dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 8, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services and solutions company, seeks to temporarily 
employ the Beneficiary as a "software engineer" under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 Petitioner had 
not established an employer-employee relationship at the time of filing. 1 
On appeal, the Petitioner submits a letter and asserts that the Director's decision was in error.2 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
Before we discuss the identified basis for denial, which is dispositive of the Petitioner's appeal, we 
will discuss another ground of ineligibility we observe in the record of proceedings. Speciflcally, 
the Petitioner has not established that the proffered position meets the statutory definition of a 
specialty occupation or that it has H-lB caliber work for the Beneficiary for the entire requested 
validity period. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
1 The Director also found that the petition was filed earlier than six months before the date of actual need for the 
Beneficiary's services in violation of 8 C.F.R. 214.2(h)(9)(i)(B). We will withdraw this basis of the Director's denial 
· since the Petitioner explains the inconsistencies on appeal, and the record establishes that the Petitioner sufficiently 
complied with this regulatory provision. 
2 
While we may not discuss every document submitted, we have reviewed and considered each one. 
Matter of A-, Inc. 
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) 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 have consistently interpreted 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. Cherto,ff; 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
The Petitioner has not established that (1) it has secured definite, non-speculative specialty 
occupation work for the Beneficiary at the time of filing the petition, 3 and (2) the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation. 
3 
Speculative employment is not permitted in the H-1 8 program. For example, a 1998 proposed rule documented this 
position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
2 
.
Matter of A-, Inc. 
The Petitioner, located in California, indicated that the Beneficiary will be providing 
services to an end-client located in California. The Petitioner indicated that the Beneficiary 
will "perform a variety of application development and testing services" for the end-client's "Data 
Security platform" as a "Software Engineer 1." In support of the H-1 B petition, the Petitioner did 
not submit any documents from the 
end-client. 
In response to the Director's request for evidence, the Petitioner submitted a "Statement of Work" 
(SOW) signed by the end-client, which names the Beneficiaryand the proffered position. However, 
it is dated almost four months after the date of filing this petition. Further, the SOW states that "NO 
WORK ON THIS PROJECT IS AUTHORIZED OR SHALL COMMENCE UNTIL A VALID 
PURCHASE ORDER IS DULY ISSUED BY [THE END-CLIENT]" (emphasis in original); 
however, the record does not contain a copy of a related purchase order. Moreover, while the SOW 
indicates that it is an attachment to a master services agreement (MSA), the Petitioner did not submit 
the MSA. 
On appeal, the Petitioner asserts that it has "had a long-term relationship" with the end-client and has 
multiple SOWs and purchase orders at any given time. However, the Petitioner did not submit any 
evidence to substantiate its claim. The Petitioner explains that the "[SOWs] are typically not put in 
place until [they] have an identified employee available to fulfill a required service" and that this 
SOW "was not signed until the start of [the end-client's] fiscal year ... after the H-1 B petition was 
under way and it was determined likely that the petition would be granted on behalf of [the 
Beneficiary]." However, the Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F .R. § I 03 .2(b )(1 ). A visa petition may not be approved based on speculation of 
future eligibility or after a petitioner or beneficiary becomes eligible under a new set of facts. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'! Comm'r 1978). Here, the Petitioner has not 
established that it had secured definite, non-speculative specialty occupation work for the 
Beneficiary at the time of filing. 
However, even if the Petitioner had established non-speculative employment for the Beneficiary at 
the time of filing, the Petitioner has not established that the proffered position qualifies as a specialty 
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-1 B 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-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country . 
Petitioning Requirements for the H Nonimmigrant Classification , 63 Fed. Reg. 30,419 , 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
3 
Matter of A-, Inc. 
occupation. The court in Defensor, 201 F.3d at 387-88, held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring a petitioner 
to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the 
requirements imposed by the entities using a beneficiary's services (emphasis added). In other 
words, it is not the Petitioner, but rather the end-client, who must provide the requirements, 
including the minimum education requirement, to establish that the proffered position qualifies as a 
specialty occupation. 
