dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-B-C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "systems analyst" under the H-1B nonimmigrant classification for specialty 
occupfitions. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to 
temporarily employa qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's decision was in 
error. 
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. 
l Matter of N-B-C-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(J) 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 have consistently interpreted 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). 
B. Analysis 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary and therefore has not established that the proffered position qualifies as a specialty 
occupation. Specifically, the Petitioner has not provided documents from the end-client that 
describe the duties and requirements for the proffered position. 
The Petitioner indicates that it will assign the Beneficiary to work at a third party location. 
According to the information in the record, the contractual chain is as follows: the Petitioner, which 
is located in Virginia, contracted with a mid-vendor, who in turn contracted with an end-client in 
Pennsylvania. 
The court in Defensor, 201 F.3d at 387-88, held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring a petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using a beneficiary's services (emphasis added). In other words, as the 
beneficiaries in that case would provide services to the end-client hospitals, and not to the petitioning 
·staffing company, the job duties and alleged requirements to perform those duties provided by the 
petitioning company were insufficient for a specialty occupation determination. See id. Therefore, 
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Matter of N-B-C-, Inc. 
in order for us to determine whether the proffered position qualifies as a specialty occupation, the 
end-client must provide sufficiently detailed information regarding the proposed job duties and the 
minimum educational requirements necessary to perform those duties. 
Although the record contains information about the position from both the mid-vendor and the 
Petitioner, there is no documentation from the end"client describing the Beneficiary's duties, the 
project on which he will be working, or even the duration of the project. The mid-vendor's letter 
states that its contract with the end-client is confidential. While employers are generally permitted to 
keep sensitive information confidential, this does not, however, relieve the Petitioner of the need to 
demonstrate the existence of work for the Beneficiary to perform during the period of requested 
employment. The claim that a document is confidential does not provide a blanket excuse for a 
petitioner not providing such a document if that document is material to the requested 
benefit. 1 Although a petitioner may always refuse to submit confidential commercial information if 
it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a 
denial. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every 
right to assert his claim under the Fifth Amendment[; however], in so doing he runs the risk that he 
may fail to carry his burden of persuasion with respect to his application."). 
Without reliable, official documentation directly from the end-client that provides information 
regarding the project itself, including a description of the Beneficiary's specific duties and 
responsibilities in relation to the project on which he will be working, the position's educational 
requirements, and other pertinent aspects of the proposed employment in Pennsylvania, we cannot 
determine the substantive nature of the proffered position. 
We are therefore precluded from finding that the proffered position satisfies any of the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines 
(1) the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered 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. 
In light of the above, we cannot find that the proffered position qualifies for classification as a 
specialty occupation. 
1 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order N?· 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
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Matter of N-B-C-, Inc. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also find an additional basis for denial because the evidence of record does not establish that the 
Petitioner would be a "United States employer" having "an employer-employee relationship with 
respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or 
otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 1 01 (a )(15)(H)(i)(b) of the Act defines an H -1 B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay. fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4),(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H -1 B visa 
classification. Therefore, in considering whether or not one will be an "employee" in an "employer­
employee relationship" with a "United States employer" for purposes of H-1B nonimmigrant 
petitions, USCIS will look to common-law agency doctrine and focus on the common-law 
touchstone of"control." See Nationwide Mut. Ins. Co. v. Darden, 503 u:s. 318 (1992); Clackamas 
Gastroenterology Assocs., P. C. v. Wells; 538 U.S. 440 (2003). 
4 
.
Matter of N-B-C-, Inc. 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958) (defining "servant"). 
Such indicia of control include when, where, and how a worker performs the job; the continuity of 
the worker's relationship with the employer; the tax treatment of the worker; the provision of 
employee benefits; and whether the work performed by the worker is part of the employer's regular 
business. See Clackamas, 538 U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a 
materially identical test and indicating that said test was based on the Darden decision); Defensor, 
201 F.3d at 388 (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to. control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man.at § 2-III(A)(l ). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a '·'United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, the key issue of 
who exercises control over the Beneficiary has not been substantiated. 
In response to the Director's request for evidence, the Petitioner and the mid-vendor provided letters 
attesting to the Petitioner's control over the Beneficiary. The Petitioner claims that the Beneficiary 
will be "working under our direct supervision and control, and that as such we retain the right to 
discipline and/or terminate him at will." It further states that the Beneficiary will "regularly report[] 
to our company offices in Virginia," but does not provide any additional information or 
specifics, such as the name of his supervisor or the manner of communication. The mid-vendor also 
contends that the Petitioner "is responsible for full supervision and control of this employee." The 
record does not, however, contain any further explanation or document in any detail how the 
Petitioner would supervise and otherwise control the Beneficiary's day-to-day activities at the end­
client location in Pennsylvania from its location in Virginia. 
