dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5237919 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 8, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"open stack 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 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. § l 184(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). 
(]) 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 California, stated that the Beneficiary would work at the end-client location 
in Washington. However, the record does not contain sufficient evidence to establish the contractual 
terms among all parties. 
Although the record contains a professional services agreement (PSA) and two purchase orders (POs) 
between the Petitioner and the mid-vendor, it does not contain documentary evidence of a contract 
with the end-client. The PSA is a general agreement for the Petitioner to "locat[ e] and supply[] 
personnel ('Contractors') to provide such services to Clients or Clients' End Customers as per the 
specifications of [the mid-vendor]." However, the PSA does not identify a specific client, project, or 
service to be provided, a position title to provide the service, the duties of such a position, an individual 
assigned to perform those duties, or the qualifications required to perform those duties. In tum, 
although the first PO identifies the end-client as the recipient of "services" to be performed by the 
Beneficiary, the extent of the "scope of responsibilities" described in the first PO is "network 
engineer." The PO does not describe the actual duties the Petitioner and mid-vendor contracted the 
Beneficiary to perform as a "network engineer," which limits our ability to understand the substantive 
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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nature of the position. Furthermore, although the first PO provides a "start date" of October 9, 2017, 
it does not provide an end date or otherwise specify the duration of the assignment. Instead, in the 
area to the right of the "start date" information there is a blurry, illegible group of faint characters 
which appear to be a redaction of an end date, raising questions regarding the duration of the 
assignment for which the Petitioner and mid-vendor contracted. 
Likewise, the second PO does not sufficiently establish the contractual obligation between the parties 
for the Beneficiary's assignment. The mid-vendor did not sign or date the second PO and, moreover, 
the Petitioner signed and dated it in December 2018, after the petition filing date. A petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at 
a future date after a petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Because the Petitioner unilaterally 
signed and dated the second PO in December 2018, after the petition filing date, it cannot establish 
eligibility. 
Even if both parties had signed the second PO, and if they had done so as of the petition filing date, 
the second PO would not provide more probative information regarding the work for which they would 
have contracted the Beneficiary to perform. The extent of the "scope of responsibilities" described in 
the second PO is "open stack network engineer." Similar to the first PO, the second PO does not 
describe the actual duties the Petitioner and mid-vendor contracted the Beneficiary to perform as an 
"open stack network engineer," which would limit our ability to understand the substantive nature of 
the position, if the second PO could establish eligibility. Furthermore, although the second PO 
provides a "start date" of October 19, 2018, in the area to the right-which appears blurry and illegible 
in the first PO-the second PO states, "Duration: 12 month+," without specifying the amount of time 
to be added to a period of 12 months, raising questions regarding the duration of the assignment for 
which the parties would have contracted, if both parties had signed the second PO. 
The comparison of the two nearly identical POs draws scrutiny on the blurry, illegible group of faint 
characters in the first PO, raising questions regarding whether it was altered, which in tum raises 
farther questions regarding the text of other documents in the record. Doubt cast on any aspect of a 
petitioner's evidence may undermine the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
As noted above, the record does not contain documentary evidence of the contract terms between the 
end-client and any other party, raising questions regarding the substantive nature of the work for the 
Beneficiary to perform. Instead, the record contains two letters from the end-client. The first letter 
acknowledges that the Beneficiary "has been providing services to [the end-client]" and describes the 
Beneficiary's duties with language that matches verbatim duty descriptions on other documents in the 
record, such as a letter from the Petitioner. The verbatim nature of the end-client's duty description 
raises questions regarding whether the signatory actually wrote it and, therefore, whether it reflects 
the end-client's actual requirements. 
Regardless of whether the end-client's signatory actually wrote the duty description, the letter 
states: "This duties and responsibilities [sic] are in line with [ the Beneficiary's] professional 
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background and our minimum requirements for this assignment," without elaborating on whether the 
end-client's requirements include a bachelor's or higher degree in a specific specialty, or its equivalent. 
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. 
Here, the record does not adequately establish that the Beneficiary would provide services m a 
specialty occupation for the end-client for the employment period requested in the petition. 
The second end-client letter, submitted in response to the Director's request for evidence (RFE), does 
not describe the duties of the proffered position or clarify whether the end-client requires a bachelor's 
or higher degree in a specific specialty, or its equivalent, to perform those duties. Instead, the second 
letter states that "[the end-client] and [a previously unmentioned vendor] entered [an] above referenced 
Agreement on 7/1/2018.... [The Beneficiary] performs services under this Agreement for [the 
end-client] or its affiliates pursuant to [the end-client's] agreement with [the new vendor]." 3 The 
second letter does not reference the mid-vendor discussed above or even the Petitioner, raising farther 
questions regarding the second PO, discussed above, unilaterally signed by the Petitioner in December 
2018. Furthermore, even if the record contained the contract between the end-client and the new 
vendor signed and dated in July 2018, as referenced in the second end-client letter, such a contract 
could not establish eligibility because it would be dated after the petition filing date. 8 C.F.R. 
