dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF R-C-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 19,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary as a programmer analyst under the H-1 B 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)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that (1) the Petitioner has specialty occupation work available 
for the Beneficiary; (2) the Petitioner qualifies as a United States employer with an employer­
employee relationship with the Beneficiary; and (3) the labor condition application (LCA) 
corresponds to the petition. 
The matter is now before us on appeaL In its appeal, the Petitioner asserts that the evidence in the 
record of proceedings was sufficient to establish eligibility for the benefit sought 
Upon de novo review, we will dismiss the appeaL 
I. THE PETITIONER AND THE PROFFERED POSITION 
The Petitioner is a 54-employee information technology solutions provider, located in 
Pennsylvania. The Petitioner seeks to employ the Beneficiary as a full-time programmer analyst for 
a three-year period from October 1, 2015 to August 31, 2018, at an annual salary of $60,000. The 
Petitioner stated on the Form 1-129, the Petition for a Nonimmigrant Worker, that the Beneficiary 
will not work off-site at another company or organization's location. However, the Form I -129 and 
the LCA indicated that the Beneficiary will work at an address that is different from the Petitioner's 
address. 
In a letter of support, the Petitioner explained that the Beneficiary will be working onsite at its sister 
company, The letter further stated that the Petitioner and are both 
subsidiaries of the and "share common resources when needed and are controlled 
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Matter of R-C-S-, LLC 
and operated by the same management" The Petitioner stated that the Beneficiary will utilize 
offices, but that the Petitioner "is the employer of the beneficiary and we have the exclusive right to 
hire, fire, supervise, reassign and promote the beneficiary." 
The Petitioner further stated that the Beneficiary will work on two in-house projects: (1) 
for and (2) with 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a programmer analyst In 
response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the position: 
Job Duty 
Designing and developing of 
. NET based Software 
Applications. 
Detailed Job Duty 
For Be a part of the team in developing data 
adapters to extract data from .NET based applications . 
Interacting with broad spectrum of team members 
including business stakeholders, business analysts, 
architects, application developers, and Software 
Validation team to gain knowledge on how and where 
the data is being stored on their current system and how 
well our· adapter needs to be designed to pull the data to 
be fed into 'Analyst' 
For Energy: Be a part of the team in developing the 
interfaces and product customizations for the Customer 
Service Module 
20% 
Contribute to the planning, Work with the PMs of both 1 and 1 teams 5% 
tasking and estimating work to discuss about the milestones achieved and what is 
items. pending for the next day 
Participate m 
with Business 
understanding 
application. 
JAD sessiOns 
to seek clear 
of the 
Coordinating with users related 
to work. 
Troubleshooting issues related 
to the application. 
Be responsible analyzing the requirements 
documentation to ensure all technical specifications are 
met while creating the adapter, thereby minimizing the 
time and cost of development and testing 
Participate in daily conference calls with the Chief 
Product Officer, SMEs and the development team to get 
clarity on the business requirements. 
Use Microsoft Visio to document the Data mapping, 
process flows, and other UML diagrams 
Participate in daily meetings with the team to ensure 
deliverables are met 
Work on the issues reported by the UAT team and 
resolve them with the POC initially and the final product 
2 
10% 
10% 
10% 
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Matter of R-C-S-, LLC 
release 
Creating reports. Work on the reporting module for Energy 8% 
Performing unit testing and Work with Systems Analysts on various test scenarios. 10% 
participate in System testing. Work with the technical team to ensure that all steps of 
the ETL (Extraction Transformation and Loading) are 
done as per the requirements of' Analyst'. This will also 
include testing to make sure that the data being fed into 
the product is 'clean'. 
Extraction: Writing code for the data to be extracted 
from the client's current system (this will be done after 
the development ofthe adapters) 
Transformation: Ensuring that the extracted data is clean 
and is error free so that the prediction made by 'Analyst' 
is accurate. 
Loading: Write procedures and interfaces which will 
successfully load the transformed data into 'Analyst'. 
