dismissed H-1B Case: Information Technology

MATTER OF E-ITR- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 16,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting services firm, seeks to employ the Beneficiary as a "computer 
programmer analyst" under the H-IB 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)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that the evidence 
of record did not establish that the proffered position qualifies as a specialty occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred denying the petition. 
Upon de novo 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. 
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: 
(b)(6)
Matter of E-ITR- Inc 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for ent:r.Y 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. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner stated on the Form I-129, Petition for a 1\onimmigrant Worker, that the proffered 
position is a computer programmer analyst position. Although the Petitioner's address is in 
New Jersey, the Form I-129 states that the Beneficiary would work at 
Pennsylvania. Other evidence in the record indicates that this is a location of 
(end-client}. 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts," 
corresponding to the Standard Occupational Classification code 15-1121. 1 
1 The Petitioner classified the proffered posttion at a Level II wage (the second-lowe5t of four assignable wage levels). 
We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" 
issued by the DOL 'Provides a description of the wage levels. A Level II wage rate is generally appropriate for positions 
for which the Petitioner expects the Beneficiary to perform "moderately complex tasks that require limited judgment." 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, '.Jonagric. 
Immigration Programs- (rev. Nov. 2009), available at http:llflcdatacenter.comidownload/NPWHC_ 
Guidance_Revised_ll_2009.pdf. A 'Prevailing wage determination starts with an entry level wage and progresses to a 
higher wage level after 
considering the experience, education, and skill requirements of the Petitioner's job opportunity. 
ld 
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(b)(6)
Matter of E-!TR- Inc 
In a letter filed with the Form I-129, the Petitioner identified the following as the requirements of the 
proffered position: 
• Gathering requirements and documentation for application development 
• Demonstrated knowledge of programming languages: Java, JavaScript 
• Demonstrates ability to design complex applications using Object Oriented Design 
techniques 
• Designs, modifies, develops, writes and implements software programming 
applications 
• Developing web applications using Java/J2EE, EJB, DAO, JSP, JavaScript, Struts 
• Significant experience in managing multiple priorities 
• Exceptional analytical skills, with strong attention to details and accuracy; as well as 
the ability to provide ad hoc analysis 
C. 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. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 2 
As recognized by the court in Defensor, supra, 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 387-388. 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. at 384. 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. 
Here, the record of proceedings in this case is devoid of sufficient information from the end-client, 
The evidence in the record indicates that the Petitioner has an agreement with a vendor, 
who provides services to the end-client. The Petitioner submitted a vendor services agreement with 
(vendor), which sets out general terms pursuant to which the Petitioner might 
provide workers to the vendor's clients specified in work orders to be issued subsequently. However, 
the record of proceedings does not contain documentary evidence from the end-client. Tn a letter 
submitted in response to the Director's request for evidence, the vendor states that the end-client "does 
not provide project verification for non-employees." 
2 The Petitioner submitted documentation to support the H-1 B 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 E-ITR-Inc 
We further note that the record of proceedings does not contain a contractual agreement between the 
vendor and the end-client. Without documentary evidence that delineates the contractual terms 
between the end-client and the vendor, including the duties and the requirements for the position, we 
are unable determine the substantive nature of the proffered position. 
Consistent with Defensor, supra, where the work is to be performed for entltles other than the 
Petitioner, evidence of the client companies' job requirements is critical. Here, both the Petitioner and 
the vendor make clear that the Beneficiary will be assigned to work at the end-client's location. Under 
these circumstances, evidence of the work the end-client would assign to the Beneficiary and evidence 
of the educational requirement it imposes for the performance of that work are indispensable. "[G]oing 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings." Matter o{Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
· Moreover, the Petitioner has not established that it has definite, non-speculative work for the 
Beneficiary for the entire validity period requested. Without documentary evidence from the end­
client that covers the duration of the period of employment requested, we are not able to ascertain 
what the Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
circumstances of his relationship with the Petitioner. Further, in an offer letter to the Beneficiary, 
Petitioner stated that the 'job duties, title, compensation and benefits [of the proffered position] ... may 
change from time to time." In an employment agreement letter, the Petitioner also stated that its rights 
include sole responsibility for "Project & location assignments and relocations." However, a petition 
must be filed for non-speculative work for the Beneficiary, for the entire period requested, that existed 
as of the time of the petition's filing.3 For this additional reason, the Petitioner has not demonstrated the 
substantive nature of the duties the Beneficiary would perform. 
