dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4631802 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 24, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the proffered 
Petitioner would not have an employer-employee relationship with the Beneficiary during the 
requested period . On appeal, the Petitioner submits additional evidence and asserts that the Director 
erred. 
Upon de nova review, we will dismiss the appeal. 1 Before we discuss the identified basis for denial, 
which is dispositive of the Petitioner's appeal, we will discuss another ground of ineligibility . 
Specifically, we conclude that the Petitioner has not demonstrated that the proffered position qualifies 
as a specialty occupation. 
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 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
The Petitioner stated that the Beneficiary would work at the end-client location. However, the record 
does not contain sufficient evidence to establish the contractual terms among all parties. 
Although the record contains documents related to a contract between the Petitioner and the 
mid-vendor, several of the documents are either incomplete, expired, or raise questions regarding 
whether they are properly executed. The record contains a two-page excerpt of a document titled 
"Customer Exhibit A: Customer-Specific Engagement" (CSE) between the mid-vendor and an 
unidentified party. The CSE excerpt identifies the mid-vendor in text, and also identifies the end-client 
2 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
as the "customer"; however, the excerpt does not specifically identify either the Beneficiary or the 
Petitioner, instead generally referring to a "supplier" and its "employee," raising questions regarding 
whether it relates to a contract between the Petitioner and the mid-vendor. The bottom of the second 
page, numbered "Page 2," states that the "[s]ignature page follows." However, the following page is 
not numbered "Page 3" and, moreover, it does not contain signatures from representatives of the 
parties. Instead, the pages following the CSE excerpt are a two-page document titled "Vendor 
Personnel- Addendum 1" (VPA) between the Petitioner and the mid-vendor. Although both the CSE 
and VP A reference an "MSA," 3 the record does not contain an MSA or any other document that 
incorporates the CSE and VP A to it. 4 Furthermore, because the record omits at least one page of the 
CSE-apparently the signature page-the CSE appears to be both incomplete and improperly 
executed, raising questions regarding its validity. Doubt cast on any aspect of a petitioner's evidence 
may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The VPA identifies the end-client as the "customer" and the Beneficiary as the "vendor personnel." 
However, the VPA states: "Estimated completion date (if applicable): 05/26/2018," before the 
requested employment period. The VP A does not indicate that it may be extended beyond May 2018 
and, furthermore, the record does not establish that the parties extended the VP A beyond that date. In 
response to the Director's RFE, the Petitioner submitted a new copy of a nearly identical "Vendor 
Personnel - Addendum 1" between the Petitioner and the mid-vendor. The parties signed and dated 
the new copy in November 2018, after the petition filing date. In relevant part, the new copy replaces 
the prior "[e]stimated completion date" with "11/27/2020." However, a petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the 
benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future 
date after a 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). 
Because the parties signed and dated the new copy of the VP A after the petition filing date, it cannot 
establish eligibility. Id. Accordingly, the VP A does not establish that the parties contracted for the 
Beneficiary to provide services or products during the requested employment period. Furthermore, 
even if the new VP A could establish eligibility, the record does not explain why both the initial copy 
of the VP A in the record and the new copy of the VP A-signed and dated one year after the prior 
copy-identify themselves as "Addendum l," rather than "Addendum l" and "Addendum 2," for 
example, respectively. That raises questions regarding the validity of the new copy of the VP A, even 
if it could establish eligibility. As noted, doubt cast on any aspect of a petitioner's evidence may 
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. at 591. 
3 Contracts for services are commonly subject to a master service agreement (MSA). Both the CSE excerpt and the VP A 
reference an MSA without specifying that the MSA is a master service agreement. 
4 In response to the Director's request for evidence (RFE), the Petitioner submitted a "Third-Party Vendor Agreement" 
(TPV A) between the Petitioner and the mid-vendor. The TPV A is a general agreement for the Petitioner "to provide the 
services more particularly described on [a] Vendor Personnel Addendum attached hereto (the 'Services') for the benefit 
of the [end-client] identified on Customer Exhibit A." However, as noted, the CSE excerpt and the VPA indicate that they 
are subject to terms "per MSA." not per a TPV A. Therefore, the record raises questions regarding whether the TPVA 
relates to the CSE excerpt and the VP A in the record. 
3 
Even if the VPA were valid beyond May 2018, the extent of its "[d]escription of [s]ervices" is 
"DEVOPS Infrastructure Architect, including any duties and activities necessary to perform the 
work." The VP A does not elaborate on the infrastructure or the types of duties and activities necessary 
to develop it. Therefore, even if the VPA were valid beyond May 2018, the brief, generalized duty 
description would prevent us from determining the substantive nature of the work that would be 
performed. 
