dismissed H-1B Case: Information Technology

MATTER OF L-A- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 30, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and information technology consulting firm, seeks to 
temporarily employ the Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant 
classificatiQn for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 11 01(a)(15)(H)(i)(b). The H-1B 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 Petitioner did 
not establish that 1) it will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee," 2) the proffered position is a 
specialty occupation, and 3) th~ labor condition application (LCA) is valid. 
On appeal, the Petitioner asserts that the Director's decision was erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101 ( a)(l5)(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 Secreta~y [of 
Labor] an application under section 212(n)(l) .... 
Matter of L-A- Inc 
The term "United States employer" is defined 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 theJmmigration 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-1B visa 
classification. The United States Supreme Court has 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." 
!d.; 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)).1 
1 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
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Matter of L-A- Inc 
In considering whether or not one will be an "employee" in an "employer-employee relationship" with 
a "United States employer" for purposes of H-lB nonimmigrant petitions, U.S. Citizenship and 
Immigration Services (USCIS) must focus on the common-law touchstone of "control." Clackamas, 
538 U.S. at 450; see also 8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who 
"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 . " 
(emphasis added)). 
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 v. Meissner, 201 
F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the recipients ofbeneficiaries' services, are 
the "true employers" ofH-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 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
IOI(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. Specifically, the regulatory definition of ''United States employer" requires H-1 B 
employers to have a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1 B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
The lack of an express expansion of the definition regarding the terms "employee'' or "employer-employee relationship" 
combined with the agency's otherwise generally circular definition of United States employer in 8 C.F.R. 
§ 214.2(h)(4)(ii) indicates that the regulations do not intend to extend the definition beyond "the traditional common law 
definition" or, more importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-19. A federal agency's interpretation of a statute whose administration is 
entrusted to it is to be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural 
Res. Def Council, Inc., 467 U.S. 83 7, 844-45 (1984 ). 
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Matter of L-A- Inc 
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). 
When examining the factors relevant to determining control, USCIS must assess and weigh each actual 
factor itself as it exists or will exist and not the claimed employer's right to influence or change that 
factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 323-24. For 
example, while the assignment of additional projects is dependent on who has the right to assign them, 
it is the actual source of the instrumentalities and tools that must be examined, and not who has the 
right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all ofthe incidents ofthe relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Upon application of the Darden and Clackamas tests, we find that the Petitioner has not established 
that it will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-1 B temporary "employee. " Specifically, the Petitioner has not established that 
(1) it had secured definitive, non-speculative employment for the Beneficiary ; and (2) it would 
control and supervise the Beneficiary's work. 
The Petitioner, located in Michigan , indicated that the Beneficiary will be assigned to 
(end-client) in California during the requested employment period from October 2016 to 
September 2019. The Petitioner indicates that the Beneficiary will be working on the end-client's 
' project. 
There is insufficient evidence of binding obligation on the part of the end-client to provide work for 
the Beneficiary for the duration of the requested validity period. For example, although the purchase 
order indicated a start date of October 1, 2016, it did not include any end-date for the Beneficiary . 
Further, while the purchase order states that it "defines estimated work to be provided under the 
terms and conditions of the master consulting agreement ," the Petitioner did not submit a "master 
consulting agreement." Instead, the record contains a "professional contractor agreement ," which 
indicates a three-year contract between the Petitioner and the end-client , but does not list the 
Beneficiary by name or provide any specific information regarding the project the Beneficiary will 
be working on. Further, according to the project timeline, the project the Beneficiary will be 
assigned to is scheduled to be completed by June 2018, more 
than a year prior to the requested end­
date. While we acknowledge that the end-client indicated that the Beneficiary will be assigned to 
"the Project and/or ongoing related projects ," for a period of three years, 
it did not provide probative information regarding the other "ongoing related projects." Given the 
completion date of the project and the fact that the end-client also places individuals at third-party 
locations, absent a foundational showing that there will actually be work for the Beneficiary to perform 
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Matter of L-A- Inc 
for the end-client for the requested three-year period, we cannot determine whether such work would 
entail the Petitioner engaging the Beneficiary in an employer-employee relationship? The Petitioner is 
required to 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. § 1 03 .2(b )(1 ). A visa petition may not be 
approved at a future date after the Petitioner or the Beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm.'r 1978). As such, eligibility 
for the benefit sought must be assessed and weighed based on the facts as they existed at the time the 
instant petition was filed. 
