dismissed H-1B Case: Information Technology

MATTER OF T-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 4, 2016 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services firm, seeks to employ. the Beneficiary as a 
"Computer Programmer" under the H-1B nonimmigrant classification. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. ISSUES 
The Director denied the petition, finding that the evidence of record does not establish that the 
Petitioner has specialty occupation work available for the Beneficiary, and thus, that the proffered 
position qualifies as a specialty occupation. Beyond the decision of the Director, we will also 
address the issue of whether the Petitioner qualifies as a United States employer with an employer­
employee relationship with the Beneficiary. 
II. 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
Matter of T-S- Inc . 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: · 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties . is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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 
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position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job 'qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. 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. 
B. The Proffered Position 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a computer programmer position, and that it corresponds to Standard 
Occupational Classification (SOC) code and title 15-1131, "Computer Programmers," from the 
Occupational Information Network (O*NET). The LCA further states that the proffered position is a 
Level I (entry) position. 
In a letter dated March 31, 2014, the Petitioner provided an overview of the proffered position and 
its constituent duties, stating that the Beneficiary will work on "specific programming projects" that 
will involve duties including "analyzing and gathering project requirements, developing and 
designing business programs customized to meet specific needs." The Petitioner also stated that the 
Beneficiary's duties will include "writing, updating and maintaining computer programs or latest 
software packages," "analyz[ing], review[ing], and rewrit[ing] software programs," "conducting trial 
runs of programs and software applications," "revis[ing], repair[ing], fine tun[ing] the expansion of 
existing programs," and "perform[ing] systems analysis and programming tasks to maintain and 
control the use of computer systems software as a computer programmer." With respect to the 
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minimum educational requirement for the proffered position, the Petitioner stated that "[t]he usual 
minimum requirement 
for performance of the job duties of a Computer Programmer in our company, 
as with any other similar organization, is a Bachelor's degree in Science, computer science, 
computer engineering, electronics, engineering, physical sciences or equivalent." 
The Petitioner indicated that the Beneficiary will be exclusively assigned to work on its in-house 
project, _ during the entire validity 
period requested. 
The Petitioner submitted a series of letters describing the Beneficiary's responsibilities during 
different phases of the project. The first in this series of letters describes her 
responsibilities during the "Product Design (Core Product)" phase of the project, which would last 
from October 6, 2014, to November 5, 2015,1 as follows (verbatim): 
• Will be responsible for planning, Analyzing and execution of and 
environments. 
• Responsible in Standardize business processes and deliver end to end business 
process model; Facilitate workshops, present· client reports, business cases and 
other deliverables ensuring clarity around process reorganization and ownership 
are effectively communicated and trained in conformance to program objective 
• Gather client's key business drivers & document Business, Functional/non­
functional requirements, Data flow models, Use Cases, and systems with various 
kinds of Content Management needs. 
• Perform rigorous unit and system testing before releasing application to the end 
users. 
• Will perform end-to-end testing, which includes Functional, Regression and 
Retesting. 
• Involve in integration testing, UAT, data migration and Product Rollout and 
support 
• Integration of data model updates into code base 
• Mentor junior Analyst 
• Create and execute Unit test 
plans 
• Defect management and resolution -
• Manage a variety of programming and design staff according to project(s) 
scheduled. 
The second in this series of docurp.ents describes the Beneficiary's responsibilities during the 
"Software Analysis" phase ofthe project, which would last from November 5, 2014, to December 4, 
2014, as follows (verbatim): 
In addition to the above-mentioned duties, candidate will identify problems, study 
existing systems to evaluate effectiveness and develop new systems to improve 
1 Based on other information in the record, we believe the Petitioner may have meant to state that the product design 
phase would end on November 5, 2014, not November 5, 2015. 
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Matter of T-S- Inc 
production of workflow . . . . Analyst will assist in developing application software on 
specific needs. He will provide technical evaluation of new products, assess time 
estimation and provide technical support within the organization .... 
