dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software engineer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the proffered position 
does not qualify as a specialty occupation . On appeal, the Petitioner submits additional evidence and 
asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 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: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of S-, Inc. 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
The Petitioner, located in Maryland, stated that the Beneficiary would work at the end-client location 
in Oregon. In support of the petition the Petitioner submitted a letter from a mid-vendor, located in 
Oregon. The mid-vendor letter stated that "we, [the mid-vendor] entered into an agreement with 
I I [not the Petitioner] to provide IT services to our client, [the end-client]." The 
mid-vendor letter farther stated that "[the Beneficiary,] an employee ofl Ir,] has been 
assigned to provide services at our client." However, the record does not contain documentary 
evidence of a contract between the mid-vendor and either the Petitioner,.__ ______ ___., or the 
end-client. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a master service 
agreement (MSA) and a work order (WO) between the Petitioner and a new mid-vendor. 3 However, 
the parties signed and dated both the MSA and WO after the petition filing date. A petitioner must 
2 The Petitioner submitted documentation to support the H-1 B 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. 
3 The Petitioner acknowledged in its RFE response that "[i]n the initial filing, we indicated that [the Beneficiary's] project 
was facilitated through [the mid-vendor]" but "[s]ince the initial filing, the mid-vendor has changed to [the new vendor]." 
However, the Petitioner did not address the statement in the mid-vendor's letter that the Beneficiary was employed by 
another entity with which the mid-vendor contracted for the Beneficiary's services. 
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Matter of S-, Inc. 
establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at 
a future date after a petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Therefore, the MSA and WO 
between the Petitioner and the new mid-vendor, signed and dated after the filing date, may not be used 
to establish eligibility. 
Also in response to the Director's RFE, the Petitioner submitted a letter from the end-client; however, 
the letter does not establish the terms of a contract between the end-client and any other entity, the 
substantive nature of the work to be performed, and the academic requirements, if any, to perform the 
work. The end-client letter references "a valid agreement" with the new mid-vendor; however, the 
record does not contain documentary evidence of that agreement and, even if it did, the MSA and WO 
between the mid-vendor and the Petitioner may not be used to establish eligibility. Additionally, the 
end-client letter reports that the "engagement's end date is on or about 3/30/2019 with a potential 
extension for the next 12 months," but the record does not establish whether the parties contracted for 
any extension. 
Furthermore, the end-client letter describes the duties of the proffered position in a bulleted list 
copying verbatim the Petitioner's description submitted in support of the appeal, which consists of 
generalized language, such as "[p]rovide development work to [the end-client's] events tool (NET) 
and GEC (Global Events Calendar) applications." As noted above, the generalized language limits 
our ability to understand the position's substantive nature. Additionally, the verbatim nature of the 
end-client's duty description raises questions regarding whether the end-client's representative 
actually wrote it and, therefore, whether the end-client was aware of the letter's contents and whether 
the letter reflects the end-client's actual requirements. Moreover, even if the end-client letter 
established the substantive nature of the work to be performed, it states simply that the position 
requires "a minimum of a Bachelor's Degree in the field," without specifying the field or otherwise 
stating that the degree must be in a specific specialty, or its equivalent. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for an 
entity other than the petitioner, evidence of the client company's job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
The record contains an opinion letter written by I I an associate professor of computer 
applications and information systems at the University ofl I As a matter of discretion, we 
may use opinion statements submitted by a petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N 
Dec. 791, 795 (Comm'r 1988). However, we will give an opinion less weight if it is not in accord 
with other information in the record or if it is in any way questionable. Id. We are ultimately 
responsible for making the final determination regarding an individual's eligibility for the benefit 
sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see 
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Matter of S-, Inc. 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while 
undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible 
only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue.'"). 
In his letter, I I quoted the duties provided by the Petitioner. I I concluded that, based 
on the Petitioner's description, "[i]t is typical for an IT staffing agency to hire a Software Engineer or 
someone in a similar professional position, and require the minimum attainment of a Bachelor's 
Degree in Computer Science, Engineering, or a related area for the position." However, as discussed 
above, where the work is to be performed for an entity other than the petitioner, evidence of the client 
company's job requirements is critical. Defensor, 201 F.3d at 387-88. The requirements imposed by 
the entities using the beneficiary's services 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. Id. I ldoes not indicate that he reviewed or even was aware of the 
requirements of the end-client, which is an apparel manufacturer, not an "IT staffing agency." 4 
Moreover, I ldoes not address the end-client's statement that the position requires "a minimum 
of a Bachelor's degree in the field," without specifying the field or otherwise stating that the degree 
must be in a spec~fic specialty, or its equivalent. AccordinglyJ Is opinion letter bears minimal 
probative value because it does not address whether the evidence from the end-client requires a 
bachelor's or higher degree in a specific specialty, or its equivalent. 
