dismissed H-1B Case: Information Technology

(b)(6)
MAY 1 5 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration St:rvict:! 
Administrative Appeals Orfice (/\1\0) 
20 Massachusetts Ave., N.W., MS 20'10 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT #: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)( i)(b) of lhl: 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, riling 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron senbe g 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition . 
The matter is now on appeal before the Administrative Appeals Off ice (AAO). The appeal wi ll be 
dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner submitted a Petition for a Noni mmigrant Worker (Form I-1 29) to the Vermont 
Service Center on April 2, 20 14 . On the Form I-12 9 visa petition, the petitioner describes itself as a 
company providing quality assurance sol utions, testing services and IT developmen t, with 152 
employe es, established in In order to employ the beneficiary in what it designates as a test 
coordinator, the petitioner seeks to classify him as a nonimmi grant worker in a specialty occu pation 
pursuant to section 101( a)(1 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 11 01( a)(15 )(H)(i)(b). 
The director denied the petition on August 20, 20 14 , concludi ng that the evidence of record does 
not demonstrate that: (1) the petitione r qual ifies as an U.S. employer having an emplo yer-emplo yee 
relationshi p with the beneficia ry; and (2) the position proffered qualifies as a specialt y occupat ion. 
On appeal, counsel asserts that the director's basis for denial of the petition was erroneous and 
contends that the petitioner satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-12 9 and supporting documen tation; (2) 
the director's request for evidence (RFE); (3) the petition er's response to the RFE; (4) the director's 
notice of decision; (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We revie wed the record in its entirety before issuing ou r decision. 1 
For the reasons that will be discussed below, we agree with the director's decision that the petitioner 
has not established eligibility for the ben efit sought. Accordi ngl y, the director's decision wi ll not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
II. PROFFERED POSITION 
On the Form I-12 9, the petitioner indicates that it is seeking the benef iciary's services as a test 
coordinator on a full-time basis at the rate of pay of $60,000 per year. In the March 26, 20 14 le tter 
of support, the petitioner provided a description for the proffered position of test coord inator as 
follows: 
• Manage Projects and coordinate with our clients ( 
�[.] 
• Manage employees we have on multiple projects across clie nts. 
• Provide technical assistance on Projects as needed [.] 
• Work with cl ients on status/performance. 
1 We conduct appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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• Act as a Liaison with clients and employ ees [.] 
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• Produce technical , business and economic feasibility studies for project ideas[.] 
• Prepare required documentation of requirements, business processes and 
recommendations [.] 
• Work with software technolog ies like Web Services, XML, SOAP, SQL, UNIX 
for projects. 
The petitioner further indicated that the position requires "at least a bachelor's degree and Jess than I 
year experie nce. " 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant H-1 B 
petition. The petitione r indicated that the occupational classification for the proffered position is 
"Computer Oc cupations, All Other" - SOC (ONET/OES Code) 15- 1 19 9. The petitioner ind icated 
that the bene ficiary will be employed at its location at 
Massachusetts , and also at Maine 
III. Employe r-Employee Relationship 
We will address whethe r the petitioner has established that it meets the regul atory definition of a 
United States employe r as that term is defined at 8 C.F.R. § 21 4.2(h)(4)(ii). In this conte xt, the 
petitioner must establish that it will have "an employe r-employee rel ationshi p with respect to 
employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or othe rwi se 
control the work of any such employee ." I d. 
Section 101( a)(15 )(H)(i)(b) of the Act defines an H-1B noni mmigrant in pertinent part as an al ien: 
subject to section 2120 )(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 21 4(i)(1) ... , 
who meets the requirements for the occupation specified in section 21 4(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the inten ding employer has filed with the 
Secretary [of Labor] an application under section 21 2(n) (1) ... . 
The term "Uni ted States employer" is defined as follows: 
United States employer means a person, firm, corporation, contractor, or othe r 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Serv ice Tax iden tification nu mber. 
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8 C.F.R. § 214.2(h)( 4)(i i) (emphasis added); see also 56 Fed. Reg. 61111 , 61 121 (Dec. 2, 19 91). 