The third in this series of documents describes the Beneficiary's responsibilities during the 
"Technical Design/Implementation/Testing" phases of the project, which would last from December 
5, 2014, to March 30, 2015, as follows: 
Analyst job duties shall include analyzing and gathering project requirements, 
developing and designing business programs customized to meet specific needs, 
training users on the use of software applications and providing trouble shooting and 
debugging support. It is thus her responsibilities and the time spent on the same 
would be as under: 
• Gather, analyze the business requirements from end-users 
• Lead and co-ordinate with teams for project deliverables 
• Design, develop and integrate the Business Process Management and 
Enterprise Application module 
• Provide subject matter expertise on workflow and database products 
• Provide dynamic reporting capability 
• Resolve technical issues in the systems by resear-ch and investigation. 
• Standardize and automate the build process 
• Using Design Methodologies & Tools: 
The fourth in this series of documents describes the Beneficiary's responsibilities during the 
"Mobile Add-On/Release 1.0/2.0 and 3.0" phases of the project, which would last from March 31, 
2015, to September 29, 2017, as follows (verbatim): 
• Beneficiary will enter program codes into the computer systems and enter 
commands into the computer to run and test the programs. He will replace, delete 
or modify codes to correct errors. He will provide technical support, solve 
problems and troubleshoot systems. 
• He will specialize in developing programs for specific applications to certain 
industries. He will be involved in systems integration, debuggi:p.g, troubleshooting 
and installation. Beneficiary will offer solutions for various software and 
hardware problems and compatibility of various systems. 
• The Beneficiary will also be responsible for updating existing software systems 
and updating management on new software that is developed. Beneficiary will 
maintain records to document various steps in the programming process. 
• Involve in creating sequence diagrams as part of design using Visio. 
• Develop marketing strategies, operating model and lead business transformation 
by standardizing business processes, restructuring organization, enabling 
Culture/Behavioral change, effectively communicating policies, processes and 
procedures in alignment with strategic direction and business plans 
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Matter of T-S- Inc 
• Increase sales turnover by 30% by identifying commercial opportunities and 
expanded market share, through the management of various organizational, 
operational and technology changes 
• Improve management efficiency by 1 0% by integrating information systems for 
accounts and HR management enabling staff to focus on critical value added 
activities 
• 15% reduction in inventory costs, and improved customer retention, by modifying 
proprietary inventory management database to reflect product-brand sales 
• Analyze business's core and support processes to standardize processes by 
reducing process variance and eliminating waste. 
• Develop technology roadmap, facilitate IT system procurement and 
implementation by collaborating with finance team to negotiate deals resulting in 
an integrated technology infrastructure 
In response to the RFE, the Petitioner confirmed that it has specialty occupation work available for 
the Beneficiary to provide her services on its in-house project, at the Petitioner's 
work location for the duration of her employment. The .Petitioner provided another description of 
the proffered duties, along with percentages of time spent on each duty, as summarized below: 
• Taking 
business and functional specifications as input and developing application 
program code (25%) 
• Fixing bugs as reported by the users, modifying code, and testing 
fixes (20%) 
• Extending current application code to implement the new enhancements under 
review ( 
1 0%) 
• Generate audit trail reports of user/license information for the Accounts 
Department, and review, fine tune, and optimize existing code for performance 
and efficiency (20%) 
• Implement code to extract and migrate data from a variety of database platforms 
and raw data formats (15%) 
• Analyze and write SQL program scripts to automate system maintenance related 
tasks (1 0% ). 
C. Analysis 
We agree with the Director that the evidence of record does not establish that a work assignment 
exists for the Beneficiary, and thus, that the duties of the proffered position are in fact associated 
with a specialty occupation. That is, the Petitioner has not submitted sufficient, credible evidence to 
establish that the Beneficiary will be exclusively assigned to its in-house project, as 
claimed. 
