dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 2, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions and services company, seeks to temporarily 
employ the Beneficiary as a "VMware administrator" under the H-1B 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-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, California Service Center, denied the petition, concluding that the evidence of record 
does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) the 
Petitioner will have an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits a statement in support of the appeal which lists five of the 
Director's conclusions from the Director's decision. The Petitioner asserts that these statements are 
erroneous conclusions of law and/or fact. The Petitioner states that it will submit a brief and/or 
additional evidence within 30 days of filing the appeal. However, to date, the record does not 
include additional evidence or a brief. The record as currently constituted is considered complete. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether 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 term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
Matter of 0-T- Inc. 
(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 regul;;ttions provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(I) 
(2) 
(3) 
(4) 
A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
The degree requirement is common to the industry in parallel positions among 
similar org~nizations 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; 
The employer normally requires a degree or its equivalent for the position; or 
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. § 214.2(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 (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, 387-88 (5th Cir. 2000). 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
' other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor, 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. Proffered Position 
In a letter submitted in support of the petition, the Petitioner listed the Beneficiary's proposed duties 
as follows: 
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Matter of 0- T- Inc. 
• Manage virtual environments and previously built cluster(s). 
• Build VM clusters to include installing VMware and building VMs. 
• Perform Physical to Virtual migrations by migrating existing physical servers to 
~rtu~. · 
• Build server templates. 
• Develop and executing [sic] ESX patch strategies. 
• Manage and/or implement High Availability architectures in a VM environment. 
• Manage and implement Distributed Resource Scheduler. 
• Consolidate multiple vCentersNirtual Clusters into a single managed cluster. 
• Analyze existing physical server resource consumption and determine server 
sizing and quantity requirements for Physical to Virtual migrations. 
• Provide Tier 3 Windows/VMWare support for the Ops Team system 
administrators. 
According to the Petitioner the theories and principles of this position "are of such complexity that 
they usually can only be acquired 'by completing a bachelor ' s degree, or its equivalent , in Computer 
Science, Information Technology or a closely related IT major." 
The Petitioner noted on the Form 1-129 that the Beneficiary would work off-site. In response to the 
Director's request for evidence (RFE), the Petitioner submitted a letter, dated August 15, 2016, 
signed by a representative of its client, The representative 
indicated that it had recently contracted with the Petitioner for a VMware administrator for its 
project and listed· the same work to be done by the VMware administrator as listed in the 
Petitioner's support letter. The representative stated that the minimum educational 
requirement for this position is a bachelor 's degree and knowledge of the listed duties. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 
For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-IB caliber work for the Beneficiary for the entire 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. Here, the Petitioner stated on the Form 1-129 that it intended to 
employ the Beneficiary from October 1, 2016, to September 9, 2019. 
The record before the Director included a master services agreement (MSA) between the Petitioner 
and dated November 12, 2015, wherein indicated that it wished to retain the 
Petitioner to provide technical services to its clients. The record also included a statement of work 
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(b)(6)
Matter of 0- T- Inc. 
(SOW) covering the intended employment period, identifying the Beneficiary as the proposed 
VMware administrator and noting that in addition to the duties (as previously provided by the 
Petitioner and repeated in the August 15, 2016, letter), "the individual will be interfacing 
with the government customer and other contract teams 'to determine/coordinate support 
needs/requirements." The SOW listed the work experience/skills requirements for the position as 
including experience with different third party technologies. The SOW did not identify any 
particular academic requirement to perform the duties of the proposed position. 
Upon review of the information in the record , we cannot ascertain if will be the ultimate 
end user ofthe Beneficiary's services. That is, the MSA and the SOW reference work by 
for clients or other third parties. We acknowledge that the representative stated in the letter, 
dated August 5, 2016, that its agreement with the Petitioner was for professionals for its internal 
projects, however, 
this statement appears to be inconsistent with the MSA. The record does not 
include sufficient information documenting the ultimate end user of the Beneficiary's services, and 
accordingly, the specific duties the end client would expect the Beneficiary to perform. Without 
clarification of the ultimate end user, we are unable to discern the substantive nature of the position 
and whether the proffered position indeed qualifies as a specialty occupation. 