§ 103.2(b)(l); see also Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 
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 
3 We note that the record also contains a letter from the new vendor, submitted in response to the RFE. The letter describes 
the new vendor's role as a prime vendor between the mid-vendor and the end-client. The letter also describes the position's 
duties with language matching verbatim language from other documents in the record, such as a letter from the Petitioner. 
The new vendor letter also states that "[t]he minimum qualification required for the performance of the above duties is a 
Bachelor's Degree in Computer Science, Engineering or [a] related field." However, similar to other documents in the 
record, the new vendor's letter may not establish eligibility because it is dated after the petition filing date. 8 C.F.R. 
§ I 03.2(b)(l); see also Matter of Michelin Tire Corp., 17 T&N Dec. at 249. 
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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. 4 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will also 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 
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 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. 
4 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 fiuiher 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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Moreover, the record does not establish that the Petitioner would direct and control the Beneficiary's 
work performed at the end-client location. The Petitioner asserts that it "will be monitoring the 
progress of the worker, and evaluating performance during the time of employment." However, the 
record does not establish who, specifically, would supervise the Beneficiary, and how. In the petition, 
the Petitioner states that it had two employees, one of whom being the "manager" who signed the 
petition. However, in response to the Director's RFE, the Petitioner submitted an organization chart, 
identifying at least six employees. Although the Petitioner's "manager" is at the top of the 
organization chart, a box labeled "cloud services" is positioned between the manager and the 
Beneficiary, raising questions regarding whether a supervisor of "cloud services" would supervise the 
Beneficiary rather than the Petitioner's manager. We note that the PSA and PO signed and dated as 
of the petition filing date, discussed above, do not identify any individual other than the Beneficiary 
to be assigned to the end-client location, raising further questions regarding who would supervise his 
work performed at the end-client location. If the Petitioner would supervise the Beneficiary's work at 
the end-client location by means of off site management, the record does no establish how the Petitioner 
would do so. 
Although the Petitioner did not establish how it would supervise the Beneficiary, in response to the 
Director's RFE, the Petitioner submitted weekly project status reports submitted by the Beneficiary 
for the weeks ending October 19 through December 7, 2018. All of the status reports state that the 
Beneficiary's "manager" is an individual, S-M-C-, who does not appear in the Petitioner's 
organization chart, discussed above, again raising questions regarding whether the Petitioner would 
actually direct and control the Beneficiary's work. Even if S-M-C- were employed by the Petitioner 
to supervise the Beneficiary's work, the status reports do not contain sufficient information for the 
Petitioner to understand the work the Beneficiary performed. The status reports consist of a brief: 
bulleted list titled "major accomplishments this week." A typical list of weekly accomplishments is 
as follows: 
• This week worked on [ d]eployment of new site using heat stack template. 
• Created MOP as per contrail version. 
• Tested and executed LRT (Lab Readiness Testing). 
• Migrated virtual machines to new site after LR T is done. 
Those brief summaries inadequately describe the actual work the Beneficiary performed in order for 
a supervisor to direct and control it. For example, they do not convey details such as the identity or 
nature of the "new site," the tasks the Beneficiary performed while "work[ing] on [ d]eployment of 
[the] new site," the "MOP" and how the Beneficiary created it, what the Beneficiary tested through 
lab readiness testing and the tasks the Beneficiary performed during the testing, and the actual work 
the Beneficiary performed in order to migrate the virtual machines. Without more detailed 
information, the record does not establish how S-M-C-, regardless of whether he manages the 
Beneficiary on behalf of the Petitioner or another entity, would have sufficient information to 
determine whether the Beneficiary correctly completed the tasks briefly summarized in the status 
reports. Furthermore, in any event, the practice of the Beneficiary summarizing the work he performed 
afterward does not establish how the Petitioner would prospectively direct and control the 
Beneficiary's work. 
6 
The record raises further questions regarding the extent of the Petitioner's authority to direct and 
control the Beneficiary's work. For example, the PSA, discussed above, states that "[the Petitioner] 
shall assign only those of its personnel who meet minimum skill, knowledge and training standards, 
as those standards are determined by [the mid-vendor] in [the mid-vendor's] sole discretion, necessary 
to perform the Services required under [the PSA]." It further states that "[the mid-vendor] may at any 
time terminate [ the PSA] with or without cause upon notice to the [Petitioner]. . . . Upon termination 
of [the PSA] for any reason, [the Petitioner] and its Contractor will cease all activity on the Project 
.... " Clauses such as these raise questions regarding whether the Petitioner ultimately would 
determine whether the Beneficiary may work at the end-client location. 
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. 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. 
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. 
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