As evident from the job descriptions quoted above, the record of proceeding presents the duties 
comprising the proffered position in terms of relatively abstract and generalized functions. The job 
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Matter of T-S- Inc 
descriptions lack sufficient detail and concrete explanation to establish the substantive nature of the 
work within the context of the project, and the associated applications of specialized 
knowledge that their actual performance would require. For example, the Petitioner stated that the 
Beneficiary will "assist in developing application software on specific needs," and "will provide 
technical evaluation of new products, assess time estimation and provide technical support within the 
organization." The Petitioner did not clarify what it meant by the broad terms "assist" and "provide 
technical support," and how these duties specifically relate to the project. As another 
example, the Petitioner stated that the Beneficiary will "[ d]esign, develop and integrate the Business 
Process Management and Enterprise Application module." The Petitioner did not further explain 
what specific tasks are involved, what these Business Process Management and Enterprise 
Application modules are, and how they relate to Notably, there are no specific 
references to the Business Process Management and Enterprise Application modules within the 
documents. 
Despite the Petitioner's assertion that the Beneficiary will be exclusively assigned to its in-house 
project, the Petitioner stated in its March 31, 2014, letter that the Beneficiary will be 
"developing and designing business programs customized to meet specific needs (emphasis added)." 
The Petitioner also stated that the Beneficiary's duties will include "writing, updating and 
maintaining computer programs or latest software packages," "analyz[ing], review[ing], and 
rewrit[ing] software programs," "conducting trial runs of programs and software applications," and 
"revis[ing], repair[ing], fine tun[ing] the expansion of existing programs (plural emphasized)." In 
other documentation, the Petitioner described the proffered duties as including work on unidentified 
programs, applications, and systems in the plural, such as "developing programs for specific 
applications to certain industries" and "study[ing] existing systems to evaluate effectiveness and 
develop new systems (emphasis added)." Here, however, the Petitioner has identified only one 
product - the mobile application - that is being developed through the 
project to which the Beneficiary will be exclusively assigned. The Petitioner has not specified what 
other projects, programs, software packages, applications, and systems the Beneficiary will work on, 
and how they specifically relate to project. Further, the Petitioner has not articulated 
the nature of the Beneficiary's work on existing systems and programs, considering that the 
project seeks to develop a new mobile application. 
Moreover, the Petitioner repeatedly referenced unspecified clients and end-users to whom the 
Beneficiary will provide her services. To illustrate, some of the proffered duties include "[g]ather 
client's key business drivers . 
. . [and] requirements," and "[g]ather, analyze the business 
requirements from end-users." The Petitioner has not explained who these 
clients and end-users are 
2 Nor has the Petitioner adequately explained what bodies of knowledge are needed for the Beneficiary to perform these 
and other stated duties. The Petitioner vaguely stated that the Beneficiary will "apply the theories and principles of 
computer science and electronic engineering," but did not provide additional details to explain these statements. 
Furthermore, the Petitioner indicated that a bachelor's degree in "Science" would be a sufficient qualification for the 
. proffered position. However, a degree in "Science " could include a diverse array of subjects - such as geology, 
meteorology , and zoology - that are not directly related to computer science and electronic engineering . As such, the 
Petitioner's statements regarding the bodies of knowledge needed for the proffered position are not sufficient. 
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Matter of T-S- Inc 
and why there would be client and end-user requirements, particularly during the initial design and 
development stages of an in-house project. Similarly, the Petitioner listed one of the proffered duties 
as "[ s ]tandardize business processes and deliver end to end business process model; Facilitate 
workshops, present client reports, business cases and other deliverables." The Petitioner has not 
explained why there would be client workshops and reports in the beginning product design stage of 
an in-house project. · 
In fact, there are several job duties which are clearly not limited to the project, such 
as "[i]mprove management efficiency by 10% by integrating information systems for accounts and 
HR management enabling staff to focus on critical value added activities." Other similar duties 
include "15% reduction in inventory costs, and improved customer retention, by modifying 
proprietary inventory management database to reflect product-brand sales," and "facilitat[ing] IT 
system procurement and implementation by collaborating with finance team to negotiate deals." 