Japanese Translation of For Work on translating the User manual and Setup 10% 
Technical documents and user guides for the from English to Japanese by 
manuals. working with the client. 
Translating day to day mail For Work with Japanese clients to interpret emails 10% 
communication with Japanese and all communication on a daily basis. 
customers 
Interpretation with clients. Be involved in client 
meetings with the rest of the team 7% 
to update the clients on the progress. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
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Matter of R-C-S-, LLC 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C,F,R, 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(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); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-IB "employee." Subsections 212(n)(l )(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-lB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-lB visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms are undefined. 
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: 
4. 
Matter of R-C-S-, LLC 
"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." 
ld; see also Clackamas Gastroenterology Assocs., F. 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. 
~{Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S 17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of "United States employer" requires H-l 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-lB "employee." 8 C.P.R.§ 2l4.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
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 
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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
IOI(a)(I5)(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 8 visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. 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. 837,844-45 (1984). 
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Matter of R-C-S-, LLC 
States. 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 318-192 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section !Ol(a)(l5)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, 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, tire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). 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 of beneficiaries' 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 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See. e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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Matter of R-C-S-, LLC 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l ). 
Furthermore, when examining the factors relevant to determining control, USClS 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. $ee 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 of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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." 
1. The Petition'er's Relationship with and 
The evidence in the record of proceedings is insufficient to establish that the Petitioner is related or 
affiliated with or any other companies; therefore, the Petitioner has not established that it will 
have a valid employer-employee relationship with the Beneficiary. As discussed, the Petitioner 
stated that the Beneficiary will be placed at its sister company. The Petitioner stated it recently 
"merged with under a holding company, '' The Petitioner further asserted that "[b ]ased 
on the recent merger of the companies, the Petitioner provides development support for both their 
projects and products as well as clients, products while 
provides more support and 
off-site services." The Petitioner also stated that owns another company , 
The Petitioner submitted a document entitled, "Exchange Agreement for Stock and Membership 
Interest of and [the Petitioner]" (stock exchange agreement). This document was made 
effective on December 31, 2013. The document stated that also 
referred to as owns all issued stock and the membership interest in the Petitioner's company 
and Specifically, the document indicated that ,, has formed ... to act as a holding 
company for the total issued and outstanding stock of and the total issued and outstanding 
membership interest of [the Petitioner]." The document further stated that ' desires to 
exchange his stock interest in and his membership interest in [the Petitioner] for one hundred 
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(b)(6)
Matter of R-C-S-. LLC 
(100) shares of voting common stock of 
the issued and outstanding shares of 
so that following the transfer, will own all of 
However, this document alone does not sufficiently demonstrate that the Petitioner is affiliated with 
and other companies. For example, other documents in the record do not indicate that 
oWned one hundred percent shares of and total membership interest in the Petitioner in 2013, 
when the stock exchange agreement was executed. Specifically, the tax returns for both liS and the 
Petitioner indicate that other 
individuals owned the companies. For example, the Schedule K-1 for 
20 13 tax return for indicates that owns 100 percent of the company's 
stock. Likewise, the Schedule K-1 for 2013 for the Petitioner indicates the owner as 
Thus, the stock exchange document submitted by the Petitioner contradicts the tax 
returns for and the Petitioner. "(I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. I d. at 591-92. 
Furthermore, the Petitioner did not submit any additional corroborating evidence to indicate that the 
Petitioner has an affiliate relationship with and other 
companies such as a corporate stock 
certificate ledger, stock certificate registry, corporate bylaws, or the minutes of relevant annual 
shareholder meetings that show the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. In 
addition, the Director noted this inconsistent evidence in his decision and the Petitioner did not 
discuss this issue on appeal or provide evidence to overcome the Director's concern. "[G]oing on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings." Matter of So.ffici, 22 J&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter o.fTreasure Crafi o.fCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Therefore, since the Petitioner did not provide enough evidence to establish an affiliate relationship 
with and other companies, and the Petitioner claims that the Beneficiary will be placed at 
during the validity of the employment period, the Petitioner has not established that it will be a 
"United States employer" having an "employer-employee relationship" with the Beneficiary as an 
H-IB temporary "employee." 
