dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6361651 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"project manager business analyst" 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 Vermont Service Center denied the petition, concluding that the proffered position 
does not qualify as a specialty occupation . On appeal, the Petitioner submits additional evidence and 
asserts that the Director erred. 
Upon de nova review , we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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). 
II. 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 Delaware, stated that the Beneficiary would work at the end-client location 
in Virginia. However, the record does not contain sufficient evidence to establish the contractual terms 
among all parties. 
Although the record contains a consulting services agreement (CSA) and a corresponding work order 
(WO) between the Petitioner and the mid-vendor, the record does not contain documentary evidence 
of a contract to which the end-client is a party. The CSA is a general agreement for the Petitioner "to 
perform professional services as set forth in this non-exclusive agreement as an independent contractor 
... for the benefit of [the mid-vendor] and, if applicable, the Client for which [the mid-vendor] 
provides Services." The CSA includes an addendum of "client flowdown terms," which identifies the 
end-client. However, the addendum does not describe the services for the Petitioner to provide, or 
identify an individual assigned to perform them. Instead, in relevant part, it provides the following: 
(a) Services and Deliverables. [The Petitioner] will provide Services, including 
Deliverables, to [the end-client] as described in mutually agreed written [WOs]. 
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 
(b) Work Orders. Each [WO] will describe, as applicable, Services (including 
Deliverables), the project schedule (including project milestones), progress reporting 
requirements, the [end-client's] Project Manager, the [Petitioner's] Project Manager, 
[ and] any Key Personnel. 
In turn, the WO identifies the Beneficiary as the "consultant" to be assigned with an anticipated 
assignment start date of August 22, 2018; however, it does not specify the duration of the project. 
Instead, the WO states it "shall remain in effect ... until work is completed to the satisfaction of [the 
mid-vendor] or terminated pursuant to the [CSA]." Accordingly, the WO does not establish that the 
parties contracted for work throughout the requested employment period. 
Even if the WO established that the parties contracted for the Beneficiary to work beyond August 22, 
2018, the WO does not describe the services or other information specifically required in the CSA 
addendum, listed above, such as the project schedule, progress reporting requirements, and project 
managers from the end-client and the Petitioner. Instead, the WO states: "Nature of work to be 
performed (Specify in detail. Include description of any project or projects to be completed)." 
Accordingly, because the WO contains template language that seems to be intended to be replaced 
with an actual description of the work to be completed, rather than such a description, the WO does 
not establish the work for which the parties contracted the Beneficiary to perform, regardless of the 
questionable duration of the assignment. 
As noted, 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. For the first time on appeal, the Petitioner submits a half-page letter from the 
end-client. The end-client letter generally asserts that "[the Beneficiary] is providing services to [the 
end-client] pursuant to a contractual agreement we are currently entered [sic] with [the mid-vendor]." 
However, the record does not contain the contractual agreement referenced by the end-client. 
Additionally, although the end-client asserts it "expect[s] [the Beneficiary] to continue providing 
services to us pursuant to the contract," it does not provide a duration for the assignment, or a 
description of the services the Beneficiary provides. Moreover, the end-client letter does not state 
whether the end-client requires a bachelor's or higher degree in a specific specialty, or its equivalent, 
in order to perform the unspecified services for an undefined duration. 
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 an opinion letter written byl . I, the chair 
of graduate programs at the University ofl O , I for the first time. As a matter of discretion, we 
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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."'). 
,__ ____ _.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. See Defensor, 201 F.3d at 387-88. Althoughl I asserts, in relevant part, 
that he reviewed the half-page end-client letter submitted for the first time on appeal, as discussed 
above, the letter provides neither a description of the duties required by the end-client nor a statement 
of whether the end-client requires a qualifying degree. Furthermore, there is no indication that D 
I I has conducted any research or studies pertinent to the educational requirements for such 
positions, and no indication of recognition by professional organizations that he is an authority on 
those specific requirements. Accordingly, I I' opinion, which does not address the 
record's lack of both a duty description and a degree requirement from the end-client, and is not 
substantiated by objective research or studies, bears minimal probative value. 
Additionally, even to the extent tharl I' opinion about the Petitioner's duty description­
rather than information from the end-client-may bear probative value, the Petitioner's duty 
description consists of brief: generalized summaries that do not establish the substantive nature of the 
position. For example, duties such as "[d]eveloping and managing complex IT systems and services 
using Agile and Waterfall models" does not describe the IT systems and services with sufficient detail 
to determine whether they support the conclusion that they are "complex." The record also does not 
establish the actual work the Beneficiary would perform in order to develop and manage the systems 
and services in order for us to determine whether managing and developing them requires a bachelor's 
or higher degree in a specific specialty, or its equivalent. As another example, duties such as 
"[m]anaging system lifecycle development and instance management" does not describe the system 
with sufficient detail, or establish the actual work the Beneficiary would perform in order to manage 
the system's development and management. Furthermore, the record does not establish how the duties 
of "[d]eveloping and managing complex IT systems and services using Agile and Waterfall models" 
and "[m]anaging system lifecycle development and instance management" are distinJujshab)e from 
each other. The language in the remainder of the Petitioner's duty description, on which I 
based his opinion, is similarly vague, repetitive, and unsubstantiated, raising questions regarding how 
I I had sufficient information to form an opinion. 
