dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 8774109 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "network engineer" under the H-IB 
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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of intended employment; and (2) the 
Petitioner established an employer-employee relationship with the Beneficiary . 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act , 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized 
knowledge , and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States . 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
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: 
( I) 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. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. In particular, we conclude that the Petitioner 
has not established the substantive nature of the position, which therefore, precludes a conclusion that 
the proffered position qualifies as a specialty occupation under at least one of the four regulatory 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
The Petitioner, an information technology (IT) s
1
lutions f rovider located in Illinois, states that it will 
deploy the Beneficiary to an end-client location in Georgia. The record includes letters, partial 
agreements, and statements of work (SOW) to establish the availabilit of work. The letters indicate 
that the contractual chain is as follows: Petitioner ➔ (first vendor) 
➔ I ksecond vendor) ➔·,.::;..:::-=.=:.::...._..:......1========~--(p-r-im___,ary vendor) ➔ 
I !(end-client). 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. 3 This is particularly important in a case such as this, where the very 
3 Speculative employment is not permitted in the H-IB program. See, e.g., 63 Fed. Reg. 30,419, 30,419-20 (proposed June 
4, 1998)(to be codified at 8 C.F.R. pt. 214). 
2 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. If we cannot determine whether the proffered position as described in this petition would 
actually exist then we cannot ascertain its substantive nature, let alone determine whether it is a 
specialty occupation. 
The Petitioner filed this petition in April 2019 and claimed that it required the Beneficiary's services 
through the period of time specified on the Form I-129, Petition for a Nonimmigrant Worker - October 
1, 2019 to September 7, 2022. To support that claim the Petitioner submitted its consultant agreement 
executed with the first vendor wherein the first vendor noted that it may recommend the Petitioner 
from time to time to perform services for its clients. The record also included a partially redacted 
business partnership agreement between the first and second vendors indicating that the first vendor's 
nominated employees will be provided access and documents to represent the second vendor with the 
prime vendor and its clients. The Petitioner also submitted four pages of a 20-page professional 
services agreement between the second vendor and the prime vendor and a statement of work (SOW) 
between the prime vendor and the end-client, dated January 6, 2014, wherein the prime vendor agreed 
to provide staff augmentation services to the end-client through a vendor management system. 
As evidence of the proposed work, the Petitioner provided two exhibits (also identified as SOWs 
signed by the second vendor and the prime vendor identifying the Beneficiary, listing the scope of 
work as "Network Engineer," and the skill/technology required as "LAN/WAN/ Routing I Switching 
/ Load Balancing etc." These exhibits covered the time period from July 9, 2018 to July 8, 2019, thus 
ending on a date prior to the beginning of the requested employment period. The evidence submitted 
for the Director's consideration did not include evidence of the availability of proposed work for the 
Beneficiary during the requested employment period. Further, none of the contracts or accompanying 
SOWs created any legal obligation on the part of the end-client to provide work, let alone H-lB caliber 
work, for the Beneficiary to perform. 
Without the full chain of contracts in this case, we cannot conclude that there is a legal obligation on 
the part of the end-client to provide the position described in this H-lB petition. Though 
acknowledged, the letters from the Petitioner, the vendors, and the end-client do not serve to fill this 
gap, as they are not evidence of an obligation on the part of the end-client to provide the position the 
Petitioner describes. If we cannot determine whether the proffered position will actually exist, then 
we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 
On appeal, the Petitioner presents a new contractual chain and states that the change affected only the 
removal and replacement of the mid-vendors and happened due to a change in business needs. The 
Petitioner does not claim that the new mid-vendors are successors-in-interest to the previous 
mid-vendors or otherwise corroborate the continuity ofrelationships from the time of filing the etition 
to the adjudication. 4 The new contractual chain appears to be as follows: Petitioner ➔ 
I l(new vendor) ➔ I !(managed services provider (MSP)) ➔.___ _____ ____. 
( end-client). The record does not mclude evidence of the contractual obligations between the 
4 The record on appeal includes a September 19, 2019 letter onl O I letterhead indicating that ·l 6 l is a managed 
services program [sic] (MSP) serving as a single point of contact to manage [end-client's] workforce procurement .... " 
This letter, as well as the letter from the new vendor, are dated subsequent to the Director's decision on September 2, 2019. 
Thus, the letters have little probative value in establishing that the Petitioner had established a contractual chain through 
which work had been procured for the Beneficiary to perform at the time the petition was filed. 
