dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-1- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology infrastructure and development company, seeks to temporarily 
employ the Beneficiary as a "network 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 Form 1-129, Petition for a Nonirnmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. On appeal, the Petitioner submits a brief and additional evidence and asserts 
that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. We exercise de novo review of all issues of fact, 
law, policy, and discretion. This means that we look at the record anew and are not required to defer 
to conclusions made in the initial decision. Furthermore, our decision may address new issues that 
were not raised or resolved in the prior decision. We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
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. 
Matter of C-1- Inc 
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 offered 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. 1 
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. 2 
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. 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. 
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. 3 In particular, the Petitioner has not 
established the substantive nature of the position, which precludes a determination 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)(])-(4). 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 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"). 
3 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of C-1- Inc 
The Petitioner, which is located in Georgia, stated that the Beneficiary would work at the end-client's 
location in Illinois, pursuant to contracts executed between the Petitioner and the vendor, and between 
the vendor and the end-client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ End-Client 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And 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 2018 and claimed that the Beneficiary would work at the end­
client's Illinois location from October 2018 to August 2021. To support that claim the Petitioner 
submitted a contract it executed with the vendor. While the document mentions the Beneficiary and 
the end-client, it does not reference the job title of the proffered position, or the job duties and tasks to 
be performed by a network engineer, the proffered position. Nor does the document reference the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end-client, or the 
expected duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a work order with its initial petition and a second one in response to the 
Director's request for evidence (RFE). The work orders state that the Beneficiary's services as a 
"Network Engineer IV" will be needed at the end-client's location in Illinois. Notably, the 
Beneficiary's service dates are blacked out on the first work order. These work orders also do not 
reference the Petitioner or the job duties and tasks to be performed by a network engineer. Moreover, 
the second work order indicates that the Beneficiary's services will end in June 2019, which is 
approximately eight months after the requested H-lB start date. 
On appeal, the Petitioner provides a third work order. Similar to the other two work orders, this 
document also does not reference the Petitioner. Moreover, the work order was created in December 
2018, which is after the petition was filed - and after the Director's RFE was issued. Thus, the work 
order does not establish that the Petitioner had secured this work assignment as of the time of filing 
the petition. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
Petitioner or the Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Furthermore, the work order indicates that the 
Beneficiary's services will end in December 2019, which is approximately 14 months after the 
requested H-lB start date. 
While the vendor and end-client letters refer to the Beneficiary and to a Master Service Agreement 
executed between the vendor and the end-client, the Petitioner did not provide the referenced 
agreement. As it currently stands, the record contains no evidence of a legal obligation on the part of 
the end-client to actually provide the position the Petitioner has proposed with this H-lB petition. 
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Matter of C-1- Inc 
Without the full chain of contracts in this case, we cannot determine whether there is any legal 
obligation on the part of the end-client to provide the position described in this 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. 4 Again, 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. 5 
For this reason alone - the complete lack of evidence of any legal obligation on the part of the end­
client to actually provide the position the Petitioner has described in this H-lB petition, and therefore 
whether the position as described would actually exist if this petition were approved - we cannot 
determine the substantive nature of the position, let alone determine whether it is a specialty 
occupation. 6 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted letters from the vendor and the end-client. 
Upon review, we observe that the vendor's and the end-client's job duty description contain verbatim 
language. The verbatim language found in the duty descriptions in the letters from the end-client and 
the vendor raise questions regarding whether the end-client's signatory actually wrote the descriptions 
and, therefore, whether it reflects the end-client's actual requirements. Where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. Defensor, 201 F.3d at 387-88. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
description is too vague to determine whether the position actually requires a bachelor's or higher 
degree in a specific specialty, or its equivalent. For example, the end-client does not provide sufficient 
information with regard to the order of importance and/or frequency of occurrence ( e.g., regularly, 
periodically, or at irregular intervals) with which the Beneficiary will perform the functions and tasks. 
Thus, the end-client does not specify which tasks are major functions of the proffered position. 
Moreover, the description does not provide sufficient information about the duties to determine their 
complexity. Below are the duties: 
• Planning, Configuration, troubleshooting of Routing, Switching and Security 
Network infrastructure for Data Centers, manufacturing plants and office facilities. 
Features include BGP and OSPF Routing Protocols, Layer3 Redundancy, VLANs, 
4 Counsel contends on appeal that this secondary evidence should be accepted, and we have done so. However, as 
discussed, it is not sufficient to satisfy the Petitioner's burden. 
5 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30. 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). See also Altair ProductDesign, Inc. v. DHS, No. 18-13493, 18-13967, 2019 
WL 5394998. at *4 (E.D. Mich. Oct.22.2019) (in the absence of contracts, service agreements, work orders. statements 
of work, etc., the record did not establish the actual work to be completed and that the beneficiaries would perform services 
in a specialty occupation). 
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Matter of C-1- Inc 
VPC, STP, Firewall Permission rules. Configuring Web security access policies 
based on InfoSec department approved subnets, applications and websites. 
