dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6821299 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 11, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"network 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 
position does not qualify as a specialty occupation. The Director also concluded that the record did 
not establish the Petitioner would 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 
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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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, located in Georgia, stated that the Beneficiary would work at the end-client location in 
New Jersey. However, the record does not contain sufficient evidence to establish the contractual 
terms among all parties. 
Although the record contains a master service agreement (MSA) between the Petitioner and a 
mid-vendor named E-, the record does not contain documentary evidence of a contract to which the 
end-client is a party. The MSA is a general agreement for the Petitioner to "provide the services of its 
personnel to [the mid-vendor] or [the mid-vendor's] clients, on behalf of [the mid-vendor] upon the 
terms and conditions set herein." However, the MSA does not elaborate on the services for the 
Petitioner to provide or the client to receive such services. Instead, the MSA states that the Petitioner 
will "provide personnel to perform services for [the mid-vendor] and its clients on a per diem basis or 
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 
for the term set forth in a separate work order [(WO)]. Each such assignment will be specified by the 
[WO] defining the hourly rates, term of the assignment, the personnel to be contracted and other terms 
and conditions." The record does not contain a WO corresponding to the MSA, or other documentary 
evidence of a contract between the Petitioner and mid-vendor E- specifying details such as the 
personnel to be assigned, the services to be provided, and the duration of the assignment. 
In response to the Director's request for evidence (RFE), the Petitioner asserted that "at the time of 
filing the original H-lB petition, [ mid-vendor E-] was the [ v ]endor for the contractual employment of 
the Beneficiary at the [end-client]. However, thereafter the [P]etitioner has terminated the vendorship 
with [ mid-vendor E-]." The Petitioner also submitted a letter from mid-vendor E- in response to the 
RFE, stating that "[the Beneficiary's] assignment through [mid-vendor E-] for [the end-client] ended 
on 29th July 2018," before the beginning of the requested period. 
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). 
Also in response to the Director's RFE, the Petitioner submitted a prime provider agreement (PP A) 
between the Petitioner and a new mid-vendor named M-. However, as noted above, the record does 
not contain documentary evidence of a contract to which the end-client is a party, regardless of the 
mid-vendor through which it requests services. Similar to the MSA between the Petitioner and 
mid-vendor E-, the PPA is a general agreement for mid-vendor M- to "retain the services of [the 
Petitioner] to assist it in identifying and retaining Consultants ... for [mid-vendor M-'s] customers 
and clients." The PP A does not further specify details such as the personnel to be assigned, the services 
to be provided, or the recipient of such services. Instead, the PP A describes a process through which 
unnamed clients may submit a job order requisition to mid-vendor M-, in response to which the 
Petitioner may submit a consultant proposal that may result in an engagement confirmation from 
mid-vendor M-. 
Although the record contains an engagement confirmation identifying the Beneficiary as a consultant 
"to provide services for [the end-client]," it does not specify the services to be provided and, even if it 
did, the Petitioner and mid-vendor M- dated it July 24, 2018, after the petition filing date. Similarly, 
although the record contains a consultant proposal from the Petitioner identifying the Beneficiary as 
the consultant to provide services to the end-client, the extent of its description of the services for the 
Beneficiary to provide is "[s ]enior [ n]etwork [ e ]ngineer [l]abs [ c ]ertification." That generalized, five­
word description of services does not provide sufficient information to determine the substantive 
nature of the position to which the Beneficiary would be assigned, in order to determine whether it 
qualifies as a specialty occupation. Moreover, like the engagement confirmation, the Petitioner dated 
the consultant proposal July 24, 2018, after the petition filing date. Accordingly, neither the 
engagement confirmation nor the consultant proposal may establish eligibility. 8 C.F.R. 
§ 103.2(b)(l); see also Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 
Again, even if the record established that, at the time of filing the petition, the Petitioner contracted 
for the Beneficiary to perform services at the end-client location during the requested employment 
period, which it does not, the record does not contain documentary evidence of a contract to which the 
3 
end-client is a party, raising questions regarding the substantive nature of the position to which the 
Beneficiary would be assigned. Instead, in response to the Director's RFE, the Petitioner submitted a 
one-paragraph letter from the end-client. The end-client asserts that "the contractual offered position 
with [the end-client] to [the Beneficiary] is a specialty occupation for which the minimum requirement 
for performance of these duties is a bachelor's degree in computer science or a closely related field." 