We must also note concerns regarding the end-client. For example, the letterhead for the end­
client's October 19, 2016, letter and-the "Acceptable Use Policy" indicate the name of the company 
is ' Within the October letter, the names ' and 
are also used. The letterhead used for the purchase order and professional contractor agreement list 
the name of the company as ' and the submitted white papers from the end-client 
use' ' These discrepancies have not been explained . 
However, even if we set that issue aside, we still would find insufficient evidence of an employer­
employee relationship. In other words, even if we assume that the Petitioner had secured work for the 
Beneficiary to perform, we would find that the terms of that employment- and thus the existence of an 
employer-employee relationship -had not been demonstrated. 
The Petitioner claims throughout the record that it would control the Beneficiary's work. Though ' 
we acknowledge these claims, we must weigh them against the contradictory evidence and assertions 
ofrecord. . 
For example, according to the letter from the end-client, the Beneficiary appears to already be 
working at the end-client which contradicts the information provided on the Form 1-129, Petition for 
a Nonimmigrant Worker. Specifically, the author of the letter states that he "interact[s] with [the 
2 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example , a 
1998 proposed rule documented this position as follows: 
Historically , the Service has not granted H-1 B classification on the basis of speculative , or undetermined, prospective 
employment. The H-1 B classification is not intended as a vehicle for an alien to engage in a job search within the United 
States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential 
business expansions or the expectation of poten tial new customers or contracts. To determine whether an alien is 
properly classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the position 
to be occupied to ascertain whether the duties of the position require the attainment of a specific bachelor's degree. See 
section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien 
has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform 
either part of this two-prong analysis and, therefore, is unable to adjudicate properly a request for H-1 B classification. 
Moreover, there is no assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for ·the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
5 
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Matter of L-A- Inc 
Beneficiary] regularly" and that when the Beneficiary is at their offices, he "works closely with 
However, according to Part 3, question 5, the Beneficiary is not in the United States 
and the Petitioner did not provide any evidence that the Beneficiary is currently authorized to work 
for the end-client. 
The letter also states that the Beneficiary will be assigned to "the 
and/or ongoing related projects," implying that the end-client has the authority to assign the 
Beneficiary to other projects. In addition, the letters from the Petitioner and end-client do not reflect 
any role for the Petitioner in the project upon which the Beneficiary would work, beyond sending the 
Beneficiary as a resource. If the Petitioner is not playing an active role on this project, then it is 
unclear how it could direct the Beneficiary's day-to-day tasks as they relate to the project. 
Further, the Petitioner provided inconsistent information regarding who will supervise the 
Beneficiary. The Petitioner submitted an organization chart, which includes the Beneficiary as one 
of the 16 people listed and indicates that he and 10 others are placed at a client location and report to 
an unnamed vice-president of the company. However, according to the "Employee Performance 
Assessment Sheet" and the itinerary, the president of the company will review and supervise the 
Beneficiary. As mentioned, the end-client 's letter indicates that "[w]hile at [its] office, [the 
Beneficiary] works closely with ' The record does not indicate whether 
is the Petitioner's employee. The end-client letter also states that the Beneficiary "is expected to 
follow [itsJ,standard workspace policies and his day-to-day project deliverables are reviewed by [its] 
architect to ensure that it conforms to the quality and acceptance standards." We also note that 
although the Petitioner indicated that it has 44 employees, it does not provide any explanation as to 
why the chart only includes 16 individuals, or to which client the listed individuals are assigned. It 
is, therefore, also unclear how many individuals in total report to the listed vice-president or at how 
many client locations the supervised individuals have been placed. Further, the Petitioner has not 
explained how this vice-president is able to meaningfully supervise at least 11 individuals at client 
sites, including the Beneficiary who will be located in California. The inconsistencies and 
deficiencies in the record undermine the Petitioner's claim that it will direct and control the 
Beneficiary's work. 