We reviewed the record of proceeding in its entirety and finds that it is not persuas ive m 
establishi ng that the petitioner will have an employer-employee relationship with the bene ficiary. 
Althou gh "United States employer" is defined in the regulations at 8 C.F.R. § 214. 2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a) (15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform servi ces in a specialty occupation will have an "intendi ng employer" who wil l 
file a Labor Cond ition Application with the Secretary of Labor pursuant to section 212 ( n )(1) of the 
Act, 8 U.S.C. § 1182(n)(l ) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1 B "employee." Subsections 21 2(n )(1 )(A)(i) and 21 2(n)(2)(C )(v ii) of the 
Act, 8 U.S.C. § 1182 (n)(1 )(A)(i), (2)(C)(v ii) (20 12 ). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-1B temporary "employees. " 8 C.F.R. § 214. 2(h)(1), (2)(i)(A). Fina lly, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an "employer­
employee relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this 
rel ationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.F.R. § 21 4.2(h)(4)( ii) (defining the term "United States 
employer"). 
Neithe r the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USC IS) defined the terms "employee" or "employer-employee rela tion ship" by 
regulation for purposes of the H-1B visa classification, even though the regulation describes H-1 B 
benef iciaries as being "employees" who must have an "employer-employee relationship" wit h a 
"United States employer. " /d. Therefore, for purposes of the H-1 B visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventiona l master­
servant relationshi p as understood by common-law agency doctrine." Nationwide MutuaL Ins. Co. v. 
Darden, 503 U.S. 31 8, 322-323 (1 992) (herei nafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1 989)). 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 require d; the sou rce of the instrumentalities and tools; the 
lo cation of the work; the duration of the relationship between the parties; whe ther 
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 tr'eatment of the hired 
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party." 
Darden, 503 U.S. at 32 3-32 4 (quoti ng Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contai ns "no shorthand formula or magic phrase 
that can be applied to find the answer, .. . all of the incidents of the relationshi p must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 25 8 (19 68)). 
In this matter, the Act does not exhibit a le gislative intent to extend the definition of "employer" in 
section 101 (a)(15 )(H)(i)(b) of the Act, "employment" in section 21 2(n )(1 )(A)(i) of the Act, or 
"employee" in section 21 2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S1 7106 (daily ed. Oct. 26, 19 90); 136 Cong. Rec. H12 358 (daily ed. Oct. 27, 
19 90). On the contrary, in the context of the H-1B visa classification, the regul ations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 2 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, an d to have an 
"employer-employe e relationship" with the H-1B "employee." 8 C.P.R.§ 214. 2(h)(4)(i i). Acco rdingly, 
the term "United States employer" not only requires H-1B employe rs and employees to have an 
"employer-employe e relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax iden tification numbe r and to employ persons in the Uni ted 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agenc y's othe rwise gener ally circular definition 
of United States employer in 8 C.P.R. § 214. 2(h)(4)( ii) indicates that the regul ations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 31 8-319 . 3 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition or 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), aff'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
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Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationshi p as unde rstood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship " as used 
in section 101(a)(1 5) (H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).4 
Therefore, in conside ring whethe r or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB noni mmigrant petitions, USCIS 
must focus on the common-law touchstone of "control ." Clackamas, 538 U.S. at 450; see also 8 
C.F.R. § 214.2(h)(4) (ii) (defining a "United States employer" as one who "has an employe r-employee 
relationshi p with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or othe rwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 32 3-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (195 8). Such indicia of control include when, 
where, and how a worke r performs the job; the continuity of the worke r's relationship with the 
employe r; the tax treatment of the worker; the provision of employee benefi ts; and wh ether the work 
performed by the worke r is part of the employer's regular busine ss. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of bene ficiaries' services, are the "true employers" of H-1B nurses under 8 C.F.R. § 214.2(h), 
even thou gh a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or othe rwise control the work of the beneficiaries ). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Othe r aspects of the relationshi p betw een the parties 
relevant to control may affect the determination of whether an employe r-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyz ing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationshi p between the parties, 
regardless of whethe r the parties refer to it as an employee or as an independent con tractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(l ) . 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, ·1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
4 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" superv ising and 
controlling L-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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When examining the factors relevant to determining control, USCIS must assess and weigh each actual 
factor itself as it exists or will exist and not the claimed employe r's right to influence or change that 
factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 323-324. For 
example, while the assignment of additional projects is dependent on who has the right to assign them, 
it is the actual source of the instrumentalities and tools that must be examined, and not who has the 
right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not le ad inexorab ly to 
the conclusion that the worke r is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the an swer to 
whethe r [an individual] is an employee depends on 'all of the incidents of the relations hip ... with no 
one factor being decisive. "' /d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not establishe d that it 
will be a "United States employer" having an "employer-e mployee relationshi p" wit h the 
bene ficiary as an H-1B temporary "employee." 