Further, the record does not contain documentary evidence of the contract terms between the end-client 
and any other party, raising questions regarding the substantive nature of the work for the Beneficiary 
to perform. The record contains letters from the mid-vendor stating that it is "not able to share the 
Master Services Agreement or the Statement of Work between [the mid-vendor] and [the end-client]." 
Instead, the record contains two letters from the end-client. The first end-client letter acknowledges 
that "[the Beneficiary's] services are to be performed exclusively at [the end-client] location ... for 
three (3) years/[l]ong [t]erm from the date of this writing." However, the letter does not specify 
whether any of the parties extended a contract beyond May 2018, as indicated in the VP A. Although 
the letter includes a bullet-point list of duties the language in the first end-client letter's duty 
description contains language that appears verbatim in a letter from the mid-vendor. The second 
end-client letter, submitted on appeal, includes a bullet-point list of nearly twice as many duties, again 
containing language that appears verbatim in a letter from the mid-vendor submitted on appeal. 5 The 
first end-client letter also states that it requires "a [b ]achelor' s [ d]egree or [h ]igher in [ c ]omputer 
[s]cience, [i]nformation [t]echnology, a [r]elevant [e]ngineering [d]iscipline, a [r]elated [d]egree, or a 
[c]ombination of [e]ducation and [e]xperience [e]quivalent to a [b]achleor's in a [r]elevant 
[d]iscipline," again matching verbatim language from the mid-vendor letter, including many 
capitalization errors. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's 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. 
Here, the record does not adequately establish that the Beneficiary would provide services in a 
specialty occupation for the end-client for the employment period requested in the petition. 
Specifically, the extent of the language in the end-client letters that match verbatim the mid-vendor's 
letters-both initially and again in support of the appeal-raise questions regarding whether the 
end-client's representative actually wrote the duty descriptions and, therefore, whether the letters 
reflect the end-client's actual requirements. Furthermore, the extent of the similarities between the 
end-client and mid-vendor letters, including many capitalization errors, cast doubt on the Petitioner's 
evidence, undermining the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. See Matter of Ho, 19 I&N Dec. at 591. 
5 The mid-vendor's letter submitted on appeal also contains nearly twice as many duties as initially stated. 
4 
Furthermore, even if the end-client letters did not raise questions regarding whether its representative 
actually wrote the duty descriptions, the record does not reconcile why the end-client and the 
mid-vendor essentially doubled the Beneficiary's duties after the petition filing date. Again, a 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 
In summation, we conclude that the inconsistencies, ambiguities and lack of documentation in the 
record raise questions regarding the actual substantive nature of the proffered position, which therefore 
precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because the substantive nature of the work determines (1) the normal minimum 
educational requirement for entry into the particular position, which is the focus of criterion 1; (2) industry 
positions which are parallel to the proffered position and thus appropriate for review for a common degree 
requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus 
of criterion 4. 6 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
The United States Supreme Court 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 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 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." 
6 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 
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)). 
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. 
B. Analysis 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Additionally, the record does not establish that the parties 
contracted for the Beneficiary to work throughout the requested period. 
Moreover, the record does not establish that the Petitioner would direct and control the Beneficiary's 
work at the end-client location. 7 The Petitioner asserts that it will: 
supervise [the Beneficiary's] work during the entire period of employment on H-lB 
status while he provides consulting services on client projects either at the client 
location or at our office location ... via in person meetings, telephone calls, emails, 
chat sessions, and reporting back to [the] main office regularly through emails and 
periodic visits to the main office (if work is done remotely). . . . The supervision and 
control will be accomplished by the supervisor discussing the targets that need to be 
achieved for the project and provide broad guidelines and framework within which the 
implementation must be done ( such as specifying parameters like timelines, business 
problem definition, technologies, [ and] methodologies that need to be used). 
However, as noted above, the VPA indicates that the project's duration ended in May 2018, before the 
requested employment period. At the time of the Director's decision, the record did not establish who 
would supervise the Beneficiary's work, regardless of whether the parties contracted for the 
Beneficiary to provide services beyond May 2018. Although an organization chart in the record 
indicates that "technology directors/managers" employed by the Petitioner would supervise its 
"software engineer," the organization chart does not specifically identify any individual workers or 
supervisors. However, on appeal, the Petitioner submits for the first time a "declaration" from an 
individual named S-P-, who asserts he is the Petitioner's "IT Director" and he is "responsible for 
7 The Petitioner's and the end-client's locations are both in the~I _ __.,I Georgia, .__ _______ __, 
6 
supervising the day-to-day activities of [the Beneficiary]." 8 The declaration generally describes means 
in which the Beneficiary and S-P- interact. 
