dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6057116 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 3, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer" under the H-IB 
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 California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the Petitioner had definite non-speculative employment in a specialty occupation available 
for the Beneficiary for the requested period of employment; and (2) an employer-employee 
relationship exists between the Petitioner and the Beneficiary. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit. Upon 
de novo review , we will dismiss the appeal. 
I. SPECIAL TY 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: 
(1) A baccalaureate or higher degree or its equivalent is nonnally 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). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation 
work. The Petitioner also has not established the substantive nature of the proffered position and that 
the job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 
The Petitioner, an information technology (IT) outsourcing company located in Texas, states that it 
provides consulting services to I (end-client) in Ca)jfomjj through I I 
~st vendor). The record also includes a lefter on I letterhead whereinl I LJ (second vendor) claims that I is its client. The contractual chain in this case therefore 
appears to flow as follows: Petitioner ➔ First vendor ➔ Second vendor ➔ End-client. 
We conclude first that the Petitioner has not established the existence of definite, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner filed this petition in April 2018 and claimed that the Beneficiary would be assigned to 
work at the end-client's California location as a software developer to provide computer programming 
services. To support that claim the Petitioner submitted a contract it executed with the first vendor 
and a tentative purchase order for a "Linux System Admin." The purchase order identified the 
2 
Beneficiary and indicated the effective date as October 9, 2017 for a 30+ month period. 1 The first 
vendor noted that the effective date was tentative and that a revised purchase order would be shared 
once it had received confirmation from the client on the assignment start date. The record does not 
include the revised purchase order. These documents do not create a legal obligation on the part of 
the end-client to provide any work for the Beneficiary to perform. The record does not include the 
agreements between the first and second vendors or the agreement between the second vendor and the 
end-client. There is no probative evidence of requisitions, purchase orders, statements of work 
(SOW), or other documents confirming the existence of work for the Beneficiary at the end-client's 
facility. As it currently stands the record contains no evidence of a legal obligation on the part of the 
end-client to actually provide a position for the Beneficiary to perform. 
Without the full chain of contracts in this case, and any associated purchase orders, work orders, or SOW s, 
we cannot conclude that there is a legal obligation on the part of the end-client to provide the position 
described in this petition. Though acknowledged, the letters from the Petitioner, the vendors, and the 
Beneficiary's co-workers do not fill this gap, as they are not evidence of an obligation on the part of the 
end-client to provide the position the Petitioner describes. Again, if we cannot determine whether the 
proffered position will actually exist, then we cannot ascertain its substantive nature so as to determine 
whether it is a specialty occupation. 2 
Even if we were to set this foundational deficiency aside entirely we would still have significant questions 
as to the proffered position's actual, substantive nature due to the inconsistencies, discrepancies, and 
unanswered questions contained within this record of proceedings. 
On the labor condition application (LCA) 3 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification (SOC) code 15-1132. The 
Petitioner also provided a perfunctory eight-bullet point description of the proposed duties. The 
majority of the generally described duties appear to correspond more closely to a "Network and 
Computer Systems Administrators" occupation than the occupation designated on the certified LCA. 
As noted above, the tentative purchase order submitted also refers to the proposed position as a "Linux 
Systems Admin" position. Thus, the record does not include probative, consistent evidence of the 
nature of the proposed position. 
Moreover, the record does not include evidence from the end-client that the Beneficiary will perform 
software development duties. Rather the end-client's only reference to the proposed position is a 
1 The record includes letters from the end-client and the two vendors all with varying dates on the time period of work. 
For example, the end-client indicates that the proposed work is for a the period of October 9, 2017 to June 30, 2019; the 
second vendor indicates the work period begins October 9, 2017 and that the project is ongoing and extendable but with 
no end-date listed; and the first vendor in its December 11, 2018 letter indicates the project is expected to last for 3 years 
with the possibility of extension. The record, however, contains no corroborative evidence of a specific project or actual 
time period for the proposed employment. 
2 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
3 The Petitioner is required to submit a certified LCA 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. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
3 
statement that the Beneficiary "works on a foll-time basis ( 40 hours per week) as a Linux Admin" and 
that the second vendor has entered into a service agreement to provide support for I I 
activities for the period of October 9, 2017 to June 30, 2019. The two vendors in this matter provide 
the same list of duties as the Petitioner as well as adding an additional generic four-bullet points to the 
description. The record does not include evidence of thel I project, the stage of the project, 
or the number or type ofresources needed for the project. Without actual detail regarding the proposed 
duties within the context of a specific project we cannot ascertain the nature of the proposed position 
and whether the certified LCA supports the position described in the petition. The record also lacks 
sufficient consistent evidence corroborating the specific duties of the position and establishing that the 
duties constitute the duties of a specialty occupation. 