A. Itinerary 
In the LCA, the petitione r indicated that the benef iciary will be emplo yed at its lo cation in 
MA, and also at ' located at Maine 
In an itinerary dated March 26, 2014 provided for the ben eficiary, the petitione r stated that it 
"handle[s] testing services for various cl ients on-site in its location in '' The petitioner 
did not identify additional work locati ons. It also provided a job description consi stent wit h its 
support le tter dated March 26, 2014. The petitioner further stated that the position "w ould require a 
prior experience of same nature of job" and the incumbent "should be capable of [w ]o rking with 
major operating [s] ystems, [s]oft ware, databases and network programming basic langua ges." The 
petitioner indicated that the "[c]urrent itinerary of services for [the benef iciary] [is] sche dule d until 
September 2017 ." 
In response to the RFE, the petitione r provided anothe r itinerary dated July 10, 2014. The petitione r 
identi fied the client location as Maine, but also identified 
its address for , and projects. While the petitioner again in dicated that 
the "[c] urrent itinerary of services for [the benefi ciary] [is] scheduled until September 2017," the 
petitione r did not provide contracts or service agreements for and to 
establish that the petitioner has in-house projects available. Further, as wi ll be discussed later, 
while the petitioner provided a consulti ng agreement and sample schedules for , the petitioner 
did not establish existence of on-going project valid for the duration of the bene ficiary's 
employment at · Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedi ngs. Matter of Soffici, 22 l&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). There fore, the record of proceeding does not establish avai lability of continue d, 
non-speculative employ ment for the ben eficiary. 
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Further, the itinerary dated July 10, 20 14 provided a job description that differs from the job 
description provided in the support le tter dated March 26, 20 14. The new job description states the 
following: 
• Coordinate Testing activities of QA Engineers for multiple IT projects usin g 
cutting edge technologies 
• Design test plans, scenarios, scripts, or proced ures 
• Develop testing programs that address areas such as database impacts, 
software scenarios, regression testing, negative testing, error or bug retests, or 
usability 
• Design, analyze and develop business process applications on Windows and 
UNIX scripts 
• Writing Test Plans, Test cases and developing Test scripts using HP Qual ity 
Center and HP Loadru nner 
• Creation and review of Test Plans, test Strategies with Develop ment Lead 
and Project Managers 
• Coordinate communica tion within areas of the enterpr ise regarding IT 
projects, including aspects impacting the scope, budget, risk, and reso urces of 
the work effort 
• Responsible for coding using SQL, PL/SQL, Java, ASP. NET, 
Proced ures/Fu nctions, Triggers and Packages 
• Provide input to the Project Manager, Program Manager, and Program leader 
regarding team member performance. 
The petitioner also added that "minimum of Bachelor degree in computers or related field is 
required ." We note that the petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requi remen ts. See Matter of Izummi, 22 I&N Dec. 169, 
17 6 (Assoc . Comm'r 19 98). Further, it is incumbent upon the petitione r to reso lv e any 
inconsi stencies in the record by independent objective evide nce. Any attempt to ex plain or 
reconcile such inconsis tencies will not su ffice unless the petitioner submits competent objective 
evidence pointi ng to where the truth lie s. Matter of Ho, 19 I&N Dec. 58 2, 591- 92 (BIA 19 88). 