Further, the claims in the letters are contradicted by the submitted evidence. According to the 
"Client Service Agreement" (agreement) between the mid-vendor and the end-client (referred to as 
"Client" in the agreement), consultants such as the Beneficiary "will work only under Client's 
5 
Matter of N-B-C-, Inc. 
supervision" and it is the end-client who will "be solely responsible to provide to Consultants such 
day-to-day guidance, assistance and other information as is necessary for the successful and timely 
completion of each assignment." In addition, it is the end-client who will "at its own cost, provide 
such work space, supplies, hardware and software as are reasonable required for each assignment." 
The Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988)~ 
The Petitioner provided copies of the Beneficiary's pay statements as evidence of an employer­
employee relationship. However, while items such as wages, social security contributions, worker's 
compensation contributions, unemployment insurance contributions, federal and state income tax 
withholdings, and other benefits are relevant factors in determining who will control the Beneficiary, 
other incidents of the relationship, e.g., where the work will be located, who will provide the 
instrumentalities and tools, who will oversee and direct the work of the Beneficiary, 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. 
· In light of the above, we are unable to find that the requisite employer-employee relationship would 
exist between the Petitioner and the Beneficiary. 
III. LABOR CONDITION APPLICATION 
Although we need not fully address other issues evident in the record, we wish to identify an 
additional concern to inform the Petitioner that this matter should be addressed in any future 
proceedings. 
We find that there are discrepancies in the record regarding the Petitioner's occupational 
classification of the proffered position and the description of duties. It is, therefore, unclear whether 
the Petitioner submitted an ETA Form 9035, Labor Condition Application for Nonimmigrant 
Worker (LCA), which corresponds to the petition. 
Department of Labor (DOL) regulations state, in pertinent part: 
·For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H -1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
On the LCA, the Petitioner indicated that the job title for the proffered position is "validation 
analyst" and listed the standard occupational classification code of 15-1121 for "computer systems 
Matter of N-B-C-, Inc. 
analysts." On the Form I-129, Petition for a Nonimmigrant Worker, and in the initial support letter, 
the Petitioner indicated the job title as "systems analyst." On appeal, however, the Petitioner 
indicated that it is providing a letter from the mid-vendor "discuss[ing] in great detail how the job 
duties of the position require the services of a chemical engineer" (emphasis added). The Petitioner 
included a letter from the mid-vendor which states that the "offered position" is for a "Quality 
Engineer (Packaging)." 
According to the mid-vendor, the Beneficiary will "perform[] Data Analysis, Equipment 
Specification Validation and Quality Control for label material production." The mid-vendor also 
states (note: errors in the original text have not been changed): 
The duties include but are not limited to analyzing Polymer materials, identify wax 
resin ribbon compositions, developing coating process for label stock, Change 
Control, perform process validation and verification, investigate quality issues, and 
conduct root cause analysis (RCA) and carry out Corrective and Preventive Actions 
(CAP A) in coordination with Quality and Manufacturing. 
In addition, the mid-vendor explained that the position requires at least a bachelor's degree in 
chemical or biomedical engineering and "strong knowledge" of process engineering, polymer 
chemistry and quality control. 
Based upon the information in the record, it does not appear that the proffered position was correctly 
classified as a computer systems analyst on the LCA. The Petitioner has provided multiple job titles 
for the proffered position including "validation analyst," "systems analyst," "chemical engineer," 
and "Quality Engineer (Packaging)." 
Further, it appears that the occupational classification selected by the Petitioner is not in accord with 
the proffered job duties. The DOL's Occupational Information Network (O*NET) provides the 
following information regarding the duties of a computer systems analyst: "Analyze science, 
engineering, business, and other data processing problems to implement and improve computer 
systems. Analyze user requirements, procedures, and problems to automate or improve existing 
systems and review computer system capabilities, workflow, and scheduling limitations. May 
analyze or recommend commercially available software." The Petitioner has not sufficiently 
explained how the duties such as "analyzing Polymer materials" or "identify[ing] wax resin ribbon 
compositions" relate to duties of a computer systems analyst. 
With respect to the LCA, the DOL provides clear guidance for selecting the most relevant O*NET 
occupational code classification. 2 The "Prevailing Wage Determination Policy Guidance" states the 
following: 
2 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), avail~ble at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance 
_Revised_11_2009.pdf 
.
Matter of N-B-C- , Inc. 
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 of O*NET 
occupations, the SWA 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 SW A shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
Thus, the Petitioner has not established that the petition is supported by LCA which corresponds 
with the petition as required by the regulation at 20 C.F.R. § 655.705(b). 3 
IV. CONCLUSION 
The Petitioner has not established that: (1) the proffered position qualifies as a specialty occupation; 
and (2) the requisite employer-employee relationship would exist between the Petitioner and the 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-B-C-, Inc., ID# 288264 (AAO Apr. 25, 2017) 
3 If the Petitioner believed that its position was described as a combination ofO*NET occupations, it should have chosen 
the highest paying occupation , which in this case is "Chemical Engineers" (OES/SOC Code 17-2041 ). We note that the 
prevailing wage for a chemical engineer in Pennsylvania, for a Level I position was $65,666 , which is above the 
Beneficiary's proffered salary. See http://www. flcdatacenter.com /OesQuickResults.aspx?code= 17-2041 &area = 
&year= 16&source= I (last visited Apr 24, 20 17). 
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