Setting aside the inadequacy of probative evidence demonstrating the nature of specific work for the 
Beneficiary to perform, the Petitioner also does not explain why the duties require a bachelor's degree 
in a specific specialty to perform them. The record does not include information establishing how a 
detailed course of study related to specific duties is required or why such a curriculum is necessary to 
perform the duties described. 4 While a few related courses may be beneficial in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of such 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required 
to perform the duties of the proffered position. 
The Petitioner in this matter has not provided evidence of the actual day-to-day duties of the proffered 
position so that those duties may be analyzed to determine if the duties are the duties of an applications 
software developer, a computer systems administrator, or some other technology occupation. The 
Petitioner has not established that the duties of the position require both the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, as the minimum for entry into the occupation. See 
section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation). 
The insufficient and inconsistent information in the record when viewed in its totality does not 
establish the substantive nature of the work to be performed by the Beneficiary, which therefore 
precludes a conclusion that the proffered position satisfies any 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. 
4 We have reviewed the opinion authored byl I who repeats the Petitioner's initial eight-bullet point 
description of the proposed position. I ldoes not refer to the specifics of the particular tasks to which the 
Beneficiary would be assigned or how those tasks relate to a particular project. He offers conclusory statements without 
analysis or meaningful detail of the generic duties reviewed and he does not explain how or why the duties actually require 
the theoretical and practical application of a body of highly specialized knowledge. His opinion offers little probative 
value regarding the substantive nature of the proposed position and why the position described is a specialty occupation. 
4 
The Petitioner has not established the proffered position is a specialty occupation under the regulation 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) or the relevant statute. 
II. EMPLOYER-EMPLOYEE 
Even if we set the issues of definite non-speculative employment and the nature of the position aside, 
we still would determine that the Petitioner has not established an employer-employee relationship 
with the Beneficiary. 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(I) 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.) 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
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 
5 
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." 
Darden, 503 U.S. 318, 322-23. 5 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
We have reviewed the initial evidence submitted as well as the evidence submitted in response to the 
Director's request for evidence (RFE) and the Petitioner's arguments on appeal, and do not find the 
record sufficient to establish an employer-employee relationship between the Petitioner and the 
Beneficiary. Specifically, the record lacks evidence of the legal obligations and restrictions imposed 
on the Petitioner through the various agreements of the contractual chain. That is, as the record does 
not include the agreement between the first and second vendor and the agreement between the second 
vendor and the end-client, we cannot determine what limitations and restrictions the end-client and the 
vendors may have agreed to within their agreements regarding the actual supervision and instruction 
of the Beneficiary regarding the proposed work. 
The record in this matter also does not include evidence establishing the Petitioner's role in instructing, 
directing, and supervising the Beneficiary's work. When the entity who will actually be using a 
beneficiary's services is not the Petitioner it is crucial to understand who will direct, supervise, and 
instruct the beneficiary's day-to-day work. This is because the entity directing, supervising, and 
instructing a beneficiary will necessarily influence the type of duties a beneficiary will perform. This 
particular component of the employer-employee relationship is especially significant within the H-1 B 
nonimmigrant classification. Here, the Petitioner has not explained the process or provided evidence 
establishing the manner and means of how it will assign and direct the Beneficiary's day-to-day work. 
It appears more likely than not that the Petitioner, located in Texas, will not actually be involved in 
the supervision and day-to-day direction of the Beneficiary but that managers at the end-client facility 
in California will actually perform those duties. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the four comers of this 
H-lB petition leads us to conclude 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 the end-client who would control the content, means, and methods of those 
individuals' work. In this regard, we observe that it appears that not only would the end-client 
5 When examining the factors relevant to determining control, we 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. 
6 
determine and assign the Beneficiary's day-to-day work, but that it would also control the 
Beneficiary's access to the systems without which his work could not be done. 
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. Based on the tests outlined above, we conclude 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). 
III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that it has definite, 
non-speculative H-lB caliber work available for the Beneficiary or that, more likely than not, the 
proffered position is a specialty occupation as defined by the regulations and the statute. The Petitioner 
also has not established that the required employer-employee relationship exists with the Beneficiary. 
ORDER: The appeal is dismissed. 
7