B. Consu lting Agreement 
As mentioned, the petitione r also submitted a copy of a document entitl ed "Con sul ting Agreement, " 
entered into as of December 2009, between the petitioner and This agreement states "from 
time to time upon request by [the petitioner] shall perform consulting and/or deve lopment 
servi ces," described in "schedules" to be "mutually agreed upon and signed by both parties." 
The record of proce eding contains several samples of schedules for other emplo yees that are 
worki ng on a project with The sample schedules indicate a general ov ervie w of wo rk, 
deadlines and del iverab les, personnel assigned, fees and payment terms, and period of performance. 
Each schedule is signed by the petitioner and Notably, all but one sche dule hav e expired 
prior to the benefici ary's requested start date of October 1, 20 14. The only valid schedule expires 
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January 2, 2015, but does not cover the requested employment dates for the beneficiary from 
October 1, 2014 to September 4, 2017. 
On appeal, the petitione r provided additional schedules for other employe es with However, 
we note that the schedules submitted on appeal expire on March 31, 2015, and the record of 
proceed ing doe s not contain additional evidence to establish avail ability of continued, non­
speculative employme nt for the bene ficiary for the duration of the requested employment. 
C. Letter From 
The petitione r submitted a le tter dated Jul y 30, 2014 from the , Manager of Quality 
Assurance at Mr. also stated that the petitione r currently has a "SOW for 14 QA 
Analysts( festers in ou r testing team and we have requested to add 1 more Teste r who can do that 
test scripting, coordination and performance testing for the projects immediate! y." Notably, the 
proffered position as a "test coordinator" was not mentioned. 
Mr. further indicated that the work is done at office locat ed in '' 
Maine Mr. claimed that it "consistently used Quality Matrix 
Services for ou r testing needs and we have some upcoming needs in Oct ober, 2014 as well." 
However, he did not provide any specific information regarding dates of its needs or with regard to 
the bene ficiary (e. g., identify the ben eficiary, state his role, or stipulate the duration that his services 
will be used).5 
5 The agency made clear long ago that speculative employment is not permitted in the H-lB program. A 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B classification is not intended as a vehicle 
for an alien 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 alien is properly classifiable as an H-1B nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determine whether the 
alien 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-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. § 
214.2(h)(2)(i)(E). 
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Mr. also stated that the petitione r will "always have right to control their employ ees 
working at and has the right to control the work, benefits, salar ies, performance revi ews and 
assignment s." However, Mr. did not provide information on how the petitione r supervises 
its workers at the location. 
The le tter provide s a brief job description of the duties to be performed on site as foll ows: 
• Unde rstand the functional and business requirements. 
• Design test plans, scenarios, scripts, or procedures. 
• Develop test ing programs that address areas such as database impacts, 
software scenarios, regression testi ng, negative testi ng, error or bug retests or 
usability. 
• Document software defects, using a bug tracking system, and report defects 
to software deve lopers. 
• Writing Test Plans, Test cases and developing Test scripts using HP Quality 
Center/ ALM and HP Loadrunner. 
• Good knowledge in testing backend funct ionality. 
• Creation and review of Test Plans/test Strategies with Development Lead and 
Project Managers. 
• Responsible for Coding using SQL, PL/SQL, Java, ASP.NET, 
Procedures/ Functi ons, Triggers and Packages. 
• Design, analyze and develop business process applications on Windows and 
UNIX environment. 
• Utilize Oracle and MS-Access as a relational database management system 
(RDBMS). 
• Good unders tanding of MS office tools including Excel , Word and 
PowerPoint. 
• Bach elor['Js in computers or related fiel d is required. 
Nota bly, the job duties differ from the job description provided by the petitioner in its support letter. 
Again, it is incumbent upon the petitioner to resolve any inconsist encies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsis tencies will not 
suffice unless the petitioner submits compete nt objective evidence pointi ng to where the truth I ies. 