2. Offer of Employment Letter 
For H-1 B classification, the Petitioner is required to submit written contracts between the Petitioner 
and the Beneficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the Beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and 
(B). 
The offer of employment letter states that the Beneficiary will be employed as a programmer analyst, 
but it does not provide any level of specificity as to the Beneficiary's duties and the requirements for 
the position. The letter further states the Beneficiary will be "required to work in our offices in 
PA." However, as noted, the Petitioner is located in PA, and the Petitioner 
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Matter of R-C-S-, LLC 
has not sufficiently established its affiliation with or other companies. Further, the Petitioner has 
not submitted sufficient explanation, corroborated by credible evidence, detailing who is the 
Beneficiary's supervisor, and how the Petitioner will oversee, direct, and otherwise control the in­
house projects at a remote location. 
While an employment agreement may provide some insights into the relationship of a Petitioner and 
a Beneficiary, it must be noted again that 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 
of the incidents of the relationship ... with no one factor being decisive."' !d. at 451 (quoting 
Darden, 503 U.S. at 324). 
3. In-House Projects 
The Petitioner indicated that the two in-house projects assigned to the Beneficiary are with 
who has a contract with and a project with In other words, none of 
the projects are under the Petitioner's name. As discussed, although the Petitioner claims that 
and are affiliates, the record of proceedings does not establish this relationship. 
a. 
The Petitioner submitted a letter from that confirms a working relationship with and its 
subsidiaries, and lists the Petitioner as one of subsidiaries. The letter also stated that it 
partnered with to "develop various adapters for our product." The letter further stated that ' 
has agreed to utilize its personnel for this project and that their personnel will work from their 
offices in and PA under their supervision." Again, the letter indicated that 
rather than the Petitioner, will utilize its personnel for this project. In addition, this letter does 
not list the Beneficiary as a personnel working on this project, or list the duties the Beneficiary 
would perform for this project. 
The Petitioner also submitted a marketing agreement between and signed in 2013. Again, 
this contract does not mention the Petitioner in any part of the document. The contract also does not 
name the Beneficiary or its need for programmer analysts, specifically. The marketing agreement 
indicates that role is to market the product, but it does not indicate that will be involved in 
"develop[ing] various adapters for our product." In other words, the agreement does not substantiate 
the Petitioner's claims regarding the Beneficiary's role as a programmer analyst. In addition, the 
contract does not provide a project timeline. The Petitioner did not provide any documentation to 
establish that this agreement will still be in effect through the end of requested employment period. 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matter ofSojjici, 22 I&N Dec. at 165. 
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Matter of R-C-S-, LLC 
b. Project 
The Petitioner stated that "has entered into an agreement with where we 
are to integrate the Customer Information System (CIS), with a back-office product, 
The Petitioner provided a consulting service agreement between 
and As noted above, the Petitioner did not provide sufficient documentation to 
establish that is affiliated with the Petitioner, and that the Petitioner will supervise the 
Beneficiary when she is working on this project. The Petitioner did not provide corroborating 
evidence to indicate the Beneficiary will be working on this project or describe the duties she will 
perform for this project. Further, there is insufficient evidence that this project is valid for the length 
of the employment period requested. Specifically, the project plan provides an implementation 
time line, but it ends in August 2016. "[G]oing on record without supporting documentary evidence 
is not sufficient for purposes ofmeeting the burden of proof in these proceedings." Matter ofSofjici, 