However, the extent of the end-client letter's description of the position in question is that "[the 
end-client] and [mid-vendor M-] entered [an agreement identified by number] on 10/9/17 ... [for] 
various information technology enabled services" and that the Beneficiary "performs services under 
this [a]greement." The letter does not elaborate on the particular work the Beneficiary performs, in 
order to determine whether the work actually requires a bachelor's or higher degree in a specific 
specialty, or its equivalent. 
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. 
On appeal, the Petitioner submits a new letter from the end-client, stating that "the end-client and 
mid-vendor M- entered an agreement identified by a number not matching the prior agreement number 
"on 1/1/2019" and that the Beneficiary "performs services under this [a]greement." The record does 
not contain a copy of the referenced agreement, in order to determine the terms to which the parties 
agreed. Moreover, because the parties signed and dated the referenced agreement-pursuant to which 
the Beneficiary reportedly provides services-after the petition filing date ( and furthermore, after the 
date of the Director's denial notice), it may not establish eligibility. 8 C.F.R. § 103.2(b)(l); see also 
Matter o_f Michelin Tire Corp., 17 I&N Dec. at 249. Additionally, the letter provides 19 duties in a 
bullet-point list, containing language that appears verbatim in a letter from mid-vendor M-, also 
submitted on appeal. The verbatim nature of the end-client's letter raises questions regarding whether 
it actually reflects the Petitioner's description of the services for the Beneficiary to perform and 
whether it requires a bachelor's or higher degree in a specific specialty, or its equivalent. 
We note that the record contains an undated, six-page document that appears to be a Microsoft 
PowerPoint presentation about the Beneficiary's project. All pages include the end-client's logo and 
the first page, which appears to title the document as a "project readout," includes the Beneficiary's 
name. However, the document does not establish whether the end-client, the Beneficiary, or someone 
else created it, raising questions regarding whose description it provides. 3 The remainder of the 
document contains bullet-point lists of brief: generalized task descriptions, such as "[ e ]xecution of 
3 The extent of the Petitioner's description of this document is ·'[p]roject related documents of the [end-client] on which 
the Beneficiary is providing his services," again not clarifying whether the end-client, the Beneficiary, or someone else 
created it. 
4 
NON-RR routers in LRO environment"; a table of even shorter descriptions under column headers 
including "Point of Network Failure," "Traffic Outage (Cluster) LRO Setup," 'Traffic Outage 
(Peering) LRO Setup," Traffic Outage (MIS-PE) LRO Setup," and "Desired Metric"; and a summary 
of three "issue[ s] found." Accordingly, even if the "project readout" established that the end-client 
created it, it is not sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline necessary to perform the proffered position's duties. 
We also note that, in response to the Director's RFE, the Petitioner submitted an opinion letter written 
by I I an associate professor of computer information systems at I I 
University. As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give 
an opinion less weight if it is not in accord with other information in the record or if it is in any way 
questionable. Id. We are ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 
2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be 
evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to understand the 
evidence or to determine a fact in issue."'). 
,__ __ __.I states that he "had the opportunity to review the letter of support submitted with the H-1 B 
petition by [ the Petitioner and the job description of the Network Engineer position it now seeks to 
fill." However,~ __ __.does not state that he reviewed information regarding whether the end-client 
requires a bachelor's or higher degree in a specific specialty, or its equivalent, to perform the position's 
duties, which is critical. 4 See Defensor, 201 F.3d at 387-88. As noted above, at the time I I 
formed his opinion, the extent of the end-client's description of the Beneficiary's duties in the record 
was that mid-vendor M- and the end-client contracted for "various information technology enabled 
services" and "[the Beneficiary] performs services under this [a]greement." Even ifi I asserted 
that he reviewed such a statement from the end-client, it does not provide sufficient information on 
which to base an opinion regarding whether the position qualifies as a specialty occupation. 
Accordingly, I Is opinion bears minimal probative value. 