Additionally, if is the actual end user of the Beneficiary's services, the duties it expects the 
Beneficiary to perform do not require a bachelor's degree in a specific discipline. As noted above, 
the SOW does not mention any academic requirement for the work to be performed and the 
August 5, 2016, letter references a general bachelor's degree, not a degree in a specific specialty . A 
requirement of a general bachelor's degree as the sufficient minimum requirement for entry into a 
proffered position is inadequate to establish that the proposed position qualifies as a specialty 
occupation. A petitioner must demonstrate that the proffered position requires a precise and specifiC 
course of study that relates directly and closely to the position in question. There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of a 
degree, without further specification, does not establish the position as a specialty occupation. Cf 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of 
a college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee , also does not establish eligibility."). Thus , while a general-purpose 
bachelor's degree may be a legitimate prerequisite for a particular position , requiring such a degree, 
without more, will not justify a finding that a particular position qualifies tor classification as a 
specialty occupation. Royal Siam Corp. v. Chertof{, 484 F.3d at 147. Again , even if is 
indeed the ultimate end client, the inconsistency between the Petitioner ' s implied minimum 
educational requirement and requirement to perform the actual duties of the position casts 
further doubt on the actual position. 
Consequently, we are precluded from 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 the particular position , which is the focus of 
criterion I; (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 
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Matter of 0- T- Inc. 
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. 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. Therefore, the appeal must be dismissed and the petition denied for this reason. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-1B 
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. lns. 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 b~nefits; and the tax treatment of the hired party." 
ld.; 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 noted above, the record of 
proceedings lacks sufficient documentation evidencing the actual end client and thus what the 
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(b)(6)
·Matter of 0- T- Inc. 
Beneficiary would be expected to do for the time period requested and further any restrictions on the 
Petitioner's right to control the Beneficiary's work. 
We also observe that the record does not clearly identify who will instruct the Beneficiary on his 
daily tasks while located at the Petitioner's erid client's facility. For example, although the MSA 
indicates that the Petitioner will be responsible for directing its personnel , this broad statement is 
insufficient to substantiate that the Petitioner will direct the nature and extent of the Beneficiary's 
work to ensure that the Beneficiary will primarily perform specialty-occupation work. Especially as 
the Petitioner has not submitted information or evidence of its procedures to supervise its claimed 
employees while offsite. We also note that the Petitioner's offer letter to the Beneficiary clearly 
states that the Beneficiary's "work performed at the client location shall be supervised by the 
respective Project Manager from the client." We further note that the SOW identifies project 
managers from both and the Petitioner , without specifying their duties as it relates to 
control of the Beneficiary's work on the project. Moreover, it is unclear what "interfacing with the 
government customer and other contract teams" entails and whether this interaction will result in 
instructing the Beneficiary 'on what or how to perform his duties. 
Given this inconsistent inform~tion and the general lack of evidence on this issue, the Petitioner has 
not established who has or will have actual control over the Beneficiary's work or the condition and 
scope of the Beneficiary's services. Without full disclosure of all of the relevant factors, we are 
unable to properly assess whether the requisite employer-employee relationship will exist between 
the Petitioner and the Beneficiary. Therefore, the Director's decision is affirmed, and the appeal is 
dismissed for this additional reason. 
III. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty oc~upation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 1 
Specifically, the Petitioner did not submit an evaluation of the Beneficiary ' s foreign degree or 
sufficient evidence to establish that his degree is equivalent to a U.S. bachelor's degree in a specific 
specialty. 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, the petition could not be approved even if 
eligibility for the benefit sought had been otherwise established. 
1 In reviewing a matter de novo, we may identify additional issues not addressed in the Director's decision . See Spencer 
Enterprises, Inc. v. United States , 229 F. Supp. 2d I 025, I 043 (E. D. Cal. 200 I), affd , 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
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Matter of 0- T- Inc. · 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-T- Inc., ID# 187050 (AAO Feb. 2, 2017)