22 I&N Dec. at 165. 
We find that the Petitioner has not established that the petition was filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 
users regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F .R. 103 .2(b )(1 ). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or 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). Thus, even if it were found that the Petitioner would be the Beneficiary's United 
States employer as that term is defined at 8 C.P.R. § 214.2(h)(4)(ii), the Petitioner has not 
demonstrated that it would maintain such an employer-employee relationship for the duration of the 
period requested. 4 
4 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 potential 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). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of R-C-S-, LLC 
4. Conclusion 
Upon review, there is insufficient documentary evidence in the record corroborating the availability 
of work for the Beneficiary for the requested period of employment and, consequently, what the 
Beneficiary would do, where the Beneficiary would work, as well as how this would impact the 
circumstances of his relationship with the Petitioner. As noted, the Petitioner claims that the 
Beneficiary will be placed at for the duration of her employment, but the record of proceedings 
contains insufficient evidence to establish that the Petitioner is related or affiliated to and other 
companies. Further, the documents in the record do not establish that the Beneficiary will be 
working on the claimed projects in the proffered position. Again, USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.F.R. 103.2(b)(l ). A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248. Moreover, the burden of proving eligibility for the benefit 
sought remains entirely with the Petitioner. Section 291 of the Act. The Petitioner has not 
established that, at the time the petition was submitted, it had located H lB caliber work for the 
Beneficiary that would entail performing the duties as described in the petition, and that was 
reserved for the Beneficiary for the duration of the period requested. The evidence, therefore, is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary is the Petitioner's 
employee and that the Petitioner exercises control over the Beneficiary, without sufficient, 
corroborating evidence to support the claim, does not establish eligibility in this matter. 
III. 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the mmtmum 
requirement for entry into the particular position; 
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Matter of R-C-S-, LLC 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 2!4.2(h)(4)(iii)(A) 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 (lst 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). 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 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. 
B. Analysis 
The Petitioner has not established that the proffered position qualifies for classification as a specialty 
occupation. For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee 
exists and to substantiate that it has H-1B caliber work for the Beneficiary for the period of 
employment requested in the petition. It is incumbent upon the Petitioner to demonstrate it has 
sufficient work to require the services of a person with at least a bachelor's degree in a specific 
specialty, or its equivalent, to perform duties at a level that requires the theoretical and practical 
application of at least a bachelor's degree level of a body of highly specialized knowledge in a 
specific specialty for the period specified in the petition. 
In this matter, the Petitioner indicated that the Beneficiary will be employed in-house as a 
programmer analyst. However, as discussed, we find that the Petitioner did not provide sufficient, 
credible evidence to establish in-house employment for the Beneficiary for the validity of the 
requested H-18 employment period. Further, even if the Petitioner had established a valid in-house 
employment, the Petitioner did not submit a job description to adequately convey the substantive 
work to be performed by the Beneficiary. 
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Matter of R-C-S-, LLC 
As reflected in the descriptions of the position as quoted above, the proffered position has been 
described in terms of generalized and generic functions that do not convey sufficient substantive 
information to establish the relative complexity, uniqueness and/or specialization of the proffered 
position or its duties. For example, the Petitioner stated that the Beneficiary will be responsible for 
"developing data adapters to extract data from .NET based applications;" "be a part of the team in 
developing the interfaces and product customizations for the Customer Service Module;" 
"partiCipate in daily meetings with the team to ensure deliverables are met;" and, ''work on the issues 
reported by the UA T team and resolve them with the POC initially and the final product release." 
The Petitioner's description is generalized and generic in that the Petitioner does not convey the 
substantive nature of the work that the Beneficiary would actually perform, or any particular body of 
highly specialized knowledge that would have to be theoretically and practically applied to perform 
it. The responsibilities for the proffered position contain generalized functions without providing 
sufficient information regarding the particular work, and associated educational requirements, into 
which the duties would manifest themselves in their day-to-day performance. 
