
or otherwise control the Beneficiary's work, it does not explain the actual manner in which the 
Petitioner provides such instructions and oversight. 
For example, the record contains little information regarding the actual project upon which the 
Beneficiary would work for the end-client, at the end-user's office, and on the end-user's own systems. 
There is even less information regarding any ongoing role for the Petitioner on that project. If the 
Petitioner has little to no role to play on the project, then it is unclear how it could feasibly direct the 
Beneficiary's day-to-day duties as they relate to this project. To the contrary, the Petitioner's role 
appears limited to the provision of the Beneficiary's services with little room for actual direction of 
his activities. 
Again, none of the letters submitted by the actors at play in this petition speak to any active ongoing 
role for the Petitioner in the project upon which the Beneficiary would work. Given both the physical 
distance (the Petitioner is located in Texas, the end-user is located in Ohio) and apparent distant 
relationship (in the contractual chain, three corporate entities separate the Petitioner from the end-user) 
between the Petitioner and the end-user, we question whether any such role actually exists. If there is 
no provision for the Petitioner's input, then we question whether it actually controls the Beneficiary, 
as claimed. Having the full set of contracts executed between the five actors might have shed light on 
this question, but they were not submitted. The single contract that was submitted - the one executed 
between the Petitioner and the first vendor - resembles a staff augmentation agreement with little 
provision for input by the Petitioner on the Beneficiary's daily tasks. 11 
As noted, the record does indicate that the Petitioner would handle the administrative and personnel 
functions related to keeping the Beneficiary on its payroll. However, our review of the four comers 
of this H-1 B petition leads us to conclude that the Petitioner would not operate as the Beneficiary's 
employer in the common law sense, but that it would instead act as a supplier of personnel to 
temporarily supplement the staff of organizations such as the end-user who would then control the 
content, means, and methods of those individuals' work. In this regard, we observe that it appears that 
not only would the end-user determine and assign the Beneficiary's day-to-day work, but that it would 
also control the Beneficiary's access to the systems utilized without which his work could not be done. 
The evidence of record 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 Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
11 USCIS records also indicate that the first vendor has since filed an H-lB petition on behalf of the Beneficiary. 
8 
IV. 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