3 
Petitioner and the new vendor. Although the record includes an amendment to an information 
technology agreement, dated November 23, 2011, the identities of the parties to this agreement are 
redacted, indicating only that the amendment to the agreement is between an unidentified California 
corporation doing business asl I and an unidentified supplier. Again, the incomplete information 
in the record regarding the obligations and rights of the parties in the contractual chain does not 
establish a legal obligation on the part of the end-client to provide the position described in this H-lB 
petition. Further, the change 5 in vendors confirms that the Petitioner had not procured work for the 
Beneficiary for the requested employment period when the petition was filed. 
Moreover, we reviewed the work order signed by the Petitioner and the new vendor which identifies 
the Beneficiary, the job as a network engineer for the end-client, and the start date as September 8, 
2019 and the end date as September 4, 2022. Similarly, we reviewed a requisition for a network 
engineer which indicated a "vendor" and a "primary vendor" had submitted the Beneficiary for 
consideration on September 9, 2019. The requisition lists the anticipated start date as September 8, 
2019 and the end date as September 4, 2020. These documents also do not establish that the Petitioner 
had work available for the Beneficiary when the petition was filed in April of 2019. Additionally, the 
record does not include documentation establishing that the Beneficiary had been approved for 
selection to work at the end-client. These documents do little to establish that there is a legal obligation 
on the part of the end-client to use the Beneficiary's services or that such work was available when 
the petition was filed. 
Even ifwe were to set this foundational deficiency aside entirely, we would still be left with significant 
questions as to the proffered position's actual, substantive nature due to the inconsistencies and 
ambiguities in the record regarding the proposed position. 
On the labor condition application (LCA) 6 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Network Architects" 
corresponding to the Standard Occupational Classification code 15-1143. The record includes two 
separate descriptions of the Beneficiary's proposed duties. The Petitioner provides a 20-bullet point 
generic list of the Beneficiary's proposed duties in its letter in support of the petition. The initial first 
vendor and the end-client provide a different 12-bullet point list of the proposed duties in the initial 
letters submitted. Both descriptions indicate generally that the Beneficiary will work on LAN/WAN 
projects. In response to the Director's request for evidence (RFE) and on appeal, the initial first vendor 
and the new vendor, as well as the end-client, adopt the Petitioner's version of the proposed duties. 
The Petitioner does not explain or resolve these inconsistencies in the record. 7 Moreover, the later 
5 The record does not explain an explanation for the change in vendors, other than the statement that it was for business 
needs. This is insufficient as an explanation to assist in understanding of the Petitioner's business operations as it pertains 
to procuring work for the Beneficiary from the time the petition was filed through adjudication. 
6 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-IB 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. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
7 The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 T&N Dec. 582, 591-592 (BIA 1988). 
4 
letters which are virtually identical raise concern regarding their reliability as to the nature of and 
requirements for this specific proffered position. 8 
Even in the latest version of the proposed duties, the position has been described in terms of 
generalized and generic functions that do not convey sufficient substantive information to establish 
the nature of the position. For example, the Beneficiary will work on layer 2/layer 3 network 
designing, implementing, and troubleshooting at major size airports, configure and deploy Cisco 
switches and routers throughout airports and the end-client's data centers, provide technical support 
as needed, and assist with support of day-to-day network operations by assessing network operational 
impact and recommending/performing corrective action. These broadly stated duties do little to assist 
in understanding how the Beneficiary will spend his time at the end-client's facility and his level of 
responsibility in relation to specific work. 
The Petitioner also includes a table that divides the proposed duties into eight broad categories. 9 The 
Petitioner asserts that several of the duties require knowledge of Cisco routers and that the Beneficiary 
obtained the necessary knowledge through Cisco and other certifications. The Petitioner also notes 
that some of the Beneficiary's master's and bachelor's-level coursework as well as his work 
experience prepared him to perform some of the generally described duties. However, the test to 
establish a position as a specialty occupation is not the skill set or education of a proposed beneficiary, 
but whether the position itself qualifies as a specialty occupation. Moreover, the Petitioner's 
acknowledgment that the duties require certifications in third party technology, an undefined amount 
of experience, and a few college courses undercuts a claim that a bachelor's degree in a specific 
specialty, or its equivalent, is required. That is, the Petitioner does not demonstrate or explain how an 
established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is required to perform the duties of the proffered position, rather than certifications 
in third party technology, some undefined experience, and a few technology courses. 