While the Petitioner may handle the administrative and personnel functions related to keeping the 
Beneficiary on its payroll, it appears that the Petitioner would not operate as the Beneficiary 's 
employer in the common law sense, but that it would instead act as a supplier of personnel to 
temporarily supplement the staff of organizations such as the end-client who would control the 
content, means, and methods of those individuals ' work. In this regard, we observe that it appears as 
though the end-client would determine and assign the Beneficiary' s day-to-day work on the end­
client controlled project in which the Petitioner's role has not been established. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions , federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control 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, 
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Matter of L-A- Inc 
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 Based on the tests outlined above, we find that the 
Petitioner has not established that it will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-lB temporary "employee." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
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) 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: 
(I) 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. Cherto,[f, 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, 201 F.3d at 387. 
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Matter of L-A- Inc 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 3 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.4 
Before addressing the specialty-occupation criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4), 
we will briefly discuss an issue which precludes a finding that the proffered position is a specialty 
occupation. 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 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. 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. 
The Petitioner submitted a letter from the end-client discussing the proffered position's duties and 
educational requirements in response to the Director's request for evidence. According to the end­
client, the position requires, at minimum, a bachelor's degree "in a field closely and directly related 
to the nature of the work." However, the end-client does not identify any fields it would consider to 
be "closely and directly related." 
The claim that a bachelor's degree is a sufficient minimum requirement for entry into the proffered 
position is inadequate to establish that the proposed position qualifies as a specialty occupation. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of study 
that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college 
degree for the sake of general education, or to obtain what an employer perceives to be a higher 
caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 
degree may be a legitimate prerequisite for a particular position, requiring such a degree, without 
more, will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. Royal Siam Corp., 484 F.3d at 147. 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
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Matter of L-A- Inc 
The end-client's statement therefore indicates that the proffered position is not in fact a specialty 
occupation. The Director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. 
While this issue precludes the approval of the petitiOn, for the purpose of performing a more 
comprehensive analysis, we will now review the evidence of record in light of the four specialty­
occupation criteria contained at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I)-(4). 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department ofLabor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.5 
On the labor condition application (LCA)6 submitted in support of the H-1B petition, the Petitioner r 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.7 The subchapter of the 
Handbook entitled "How to Become a Computer Systems Analyst" states, in pertinent part: "A 
bachelor's degree in a computer or information science field is common, although not always a 
requirement. Some firms hire analysts with business or liberal arts degrees who have skills in 
information technology or computer programming." The Handbook also states: "Although many 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 The Petitioner is required to submit a"certified LCA in order to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by 
the employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
7 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of L-A- Inc 
computer systems analysts have technical degrees, such a degree is not always a requirement." In 
fact, this chapter reports that "many" computer systems analysts may only have liberal arts degrees 
and programming or technical experience, but does not further qualify the amount of experience 
needed. The Handbook also does not specify a degree level (e.g., associate's degree) for these 
technical degrees. Thus, the Handbook indicates there are several paths for entry into the occupation 
and does not report that at least a bachelor's degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the occupation. 
In addition, we must take into account the Petitioner's indication on the LCA that it will pay the 
Beneficiary a Level I wage, which indicates that it is an entry-level position. Given the Handbook's 
implication that a bachelor's degree in a specific specialty, or the equivalent, is not normally 
required for positions located within this occupational category, it seems unlikely that an entry-level 
position possessing these characteristics would have such a requirement. 8 
The Occupational Information Network (O*NET) Summary Report, is also insufficient to establish 
that the proffered position qualifies as a specialty occupation. O*NET assigns this occupation a Job 
Zone "Four" rating, which groups it among occupations for which "most ... require a four-year 
bachelor's degree, but some do not." Further, O*NET does not indicate that four-year bachelor's 
degrees required by Job Zone Four occupations must be in a specific specialty directly related to the 
occupation. Therefore, the information from O*NET is not probative of the proffered position being 
a specialty occupation. 