These duties involving the Petitioner's systems for accounts, HR management, and inventory appear 
outside of the scope of the project, which the Petitioner has described as the 
development of a mobile application related to home appliances automation. These aspects of the 
Petitioner's descriptions undermine the Petitioner's assertion that the Beneficiary will be exclusively 
assigned to the project, and raise additional questions as to the actual nature of the 
proffered position.3 
Another problematic aspect of the Petitioner's job descriptions is that many of the proffered duties 
appear inconsistent with the wage level selected here. As previously discussed, the Petitioner 
designated the proffered position on the LCA as a Level I (entry) position. In designating the 
proffered position at a Level I wage, the Petitioner has indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation.4 However, the 
3 We also note that the Petitioner's job descriptions of the proffered position in its RFE response did not account for 
these and several other duties initially listed. The Petitioner did not provide an explanation reconciling its different job 
descriptions. It is incumbent upon the Petitioner to resolve inconsistencies in the record by independent objective 
evidence. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). As such, our analysis is based upon all the job duties as 
initially described. 
4 A Level I wage rate is described in DOL's "Prevailing Wage Determination Policy Guidance" as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training .and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC _Guidance _Revised _11_ 2009 .pdf. 
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Matter of T-S- Inc 
Petitioner listed several duties indicating that the Beneficiary will have relatively high-level 
responsibilities over others in the company, such as "[ m ]anage a variety of programming and design 
staff," "[l]ead and co-ordinate with teams for project deliverables," "mentor junior Analyst," and 
"lead business transformation by . 
. . restructuring organization." Moreover, the Petitioner 
repeatedly emphasizes the "advanced, complex nature of the position's duties." The Petitioner's 
designation of the proffered position as a Level I, entry-level position is inconsistent with these and 
other stated duties, and raises additional questions regarding the substantive nature of the proffered 
position. 5 
In addition to being inconsistent with the Level I wage rate, many of the proffered duties are a1so 
outside of the scope of general duties for the SOC code and occupation title 15-1131, Computer 
Programmers. More specifically, the Petitioner stated that the Beneficiary will "[d]evelop marketing 
strategies, operating model and lead business transformation by standardizing business processes, 
restructuring organization, enabling Culture/Behavioral change, effectively communicating policies, 
processes and procedures in alignment with strategic direction and business plans." The Petitioner 
also stated that the Beneficiary will "[i]ncrease sales turnover by 30% by· identifying commercial 
opportunities and expanded market share, through the management of various organizational, 
operational and technology changes." The computer programmer occupational classification does 
not, however, include any sales, marketing, or management-type duties. Not only are these duties 
outside of the computer programmers occupational classification, but the Petitioner has not 
explained how they specifically relate to the project. 7 
Thus, in accordance with the above DOL explanatory information on wage levels, the Level I wage rate indicates that the 
Beneficiary is only required to have a basic understanding of the occupation, would perform routine tasks that require 
limited (if any) exercise of judgment, and would be closely supervised and monitored. 
5 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a. classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect 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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
6 See O*NET Details Report, 15-1131, Computer Programmers, http://www.onetonline.org/linkldetails/15-1131.00 (last 
visited bee. 9, 2015). · 
7 With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET occupational code 
classification. 7 The "Prevailing Wage Determination Policy Guidance" states the following: 
In determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET 
description that corresponds to the employer's job offer shall be used to identify the appropriate 
occupational classification . 
. . . If the employer's job opportunity has worker requirements described 
in a combination ofO*NET occupations, the NPWHC should default directly to the relevant O*NET­
SOC occupational code for the highest paying occupation. For example, if the employer's job offer is 
for an engineer-pilot, the NPWHC shall use the education, skill and experience levels for the higher 
paying occupation when making the wage level determination. 
