dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5199001 
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. 2, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer" 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 record does not 
establish whether the Petitioner would have an employer-employee relationship with the Beneficiary . 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 Before we discuss the identified basis for denial, 
which is dispositive of the Petitioner's appeal, we will discuss another ground of ineligibility . 
Specifically, we conclude that the Petitioner has not demonstrated that the proffered position qualifies 
as a specialty occupation. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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: 
(]) 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 stated that the Beneficiary would work at the end-client location. However, the record 
does not establish that, at the time of the petition filing, the parties contracted for the Beneficiary to 
provide services in a specialty occupation during the requested employment period. 
Although the record contains an agreement governing a secondary supplier relationship (AGSSR) and 
two statements of work (SOWs) between the Petitioner and the mid-vendor, it does not contain 
documentary evidence of a contract between the end-client and any other party. The AGSSR is a 
general agreement for the Petitioner to "assign contract labor personnel ('Contract Employees') 
through [the mid-vendor] to [the end-client]." The AGSSR farther states that it "concerns referrals 
[the mid-vendor] may make to [the Petitioner] for orders [the mid-vendor] receives from [the 
end-client] on its behalf or on behalf of its affiliates." 
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. 
2 
The two SOWs supplementing the AGSSR identify separate affiliates of the end-client; however, they 
do not describe specific projects or tasks to be performed, position titles or individuals assigned to 
perform the tasks, requirements to qualify for performing the tasks, or the duration of the general 
agreement. The AGSSR and SOWs do not otherwise reference the Beneficiary or a specific project 
to which he would be assigned. Furthermore, as noted, the record does not contain documentary 
evidence of the terms of a contract between the end-client and any other party. 3 Accordingly, the 
record does not establish that, at the time of filing the petition, the parties contracted for the Beneficiary 
to perform specific work at the end-client location, and therefore does not establish the substantive 
nature of the proffered position. 
The record contains a letter from the end-client, addressed "to whom it may concern." The letter states 
that the Beneficiary "will be needed at [the end-client~rform the following duties as a Software 
Developer for the multiple projects likel lprojectl__J and I !Integration, [ and] Internal 
Case Survey." The letter then lists 12 bulleted duties consisting of verbatim language that appears on 
other documents in the record, such as a letter from the Petitioner, in a font that does not match the 
font used in the rest of the end-client's two-page letter, including the same typographical errors as 
those in the Petitioner's letter. 4 
The verbatim nature of the duty description, containing the same typographical letters made by the 
Petitioner, in a font that does not match the font used in the remainder of the end-client's letter raises 
questions regarding whether the signatory actually wrote the description and, therefore, whether it 
describes the end-client's actual requirements. 
To the extent that the end-client describes the end-client's actual requirements, we note that it states 
the end-client requires a "Bachelor's degree in Electrical and Electronic Engineering, or [a] related 
field for subject matter expertise in Mathematics - I, II, III, Computer Programming and Data 
Structures" for a "software developer" position. However, the reference to generalized "Mathematics 
- I, II, III" is confusing and does not explain what particular type of mathematics expertise is required, 
and how "mathematics III" differs from "mathematics I" and "mathematics II." The letter also does 
not establish whether the generalized "mathematics - I, II, III" is sufficiently specialized and complex 
that subject matter expertise in it, when combined with computer programming and data structures, 
would form a specific specialty. 
Additionally, although the end-client letter identifies three projects to which the Beneficiary would be 
assigned, it does not elaborate on what those projects actually entail. For example, although the letter 
references a 'I !project," it does not define the acronym 'I I' or describe the performance 
objectives and deliverables of the 'I I project." 5 As another example, although the letter 
references D andb !integration," the only duty that apparently corresponds T that project 
is "[i]ntegration with andl b to leverage data flow of [ c ]ases created by [" 
3 The Petitioner resubmitted copies of the AGSSR and SOWs, including again on appeal. However, the Petitioner did not 
submit a copy ofa contract between the end-client and any other party. A letter from the mid-vendor submitted in response 
to the Director's request for evidence states that the mid-vendor is "contractually unable to provide a copy of our contracts 
with [the end-client]." However. without documentary evidence of the terms of the contract between the end-client and 
any other party. we are unable to determine the substantive nature of the work for which the parties contracted. 
4 The font matches the font used in the letter from the Petitioner. 
5 The acronym may relate to general data protection regulation; however, the end-client letter does not indicate that it does. 
3 
which essentially repeats the p[°jey name. The letter does not elaborate on the actual work to be 
performed in order to integrate with I I Furthermore, although the letter references an 
"internal case survey," it does not elaborate on the internal cases, how they would be surveyed, and 
the role of a software developer in surveying those internal cases. The letter farther states that "[the 
Beneficiary's] services will be required until the duration of the project with possible extensions," but 
it does not state what that duration is. As noted above, the AGSSR and SOWs also do not state the 
duration of the generalized agreement. 
Furthermore, although the end-client letter references "the agreement between [the end-client] and the 
mid-vendor] and [a] contract between [the mid-vendor] and [the Petitioner]," as noted above the record 
does not contain documentary evidence of the terms of "the agreement between [ the end-client] and 
the [mid-vendor]." Also as noted above, the AGSSR and SOWs between the Petitioner and the 
mid-vendor do not establish that, at the time of the petition filing, the parties specifically contracted 
for the Beneficiary to work at the end-client location during the requested employment period. 