The SOW, the only document from the end-client, does not contain sufficient information regarding 
the proffered position. For example, the SOW describes the Petitioner's scope of services as 
follows: 
Software development, design and testing services for applications and interfaces 
specific to [the end-client] products under development, working as part of team 
responsible for creating the architecture and roadmap for [the end-client]'s DevNet 
Data Developer platform strategy. Responsible for driving specific projects as 
defined by a specification forward to develop a working prototype. The prototype 
involves coding up a user interface and a back-end system to program multiple 
network devices into a working service. The solution involves an understanding of 
the existing orchestration stack that [the end-client] has developed over the prior 
years and requires work with engineers in [the end-client]'s group and business units 
as well as interfacing with engineers within the [end-client] customer organization for 
whom the solution is being developed. 
Research how machine learning technologies can be applied to the orchestration 
workflows to enable more efficient provisioning decisions to be made by the system 
based on inputs from various parts of the underlying infrastructure and to provide 
proposals to the architecture team around how components of ML could be applied. 
The description lacks sufficient detail and concrete explanation to establish the substantive nature of the 
work to be performed. Such a general description does not demonstrate the need for a particular level 
of education, or educational equivalency, in a body of highly specialized knowledge in a specific 
specialty. The SOW also does not specify requirements for the position. As the record does not 
contain sufficient evidence from the end-client documenting that the proffered position requires, at a 
minimum, a bachelor's degree in a specific specialty, the Petitioner has not established that the 
proffered position qualifies for classification as a specialty occupation. 
Further, if we were to consider the Petitioner's description of the proffered position, it appears to be 
inconsistent with the designated occupational category on the labor condition application (LCA).4 
4 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 
4 
Matter of A-, Inc. 
The regulations require a petitioner to obtain a certified LCA from the Department of Labor (DOL) 
in the occupational specialty in which .the H-IB worker will be employed (emphasis added). 
See 8 C.F.R. §§ 214.2(h)(4)(i)(B), 214.2(h)(4)(iii)(B)(l). According to the regulation at 20 C.F.R. 
§ 655.705(b), "[f]or H-1B visas ... DHS accepts the employer's petition (DHS Form l-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." 
The Petitioner indicated on the LCA that the job title for the proffered positiOn is "software 
engineer," but listed the standard occupational classification (SOC) code of 15-1199 for "computer 
occupations, all other." According to DOL's Occupational Information Network (O*NET), the 
occupational category "software engineers" falls under SOC code 15-1132 for "software developers, 
applications" and SOC Code 15-1133 "software developers, systems software." 
Notably, the duties of the proffered position appear to correspond to the "software developer, 
applications" occupational category. For example, both the Foreign Labor Certification Data Center 
Online Wage Library and O*NET provide the following information regarding the general duties of 
"software developers, applications" 5: 
Develop, create, and modify general computer applications software of specialized 
utility programs. Analyze user needs and develop software solutions. Design 
software or customize software for client use with the aim of optimizing operational 
efficiency. May analyze and design databases within an application area, working 
individually or coordinating database development as part of a team. May supervise 
computer programmers. 
Likewise, the Petitioner's "general description" of the proffered position states that the "aim" is "[t]o 
imagine, design and develop applications and user-interfaces supporting client software development 
projects and initiatives around applications to transform how we work, live, play and learn." 6 The 
Petitioner indicates that the Beneficiary "will be primarily responsible for software development." 
Additional duties include "develop simple to moderately complex software ... in accordance with 
applicable software development methodology and release processes,'' "create and execute designs 
for small sets of new functionality of software products," and "utilize software engineering tools 
such as configuration management systems, build processes, and debuggers in the software 
development process." 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 20 15). 
5 
See https://www.onetonline.org/linklsummary/15-1132.00 (last visited Aug. 8, 20 17). 
6 Similarly, according to the SOW, the project involves "[s]oftware development design and testing services for 
applications and inter~aces specific to the end-client's products under development." 
5 
.
Matter of A-, Inc. 