Governing regulations indicate that petitioners shall submit additional evidence as the Director, in his 
or her discretion, may deem necessary in the adjudication of the petition. See 8 C.F.R. § § 103 .2(b )(8), 
214.2(h)(9)(i). The purpose of the request for evidence is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(12). "Failure to submit requested evidence which 
precludes a material line of inquiry shall be grounds for denying the [petition]." 8 C.F.R. 
§ 103.2(b)(l4). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given 
an opportunity to respond to that deficiency, we will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 
19 I&N Dec. 533, 537 (BIA 1988). If the Petitioner had wanted the submitted evidence to be 
considered, it should have submitted the documents in response to the Director's RFE. Id. Under the 
circumstances, we need not and do not consider the sufficiency of the evidence submitted for the first 
time on appeal. 
We note that the record contains copies of one-page documents titled "Weekly Work Report" for the 
Beneficiary's work at the end-client location dated between January and March 2018. 9 Each report 
indicates that an individual named A-R-, identified in the record as the Petitioner's "HR Manager" 
reviewed the reports, not the Petitioner's "IT Director" as the Petitioner asserts for the first time on 
appeal. The reports describe the Beneficiary's work in brief, generalized, and repetitive descriptions. 
For example, for eight hours each weekday during the week of January 15, 2018, the Beneficiary 
reported that he performed the duty of "Azure Deployemnts [sic]," without elaborating on the actual 
tasks he performed in order to deploy Azure on a given day. As another example, for eight hours each 
weekday during the week of March 12, 2018, the Beneficiary reported that he performed the duty of 
"Client meeting for the W AF enablement," without providing additional details regarding the 
meetings. 10 Other reports contain similarly brief: generalized, and repetitive descriptions. The reports 
do not establish how the reports would provide the Petitioner sufficient information to direct and 
control the Beneficiary's work, regardless of whether its "HR Manager" or one of its "technology 
directors/managers" would do so. Furthermore, the practice of the Beneficiary submitting reports to 
the Petitioner after he has completed work at the end-client location does not establish how the 
Petitioner would prospectively direct and control the Beneficiary's work. The record does not contain 
other evidence of how the Beneficiary would report to the Petitioner, such as the "emails [ and] chat 
sessions" referenced by the Petitioner. 
8 The Director's RFE requested evidence to meet the requirement of the Petitioner having an employer-employee 
relationship with the Beneficiary for the duration of the requested validity period, providing a non-exhaustive list of types 
of evidence. 
9 On appeal, the Petitioner resubmits weekly reports dated between January and March 2018, and submits new weekly 
reports dated between April 2018 and January 2019. However, as noted above, we need not and do not consider the weekly 
reports submitted after the Director's RFE that put the Petitioner on notice of the deficiency in the record. 
10 Without additional information, the Beneficiary's report that he spent 40 hours in one week holding meetings with 
unspecified individuals to discuss the same topic each day is implausible since the work he performed is not corroborated. 
7 
Additionally, we note that if the CSE excerpt, discussed above, applies to the Petitioner and the 
Beneficiary, it states: 
Ifany [sic] [Petitioner] [e]mployee is unacceptable to [the end-client] for any reason, 
[ the end-client] will notify [ the Petitioner] and [ the Petitioner] will immediately remove 
the [Petitioner's] [e]mployee from performing any ftuiher [sic] [s]ervices .... At the 
request of [the end-client], [the Petitioner] will promptly provide a replacement 
[Petitioner] [ e ]mployee with equal or better qualifications and skills to complete the 
[ s ]ervices being performed by the removed [Petitioner] [ e ]mployee. 11 
Therefore, if the CSE excerpt applies to the Petitioner and the Beneficiary, the clause permitting the 
end-client to demand the removal and replacement of the Beneficiary "for any reason" raises questions 
regarding whether the Petitioner or the end-client would ultimately control the Beneficiary's work at 
the end-client location, including whether the Beneficiary would work there at all. 
Overall, the evidence provides insufficient insight into how the Petitioner would direct and control the 
Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and who has the 
right or ability to affect the projects to which the Beneficiary is assigned. The Petitioner's generalized 
assertions regarding control lack specificity and probative detail of the degree of supervision, 
direction, or control that the Beneficiary would receive from the Petitioner. 
In sum, without full disclosure of all of the relevant factors, we are unable to properly assess whether 
the requisite employer-employee relationship would exist between the Petitioner and the Beneficiary. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
11 Again, the CSE excerpt does not specifically identify the Petitioner as the "supplier" or the Beneficiary as the worker, it 
omits the signature page, raising questions regarding whether it was properly executed, and moreover it states that it is 
subject to an MSA, omitted from the record, rather than the TVPA submitted in response to the Director's RFE. 
8