Matter of Ho, 19 I&N Dec. 591-92. 
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D. Letter from Mr. 
In response to the RFE, the petitioner provided a statement of declaration from Mr. 
Vice President for Projects. Mr. stated the ben eficiary is "needed to perform test 
coordination services at and Projects pursuant to a series of busine ss 
con tracts between [the petitioner] and . " Mr. also stated that the 
ben eficiary "will be assigned to the locat ion" and "his work will take place at office 
locat ion." Mr. did not indicate that the ben eficiary will also be working in-house and if 
he will supervise the beneficiary in-hou se . Mr. also stated that he currently has 15 
consultants working in the same group at and "as a supervisor, I keep track of activi ties [of 
the ben eficiary] and pro vide him with technical guidance and process. " Mr. also stated 
that he condu cts daily serum meeting s which are "quick 10 minu te conf erence meeting[ s]" and the 
team members are required to send him a weekly status report. However, the record of proceed ing 
does not contain samples of weekly status report from its current employees. 
Notably, the record of proceeding contains Form W-2, Wage and Tax Statement 20 13 for Mr. 
It lists Mr. _ address as MA, which is approximately 120 
miles from Further, while the petitioner claims that Mr. is emplo yed as a vice-
president and supervises the benef iciary, he was paid $41,425 in 20 13, which is lo wer than the 
ben eficiary's salary of $60,000 per year. There is no other corro borating evidence that Mr. 
_ is employed by the petitioner as a vice president or that he supervises the benefici ary. 
Again, going on record without supporting documentary evidenc e is not sufficient for purposes of 
meeting the bu rden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 16 5 (Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
E. Organization Chart 
The petitioner also submitted an organization chart. Notably, the chart is divided into "ext ernal 
teams" and "internal teams." Mr. is listed next to "Claims Proce ssing" under "internal 
teams" and the ben eficiary's name is handwritten next to it. The petitioner does not expl ain the 
terms "inte rnal teams" and "cl aims processing" and how they relate to the benefici ary's job dutie s as 
a test coordinator. 
On appeal, the petitioner submitted a new organization chart that lists Mr. as a 
supervisor for the bene ficiary. However, as discussed, there are inconsistencies in the record and 
the petitioner did not provide further documentary evide nce to esta blish the bene ficiary is 
supervised by Mr. 
F. Employer- Emplo yee Agreem ent 
For H-1B classificat ion, the petitioner is required to submit written con tracts between the petition er 
and the beneficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)( iv)(A) and 
(B). With the Form I-129 petition, the petitioner submitted an employer -employee agreement letter 
(b)(6)
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Page 12 
dated March 24, 2014. The agreement indicated that the beneficiary will be hired as a "test 
coordinator," but did not provide any le vel of specificity as to the benef iciary's duties and the 
require ments for the position. The agreement also stated that the employee will "agree to be 
assigned in any facility/clie nt sites as Company deems it neces sary" and the employee "is required 
to travel or relocate to variou s client sites throughout the United States for both short and long term 
projects." However, the agreement did not identify facility/client sites. The agreement further 
stated that it "supervises the activities of employee at the office by means of a project manager 
employed by the Company." How ever, this indiv idual was not identified. 
The agreement refer enced "benefi ts" including health insu rance and direct deposit, but did provide 
any furthe r description of the benef its, or eligibility requirements to obtain them. Accordingly, a 
substantive determination cannot be made or inferred regarding any "benefi ts" that may or may not 
be available to the benef iciary, as information regarding them, including eligibility requirements, 
was not submitted. While an employ ment agreement may provide some insights int o the 
relationship of a petitione r and a benef iciary, it must be noted again that the "mere existence of a 
document style d 'employment agreemen t"' shall not le ad inexorably to the conclusion that the 
worker is an employee. Clackamas, 538 U.S. at 45 0. 
