dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-S-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an informational technology (IT) staffing and services company, seeks to temporarily 
employ the Beneficiary as a "computer systems analyst" under the H-1B nonimmigrant classification 
for specialty occupations. See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 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, Vermont Service Center, denied the petition on two independent grounds, concluding 
that the evidence of record established neither (1) that the Beneficiary would perform services at the 
location specified in the petition, nor (2) that availability of specialty occupation work for the 
Beneficiary as a computer systems analyst had been established by the time the petition was filed. 
The matter is now before us on appeal. The appeal, which includes a brief and additional evidence, 
asserts that the totality of the evidence establishes (1) that "a work assignment existed at the end­
client site" prior to the petition's filing and (2) that "the evidence is sufficient to establish that a valid 
employer-employee relationship exists between the Petitioner and the Beneficiary." 
Upon de novo review, we will dismiss the appeal on the issue of the availability of specialty 
occupation work. 
However, we withdraw the Director's determination regarding the work location, as we have 
concluded that the evidence of record before us on appeal shows that both the Form I-129, the 
Petitioner for a Nonimmigrant Worker, and the labor condition application (LCA) had specified the 
address where the claimed end-client is located. We shall later comment upon the employer­
employee issue, but we shall not here determine its merits, as we find that the Director's decision did 
not articulate that issue as a basis for denial. 
Matter of F-S-S-, LLC 
I. LAW 
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. 
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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the 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). 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. 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. !d. 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. 
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Matter of F-S-S- , LLC 
Additionally, a visa petition may not be approved based on speculation of future eligibility or after 
the Petitioner or Beneficiary becomes eligible under a new set of facts. See 8 C.P.R.§ 103.2(b)(l); 
see also Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
II. THE PROFFERED POSITION 
The Petitioner's letter on appeal summarizes the Beneficiary's employment situation as follows: 
Specifically, the Petitioner has offered the Beneficiary the position of Computer 
Systems Analyst. The Beneficiary has been assigned by the Petitioner to work on a 
project at the office of at [address provided]. The Beneficiary's 
assignment to this project has been arranged through the succession of contracts as 
follows: [The Petitioner]-
As evidence of the Beneficiary's employment at the Petitioner submitted a copy of the 
Beneficiary' s identification badge, the Petitioner' s job-offer letter to the Beneficiary, and copies of 
some recent timesheets reflecting as the Beneficiary's work location. However, the 
Petitioner did not provide documentation from regarding the Beneficiary's work. The 
Petitioner attested that it could not provide such documents "due to policy against 
providing documentation of consultants' assignments" - a policy, by the way, that is not 
corroborated by any submission from 
In its letter submitted on appeal, also claims inability to provide documentary evidence of the 
terms and conditions of the agreement governing the work that it has arranged for the Beneficiary to 
perform at The pertinent portion of the letter states: 
A signed Master Consulting Services Agreement between and IS m 
place, and due to policy and confidentiality information in the agreement with our 
Client, we cannot provide this document. 
In any event, the record of proceedings does not contain contractual documents from 
business records, memoranda, letters, or any other form of documentation addressing the Beneficiary 
or the proffered position, including such factors as the position's duties and related educational 
requirements, or details of any agreements with the Petitioner with regard to supervision and control 
of the Beneficiary's performance at Likewise, there are no business 
records, memoranda, letters, or communications in any form indicating that it had any contact, or 
committed to any conditions or terms, with the Petitioner with regard to any facet of whatever 
services the Beneficiary would perform for it. 
The Petitioner's response to the Director's request for evidence (RFE) included a two-page 
"Detailed Itinerary" which provides 40 bullet-point statements to describe the Beneficiary's "Roles 
and Responsibilities." We need not quote them here, as neither nor the end-client, 
have submitted any documents that confirm, or otherwise corroborate that the Beneficiary would 
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Matter of F-S-S-, LLC 
actually perform all of those roles and responsibilities. "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
PTR's letter submitted with the appeal describes the proposed duties, verbatim as follows: 
As a Senior Computer Systems Analyst [the Petitioner] will be involved in data 
center migration, System Admin Activities, and plays a key role in all his 
assignments of allocated projects. His duties include: 
1. Analyze, Plan, and Migrate the systems (such as RHEL, APACHE, Websphere, 
JBOSS, etc.), existing legacy applications from Old Data [C]enter to 
new Data Center. 