Further, the Petitioner has provided inconsistent information regarding the minimum educational 
requirement for the proffered position, and has not established that a bachelor's degree in a specific 
specialty is required for the proffered 
position. For example, in the support letter, the Petitioner 
stated that the proffered position requires a "minimum of a Bachelor degree, or its equivalent, in 
Engineering, Computer Science, Computer Applications, Information Technology, or a closely 
related field, and knowledge/experience working in the above-referenced environment." In response 
to the RFE, the Petitioner stated that 
it requires a bachelor's degree in computer science, information 
systems, or a closely-related field plus two years of experience. Further, the letter from 
indicated that "relevant IT educations or the equivalent would be sufficient," without stating that at 
least a bachelor's degree or its equivalent in a specific specialty would be required. No explanation 
for the variances was provided by the Petitioner. "[I}t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. at 591. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the Petitioner submits 
competent objective evidence pointing to where the truth lies. !d. at 591-92. With the conflicting 
information regarding the minimum requirements, we cannot determine whether the proffered 
position requires at least a bachelor's degree in a specific specialty. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding 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 ±irst 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. 
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Matter of R-C-S-, LLC 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
IV. BENEFICIARY'S QUALIFICATIONS 
We do not need to examine the issue of the Beneficiary's qualifications, because the Petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. 
In other words, the Beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the Beneficiary possesses that degree or its equivalent. Therefore, we 
need not and will not address the Beneficiary's qualifications further, except to note that, in any 
event, the Petitioner did not submit an evaluation of the Beneficiary's foreign degree or sutlicient 
evidence to establish that her degree is equivalent to a U.S. bachelor's degree in a specific specialty. 
In addition, 20% of the job duties for the proffered position require the Beneficiary to be fluent in 
Japanese; however, the Petitioner did not submit any documentation to indicate that the Beneficiary 
is in fact fluent in Japanese. As such, since evidence was not presented that the Beneficiary has at 
least a U.S. bachelor's degree in a specific specialty, or its equivalent, or has obtained the language 
requirement for the position, thus, the petition could not be approved even if eligibility for the 
benefit sought had been otherwise established. 
V. LCA 
Further, we find that the LCA does not correspond to the petition. On the LCA, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analyst" 
corresponding to the Standard Occupational Classification code 15-1121, as Level I (entry-level). 
However, the wage level conflicts with the Petitioner's language requirement for Japanese. 
In accordance with the guidance provided by Department of Labor, a language requirement other 
than English in a petitioner's job offer generally is considered a special skill for all occupations, with 
the exception of "Foreign Language Teachers and Instructors," "Interpreters," and "Caption 
Writers. "5 In the instant case, the Petitioner designated the proffered position under the occupational 
5 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination PoUcy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/ download/ NPWHC _Guidance 
_Revised_l1_2009.pdf. 
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Matter of R-C-S-, LLC 
category "Computer Systems Analyst" at a Level I (the lowest of four assignable wage levels), and it 
has not established that the foreign language requirement was reflected in the wage-level for the 
proffered position. We note that Level II wage for PA, is $67,912 per year, which is 
higher than the Petitioner's proffered wage of $60,000 per year.6 Therefore, the Petitioner did not 
establish that it would pay the Beneficiary an adequate salary for her work, as required under the 
Act, if the petition were granted. 
While DOL is the agency that certifies 
LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, 
in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
Further, the LCA was filed for a work location at 
Pennsylvania, but as discussed, the Petitioner did not provide sufficient documentation regarding the 
work that will be performed by the Beneficiary or the location of that work. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-IB petition filed on behalf of the Beneficiary. Here, th~ Petitioner has not submitted a valid 
LCA that corresponds to the wage level and location of employment. 
VI. CONCLUSION 
As discussed, the evidence of record does not demonstrate that: (I) the proffered position is a 
specialty occupation; (2) the Petitioner has a valid employer-employee relationship with the 
Beneficiary; (3) the Beneficiary qualifies for the proffered position; and (4) the LCA corresponds to 
the petition. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
6 
See http://www.flcdatacenter.com/OesQuickResults.aspx?code 
July 14, 2016). 
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Matter of R-C-S-, LLC 
ORDER: The appeal is dismissed. 
Cite as Matter of R-C-S-, LLC, ID# 17005 (AAO July 19, 2016) 
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