G. Conclusion 
Upon review, there is insu fficient documentary evide nce in the record corroborating the avai lability 
of work for the benef iciary for the requested period of employment and, conse qu entl y, wha t the 
benef iciary would do, where the benef iciary would work, as well as how this wo uld impact the 
circumstances of his relationship with the petitioner. Again, USCIS regul ations affirmatively 
require a petitione r to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.P.R. 103.2 (b)(1) . A visa petition may not be approved base d on specu lation of future 
eligibility or after the petitioner or benef iciary becomes eligible under a new set of facts. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 19 78). Moreover, the burden of 
proving eligibility for the benefit sou ght remains entirel y with the petitioner. Section 291 of the 
Act. The petitione r has failed to establish that, at the time the petition was submitted, it had located 
H-1B caliber work for the benefi ciary that would entail performing the duties as described in the 
petition, and that was reserved for the beneficiary for the duration of the period requ ested . 
Notwithstanding the lack of non-speculative work for the benefi ciary for the requested employme nt 
period, we asse ssed and weighed the available relev ant factors as they exist or will exist, and .the 
evidence does not support the petitioner's assertion that it will be a "United State s employer" having 
an "employe r-employee relationship" with the benef iciary as an H-1B temporary "employe e. " See 
8 C.F.R. § 21 4.2(h)(4)(ii) (defining the term "United States employ er"). The petitione r cla ims that 
the beneficiary will be employed at its location and It appears that he will use the tools and 
instru men talities of the client. There is a lack of evide nce establishin g the petitione r's right to 
control or actual control in the instant case, as well as the benef iciary's role (if any) in hiring and 
paying assistants. Furthermore, as discussed, a substantive determination cannot be made or 
inferred with regard to the provision of benef its. 
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Page 13 
Upon review of the record of proceedi ng, we ther efore cannot conclude that the petitioner has 
satisfied its burden and established that it qual ifies as a United States employer with standi ng to file 
the instant petition in this matter. See section 214(c)(1 ) of the Act (requ iring an "Importing 
Employer"); 8 C.P.R. § 214.2 (h)(2 )(i)(A) (stating that the "United States employer ... must file" the 
petition); 56 Fed. Reg. 61 111, 61112 (Dec. 2, 1991) (explai ning that only "Uni ted States employers 
can file an H-1B petition" and adding the definition of that term at 8 C.P.R. § 214.2( h)(4)(ii) as 
clarification). 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 benef iciary as an 
H-lB temporary "employee ." 8 C.P.R. § 214 .2 (h)( 4)(ii). 
IV. Specialty Oc cupation 
Further, we find that the petitioner did not establish that the proffered positiOn qual ifies as a 
specialty occupation in accordance with the applicable statutory and regulatory provisions. For an 
H-1B petition to be granted, the petitioner must provide sufficient evidence to estab lish that it will 
employ the benef iciary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the benef iciary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation " as an 
occupation that requ ires: 
(A) theore tical 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 Uni ted States. 
The regulation at 8 C.P.R. § 214. 2(h)(4)( ii) states, in pertinent part, the following: 
Specialty occupation means an occupation whi ch [(1)] requ ires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, eng ineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accou nti ng, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214 .2 (h)(4)(iii)(A), to qualify as a specialty occupation, a proposed positio'l 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
req uirement for entry into the particular position; 
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NON-PRECEDENT DECISION 
(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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i) (1) of the Act and 8 C.P.R. § 214 .2(h)(4) (ii). In other words, this regul atory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (hol ding that construct ion 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)( A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise inte rpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)( A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
P.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.R. § 214. 2(h)( 4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulat ion at 8 C.F.R. 
§ 214. 2(h)(4) (ii), USCIS consistently interprets 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 proffered position. See Royal Siam Corp. v. Chertojf; 484 
P.3d 13 9, 14 7 (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"). Applying this standard, 
USCIS regul arly approves H-lB petitions for qual ified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such occupa tions. 
These professions, for which petitioners have regularly been able to establ ish a minimum entr y 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fair I y 
represent the types of specialty occupations that Congress contemplated when it created the H-18 
visa category . 