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. 
In this case, the duty description containing verbatim language appearing on other documents in the 
record, in a font matching the font used in other documents in the record but not matching the font 
used in the remainder of the end-client's two-page letter, and furthermore the generalized information 
about various projects without a definite starting or end point do not establish the end-client's actual 
requirements for the particular position during the requested employment period. 
In summation, we conclude that the ambiguities and lack of documentation in the record raise 
questions regarding the actual substantive nature of the proffered position, which therefore precludes 
a conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because 
the substantive nature of the work determines (1) the normal minimum educational requirement for entry 
into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to 
the proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
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. 
4 
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. 
Moreover, the record does not establish that the Petitioner, located in California, would direct and 
control the Beneficiary's work at the end-client location in Illinois. An itinerary in the record identifies 
the Beneficiary's supervisor as N-J-; however, it does clarify how N-J- would direct and control the 
Beneficiary's work, and from what location. The record contains four emails to N-J- in May 2018, 
which she forwarded to herself in January 2019, to which the sender attached "daily tasks for 
05/09/2018," "05/11/2018," "05/15/2018," and "05/17/2018." 6 The original emails are from a private 
Google mail account, not an email account associated with the Petitioner, mid-vendor, or end-client, 
and the name of the sender is identified as K-H-, which does not match the Beneficiary's name, 
K-R-B-. The daily tasks do not establish that the Beneficiary sent them, and furthermore, they do not 
establish the work performed, whether N-J- reviewed the summary and, if so, whether she responded, 
and how the Petitioner prospectively directed and controlled the work performed. For example, the 
extent of a typical submission is as follows: 
6 The emails identify N-J- as either the Petitioner's "account manager" or its "business development executive." 
5 
Hi [N-], 
Request you to please review the below mentioned daily tasks for 05/17/2018 
• Today our team is working on case object with some production issue on case 
object related to comments and investigated on it and found it is caused by a 
trigger. 
• Me and one person in my time [sic] had a meeting about solutions to solve case 
accept button and need to explain those solutions to PE Team and Reports 
Team. 
The generalized task summary does not describe the case object, the production issue, the work 
performed in the investigation of the issue, how the team found the issue is caused by a trigger, what 
the trigger is, and the extent of the team members' individual roles in the investigation. The summary 
also does not elaborate on the meeting, the solutions discussed, and whether the result of the meeting 
was to implement any particular solution. Even if the daily task summaries established that the 
Beneficiary sent them, the work performed on a given day, and how the Petitioner prospectively 
directed and controlled that work, the record does not establish that the Petitioner required the 
Beneficiary to submit daily task summaries on a daily basis. Instead, the record contains four 
summaries between May 9 and May 17, indicating that the Petitioner would review daily task 
summaries for approximately half of the work performed. Furthermore, the general practice of sending 
summaries of work performed afterward does not establish how the Petitioner would prospectively 
direct and control that work. Accordingly, the emails and daily task summaries do not establish that 
the Petitioner would direct and control the Beneficiary's work at the end-client location. 
We note that the record also contains a performance appraisal for the Beneficiary during the period of 
June through December 2018, completed by N-J-. However, like the daily summaries, the appraisal 
conducted after the Beneficiary's performance does not establish how the Petitioner prospectively 
directed and controlled the Beneficiary's work. 
Other documents in the record raise questions regarding who would direct and control the 
Beneficiary's work performed at the end-client location, and how. For example, the end-client letter, 
discussed above, states that"[ a ]t [ the end-client's] office, [the Beneficiary] reports results and provides 
project progress updates to [K-I-]," and provides an email address containing the end-client's domain 
name. The record does not contain an organization chart indicating that K-I- is an employee of the 
Petitioner. The record also does not establish how the Petitioner would direct and control the 
Beneficiary's work at the same time the Beneficiary "reports results and provides project progress 
updates" at the end-client's location to an individual who appears to be an employee of the end-client. 
The AGSSR, discussed above, states that "[u]nless otherwise directed by [the mid-vendor], [the 
Petitioner] will interface directly and exclusively with [the mid-vendor], never directly with [the 
end-client] with respect to [the end-client's] requirements, job assignments, Secondary Supplier 
Contract Employees, and/or questions or concerns regarding contract personnel job requirements." 
The contractual prohibition of "interface[ing] directly" with the end-client regarding 'job 
assignments" raises significant questions regarding how the Petitioner would direct and control the 
Beneficiary's work during the job assignment at the end-client's location. Furthermore, the AGSSR 
6 
states that "[the mid-vendor] may terminate [the AGSSR] with or without cause" with 30 days' written 
notice and that "[a]t anytime, [the mid-vendor] may, for its sole convenience, terminate the assignment 
of any Contract Employee for any non-discriminatory reason." Those provisions raise questions 
regarding whether the Petitioner ultimately would direct and control the Beneficiary's work, and 
whether the assignment would exist at all throughout the requested employment period. 
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. 
7