dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5131046 
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: JAN. 2, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"performance 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 record does not 
establish whether the Petitioner would have an employer-employee relationship with the Beneficiary . 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 Before we discuss the identified basis for denial, 
which is dispositive of the Petitioner's appeal, we will discuss another ground of ineligibility. 
Specifically , we conclude that the Petitioner has not demonstrated that the proffered position qualifies 
as a specialty occupation. 
I. 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). 
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 stated that the Beneficiary would work at the end-client location. However, the record 
does not establish that, at the time of the petition filing, the parties contracted for the Beneficiary to 
provide services in a specialty occupation during the requested employment period. 
Although the record contains an excerpt of a staffing supplier service agreement (SSSA) between the 
Petitioner and the mid-vendor, it does not contain documentary evidence of a contract between the 
end-client and any other party. 3 The SSSA is a general agreement for the Petitioner to "use its best 
efforts to supply and assign employees ... upon [the mid-vendor's] request for work to be performed 
2 The Petitioner submitted documentation to support the H-1 B 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. 
3 The SSSA in the record consists of an unnumbered page and pages numbered "Page 2 of 17" through "Page 15 of 17 ." 
Although the record contains a duplicate copy of the SSSA, neither copy of the SSSA includes pages numbered "Page 16 
of 17" or "Page 17 of 17." Because the record does not contain the full SSSA, we are unable to determine the full contract 
terms among the parties. 
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at or for the benefit of [the end-client]." However, the SSSA also states that "[the mid-vendor] is not 
obligated to place any orders or any particular volume of orders for temporary employees with [the 
Petitioner] under [the SSSA ]." Moreover, in the event that the mid-vendor voluntarily places an order 
for a Petitioner's worker, the SSSA states that "[the Petitioner] expressly acknowledges that [the 
end-client] may end any Temporary Worker's assignment at [the end-client] at will at any time, with 
or without notice and with or without cause." In the event that the end-client does not elect to end the 
assignment of the Petitioner's assigned personnel "at any time, with or without notice and with or 
without case," the SSSA farther states that "[the mid-vendor's] On-Site Management staff shall track 
every Temporary Worker assignment start and end dates to ensure that no Temporary Worker is 
assigned to work at [the end-client] or on [an end-client] project for more than ten (10) months, subject 
to exceptions as [the end-client] may direct in writing." 
The SSSA does not identify a specific project requiring the services, a position to perform the services, 
the duties of that position, an individual assigned to that position, and the qualifications required for 
that position. Instead, the SSSA states that "[the Petitioner] will use its best efforts to provide, and to 
cause its Temporary Worker to provide, the Services in accordance with the requisition, any Scope of 
Work" (SOW). However, the record does not contain an SOW between the Petitioner and the 
mid-vendor to identify specific information regarding the assignment. 
In summation, without an SOW between the Petitioner and the mid-vendor, the record does not 
establish that the mid-vendor placed an order for the Beneficiary or any other worker and, even if the 
mid-vendor did, such an assignment would end within 10 months of its start date. Additionally, 
without an SOW or any other documentary evidence of the contract terms among the parties, the record 
does not establish the substantive nature of the work the parties contracted, at the time of filing the 
petition, for the Beneficiary to perform. Furthermore, even if the record established the foll contract 
terms between the Petitioner and the mid-vendor, it does not contain documentary evidence of the foll 
contract terms between the end-client and any other party, and moreover it does not contain 
documentary evidence of a contract specifically identifying the Beneficiary to provide any particular 
service, and therefore does not establish the substantive nature of the work to be performed. 
The record contains two letters from the end-client. The first letter identifies the Beneficiary as a 
"contract performance engineer" for an assignment "at our worksite from February 13, 2017[,] through 
August 12, 2018," ending before the requested employment period. Accordingly, even if a letter could 
establish the foll contract terms among the parties, the first end-client letter does not establish that, at 
the time of filing the petition, the parties contracted for the Beneficiary to work during the requested 
employment period. Because the assignment referenced in the first letter ended prior to the requested 
employment period, we need not address the letter's description of the proffered position's duties. 