To determine whether a particular job qual ifies as a specialty occupation, USC IS does not simply 
rely on a position' s title. The specific duties of the proffered position, combined with the na ture of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qual ifies as a specialty 
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occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actual ly requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
In ascertaining the intent of a petitioner, USCIS must look to the Form 1-12 9 and the documents 
filed in support of the petition. It is only in this manner that the agency can determine the exact 
position offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may inde pendently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214. 2(h)(4)(iv) provides that "[a]n H-1 B petition 
involvi ng a specialty occupation shall be accompanied by [ d] ocumentation .. . or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation ." 
As recognized by the court in Defensor, supra, where the work is to be performed for entities other 
than the petitioner, eviden ce of the end client's job requirements is critical. See Defensor v. 
Meissner, 201 F.3d at 387-388. That is, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location in order to properly 
ascertain the minimum educational requ irements necessary to perform those duties. Jd at 387-388. 
The court held that the former INS had reasonably interpreted the statute and regulations as 
requiring the petitioner to produce evidence that a proff ered position qual ifies as a specialty 
occupation on the basis of the requirements imposed by the entities using the beneficiary's se rvices. 
Jd. 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 discussed, the petitioner provided inconsistent minimum requirements for the proffered position . 
In the support letter dated March 26, 20 14, the petitioner initially stated that the position requires "at 
least a bachelor's degree and less than 1 year of experience." In the itinerary dated March 26, 20 14 , 
the petitioner indicated that the requirement is "a prior experience of same nature of job" and shou ld 
also be "capable of [w] orking with major operating [s]ystem, software, databases, and network 
programming basic languag es." Thus, based on the petitioner's own standards or Jack thereof, it 
cannot be found that the position requires both (1) the theoretical and practical application of a body 
of highly specialized knowledge and (2) attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) in accordance with section 21 4(i)(l) of the Act. However, in response to 
the RFE, the petitioner provided a let ter from and also another itinerary which states that the 
requirement for the position is a "Bachelor's in computers or related field. " As noted, the petitioner 
may not make material changes to a petition in an effort to make a deficient petition conf orm to 
USCIS requirements. See Matter of lzummi, 22 I&N Dec. at1 76. 
Further, the record of proceed ing contains varied versions of the job duties that have been stated in 
generic terms that fail to convey the actual tasks the ben eficiary will perform on a day-to-day basis. 
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For example, the abstract level of information provided about the proffered positiOn and its 
constituent duties is exempl ified by Mr. letter dated June 30, 20 14 that the benef iciary's 
duties include "understanding the funct ional and business requir ements" or "[ d)esign test plans, 
scenarios, scripts, or procedures ." On the other hand, the petitioner indicated in its support le tter 
dated March 26, 20 14 that the beneficiary will "manage projects and coordinate with our clients" 
and "manage employees we have on multiple pro jects across clients ." The statements - as so 
generally described - do not illuminate the substantive application of knowledge involved or any 
particular educational attainment associated with such application. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
benef iciary, therefore, 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 deter mines (1) 
the normal minimum educational requirement for the particular position, wh ich 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 nor mally req uiring a 
degree, or its equivalent, when that is an issue under criterion 3; and (5 ) the degree of special ization 
and complexity of the specific duties, which is the focus of criterion 4. 
Accord ingly, 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 qualif ies as a specialty occupation. 
For this additional reason, the appeal will be dismissed and the petition denied. 
V. CONCL USION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not ide ntify all of the groun ds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 10 25 , 10 43 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 14 3, 14 5 (3d Cir. 
2004) (noting that the AAO conducts appella te review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plain tiff can suc ceed on a 
challenge only if it shows that we abused its discretion with respect to all of our enum erated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 10 43, affd. 345 F.3d 
683. 
The petition will be denied and the appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. In vis a petition proceed ings, it is 
the petitioner's burden to establish el igibility for the immigration benef it sought. Sect ion 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 12 7, 12 8 (BIA 2013) . Here, that bur den has 
not been met. 
ORDER: The appeal is dismissed.