Additionally, the record raises questions regarding the occupational category for the position. On the 
labor condition application (LCA)3 submitted in support of the petition, the Petitioner designated the 
proffered position in the "Management Analysts" occupational category, corresponding to the Standard 
3 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties. experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
4 
Occupational Classification (SOC) code 13-1111.00 from the Occupational Information Network 
(O*NET). However, the generalized duty descriptions quoted above bear many similarities to those 
in the "Information Technology Project Managers" occupational category, which include the 
following: 
• Assess current or future customer needs and priorities by communicating directly 
with customers, conducting surveys, or other methods; 
• Manage project execution to ensure adherence to budget, schedule, and scope; 
• Monitor or track project milestones and deliverables; 
• Schedule and facilitate meetings related to information technology projects; 
• Direct or coordinate activities of project personnel; 
• Monitor the performance of project team members, providing and documenting 
performance feedback; and 
• Prepare project status reports by collecting, analyzing, and summarizing 
information and trends. 
O*NET OnLine Summary Report for "15-1199.09 - Information Technology Project Managers," 
http://www.onetonline.org/link/summary/15-1199.09 (last visited Feb. 12, 2020). The discrepancy 
between the designated SOC code and the alignment of the position's duties to another SOC code 
raises questions regarding the position's actual substantive nature. 4 We farther note that the prevailing 
wages for positions in the "Information Technology Project Managers" occupational category in both 
the end-client's and the Petitioner's metropolitan statistical areas are higher than the prevailing wages 
for positions in the "Management Analysts" occupational category, raising additional concerns beyond 
the substantive nature of the position. See Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 
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 
4 While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and Immigration 
Services (USCTS), DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCTS) is the department responsible for determining whether the content of an LCA filed for a particular Fonn 
T-129 actually supports that petition. See 20 C.F.R. § 655.705(6 ), which states, in peitinent palt ( emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or 
whether the individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCTS ensure that an LCA actually supports the H-1 B petition filed 
on behalf of the Beneficiary. 
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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 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
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. 
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. 
5 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). 
6 
Moreover, the record does not establish that the Petitioner, located in Delaware, would direct and 
control the Beneficiary's work at the end-client location in Virginia. First, the record does not establish 
the individual who would supervise the Beneficiary. The Petitioner asserts that, while working at the 
end-client location, "[the Beneficiary] is directly accountable to [the Petitioner] and is supervised by 
[the Petitioner's] business/HR manager," without providing the name of an individual with that title. 
The Petitioner submitted an organization chart in response to the Director's RFE; however, although 
the organization chart identifies 20 different position titles, it does not provide the names of any of the 
individuals with those titles, and none of the position titles match the proffered "project manager 
business analyst" position or the "business/HR manager" position. Although the organization chart 
indicates that a "manager human resources" supervises an "accounts executive," an "admin assistant," 
and a "para legal [sic] assistant," it does not indicate that the "manager human resources" would 
supervise a "project manager business analyst." Additionally, the organization chart indicates that 
"business analysts" would report to "systems analysts/software developers I & II," whereas one group 
of "business management analysts" would report to "product development client," which in tum would 
report to the Petitioner's president, and another group of "business management analysts" would report 
to a "sr. manager," who would report to an "in house [sic] product development execa [sic]," who in 
tum would report to the Petitioner's president. Accordingly, the organization chart does not establish 
which possible reporting structure the proffered "project manager business analyst" may fall under. 
Furthermore, as discussed above, even if the CSA and WO established the duration of the project 
beyond August 2018, they do not identify any other individual assigned to the project, whether in a 
supervisory capacity over the Beneficiary or otherwise. 
Beyond the ambiguity regarding which individual employed by the Petitioner would supervise the 
Beneficiary's work at the end-client location, the record does not establish how such a supervisor 
would do so. We note that, in response to the Director's RFE, the Petitioner submitted an evaluation 
of the Beneficiary's performance for the period of "Jan 2018 to Dec 2018," completed by the 
Petitioner's president, not its "business/HR manager." However, the end-of-year performance 
evaluation does not establish how the Petitioner would prospectively direct and control the work the 
Beneficiary performs on a daily basis at the end-client location. The record does not otherwise 
establish the means by which the Petitioner would become aware of the work performed by the 
Beneficiary, in order to direct and control it. 
Additionally, the CSA, discussed above, raises 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 CSA provides: 
This [ a ]greement and associated WOs may be terminated without notice immediately 
upon notification to [the Petitioner] by [the mid-vendor] in the case of: uncured 
material breach of this [a]greement ... , poor performance, poor responsiveness, 
convenience, insolvency/bankruptcy of [ the Petitioner], [ the Petitioner] fails to perform 
any work in a skilled, professional and expeditious manner, or any violation of the 
[DOL] regulations. 
The CSA further provides that "[the end-client] has the right to offer employment to [the 
mid-vendor's] or [the Petitioner's] personnel at any time." Accordingly, the mid-vendor appears to 
have significant control over how the quality of the Beneficiary's performance, and whether she may 
7 
perform services at the end-client location at all. Furthermore, the end-client appears to have 
significant control over whether it may hire the Beneficiary "at any time." 
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. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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