Finally, the Petitioner's reliance on information from four websites is also not probative 
documentation from an authoritative source that a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into the particular 
position. For example, the printout from the Commonwealth of Virginia states that "[i]n fact, 
individuals with the right experience and training can work in these computer occupations 
regardless of their college major or level offormal education (emphasis added)." 
For all of these reasons, we find that the Petitioner has not established that the proffered position is 
located within an occupational category for which the Handbook, or any other relevant, authoritative 
source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a 
specific specialty, or the equivalent. Further, the record does not support a finding that the particular 
position proffered here, an entry-level position located within the computer systems analysts 
occupational category, would normally have such a minimum specialty degree requirement, or the 
equivalent. The Petitioner therefore has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(l). 
8 A recent policy memorandum explains that a petitioner may use proper wage level designation to distinguish the 
proffered positon from others within the same occupation. USC IS Policy Memorandum PM-602-0 142, Rescission of the 
December 22, 2000 "Guidance memo on HI B computer related positions" (Mar. 31, 20 17), 
https:/ /www. uscis.gov/sites/default/files/fi les/nativedocuments/PM -6002-0 142-H-I BComputerRelatedPositions 
Recission.pdf. 
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Matter of L-A- Inc 
2. Second Criterion 
The second criterion presents two alternative prongs: "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 w_ith a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) 
(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion 
on the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a mini!llum .entry requirement. 
The Petitioner did submit a number of job postings, but does not address the regulatory requirement 
that the degree requirement be common to the industry in parallel positions among similar 
organizations. For the Petitioner to establish that other organizations are similar, it must 
demonstrate that they share the same general characteristics. ~e consider such factors as the nature 
or type of organization, and, when pertinent, the particular scope of operations, as well as the level 
of revenue and staffing (to list just a few elements that may be considered). Without evidence 
establishing that the submitted postings are for parallel positions in the same industry at similar 
organizations, we cannot find that the position meets this criterion. It is not sufficient for the 
Petitioner to make such claims without providing a legitimate basis for its assertions. 
I 
Further, most of the provided postings only indicate the minimum requirement as a bachelor's 
degree, without listing a specific specialty. Therefore, the job advertisements do not establish that 
similar organizations in the Petitioner's industry employ individuals with degrees in a spec(fic 
specialty in parallel positions. 
I I 
Matter of L-A- Inc 
The Petitioner submitted three virtually identical letters from individuals in the industry to "verify 
... the requirement for an individual to fill the position of Programmer/ Analyst," along with other 
computer related positions. Notably, the letters contain identical language which suggests that they 
were authored by the same individual, and undermines the probative value of the letters. For 
example, every letter states that they "help its Global 500 customers remain at the forefront of their 
industries with innovative uses of technology to operate their businesses more efficiently" and they 
all "deliver flexible, custom Information Technology and Business Process outsourdng solutions 
that improve quality and reduce costs." 
Further, the letters do not indicate that a bachelor's degree in a spec(fic specialty, or the equivalent, 
is common to the industry in parallel positions among similar organizations. Specifically, the letters 
indicate that a bachelor's degree in mathematics, statistics, accounting, computer science, or 
engineering is required for these positions. In general, provided the specialties are closely related, 
e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than qne 
specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" 
requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly 
specialized knowledge" would essentially be the same. Since there must be a close correlation 
between the required ','body of highly specialized knowledge" and the position, however, a minimum 
entry requirement of a degree in two disparate fields, such as philosophy and engineering, would not 
meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless 
the Petitioner establishes how each field is directly related to the duties and responsibilities of the 
particular position such that the required body of highly specialized knowledge is essentially an 
amalgamation of these different specialties. Section 214(i)(l )(B) of the Act (emphasis added).
9 
There is no further information in the record how each field is directly related to the duties of the 
proffered position. 
For these reasons, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
b. Second Prong 
The Petitioner does not address the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), and 
the record does not establish that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
9 In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so 
narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they pennit, as a 
minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)( I )(B) of the Act; 8 
C.F.R. § 214.2(h)(4)(ii). As just stated, this also includes even seemingly disparate specialties provided the evidence of 
record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
12 
Matter of L-A- Inc 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
specifically degreed individual could perform them. Moreover, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform in the position it claims is so complex and unique. 
