dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"QA automation" 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 Vermont Service Center denied the petition, concluding that the proffered position 
does not qualify as a specialty occupation . On appeal, the Petitioner submits additional evidence and 
asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
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 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of S-, Inc. 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
The Petitioner, located in Maryland, stated that the Beneficiary would work at the end-client location 
in Minnesota. However, the record does not sufficiently establish the contractual obligation or the 
substantive nature of the work to be performed at the end-client location. 
For example, in response to the Director's request for evidence (RFE), the Petitioner submitted a 
heavily redacted excerpt from an "IT Labor Contract Services Agreement" (LCSA) between the 
end-client and a mid-vendor, located in Maryland. The LCSA consist of two pages numbered "1 of 
44" and "16 of 44." The record does not contain the remaining 42 pages of the LCSA. After the first 
four lines of text on page "1 of 44," identifying the parties to the LCSA and their locations, the 
remainder of the text on the page is entirely redacted with a large, black rectangle. Similarly, page 
"16 of 44" contains the signatures of representatives of the end-client and the mid-vendor but it also 
contains another black rectangle, redacting text. Accordingly, the record does not establish the terms 
of the contract between the end-client and the mid-vendor, such as the nature and duration of the 
project, the actual services required, the title of a position to perform the services, the duties of the 
2 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
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Matter of S-, Inc. 
position, the identity of a worker assigned to perform the position's duties, and the end-client's 
academic requirements to qualify for the position. 
Also in response to the Director's RFE, the Petitioner submitted a copy of a work order (WO). The 
WO identifies the end-client's location as the worksite for the Beneficiary, in a position titled "IT -
quality analyst." Although the WO identifies the Petitioner as the "[s]upplier name ... via a [s]ub­
[c]ontract relationship," it does not identify the mid-vendor as a party in the contract chain. 
Additionally, although the WO identifies the Beneficiary's "start date" as "06/18/2018," it does not 
provide the date on which the end-client and any other entity executed the WO, or an end date for the 
Beneficiary's assignment. Even if the WO established the identity of the mid-vendor and the date on 
which the parties executed the WO, it does not provide additional information regarding the nature of 
the project and the duties of the "IT- quality analyst" position. The WO reports that the "Minimum 
Education Requirement" is simply a "Bachelor's Degree," without specifying that the degree must be 
in a specific specialty, or its equivalent. 
The Petitioner also submitted a "Sub-Vendor Agreement" (SA) and WO between the Petitioner and 
the mid-vendor in response to the Director's RFE. The SA is a general agreement for the Petitioner 
to "use reasonable efforts to supply competent and qualified Contract Workers to [the mid-vendor] to 
perform services pursuant to conditions described in a Customer requirements notice ... 
communicated to [the mid-vendor]." The SA does not identify a specific client, describe a specific 
project, identify a specific job title, describe the duties of that position and the academic requirements 
to perform those duties, or identify a worker assigned to that position. Similarly, although the WO 
identifies the Petitioner and the mid-vendor as the parties to it, and the Beneficiary as the worker, it 
does not identify a specific client or even a "Work Site Location," describe a specific project, identify 
a specific job title, or describe the duties of that position and the academic requirements to perform 
those duties. 
Also in response to the Director's RFE, the Petitioner submitted a letter from the end-client. Although 
the letter states that "[the Petitioner] provides us the services through [the mid-vendor], our 
implementation partner for the project," it does not establish the terms of a contract between the 
end-client and any other entity and the substantive nature of the work to be performed. The end-client 
letter states that the Beneficiary "will be providing services to our organization as a QA Automation 
for Project I I at [the end-client]'s location." The end-client letter and a letter from the 
mid-vendor, also submitted in response to the Director's RFE, copy verbatim the Petitioner's 
description of the proffered position's duties. Both letters also state, verbatim: "These duties are 
complex and demand specialty knowledge. The position requires a minimum of a Bachelor's Degree 
in the field," without specifying the field in which the degree must be. 3 As noted above, the 
generalized language limits our ability to understand the position's substantive nature. Additionally, 
the verbatim nature of the end-client letter, particularly its description of the position's duties and the 
academic requirements, raise questions regarding whether the signatory actually wrote it and, 
therefore, whether the end-client was aware of the letter's contents and whether the letter reflects the 
end-client's actual requirements. 
