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 developer" 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 . The Director also concluded that the Beneficiary was 
ineligible to change status. 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 ofCha wathe, 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 Massachusetts. However, the record does not contain sufficient evidence to establish the services 
the Beneficiary would perform for the end-client. 
The record contains a "Corporation- Corporation to Supplier Agreement" (CSA) and a corresponding 
purchase order (PO) between the Petitioner and a mid-vendor. The CSA is a general agreement for 
the Petitioner "to introduce technical services personnel candidates to [the mid-vendor] and [the 
mid-vendor] may submit said technical services personnel to provide their services to Client." The 
CSA does not identify the end-client, the services to be provided, the position to provide those services, 
the specific duties of the position, the academic qualifications required to perform the duties, and the 
identity of the personnel assigned to perform the position's duties. Instead, the CSA states that the 
Petitioner would "provide technical services to Client according to the Client's specifications" and 
that the client may be "listed in any [PO]." 
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. 
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Matter of S-, Inc. 
However, the PO confusingly identifies the mid-vendor as the client for whom the mid-vendor and the 
Petitioner contracted for the Petitioner to provide services. 3 Further, the PO describes the project in 
general terms, simply as a .__ ________ ___,project." The PO does not farther specify the 
nature of the project's work, the position required for the project, the duties of the position, the 
academic requirements to perform the duties, and the identity of any individual assigned to perform 
the position's duties. Moreover, even if the PO established the substantive nature of the work to be 
performed, it states that "[a]fter 1 year from the start date of the assignment [March 22, 2018], this 
agreement is void." The record does not contain evidence that the parties extended the PO or otherwise 
contracted for work of any nature beyond March 2019. 
Moreover, the record does not contain contractual obligation with the end-client, such as a master 
service agreement (MSA) and a corresponding statement of work (SOW) or PO. Instead, the record 
contains 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 asserts that the 
mid-vendor contracted "to provide [the end-client] with the services of a Software Engineer ... 
working on the [end-client's] I • • I ... [p ]ursuant to the Software Suppliers 
Agreement between the [end-client] and [the mid-vendor]." However, the record does not contain any 
contracts with the end-client. Although the end-client letter identifies the Beneficiary as the individual 
assigned to perform the software engineer's services, it states simply that "the job duties include 
Salesforce-based design and development," without providing farther details about the substantive 
nature of the work. Because the CSA and PO between the Petitioner and the mid-vendor rely on 
"technical services ... according to the Client's specifications," the end-client's lack of specification 
in the record regarding the services farther limits the value of the CSA and PO. Moreover, even if the 
end-client letter established the substantive nature of the work to be performed, it only states that the 
position requires "a minimum of a Bachelor's degree," without 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 b~ l an associate professor of computer 
science at I I University. 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 
3 The record contains a letter from the mid-vendor, stating that the Beneficiary would provide services to the end-client 
identified by the Petitioner. However, the record does not reconcile why the only documentary evidence of a contract 
among the parties in the record indicates that the mid-vendor is the client for whom the mid-vendor and the Petitioner 
contracted for the Petitioner to provide services. 
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Matter of S-, Inc. 
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 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 letterJ I quoted the duties provided by the Petitioner. I I concluded that, based 
on the Petitioner's description, the proffered position "would be considered a professional position 
and would normally be filled by a graduate with a minimum of a Bachelor's Degree in Computer 
Science, Engineering, or a related area, or the equivalent." 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 
end-client's single duty description: "Salesforce-based design and development." Moreover,D 
I I does not address the end-client's statement that the position requires "a minimum of a 
Bachelor's degree," without specifying that the degree must be in a specific specialty, or its equivalent. 
AccordinglyJ l's 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. 4 
4 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). 
Further, we will not address the Director's decision denying the change of status. There is no provision in the regulations 
for an appeal rrom a denial of a change of status. Sec 8 C.F.R. §§ 214.1 ( c )(5), 248.3(g); sec also DHS Delegation Number 
0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003). We therefore have no jurisdiction over this matter and 
consequently will address neither (1) the Director's determination regarding the Beneficiary's status, nor (2) the claims 
made on appeal contesting that determination. 
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Matter of S-, Inc. 
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, 
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. 
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 
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Matter of S-, Inc. 
Petitioner's "CTO/Tech Lead" 5 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 record does not establish whether the Beneficiary's supervisor would work at the end-client 
location in Massachusetts, the Petitioner's location in Maryland, or any other location, or how the 
supervisor would have knowledge of the Beneficiary's work. Additionally, 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. 
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. 
5 The record also identifies this individual as the Petitioner's "Director of Operations/President." 
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Matter of S-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-, Inc., ID# 4655336 (AAO Sept. 16, 2019) 
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