Moreover, the Petitioner designated the proffered position as an entry-level position within the 
occupational category (by selecting a Level I wage). This designation, when read in combination 
with the Petitioner's job description and the Handbook's account of the requirements for this 
occupation, further suggests that this particular position is not so complex or unique relative to other 
computer systems analysts that the duties can only be performed by an individual with a bachelor's 
degree or higher in a specific specialty, or its equivalent. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
record must establish that a petitioner's imposition of a degree requirement is not merely a matter of 
preference for high-caliber candidates, but is necessitated by the actual performance requirements of 
the position. See Defensor, 201 F.3d at 387-88. If we were solely limited to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. !d. Evidence provided in 
support of this criterion may include, but is not limited to, documentation regarding the Petitioner's 
past recruitment and hiring practices, as well as information regarding employees who previously 
held the position. 
The Petitioner submits a number of its job postings. While some of the postings are for a 
"Programmer Analyst," the Petitioner has not established that any of the advertised openings are for 
the same or similar position as the proffered entry-level position. The advertised positions require a 
master's degree plus at least six months experience, and are, therefore, at a much higher level than 
the proffered entry-level position. Further, the record does not contain copies of common documents 
such as payroll records, Forms W-2, or diplomas regarding employees who previously held the 
position. This evidence, therefore, does notsatisfy the third criterion. 
As the Petitioner did not submit probative evidence regarding previous or current employees in the 
same position as the Beneficiary's proffered position, we cannot find that the position satisfies this 
criterion. 
13 
Matter of L-A- Inc 
4. Fourth Criterion 
The fourth criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
As evidence, the Petitioner relies on the submitted itinerary which includes the job duties of the 
proffered position, but does not provide any explanation as to how the listed duties are sufficiently 
specialized and complex. Even though the Petitioner claims that the proffered position's duties meet 
this criterion, it does not distinguish the duties of the proffered position from other computer systems 
analyst positions such that it refutes the Handbook's information. The Petitioner cannot establish its 
claim with unsupported testimonial evidence alone. 
Further, in classifying the proffered position at a Level I (entry-level) wage, the Petitioner effectively 
attested to the DOL that the Beneficiary would perform routine tasks that require limited, if any, 
exercise of judgment, that he would be closely supervised and his work closely monitored and 
reviewed for accuracy, and that he would receive specific instructions on required tasks and 
expected results. 10 The DOL guidance referenced above states that an employer should consider a 
Level I wage designation when the job offer is for a research fellow, a worker in training, or an 
internship. ) 
The Petitioner has not demonstrated that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
III. LCA VALIDITY 
The Director also found that the submitted LCA "cannot be considered valid." Rather than address 
this finding directly, the Petitioner simply states that "[b]ased on the explanations above and the 
10 Again, 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. 
14 
.
Matter of L-A- Inc 
supporting evidences thereof, it is evident that ... the LCA in question is also in-fact valid." As 
previously stated, the Petitioner cannot establish its claim with unsupported testimonial evidence 
alone. 
The LCA indicates that the Beneficiary will only work at the end-client site in California and lists 
September 2, 2019, as the end date. However, according to the project plan for the'' 
project, it will be completed by June 2018. While we acknowledge that the end-client indicated the 
Beneficiary could be assigned to "ongoing related projects," without providing any additional 
information regarding what those projects are, the Beneficiary's role in those projects and what the 
minimum education requirements are, we agree with the Director's finding. Further, given that the 
end-client also places individuals at third-party locations, we share the Director's concern that the 
submitted LCA may not accurately reflect the place of employment listed on the LCA for the 
duration of the employment .indicated. 
IV. CONCLUSION 
For the reasons above, the Petitioner has not established eligibility for the benefit sought.11 
ORDER: The appeal is dismissed. 
Cite as Matter of L-A- Inc, ID# 369584 (AAO June 30, 2017) 
11 Because these issues preclude approval of the petition we will not address any of the additional issues we have 
observed in our de novo review of this matter. 
15