On the other hand, the Petitioner designated occupational category "computer occupations, all other" 
represents occupations with a wide range of characteristics which do not fit into one of the detailed 
O*NET -SOC occupations. 7 
DOL provides clear guidance for selecting the most relevant O*NET occupational code 
classification. 8 The "Prevailing Wage Determination Policy Guidance" states the following: 
In detemiining the nature of the job offer , the first order is to review the requirements 
ofthe employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the SWA should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot , the SW A shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
Here, while the proffered position appears to correspond to "software developers, applications" 
category, the Petitioner designated another occupational category for the proffered position. Overall, 
the deficiencies and inconsistencies in the job descriptions preclude us from understanding such 
aspects as (1) the actual work that the Beneficiary will perform on a daily basis; (2) the complexity , 
uniqueness and/or specialization of the tasks; and (3) the correlation between that work and a need 
for a particular level education of highly specialized knowledge in a specific specialty, or its 
equivalent. 
Accordingly, the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary. We are therefore precluded from finding that the proffered position qualifies as a 
specialty occupation under any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines ( 1) the normal minimum educational requirement for 
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 proflered 
7 
Even if the Petitioner believed that its position was described as a combination of O*NET occupations, it still should 
have chosen the highest paying occupation, which in this case is "software developers, applications." The Level I 
prevailing wage for a "software developer, applications" was $98,342 at the time of filing, which is significantly higher 
than both the Beneficiary's proffered salary of $80,000 and the prevailing wage for "computer occupations, all other," 
which was $65,770. See http://tlcdatacenter.com /OesQuickResults.aspx :Ccode= 15-1132&year 
=16&source= I and . http ://tlcdatacenter.com/OesQuickResults.aspx? ~code = 15-1199&year= 16&source = I 
(last visited August 8, 20 17). 
8 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 .foreignlaborcert .doleta .gov/pdf/NPWHC _Guidance 
_ Revised_11_2009.pdf 
6 
Matter of A-, Inc. 
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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will brief1y address the issue of whether or not the Petitioner qualifies as an H-1 B 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." 
!d.; 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. Without full disclosure of all of the 
relevant factors, we are unable to properly assess whether the requisite employer-employee 
relationship will exist between the Petitioner and the Beneficiary. 
Here, the Petitioner has not sufficiently established that it will exercise actual control over the 
Beneficiary's work. According to the SOW, the Beneficiary will also be supervised by an employee 
7 
.
Matter of A-, Inc. 
of the end-client, who is the project manager. The SOW indicates that it is 
the end-client's project manager who will monitor the performance of the Beneficiary and determine 
whether or not it is "satisfactory." Further, the SOW designates the Beneficiary as "Key Personnel," 
and states that the end-client must approve his assignment and "may require removal of designated 
Key Personnel for no reason or any reason." Therefore, it appears that it is the end-client that 
oversees and directs the Beneficiary's work and has the ability to affect the projects on which the 
l 
Beneficiary is assigned. While the Petitioner asserts that it provides weekly written reports to the 
end-client and regularly reviews the work and progress of its employees, the Petitioner has not 
submitted documentary evidence to substantiate its claims. 
The record also contains inconsistent information about the Beneficiary's supervisor. According to 
the Petitioner's job description, the Beneficiary will report "[ o ]perationally to Client Service 
Delivery Manager and functionally to Engineering Manager," but 
does not provide the names of 
those individuals, their titles, or whether they work for the Petitioner or the end-client. In the 
support letter and offer letter, the Petitioner states that its director of global human resources and 
business operations will supervise the Beneficiary. 
While we acknowledge that the Petitioner appears to provide the Beneficiary's wages and benefits, 
other incidents of the relationship, including who will oversee and direct the work of the 
Beneficiary, who will provide the instrumentalities and tools, 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. 
Upon complete review of the record of proceedings, we find that the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F.R. § 214.2(h)(4)(ii). The evidence of record does not establish that the Petitioner would act as 
the Beneficiary's employer. Based on the tests outlined above, the Petitioner has not sufficiently 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-1B temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. CONCLUSION 
The Petitioner has not established that 1) the proffered position qualifies as a specialty occupation, 2) 
it has secured definite, non-speculative specialty occupation work for the Beneficiary at the time of 
filing the petition, and 3) the Petitioner will have an employer-employee relationship with the 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., 10# 433820 (AAO Aug. 8, 2017) 
8