2. Trouble shooting performance issues encountered after migrating the system to 
the new data center. 
3. Pt:epare and document detailed software and system specifications. 
4. Configuring, Tuning and monitoring the applications and resolving the same as 
per the SLA [(a document not identified)]. 
5. Automating various day to day tasks using shell scripts. 
The Petitioner does not explain how these five sets of duties correlate to the 40 sets of duties asserted 
in the RFE reply's "Detailed Itinerary," and does not refer to or confirm those 40 sets of duties. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. The 
issue before us is whether the Petitioner ha~ established that specialty occupation work for the 
Beneficiary as a computer systems analyst had been secured for him at the time of filing. Here, 
where the Beneficiary would be assigned to perform project work for a third-party end-client, 
evidence from that entity regarding the specific duties to be performed for it, the substantive nature 
of those duties, and the educational level of any body of highly specialized knowledge in a specific 
specialty needed to perform those duties is critical and essential for establishing that the Beneficiary 
would actually perform specialty-occupation-level computer-systems-analyst work as claimed as the 
basis of the petition. 
In the instant case, the record of proceeding does not include substantive evidence from the end­
client, regarding such material matters as the scope of duties that the Beneficiary would 
perform; any relative level of uniqueness, complexity, and/or specialization that may characterize 
that position or its constituent duties as performed in the context of the project to which 
the Beneficiary would be assigned; recruiting and hiring practices for the type of 
position that the Beneficiary would fill; and whatever educational requirements for the proffered 
position that may have communicated to for candidate selection. As we noted, the 
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Matter of F-S-S-, LLC 
record's submissions do not include contractual documents signed by the or statements 
by adopting or confirming the accuracy of the Petitioner's and assertions about 
the nature and requirements of the proffered position. Further, the documents submitted on appeal 
indicate that the Beneficiary has been working at on IT matters, but they do not establish 
any particular educational, training, or experience requirements for the work they reference. 
As a result of the evidentiary deficiencies catalogued above, the record of proceeding lacks a 
sufficiently credible and probative factual foundation to establish the actual range of duties that the 
Beneficiary would perform for the end-client, the substantive nature of those duties; and 
the educational, or education-equivalency, requirements for those duties. 
While the inadequacy of the evidence as discussed above is decisive, there are discrepancies in the 
evidence presented that materially undermine the credibility of the petition. By submitting an LCA 
certified for a Level I prevailing-wage rate level - the lowest paying of the four levels that are 
assignable - the Petitioner attested that the proffered position comports with following description 
that the Department of Labor provides for that level: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
The Department of Labor's descriptions of the three higher prevailing-wage rates reflect that 
positions meriting only a Level I prevailing-wage rate involve significantly less exercise of 
individual responsibility, independent judgement, and experience. 1 
In contrast to the lowest-level place in which the certified LCA places the proffered position in the 
wage- rate hierarchy, we note that: 
• letter submitted on appeal states that the Beneficiary will be providing the services 
of a "Senior Computer Systems Analyst." 
1 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.tlcdatacenter.com/download/NPWHC _Guidance_ Revised_ I I_ 2009.pdf. 
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Matter of F-S-S-, LLC 
• In its letter of support, the Petitioner declared that, "[fJor the position offered, it is not 
uncommon for the incumbent to also possess a master's degree and/or a number of years 
of experience with increasing responsibility in programming analysis or engineering. 
As an additional discrepancy, we note that, in contrast to the Petitioner's and descriptions of 
the proffered position as that of a computer systems analyst, the emails submitted on appeal as proof 
of the Beneficiary's employment at identify the Beneficiary as "Linux System 
Administrator," a job title associated with the "Network and Computer Systems Administrators" 
occupational group, which is distinct from the "Computer Systems Analysts" occupational group 
and is characterized by different duties, responsibilities, and educational requirements. See U.S. 
Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Network and Computer Systems Administrators," http://www.bls.gov/ooh/computer-and­
information-technology/network-and-computer-systems-administrators.htm (last visited July 20, 
2016). 
It is incumbent upon the Petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and 
any attempt to explain or reconcile such inconsistencies will not suffice 
unless the Petitioner submits competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the Petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. !d. 
The record's lack of evidence sufficient to establish the substantive nature of the work to be 
performed by the Beneficiary and its educational requirements precludes a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature 
of that work that 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. 
As the Petitioner has not established that, by the time of the petition's filing, it had secured work for 
the Beneficiary that satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found 
that the proffered position qualifies for classification as a specialty occupation. Therefore, the 
appeal will be dismissed. 
As a corollary matter, we note, hypothetically, that even if the Petitioner had established that the 
1 particular position proffered in this petition belonged within the Computer Systems Analysts 
occupational group - despite the absence of evidence of endorsement by the end client - that would 
not be sufficient to establish the position as satisfying the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
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Matter of F-S-S-, LLC 
(1) as one for which a baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry. 
We recognize the Department of Labor's Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations that it 
addresses.2 The Handbook indicates that computer systems analysts do not constitute an 
' occupational group (such as, for example, physicists or physicians) for which entry categorically 
requires a specialty-occupation level of education, that is, at least a U.S. bachelor's degree in a 
specific specialty, or the equivalent. We refer the Petitioner to the Handbook's "Computer Systems 
Analysts" chapter, and the following excerpt in particular: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts 
degrees who have skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or maJor in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so they can 
learn about new and innovative technologies. Technological advances come so 
rapidly in the computer field that continual study is necessary to remain competitive. 
2 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. · 
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Matter of F-S-S-, LLC 
; 
I 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a thorough understanding of health 
plans and programs such as Medicare and Medicaid, and an analyst working for a 
bank may need to understand finance. Having knowledge of their industry helps 
systems analysts communicate with managers to determine the role of the information 
technology (IT) systems in an organization. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited July 20, 20 16). 
Accordingly, the proffered position's inclusion within the Computer System Analysts occupational 
group would not be in itself be sufficient to establish that that particular position would require the 
theoretical and practical application of at least a bachelor's degree level of a body of highly 
specialized knowledge in a computer, IT, or closely related specialty, as would be required to qualify 
the position as a specialty occupation in accordance with the "specialty occupation" definitions at 
214(i)(l) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
IV. THE EMPLOYER-EMPLOYEE ISSUE 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address this 
other ground of ineligibility. Nevertheless, we will briefly note and summarize it here with the hope 
and intention that, if the Petitioner seeks again to file a petition to classify the Beneficiary or another 
person as a temporary worker irr an H-lB specialty occupation, it will submit sufficient independent 
objective evidence to address and overcome this additional ground in any future filing. As the 
record now stands, however, even if the Petitioner had prevailed on the ground upon which we are 
dismissing the appeal, the evidentiary deficiencies with regard to the employer-employee Issue 
would preclude approval of the petition at this time. 
The record lacks contractual and other documentary evidence from the end-client that would be 
relevant to determining such material factors of control over the Beneficiary and his work as, for 
instance, where the authority would reside to determine and assign day-to-day project tasks to the 
Beneficiary, and who would evaluate the quality, efficiency, and acceptability of the Beneficiary's 
work as it is being performed at the end-client's location. 
The documentary evidence submitted by the Petitioner and are relevant, but they do not convey 
sufficiently extensive and credible indicia of control to establish the requisite relationship between 
the Beneficiary and the Petitioner to qualify the Petitioner as a U.S. employer as defined at 8 C.F.R. 
§ 214.2(h)(4)(ii). 
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, and 
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Matter of F-S-S-, LLC 
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 find that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
V. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-S-S-, LLC, ID# 17293 (AAO July 25, 20 16) 
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