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Matter of T-S- Inc 
The Petitioner submitted a document entitled ' 
and a technical document entitled ' 
" 8 However, it is not evident how these documents constitute 
evidence ofthe Beneficiary's assignment. Neither document specifically references the Beneficiary. 
While both documents indicate that several programmer analyst positions (among other positions) 
are involved in the project, neither document details the specific tasks to be performed by each 
programmer analyst, or by the programmer analyst position generally.9 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf 
Here, however, the Petitioner has not identified which other occupational classifications are applicable to the proffered 
position. Therefore, we are unable to determine whether the Petitioner has selected the most relevant O*NET 
occupational code, i.e., the code for the highest-paying occupation. 
Moreover, where a petitioner seeks to employ a beneficiary in two or more distinct occupations, the petitioner should file 
separate petitions requesting concurrent, part-time employment for each distinct occupation. While it is not the case 
here, if a petitioner does not file separate petitions and if only one aspect of a combined position qualifies as a specialty 
occupation, USCIS would be required to deny the entire petition as the pertinent regulations do not permit the partial 
approval of only a portion of a proffered position and/or the limiting of the approval of a petition to perform only certain 
duties. See generally 8 C.F .R. § 214.2(h). Furthermore, and as is the case here, a petitioner would need to ensure that it 
separately meets all requirements relevant to each occupation and the payment of wages commensurate with the higher 
paying occupation. See generally 8 C.F.R. § 214.2(h); U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf Thus, filing separate petitions 
would help ensure that a petitioner submits the requisite evidence pertinent to each occupation and would help eliminate 
confusion with regard to the nature of the position being offered. · 
8 These documents vary significantly in their descriptions of major aspects of the project, such as the milestones, 
timelines, and resources dedicated to the project. For instance, the first document, ' 
' lists the milestones as: (1) Product Design (10/5/14 to 11/5114); (2) Software Analysis 
(1115/14 to 12/4114); (3) Technical design (12/5114 to 1/15/15); (4) Implementation (1115115 to 3115/15); (5) Unit 
Testing (2118/15 to 3116115); (6) Beta Testing (3115/15 to 3/30/15); (7) Release 1 (3/31/15 to 6/29/15); (8) Mobile Add­
on release ( 6/30/15 to 3/30/16); (9) Release 2 (3/31116 to 3/30/ 17); and (1 0) Release 3 (3/31 /17 to 9/29117). It lists the 
required personnel as consisting of 10 programmer analysts, 6 systems analysts, 3 database administrators, 7 application 
engineers, and 4 support engineers (total of 30 positions). 
The second document, divides the project milestones into 
four levels, each of which contains different timelines for planning, requirements gathering, design, development, 
integration and testing, and deployment. In addition, it lists the required personnel as consisting of 22 programmer 
analysts, 1 systems analyst, 2 database administrators, 1 quality analyst, and 1 human resource person (total of 27 
positions). 
While understandably some plans may change over time, the Petitioner is obligated to explain these changes, especially 
if the changes are significant as in this case. Again, it is incumbent upon the Petitioner to resolve inconsistencies in the 
record by independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. 
9 Again, we note that one document states that 10 programmer analysts are needed, while the other states that 22 are 
needed. · 
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The Petitioner also submitted a document entitled 
" Like the two documents referenced above, this document also 
does not specifically mention the Beneficiary. This document broadly 
depicts the "Proposed Team 
Structure" as consisting of the following teams or positions: Project Executive Management; Project 
Manager; Business Analyst; Quality Assurance Team; Development Team; and Database Team. It 
is not clear which of the above teams or positions include the proffered position, as the duties of the 
proffered position confusingly overlap with almost all of the roles and responsibilities for the above­
listed teams or positions. 10 These overlapping duties raise additional questions regarding the actual 
role of the proffered position in the project. 