• Designing and Commissioning of Site to Site IPSEC VPN setup between Data 
Centers and Business Partners includes IPSEC parameters, NAT/PAT and Firewall 
access permissions. Responsible for providing support for Employee/Contractor 
Remote Access VPN process, RSA token generation process, User Access, 
Authentication and Authorization. 
• SD-WAN Deployment: worked with the team of network architects to design and 
install industry leading SD-WAN infrastructure to provide secure, carrier 
independent WAN connectivity across the enterprise. Integrated with existing 
Border Gateway Protocol environment to redistribute routes seamlessly from 
Viptela to traditional MPLS WAN. 
• Installation and upgradation of OS and tools to Cisco ASR1002 Router, Cisco ASA 
5585 Firewall, Cisco WSA M680, Nexus 7K, 5K, 2K Switches, and Catalyst 3850, 
3950 Switches hardware platform. 
• Cisco ISE Patching, upgrading, maintenance. Posture assessment and policy 
configuration, Wireless DotlX policy architecture and configuration. 
• Splunk Architect and deploy distributed implementation, Search head set up, 
problem isolation and resolution from end-to-end, design and maintain IT network 
services dashboard. Integrating Splunk with variety of Network Devices Routers, 
Switches & all security devices. Perform maintenance and optimization of existing 
Splunk environment. 
• Palo Alto Firewall High availability architecture and configuration, Panorama 
policy management, virtualized environment set up. Identify log files, reports to 
determine threat trends. Perimeter security system and Intrusion detection system 
policy administration. 
Further, the record lacks sufficient detail and concrete explanation regarding the project for which the 
Beneficiary will be assigned, to establish the substantive nature of the work the Beneficiary will be 
performing for the end-client, and the associated applications of specialized knowledge that their 
actual performance will require. Nor does the record provide sufficient detail regarding the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work while at the end-client site. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether 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 
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Matter of C-I- Inc 
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. We therefore 
conclude that the record does not sufficiently establish the existence of a definite, non-speculative 
specialty occupation position. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. 7 
Specifically, the Petitioner has not demonstrated that it will have a valid employer-employee 
relationship with the Beneficiary. The United States Supreme Court determined that where federal 
law fails to clearly define the term "employee," courts should conclude that the term was "intended to 
describe the conventional master-servant relationship as understood by common-law agency 
doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
7 In reviewing a matter de nova, we may identify additional issues not addressed in the Director's decision. See Spe!lcer 
EJ1te1prises, IJ1c. v. UJ1ited States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
6 
Matter of C-1- Inc 
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. Even if the parties contracted for sufficient work, the record 
does not sufficiently establish how the Petitioner, located in Georgia, would supervise the work 
performed by the Beneficiary at the end-client's location in Illinois. In fact, the record shows that the 
Petitioner has provided inconsistent information regarding the Beneficiary's supervisor For instance! 
in its offer letter, the Petitioner states the Beneficiary will report to~l=====:::::;--:i-:,---~­
However, the Petitioner's Declaration indicates the Beneficiary reports tq I There is no 
explanation in the record for these inconsistencies. 
Moreover, in its Declaration, the Petitioner discusses the various means by which it will supervise the 
Beneficiary at the end-client location. Specifically, the Petitioner states that the Beneficiary is required 
to submit status reports, and that the Petitioner maintains constant communication with the Beneficiary 
through "WebEx, Skype, and regularly scheduled telephone conversations to ensure ultimate 
supervision and control over [the Beneficiary's] work." Nonetheless, the Petitioner has not offered 
persuasive evidence to illustrate how it has and will supervise and guide the Beneficiary's work 
assignments for the end-client. 
The Petitioner also submitted copies of the Beneficiary's project status reports to ~I -----~ 
However, the Petitioner does not explain how such project status reports would translate to 
performance standards, how they are used for assessing and evaluating the Beneficiary's work, and/or 
the criteria for determining bonuses and salary adjustments. The record does not contain any further 
specific information from the Petitioner regarding if and when the reports are reviewed or analyzed; 
the methods used for assessing the reports; any instructions provided to the Beneficiary regarding the 
reports; the consequences, if any, of failing to prepare the reports; etc. Thus, the Petitioner has not 
demonstrated the probative value and relevance of its claim regarding the project status reports to the 
question presented here, i.e., whether the Petitioner will have the requisite employer-employee 
relationship with the Beneficiary. It appears that if the Petitioner were controlling the work of the 
Beneficiary, then the Petitioner would be directing the work to be completed, not requesting a report 
from the Beneficiary regarding his own duties or the end-client's plans for the work to be performed. 
Nor do any of the materials from the vendor or the end-client reflect a meaningful and ongoing role 
for the Petitioner in directing the Beneficiary's day-to-day activities. In fact, the copies of work emails 
documenting the Beneficiary's work activities at the end-client location reflect that the end-client 
manager and other end-client employees provide direction to the Beneficiary regarding his day-to-day 
work priorities. The Petitioner is not mentioned, or included as an addressee within this email traffic. 
Thus, the Petitioner did not sufficiently establish an employer-employee relationship. 
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Matter of C-1- Inc 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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. 
Cite as Matter ofC-1-Inc, ID# 3841734 (AAO Oct. 31, 2019) 
8