3 The letters contain additional verbatim language, such as: "This assignment will continue at least through Dec, 2021 
with extension likely due to the ongoing nature of the work." 
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Matter of S-, Inc. 
Even to the extent that the end-client's letter reflects its actual requirements, and setting aside the 
end-client's omission of a specific specialty for the bachelor's degree, the duty description consists of 
generalized language that does not explain the substantive nature of the position. For example, the 
duty of "[d]evelop and initiate advanced automated testing methodologies" does not describe the 
testing methodologies, the subject of the test(s), the aspects of the methodologies that make them 
advanced in comparison to other methodologies, and how the Beneficiary would develop and initiate 
them. Similarly, the duty of "[i]nterface with developers in executing projects" does not inform what 
the projects are, the identity of the developers and their duties, how the developers execute projects, 
and what the Beneficiary's interface with them would entail. The remainder of the duty description­
again, copied verbatim by the end-client and the mid-vendor from the Petitioner's description­
contains similarly vague language. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
The record contains an opinion letter written by I ~ an adjunct professor of cyber 
security at the University ofl As a matter of discretion, we may use 
opinion statements submitted by a petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 
795 (Comm'r 1988). However, we will give an opinion less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. We are ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form 
of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue."'). 
In his letter, I I quoted the duties provided by the Petitioner. I I concluded that, based 
on the Petitioner's description, "[i]t is typical for a software development company to hire a QA 
Automation Engineer or someone in a similar professional position, and require the minimum 
attainment of a Bachelor's Degree in Computer Science, Engineering, or a related area for the 
position." However, as discussed above, where the work is to be performed for an entity other than 
the petitioner, evidence of the client company's job requirements is critical. Defensor, 201 F.3d at 
387-88. The requirements imposed by the entities using the beneficiary's services 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. Id. I !does not indicate that he 
reviewed or even was aware of the requirements of the end-client, which is a subsidiary of~ I I I company, not a "software development company." 4 Moreover, I !does not address 
4 We note that, as discussed above, the end-client letter copied verbatim the Petitioner's duty description. However, as 
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Matter of S-, Inc. 
the end-client's statement that the position requires "a minimum of a Bachelor's degree in the field," 
without specifying the field or otherwise stating that the degree must be in a spec[fic specialty, or its 
equivalent. Accordingly,! ts opinion letter bears minimal probative value because it does 
not address whether the evidence from the end-client requires a bachelor's or higher degree in a 
specific specialty, or its equivalent. 
In summation, we conclude that the ambiguities and lack of documentation in the record raise 
questions regarding the actual substantive nature of the proffered position, which therefore precludes 
a conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
the substantive nature of the work determines (1) the normal minimum educational requirement for entry 
into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to 
the proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 5 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether the Petitioner qualifies as an H-lB 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." 
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 
noted, the verbatim nature of the end-client's duty description raises questions regarding its authenticit . Moreover, 
I I specifically opined on the requirements of"a software development company," not a~--------~ 
which does not address the end-client's requirements, even to the extent that they overlap with the Petitioner's 
requirements. 
5 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Matter of S-, Inc. 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do at the end-client's location for the period of time requested. Additionally, the record does 
not establish that the parties contracted for the Beneficiary to work throughout the requested period. 