The second end-client letter, which the Petitioner submits on appeal, is dated after the petition filing 
date. Although the second letter references an assignment "at our worksite from October 1, 2018[,] 
through September 27, 2019," it does not establish that, at the time of filing the petition, the parties 
contracted for such an assignment. Furthermore, the assignment beginning in October does not appear 
to be an extension of the prior assignment, which ended in August. Therefore, particularly in the 
absence of documentary evidence of the foll contract terms among the parties, the assignment 
beginning in October appears to be a new project not contemplated in the end-client's first letter dated 
as of the petition filing date. A petitioner must establish eligibility at the time of filing the 
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nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
8 C.F .R. § 103 .2(b )(1 ). 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). Accordingly, even if a letter could establish the foll contract 
terms among the parties, the second end-client letter may not establish eligibility. Because the second 
end-client letter may not establish eligibility, we need not address its description of the proffered 
position's duties. 
Because the first end-client letter does not address work to be performed during the requested 
employment period, and because the second end-client letter, which addresses a separate work 
assignment not contemplated in the end-client's timely letter, is dated after the petition filing date, 
neither letter provides a probative description of the end-client's requirements for the position 
described in the petition. 
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. In this case, neither end-client letter provides sufficient, probative information. 
We farther note that, even if the record established the foll contract terms among the parties, both of 
the end-client's letters raise questions regarding whether the labor condition application (LCA)4 in the 
record corresponds to the petition. 5 Both letters state that the end-client's "minimum requirement for 
performing [the position's] duties is a Master's Degree in Computer Science, Computer Engineering, 
Electrical Engineering, or [a] related field." The LCA submitted in support of this petition designates 
the position under the Standard Occupational Classification (SOC) code and title 15-1199, "Computer 
4 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. See Matter o(Simeio 
Solutions, LLC, 26 T&NDec. 542, 545-546 (AAO 2015). 
5 While the Department of Labor (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 Form T-129 actually supports that petition. See 20 C.F.R. § 655.705(6 ), which states, in pertinent part 
( emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-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 USCIS ensure that an LCA actually supports the H-1 B petition filed 
on behalf of the Beneficiary. 
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Occupations, All Other," with a Level I, entry level wage. The record further specifies that the position 
is in the "Computer Systems Engineers/ Architects" subcategory, corresponding to SOC code 
15-1199.02. The DOL's Occupational Information Network (O*NET) summary report for "Computer 
Systems Engineers/Architects" states that "[m]ost of these occupations require a four-year bachelor's 
degree, but some do not." O*NET OnLine Summary Report for "15-ll99.02 - Computer Systems 
Engineers/Architects," http://www.onetonline.org/link/summary/15-l 199.02 (last visited Jan. 2, 
2020). The DOL wage-level guidance directs that a position with a degree requirement that is greater 
than the education level that the occupational category typically requires, in tum requires a wage level 
greater than Level I. 6 Therefore, the end-client letters requiring a master's degree for a position 
designated with a Level I wage raise questions regarding whether the petition is supported by an LCA 
that corresponds to the petition under 20 C.F.R. § 655.705(b). 
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. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) ( quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
6 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.flcdatacenter.com/pdfi'NPWHC _Guidance_ Revised_ 11 _ 
2009.pdf 
5 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Additionally, the record does not establish that the parties 
contracted for the Beneficiary to work throughout the requested period. 
Moreover, the record does not establish that the Petitioner would direct and control the Beneficiary's 
work. The Petitioner asserted that "[t]he [B]eneficiary's work will be subject to the supervision of 
[N-J-]," the Petitioner's business development manager. However, the Petitioner also stated that "such 
supervision is off-site. Supervision is done weekly through emails/telephone calls by the Petitioner." 
The Petitioner further described its supervisory process as follows: 
[The] Petitioner communicates to [the] Beneficiary the work product and target that 
needs to be achieved from the project at a high-level [sic]. [The] Petitioner provides 
broad guidelines and framework within which the implementation must be done. This 
includes specifying broad parameters like timelines, business problem definition, 
technologies, [ and] methodologies that need to be used. [The] Petitioner monitors, 
advises and guides [the] Beneficiary to ensure that he/she is on the right track and will 
be able to achieve the targets. If there seems to be a deviation or if [the] Petitioner 
believes that [the] Beneficiary may not be able to achieve the target, [the] Petitioner 
will intervene and help [the] Beneficiary through constant management and guidance. 