The Petitioner asserted that the Beneficiary will be directly supervised by a "Project Manager of 
Petitioner in a senior supervisory capacity," and that "such supervision is at Petitioner's work 
location." The Petitioner's Offer Letter to the Beneficiary specifically states that she is "required to 
report to on October 2014 at [the Petitioner's] corporate office at 
The Petitioner's organizational chart submitted on 
appeal also identifies as a "Project Manager" who oversees numerous technical 
positions, including twenty computer programmers to-be-hired.11 However, according to the 
Petitioner's list of employees and their present work locations pursuant to their LCA, 
is a "Systems Analyst" working at New Jersey.u The 
Petitioner has not explained how could be the Beneficiary's direct supervisor on the 
Petitioner's in-house project when is not actually working at the Petitioner's worksite. 
Again, it is incumbent upon the Petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of 
the Petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. !d. 
Furthermore, the evidence does not demonstrate that the Petitioner has sufficient work space to 
support the employment of the Beneficiary, as well as the entire "team" for the 
project, at the Petitioner's premises at New 
1
° For instance, the Project Manager is "[r]esponsible for the successful planning executions, monitoring, control and 
closure of a project [sic]," while the Beneficiary will also be "responsible for planning, [a]nalyzing and execution of 
and environments." The Business Analyst is to "[a]ct a liaison between business users and technical team 
developing [sic]." The Beneficiary will also be responsible for a variety of duties related to gathering and 
analyzing requirements from business users (i.e., clients and end-users) as well as to "[l]ead and co-ordinate with teams 
for project deliverables." The Quality Assurance Team is to "[test] the product for bugs, defects and other software 
issues." Similarly, the Beneficiary will perform numerous testing functions, such as "rigorous unit and system testing," 
"end-to-end testing," "integration testing," and "[c]reate and execute Unit test plans." The Database Team isresponsible 
for "[setting up] the entire database and ... for its functioning and security." The Beneficiary will likewise be 
responsible for a variety of database functions, including "[providing] subject matter expertise on ... database products." 
11 
The Petitioner previously submitted another organizational chart which depicted a significantly different operational 
structure and which did not identify individual employees. 
12 
In another list of employees submitted on appeal, the Petitioner indicated that joined the company in 
2014. 
11 
(b)(6)
Matter of T-S- Inc 
Jersey. In particular, the Petitioner stated on appeal that its current premises at are 
sufficient to accommodate its seven employees currently working ·on-site, "in addition to 
conveniently accommodating additional at least seven (7) employees at its work location [sic]." The 
Petitioner also stated on appeal that its current "Lease agreement for the work location ... can 
conveniently accommodate more than twenty five (25) employees." However, the evidence of 
record does not corroborate these assertions, as there is no information in the floorplan or lease 
specifying the maximum occupancy allowed.13 Nevertheless, and more importantly, the petitioner 
has not explained and documented how its current premises are sufficient to accommodate its seven 
on-site employees plus the entire team. As outlined in the evidence of record, the 
project will require 27-30 employees, for a total of 34-37 employees on-site. Thus, 
even if the Petitioner's premises could accommodate more than 25 employees as asserted, it is still 
not apparent that the Petitioner has sufficient work space for its current on-site employees and the 
entire team. The lack of adequate work space leads us to further question the 
credibility of the Petitioner's descriptions of the Beneficiary's assignment and of the 
project overall.14 
Finally, we share the Director's concern that many of the Petitioner's documents contain 
descriptions, diagrams, and other statements copied verbatim or virtually verbatim from materials 
created by other individuals or companies. On appeal, the Petitioner asserts that "mere similarity in 
certain literature of brochures or certain pictorial diagrams in brochures to contents of another 
product description on web sites do not and cannot affect the veracity and genuine nature of the 
originality of the product developer/petitioner's concept." However, the Petitioner's assertions are 
unpersuasive. The unauthorized reproduction of literature created by other individuals or companies 
undermines the Petitioner's cre~ibilit~ , an.d pre~ludes us ~rom comprehending the true nature and 
scope of the proJect. 1 It ts agam emphastzed that doubt cast on any aspect of the 
13 The floorplan ofthe Petitioner's current premises consists of five individual offices and one general office area of688 
square feet. . 