3 The agency made clear long ago that speculative employment is not permitted in the H-IB program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
individual to engage in a job search within the United States, or for employers to bring in temporary 
foreign workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an individual is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the individual has the appropriate degree for the occupation. In 
the case of speculative employment, the Service is unable to perform either part of this two-prong 
analysis and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, 
there is no assurance that the individual will engage in a specialty occupation upon arrival in this 
country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
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Matter of E-ITR- Inc 
Moreover, we find that the letters from the vendor and the Petitioner's own letters describing the 
duties and requirements of the proflered position are entitled to little probative weight. Aside from 
the fact that they were not issued directly by the end-client, these documents do not describe in detail 
the specific duties, demands, level of responsibilities and requirements necessary for the proffered 
position. Instead, they provide vague job descriptions that do not convey the specific tasks to be 
performed, the complexity of such tasks, and the substantive application of knowledge involved. 
For example, the Petitioner and the vendor state that the Beneficiary's duties include "gathering 
requirements and documentation for application development" or "designs, modifies, develops, 
writes and implements software programming applications." However, there is no further 
information of what specific tasks the Beneficiary will perform in furtherance of these overarching 
duties, what "application development" or "software programming" will be involved, or what bodies 
of knowledge are required to perform these duties. 
We also observe that some of the Petitioner's stated job responsibilities indicate that the Beneficiary 
would be expected to exercise significant judgment and expertise. For example, the Petitioner stated 
that the Beneficiary would be expected to possess "significant experience," "provide ad hoc analysis," 
and "design complex applications." However, these responsibilities appear inconsistent with the 
Level II wage level selected here. Again, in designating the proffered position at a Level II wage, 
the Petitioner indicated that the Beneficiary would perform only "moderately complex tasks" that 
require only "limited judgment." The Petitioner's designation of the proffered position as a Level II 
position appears inconsistent with these responsibilities, and raises additional questions regarding the 
substantive nature of the proffered position 4 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines(!) the 
normal minimum educational requirement for the particular position, which is the focus of criterion I; 
(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 
4 The issue here is that the Petitioner's designation of this position as a Level II undermines any claim that the position is 
relatively higher than other positions within the same occupation. Nevertheless, it is important to note that a Level II 
wage-designation does not preclude a proffered position from classification as a specialty occupation. In certain 
occupations (doctors or lawyers, for example), such a position would still require a minimum of a bachelor's degree in a 
specific specialty, or its equivalent, for entry. Similarly, however, a LevellY wage-designation would not refiect that an 
occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least 
a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level designation may be a 
consideration but is not a substitute for a determination of whether a proffered position meets the requirements of section 
214(i)(l) of the Act. 
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Matter of E-ITR-lnc 
issue under criterion 3; ~d (5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4.' 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE 
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. 6 Specifically, 
the Petitioner has not established that it meets the regulatory definition of a United States employer. 
8 C.F.R. § 214.2(h)(4)(ii). 
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 
5 
Because the Petitioner has not demonstrated the nature of the duties the Beneficiary would perform, it has not 
demonstrated that the Beneficiary would work as a programmer analyst, as claimed. Therefore, we will not further 
address evidence submitted to show that programmer analyst positions qualify as specialty occupation positions, except 
to note that even if the proffered position were established as being that of a programmer analyst, a review of the U.S. 
Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) does not indicate that, simply by virtue of 
its occupational classification, such a position qualifies as a specialty occupation in that the Handbook does not state a 
normal minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or its equivalent, for entry 
into the occupation of programmer analyst. See 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/print/computer-systems-analysts.htm (last visited June 15, 20 16). As such, absent evidence that the position 
of programmer analyst satisfies one of the alternative criteria available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the instant 
petition could not be approved for this additional reason. 
6 In reviewing a matter de novo, we may identifY additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, I 043 (E. D. Cal. 200 I), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
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Matter of E-ITR- Inc 
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)). 
In the instant case, the vendor services agreement demonstrates that, notwithstanding other evidence 
in the record, if the Beneficiary were assigned to one of the end-client locations, the end-client 
would supervise him. Specifically, it states that "services are performed ... either at client site or 
remotely under supervision of Client." Further, the Petitioner made explicit, in its letters that it 
could assign the Beneficiary to a different project. The terms of that other employment, including 
who would supervise the Beneficiary's work if he is assigned elsewhere, have not been established. 
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 a beneficiary, other incidents of the relationship, who will provide 
the instrumentalities and tools, where will the work be located, who has the right or ability to affect 
the projects to which the beneficiary is assigned, and especially who will oversee and direct the work 
of the beneficiary, must also be assessed and weighed in order to make a determination as to who 
will be the beneficiary's employer. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as detined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
would exercise complete control over the Beneficiary, when the evidence discussed above 
demonstrates that it would not, does not establish eligibility in this matter. 
Based on the tests outlined above, 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). The H-lB petition must be denied for this additional 
reason. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter o{Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
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Matter of E-ITR- Inc 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-ITR- Inc, ID# 16733 (AAO June 16, 2016) 
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