The record does not contain documentary evidence of the weekly "emails/telephone calls" referenced 
by the Petitioner. Instead, to illustrate the type of "broad" supervision the Petitioner provides, the 
record contains a series of "weekly work summaries" from the Beneficiary, dated "2016.10.25" 
through "2018.11.15-2018. l l.21." However, the work summaries do not indicate that the Beneficiary 
submitted them to any particular supervisor and, if he did, the summaries do not indicate that a 
supervisor reviewed them and, if a supervisor did, the summaries do not indicate that the supervisor 
responded to the Beneficiary with any particular direction or control. Additionally, the general 
practices of submitting weekly summaries of the work performed at the end-client location afterward, 
and weekly "emails/telephone calls" does not establish how the Petitioner would prospectively direct 
and control the Beneficiary's work. Furthermore, the summaries provide limited information that raise 
questions regarding how the Petitioner would have sufficient awareness to direct and control the 
Beneficiary's work. For example, a typical summary is as follows: 
6 
Working hours: 40 
Target of this week: 
LSU clean up [sic] 
LSU Correlation 
Summary of this week: 
Plan: 
Highlights: 
- No highlights. 
LSU: 
A study on MDB reset interval with 2 different counting methodology. 
([R]eset count by load/reset count by cycles)[.] 
A study on STQ size. Reducing stq size from 32 (default) to 24 could 
have 0.37% performance drop on Geekbench. 
Correlation: 
Split ldstq into ldrpckq and strpckq. Seperated [sic] load repack and 
store repack. Performance has very tiny change on Geekbench. 
Fixed a strpckq latency bug. No perf change on Geekbench. 
Verified load cancel to repack latency. 
LSU correlation 
LSU/L2 debugging 
That limited summary does not elaborate on the studies, whether the Beneficiary performed or only 
observed the studies and, if the Beneficiary performed the studies, the actual tasks that the studies 
entailed. The summary also does not elaborate on the actual tasks the Beneficiary performed in order 
to "[s]plit ldstq," "[fix] a strpckq latency bug," and "[verify] load cancel to repack latency." 
Accordingly, the summary does not establish how the Petitioner would be aware of the actual work 
the Beneficiary performed at the end-client location and whether he performed it correctly. 
We note that the record contains appraisals of the Beneficiary's performance conducted by N-J- dated 
July 2018 and January 2019. However, like the general practice of the Beneficiary summarizing his 
work performed at the end-client location afterward, the performance appraisals do not establish how 
the Petitioner prospectively directed and controlled the Beneficiary's work at the end-client location 
through off-site supervision. 
The record raises farther questions regarding the extent to which the Petitioner would direct and 
control the Beneficiary's work at the end-client location identified in the petition. For example, as 
noted above, the SSSA excerpt states that "[the Petitioner] expressly acknowledges that [the 
end-client] may end any Temporary Worker's assignment at [the end-client location] at will at any 
time, with or without notice and with or without cause." That indicates that, even if the record 
established that the parties contracted, at the time of the petition filing, for the Beneficiary to work at 
the end-client location, the end-client would monitor the Beneficiary's work and ultimately could 
control his work and whether he may continue to work at all. Similarly, as noted above, the SSSA 
excerpt states that "[the mid-vendor's] On-Site Management staff shall track every Temporary Worker 
assignment start date and end dates to ensure that no Temporary Worker is assigned to work at [the 
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end-client location] or on [an end-client] project for more than ten (10) months, subject to exceptions 
as [the end-client] may direct in writing." That indicates that, like the end-client, the mid-vendor also 
would monitor the Beneficiary's assignment and ultimately could control whether he may continue to 
work. 
Overall, the evidence provides insufficient insight into how the Petitioner would direct and control the 
Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and who has the 
right or ability to affect the projects to which the Beneficiary is assigned. The Petitioner's generalized 
assertions regarding control lack specificity and probative detail of the degree of supervision, 
direction, or control that the Beneficiary would receive from the Petitioner. 
In sum, without full disclosure of all of the relevant factors, we are unable to properly assess whether 
the requisite employer-employee relationship would exist between the Petitioner and the Beneficiary. 
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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