14 The Petitioner also indicated that it can enter into a new lease for additional workspace, as needed, located at 
New Jersey. However, 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 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) . 
. Even if the Petitioner had entered into the new lease for additional workspace as of the time of filing, the Petitioner still 
has not explained and documented that this new lease would be sufficient to house the entire team in 
addition to the Petitioner 's current on-site employees. Both the lease proposal letter and the floorplan of the prospective 
premises are silent as to the maximum occupancy allowed. The floorplan shows that the proposed premises have 15 
individual offices, and two areas of general office space. "[G]oing on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings." In re Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft ofCal. , 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
15 For instance, because the Petitioner copied the work of others in its 
document, we cannot determine the level of research, planning, and other resources that the 
Petitioner has actually devoted to We also cannot determine which aspects of the document are credible 
and accurately represent the Petitioner 's work, and which do not. 
12 
(b)(6)
Matter of T-S- Inc 
Petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support ofthe visa petition. ld. 
For all of the above reasons, we find that the evidence of record does not sufficiently demonstrate 
that the Beneficiary will be assigned to the project, as claimed. Moreover, even if it 
were established that the Beneficiary will be assigned to the project, the evidence 
still does not sufficiently describe the duties to be performed by the Beneficiary. Consequently, we 
find that the evidence of record does not demonstrate the substantive nature of the proffered position 
and its constituent duties. The failure to establish the substantive nature of the work to be performed 
by the beneficiary precludes a finding that the proffered position satisfies any criterion at 8 CTR. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for 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. 
Accordingly, as the evidence does not satisfy any of the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. Nevertheless, we will briefly 
note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ 
the Beneficiary or another individual as an H-lB employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any 
future filing. 
More specifically, the petition cannot be approved because the evidence does not demonstrate that 
the Petitioner qualifies as a United States employer having an employer-employee relationship with 
the Beneficiary. As detailed above, the record of proceeding lacks sufficient documentation 
evidencing what exactly the Beneficiary would do for the period of time requested or where exactly 
and for whom the Beneficiary would be providing her services.16 Given this specific lack of 
Thus, we find that the Petitioner 's response to this particu lar concern of the Director (i.e., the Petitioner's statements and 
documents focusing on the originality of the Petitioner 's product) does not fully address the questions posed by the 
unauthorized reprodu ction of materials. As such, we will not further address these aspects of the Petitioner 's evidence, 
including the opinion letter from and the Petitioner 's patent and trademark application s. 
16 
We observe that only seven of the Petitioner 's current employee s work at the Petitioner 's worksite . The Petitioner 
stated that all its other employee s "are based at different client locations." 
13 
Matter of T-S- Inc 
evidence, the Petitioner has not corroborated who has or will have actual control over the 
Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner, or any other company which it 
may represent, will have and maintain the requisite employer-employee relationship with the 
Beneficiary for the duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to 
work such that it will have and maintain an employer-employee relationship with respect to the 
sponsored H-lB nonimmigrant worker). Again and as previously discussed, there is insufficient 
evidence detailing where the Beneficiary will work, the specific projects to be performed by the 
Beneficiary, or for which company the Beneficiary will ultimately perform these 
services. Therefore, the petition cannot be approved for this additional reason. 
IV. CONCLUSION AND ORDER 
As set forth above, we find the evidence of record insufficient to establish that the proffered position 
qualifies for classification as a specialty occupation. We also find the evidence of record insufficient 
to demonstrate that the Petitioner qualifies as a United States employer that will have an employer­
employee relationship with the Beneficiary. Accordingly, the appeal will be dismissed and the 
petition denied. 17 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001); see also Matter 
of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) (noting that we conduct appellate review 
on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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 
17 As these issues preclude approval of the petition, we will not address any additional deficiencies we have identified on 
appeal. · 
14 
Matter of T-S- Inc 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of 
Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S- Inc, ID# 15008 (AAO Jan. 4, 2016) 
15