In addition to omitting and redacting documentary evidence of the foll terms of the contract, the record 
does not establish that the Petitioner would direct and control the Beneficiary's work performed at the 
end-client's location. The Petitioner asserted that it will have "the right to control the work of the 
Beneficiary, including payment, providing benefits, making hiring and firing decisions, supervising, 
and conducting performance reviews." The record contains an organization chart that indicates the 
Petitioner's "CTO/Tech Lead" 6 would supervise the Beneficiary, and lists the following brief, 
generalized items: 
• Performance review; 
• Appraisal; 
• Skip Level meetings; 
• Escalations; 
• Annual Reviews; 
• Daily standup meetings; 
• Online meetings; 
• Code reviews; 
• Release planning; 
• Sprint Planning; 
• Grooming; 
• Debugging; 
• KRAs; [ and] 
• Mentoring. 
The brief, generalized items in the list-often consisting of a single word-do not provide sufficient 
information about what they entail, in order for us to determine how the supervisor would direct and 
control the Beneficiary's work. The record does not establish whether the Beneficiary's supervisor 
would work at the end-client location in Minnesota, the Petitioner's location in Maryland, or any other 
location. 
6 The record also identifies this individual as the Petitioner's "Director of Operations/President." 
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Matter of S-, Inc. 
The record also contains a letter from the Beneficiary's tech lead, stating that "I will supervise [the 
Beneficiary] regularly by [ d]aily standup meetings, regular phone calls, regular email communication, 
weekly status reports, [q]uarterly/[h]alfyearly [p]erformance reviews, Skype calls, [t]eam viewer and 
WebEx meetings." In response to the Director's RFE, the Petitioner submitted documents titled 
"weekly progress dashboard[s]," dated August 27-31 and September 3-7, 2018. However, the 
dashboards do not identify either the worker who prepared them or the supervisor who reviewed them. 
Therefore, they do not establish the manner in which the Beneficiary would report to the Petitioner's 
tech lead. Even if the dashboards pertained to the Beneficiary and the Petitioner's tech lead, they 
summarize the "recent activity & accomplishments" in brief: generalized statements without 
describing the work actually performed. Both weekly progress dashboards report that the worker 
performed identical "activit[ies] & accomplishments," as follows: 
• Wrote the automation script for current sprint user stories. 
• Wrote the manual test cases for current sprint user stories. 
• Loaded data in QA sandbox for 150 test members. 
• Provided the daily smoke test execution report to management. 
• Retested all the fixed defect [sic]. 
• Support the production support team to re-test production defect. 
• Supported reporting team to load and identify the data in End to End sandbox. 
• Presented the completed User stories to product owners. 
• Took the status from all the on site and off-shore QA resources. 
Similarly, both weekly progress dashboards contain a list of six "goals for next week" consisting of 
verbatim language. The September dashboard indicates that the worker's "recent activity & 
accomplishments" excluded the goals for that week established in the August dashboard. Considered 
together, the dashboards indicate that the worker's performance is not actually directed and controlled 
by them, given that the worker disregarded the goals set in August and instead performed activities 
and accomplishments identical to those during the preceding week. 
Additionally, even if the dashboards identified the worker, the supervisor, and the actual work 
performed, they indicate that the Beneficiary would merely inform the Petitioner of the work he 
performed at the end-client location afterward, rather than demonstrating how the Petitioner would 
direct and control his work. 
Overall, the evidence provides insufficient insight into how the Petitioner would direct and control the 
Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and who has the 
right or ability to affect the projects to which the Beneficiary is assigned. While the Petitioner 
repeatedly asserts that it would remain the Beneficiary's employer, these assertions are insufficient to 
demonstrate that the Petitioner would have an employer-employee relationship with the Beneficiary 
while he works at the end-client's location. The Petitioner's generalized assertions regarding control 
lack specificity and probative detail of the degree of supervision, direction, or control that the 
Beneficiary would receive from the Petitioner. 
In sum, without full disclosure of all of the relevant factors, we are unable to properly assess whether 
the requisite employer-employee relationship would exist between the Petitioner and the Beneficiary. 
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Matter of S-, Inc. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 4707677 (AAO Sept. 16, 2019) 
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