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. 5 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether the Petitioner qualifies as an H-lB employer. The United 
States Supreme Court determined that where federal law fails to clearly define the term "employee," 
courts should conclude that the term was "intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 
4 We note that, as discussed above, the end-client letter copied verbatim the Petitioner's duty description. However, as 
noted, the verbatim nature of the end-client's duty description raises questions regarding its authenticity. Moreover, Dr. 
Todd specifically opined on the requirements of "an TT staffing agency," not an apparel manufacturer, which does not 
address the end-client's requirements, even to the extent that they overlap with the Petitioner's requirements. 
5 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Matter of S-, Inc. 
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 at the end-client's location 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. 
Specifically, as noted above, the mid-vendor letter submitted in support of the petition stated that "[the 
Beneficiary] is an employee ofl I," not an employee of the Petitioner, and that the 
Beneficiary would be assigned to work on the end-client's projects pursuant to "an agreement with 
I Ito provide IT services to [the mid-vendor's] client." 6 Furthermore, the only 
documentary evidence of a contract among any of the parties was signed and dated after the petition 
filing date and, as discussed above, may not be used to establish eligibility. 
~ 6 l.__ _ __,['""",s opinion letter reported that "[t]rom March 2016 to July 2018, [the Beneficiary] was employed b~ I 
._I ___ __.I as Software Programmer." The record also contains a letter from I j stating that "[the 
Beneficiary' was employed with.__ _____ _., as a Jr. Software Programmer from March 7, 2016 - July 3, 2018." 
In contrast, the record contains a copy of the Beneficiary's resume, which reports that from "Dec 2016 - Till Date " the 
Beneficiary worked at the end-client location as a ·'software engineer," without identifying either the Petitioner orl I I l as his employer. Therefore, the record raises questions regarding the Beneficiary's actual employer both 
prior to and after the petition filing date in April 2018. 
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Matter of S-, Inc. 
In addition to omitting documentary evidence of the foll terms of the contract, the record does not 
establish that the Petitioner would direct and control the Beneficiary's work performed at the 
end-client's location. The Petitioner asserted that it will have "the right to control the work of the 
Beneficiary, including payment, providing benefits, making hiring and firing decisions, supervising, 
and conducting performance reviews." The record contains an organization chart that indicates the 
Petitioner's "CTO/Tech Lead" 7 would supervise the Beneficiary, and lists the following brief: 
generalized items: 
• Performance review; 
• Appraisal; 
• Skip Level meetings; 
• Escalations; 
• Annual Reviews; 
• Daily standup meetings; 
• Online meetings; 
• Code reviews; 
• Release planning; 
• Sprint Planning; 
• Grooming; 
• Debugging; 
• KRAs; [ and] 
• Mentoring. 
The brief: generalized items in the list-often consisting of a single word-do not provide sufficient 
information about what they entail, in order for us to determine how the supervisor would direct and 
control the Beneficiary's work. The record does not establish whether the Beneficiary's supervisor 
would work at the end-client location in Oregon, the Petitioner's location in Maryland, or any other 
location. 
The record also contains a letter from the Beneficiary's tech lead, stating that "I will supervise [ the 
Beneficiary] regularly by [ d]aily standup meetings, regular phone calls, regular email communication, 
weekly status reports, [q]uarterly/[h]alfyearly [p]erformance reviews, Skype calls, [t]eam viewer and 
WebEx meetings." In response to the Director's RFE, the Petitioner submitted documents titled 
"weekly progress dashboard[s]," dated August 31 and September 15, 2018. 8 However, the dashboards 
do not identify either the worker who prepared them or the supervisor who reviewed them. Therefore, 
they do not establish the manner in which the Beneficiary would report to the Petitioner's tech lead. 
Even if the dashboards pertained to the Beneficiary and the Petitioner's tech lead, they summarize the 
"recent activity & accomplishments" in brief, generalized statements such as "Implement [sic] 
localized countries and market transactions feature in GEC application," without describing the work 
actually performed. The dashboards contain fields for the "target date" and "status" of projects; 
however, they do not contain an assigned target date for completing a project or an indication of the 
current status. Moreover, even if the dashboards identified the worker, the supervisor, and the actual 
7 The record also identifies this individual as the Petitioner's "Director of Operations/President." 
8 The record does not explain the omission of a "weekly progress dashboard" between August 31 and September 15, raising 
questions regarding the actual frequency of these rep01is. 
6 
Matter of S-, Inc. 
work performed, they indicate that the Beneficiary would merely inform the Petitioner of the work he 
performed at the end-client location afterward, rather than demonstrating how the Petitioner would 
direct and control his work. 
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. While the Petitioner 
repeatedly asserts that it would remain the Beneficiary's employer, these assertions are insufficient to 
demonstrate that the Petitioner would have an employer-employee relationship with the Beneficiary 
while he works at the end-client's location. 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. 
Cite as Matter of S-, Inc., ID# 4655218 (AAO Sept. 16, 2019) 
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