In summation, we conclude that the 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. 5 
4 We note that the three of the 10 duties thiitl I quotes, from a letter in the record from the Petitioner, match 
verbatim duties in both letters from mid-vendor M- and the end-client submitted on appeal. However, both mid-vendor 
M- and the end-client letters include duties on which I I did not base his opinion. 
5 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
5 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
We will briefly address the issue of whether the Petitioner qualifies as an H-lB employer. 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." 
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, at the time 
of the petition filing, the parties contracted for the Beneficiary to work throughout the requested 
period. 
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). 
6 
Moreover, the record does not establish that the Petitioner, located in Georgia, would direct and control 
the Beneficiary's work at the end-client location in New Jersey. The Petitioner asserts that H-C-, its 
operations manager, "would closely supervise the Beneficiary's work, assign specific instructions on 
required tasks and expected results, and closely monitor and review the Beneficiary's work for 
accuracy through weekly video meetings and webinars with the Beneficiary." The Petitioner further 
asserts that H-C- "would have a weekly Monday morning conference call with the Beneficiary and an 
end-of-week check-in on the status of tasks that were assigned to the Beneficiary for the week ... 
documented via weekly time sheets." 
Although the record does not contain "weekly time sheets," it contains bi-monthly timesheets during 
the period of October 1 through December 15, 2018, identifying the Beneficiary as an "employee" and 
the Petitioner's operations manager as an "employer representative." The bi-monthly timesheets 
contain verbatim task descriptions for 55 days during that period, each stating that the Beneficiary 
spent eight hours performing "[end-client] IP [ n ]etwork [ c] ertification, configuration, routers, network 
safety and other related tasks." The brief: generalized task description does not contain sufficient 
information to inform H-C- of the actual work the Beneficiary performed regarding network 
certification, configuration, routers, and safety on any given day, or moreover during 440 hours of the 
verbatim time sheets. Furthermore, even if the time sheets provided sufficient informative value, the 
process of the Beneficiary reporting the work he performed at the end-client location to the Petitioner 
afterward does not establish how the Petitioner would prospectively direct and control his work during 
the requested period. 
The record also contains an "annual performance appraisal form" for the Beneficiary, identifying the 
Petitioner's operations manager as the "appraiser." However, the majority of the appraisal (five and 
half pages out of eight and a half total pages) are a self-appraisal with prompts directed to, and 
answered by, the Beneficiary, not the Petitioner's operations manager. Even if the performance 
appraisal were not primarily a self-appraisal completed by the Beneficiary, similar to the time sheets 
the process of the Petitioner's operations manager evaluating the Beneficiary's performance afterward 
does not establish how the Petitioner would prospectively direct and control his work during the 
requested period. 
Other documents in the record raise questions regarding the extent to which the Petitioner would direct 
and control the Beneficiary's work at the end-client location during the requested employment period. 
For example, the MSA with mid-vendor E-, discussed above, provides the following: 
[Mid-vendor E-] has the right to inspect and reject the Contractor's work for reasons 
associated with the quantity, quality or other aspect of the Contractor's performance of 
services prior to the work being submitted to the Client. If [ mid-vendor E-] does reject 
any such work, it is understood and agreed that such rejected work will not be submitted 
to the Client for billing and that the Contractor will not be paid for that work. 
Accordingly, even if the record established that the MSA related to both the Beneficiary and the 
end-client-which it does not-and even if the MSA continued to apply to the proffered position 
rather than ending in July 2018, prior to the requested employment period as discussed above, the 
MSA would establish that mid-vendor E-, not the Petitioner, would have substantial right to direct and 
control "the quantity, quality or [any] other aspect of [the Beneficiary's] performance of services." 
7 
Similarly, the PPA provides that "[the end-client] or [mid-vendor M-] may end any [e]ngagement at 
any time for any or no reason." Accordingly, even if the Petitioner and mid-vendor M- had signed 
and dated the consultant proposal and engagement confirmation at the time of the petition filing, which 
they did not, the PPA indicates that the end-client and mid-vendor M- would ultimately have the right 
to direct and control the Beneficiary's work at the end-client location, including whether the 
Beneficiary may provide services 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 would provide the instrumentalities and tools, and who would 
have 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. 
8