dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-T-INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "data scientist" under the H-lB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both: (a) the theoretical and practical application of a body 
of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that: (1) the Petitioner has an employer-employee relationship with the 
Beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in the decision. Upon de nova review, we will 
dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We will first address whether the evidence of record establishes that the proffered position qualifies 
as a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the tenn "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. 
Matter ofT-T-Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. 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. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
1 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
Matter ofT-T-Inc. 
The Petitioner, which is located in Ohio, stated that the Beneficiary would work at the end-client's 
location in Pennsylvania, pursuant to contracts executed between the Petitioner and the first vendor, 
between the first vendor and the second vendor, and between the second vendor and the end-client. 
The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ First Vendor ➔ Second Vendor ➔ End-Client 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client in Pennsylvania. In support of this assertion, the Petitioner submitted a Vendor 
Agreement (VA) executed between the Petitioner and the first vendor. The Petitioner has not 
established this document's relevance to the Beneficiary's assignment as it does not reference the 
Beneficiary; the job title of the proffered position; the job duties and tasks to be performed by a data 
scientist, the proffered position; or the end-client. Nor does the document reference the Petitioner's 
specific role with respect to the Beneficiary's day-to-day work with the end-client, or the expected 
duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a work order executed between the Petitioner and the first vendor. The 
work order states that the Beneficiary's services will be needed at the end-client's location in 
Pennsylvania beginning in January 2018 and lasting six months with possible extensions. While the 
work order does reference the Beneficiary, and the end-client, it does not reference the job title of the 
proffered position; or the job duties and tasks to be performed by a data scientist. Moreover, the work 
order indicates that the Beneficiary's services may end in June 2018, which is prior to the requested 
H-lB start date. The Petitioner has not provided any documentation indicating that the Beneficiary's 
assignment with the end-client has been extended. 
The Petitioner also provided a Professional Services Agreement (PSA) executed between the first 
vendor and the second vendor. Notably, the Petitioner only submitted the first and last pages of the 
16-page document. Similar to the VA, the PSA does not reference the Beneficiary; the job title of the 
proffered position; the job duties and tasks to be performed by a data scientist; or the end-client. Nor 
does the document reference the Petitioner's specific role with respect to the Beneficiary's day-to-day 
work with the end-client, or the expected duration of the Beneficiary's work for the end-client. 
Furthermore, the PSA states the following: 
The specific services, technology skills, experience and educational qualifications 
required for the services and the relevant details of the Contractor Personnel assigned 
to fulfill the requirements, the required period of assignment, fees and charges payable 
Contractor for the Services and any other pertinent information relative to such specific 
Services will be described in a statement of work [(SOW)]. ... Each SOW shall be 
substantially in the form of Exhibit A attached to this Agreement. 
The Petitioner did not provide the SOWs referenced in the PSA. 
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Matter ofT-T-Inc. 
These documents - the VA, work order, and PSA - are the only legal documents that purport to create 
any obligation to provide work for the Beneficiary to perform. They create no obligation on the part 
of the end-client; the end-client is not a party to any of the referenced agreements. They do not 
establish the existence of a specialty occupation position at the end-client's worksite. In other words, 
there is no evidence of any obligation on the part of end-client to provide the position the Petitioner 
describes in this petition for the Beneficiary. There is little indication that this petition was filed for 
non-speculative employment. 2 If we cannot determine whether the position as described by the 
petitioner actually exists, then we cannot ascertain its substantive nature, let alone determine whether 
it is a specialty occupation. 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted letters from the vendors and the end-client. 
Upon review, we observe that the first vendor's and the end-client's job duty description contain 
verbatim language. The verbatim language found in the duty descriptions in the letters from the end­
client and the first vendor raise questions regarding whether the end-client's signatory actually wrote 
the descriptions. Moreover, as recognized in Defensor, 201 F.3d at 388, it is appropriate to require a 
petitioner to demonstrate that an end-client, or the entity where a beneficiary will actually perform the 
work, requires at least a bachelor's degree in specific specialty, or its equivalent. However, the end­
client letter does not state the educational requirements for this position. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
description is too vague to determine whether the position actually requires a bachelor's or higher 
degree in a specific specialty, or its equivalent. For example, the end-client does not provide sufficient 
information with regard to the order of importance and/or frequency of occurrence ( e.g., regularly, 
periodically, or at irregular intervals) with which the Beneficiary will perform the functions and tasks. 
Thus, the end-client does not specify which tasks are major functions of the proffered position. 
Moreover, the description does not provide sufficient information about the duties to determine their 
complexity. Below are the duties: 
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- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB 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 tempormy 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). 
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Matter ofT-T-Inc. 
• Supporting and developing applications using agile environments. 
• Supporting deployment process. 
• Building application code. 
• Responsible for program design, coding debugging and documentation. 
• Creation of API' s and integrating micro-services and connected devices for communication 
through Amazon's. 
• Generating Python Django forms to record data. 
• Develop job Dashboard Monitor UI using Django/Splunk. 
• Using Python and Django Creating graphic, XML processing, data exchange and business 
logic implementation. 
• Maintaining Linux environments. 
• Automating process using scripting. 
• Configuring and maintaining jobs in Control - M. 
Notably, the end-client letter references the job title of the proffered position as a "Programmer 
Analyst" and not as a data scientist. 
Further, the record lacks sufficient detail and concrete explanation regarding the project for which the 
Beneficiary will be assigned, to establish the substantive nature of the work the Beneficiary will be 
performing for the end-client, and the associated applications of specialized knowledge that their 
actual performance will require. Nor does the record provide sufficient detail regarding the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work while at the end-client site. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether 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. We therefore 
conclude that the record does not sufficiently establish the existence of a definite, non-speculative 
specialty occupation position. 
5 
Matter ofT-T-Inc. 
II. 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, 
503 U.S. 318, 322-23 (1992) ( quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Even if the parties contracted for sufficient work, the record 
would still not establish how the Petitioner, located in Ohio, would supervise the work performed by 
the Beneficiary at the end-client's location in Pennsylvania. In fact, the record shows that an end­
client manager supervises the Beneficiary's day-to-day activities. As previously noted, the Petitioner 
provided an end-client letter. The end-client letter states that the Beneficiary reports tol I ~-~I the Sourcing Delivery Head - Information Technology and Security for the end-client. Thus, 
the Petitioner does not establish that it will have an employer-employee relationship with the 
Beneficiary. 
6 
Matter ofT-T-Inc. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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 ofT-T- Inc., ID# 4420262 (AAO Sept. 19, 2019) 
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