On the same table listing the duties, the Petitioner also includes a column indicating that for each of 
the duties the Beneficiary will either be managed by a supervisor or will require step-by-step 
instruction from a supervisor. The record does not include organizational charts or information 
establishing the Beneficiary's supervisor at the end-client facility. It is not possible to ascertain from 
the record who will supervise the Beneficiary and will provide the step-by-step instruction. Without 
a meaningful job description, coupled with corroborating evidence and probative information 
regarding the Petitioner's business operations and methodologies, the record lacks evidence 
sufficiently probative and informative to demonstrate that the proffered position requires a specialty 
occupation's level of knowledge in a specific discipline. 
In sum, the record contains a generic description which lacks consistent detail regarding the 
Beneficiary's daily duties at the end-client facility, lacks evidence establishing the Beneficiary's level 
of responsibility and role at the end-client's facility, and lacks evidence of the actual project(s) in 
8 We question whether the individuals who signed the end-client's letters are authorized officials of the end-client who 
would have been involved in the Beneficiary's placement. We also question whether these individuals are aware of the 
end-client's agreements which appear to restrict the Petitioner's ability to direct, supervise, and assign the Beneficiary 
work. 
9 The Petitioner's categorization of duties omits several of the tasks identified in the 20-bullet point list without 
explanation. 
5 
which the Beneficiary will be engaged. The record does not include sufficient evidence to establish 
that specialty occupation work exists for the Beneficiary to perform. While we understand the 
Beneficiary will be expected to perform generic network, technology duties, we are not able to folly 
ascertain what the Beneficiary will be expected to do on a day-to-day basis. Given this specific lack 
of evidence, we cannot determine the substantive nature of the work to be performed by the 
Beneficiary, which precludes a conclusion 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 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. 10 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and that the Beneficiary will perform specialty occupation work for the intended 
employment period. Moreover, the record also does not demonstrate that performing the duties 
described would require the theoretical and practical application of highly specialized knowledge and 
attainment of at least a bachelor's degree in a specific specialty or its equivalent. See section 214(i)(l) 
of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(]) 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 Service Tax identification number. 
(Emphasis added.) 
10 Because the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it has 
not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 2 l 4(i)(l) 
of the Act. Therefore, further discussion of the issues raised on appeal regarding whether the Petitioner satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) is not necessary. 
6 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
B. Analysis 
As noted above, the record includes a SOW for staff augmentation executed between the prime vendor 
and the end-client, dated January 6, 2014. This document expressly states that "the parties 
acknowledge and agree that [the end-client] will be primarily responsible for providing day-to-day 
work direction and assignment specific training to the Contingent Workers." The work order 
submitted on appeal signed by both the Petitioner and the new vendor, also indicates that the proposed 
work is for a proposed project under the direction of [the new vendor's] client. Thus, it appears that 
the end-client is the entity who will direct the Beneficiary's work. As the record does not include the 
complete contractual chain either for work prior to the Director's decision or for work not in existence 
until after the Director's decision, we cannot review and analyze what other obligations and 
restrictions have been placed on the Petitioner regarding the supervision, direction, and control of the 
Beneficiary's work. That is, even if the record established the proposed position is a specialty 
occupation, which it does not, the record includes evidence demonstrating that the Petitioner has 
contractually abdicated its ability to direct and control the work to which the Beneficiary would be 
assigned at the end-client. The record does not include consistent evidence establishing that it is the 
Petitioner who is entitled to and will ensure that the Beneficiary performs specific specialty occupation 
work. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the four comers of this 
H-lB petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer 
in the common-law sense, but that it would instead act as a supplier of personnel to temporarily 
supplement the staff of organizations such as the end-client who control the content, means, and 
methods of those individuals' work. In this regard, we observe that it appears that not only would the 
end-client determine and assign the Beneficiary's day-to-day work, but that it would also control the 
Beneficiary's access to the systems without which his work could not be done. 
The Petitioner has not established that it will be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-lB temporary "employee." 8 C.F.R. 
§ 214.2(h)( 4)(ii). 
7 
III. CONCLUSION 
The Petitioner has not established the proffered position is a specialty occupation and has not 
established that it had specialty occupation work available for the Beneficiary when the petition was 
filed. The Petitioner also has not established an employer-employee relationship with the Beneficiary. 
ORDER: The appeal is dismissed. 
8