dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTEROFC-
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 . 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 ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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(]) 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 New Jersey, stated that the Beneficiary would work at the end-client location 
in Washington. However, the record does not contain sufficient evidence to establish the services the 
Beneficiary would perform during the requested employment period. 
For example, the record contains a master services agreement (MSA) and a corresponding statement 
of work (SOW) between the Petitioner and the mid-vendor, it does not contain documentary evidence 
to establish contractual relationship with the end-client. The MSA is a general agreement for the 
Petitioner to "perform certain consulting, managed services or technological and/or software 
development services on behalf of the [mid-vendor] or the [mid-vendor's] Clients." The MSA does 
not identify a client to receive the services, a specific project requiring the services, a position to 
perform the services, the duties of that position, an individual assigned to that position, and the 
qualifications required for that position. Instead, the MSA states that"[ a ]11 Services performed by [ the 
Petitioner] under this Agreement shall be specified in a[n SOW]." Although the SOW identifies the 
Beneficiary as an "assigned individual," it does not identify the end-client or the prime vendor as the 
recipient of the Beneficiary's services. Instead, it identifies the mid-vendor, located in New Jersey, as 
2 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. 
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the "Client" whom the Beneficiary would "assist." Furthermore, the SOW states that the duration of 
the assignment was "6 months" after the "estimated start date [of] March 26 2018." The record does 
not establish that the Petitioner and the mid-vendor-regardless of the prime vendor and the end-client 
omitted from the SOW-extended the contract beyond September 2018, which preceded the beginning 
of the requested authorization period. 
The record does not contain a letter from the end-client that could address the substantive nature of 
the work the Beneficiary would perform and the academic qualifications-if any-the end-client 
requires to perform the position's duties. As noted, the record does not contain contractual agreements 
or work orders to establish contractual obligation with the end-client to demonstrate that the 
Beneficiary has actual work assignments in a specialty occupation at the end-client location. 
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. 
On appeal, for the first time, the Petitioner submits a letter from the prime vendor, stating that "[the 
mid-vendor] has agreed to assign [the Beneficiary] to [the prime vendor] for a specific project for [the 
end-client], which we expect may continue, at a minimum, through December 31, 2019." However, 
as noted above, the record does not contain additional documents to substantiate the contractual 
obligation between the mid-vendor and the prime vendor, and between the prime vendor and the 
end-client, respectively. Furthermore, the prime vendor letter, dated January 11, 2019, does not 
establish whether the respective parties contracted for the referenced project before the petition filing 
date. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
Accordingly, because the record does not establish when-or even whether-all parties contracted for 
the referenced project, the record does not establish eligibility for the benefit sought at the time of 
filing. 
We note that, on appeal, the Petitioner submits an opinion letter written by~-------~ a 
professor of computer engineering at the University ofl I 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 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 
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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 letter,I lstates that he reviewed "the letter of support submitted with the H-lB petition 
by [ the Petitioner] and the job description of the Software Developer position it now seeks to fill," and 
lists 17 duties and additional sub-duties. However, the duties inl Is letter do not correspond 
to the duty descriptions in the record. 3 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 I does not 
indicate that he reviewed evidence from the end-client or even was aware that the Beneficiary would 
work offsite. Accordingly,! Is opinion letter bears minimal probative value because it does 
not address the requirements from the entity using the Beneficiary's services. 
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 
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 
3 The record contains several duty descriptions from the Petitioner. The record also contains a duty description from the 
mid-vendor, submitted in response to the Director's request for evidence, and a duty description from the prime vendor, 
submitted on appeal. The record does not contain a duty description from the end-client. 
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). 
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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. Additionally, the record does not establish that the parties 
contracted for the Beneficiary to work throughout the requested period. 
Moreover, the record does not establish that the Petitioner would direct and control the Beneficiary's 
work. The Petitioner asserted that it will have "the right to control [the Beneficiary's] employment 
[and] the manner of completing the assignment." However, the record does not establish who, 
specifically, would supervise the Beneficiary, and how. We note that the record contains an 
organization chart, indicating that the Beneficiary and 15 other software developers would report to 
another individual with an identical position title of software developer. However, the record does not 
establish whether that software developer has a supervisory role, and how that software developer 
would direct and control the Beneficiary's work for the end-client's project, which again we note is 
not established in the record, and the mid-vendor's SOW ended in September 2018. For example, the 
record does not establish that any of the Petitioner's other software developers would be assigned to 
the same project as the Beneficiary in order to be aware of the work the Beneficiary would perform. 
The record raises farther questions regarding the extent to which the Petitioner would direct and 
control the Beneficiary's work at the end-client location identified in the petition. For example, the 
prime vendor letter discussed above stated that "[ the prime vendor has] complete authority and control 
as to how we execute this project." Accordingly, the record indicates that the prime vendor, not the 
Petitioner, the mid-vendor, or the end-client, ultimately would control the project and the services 
provided by the Beneficiary. 
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Furthermore, the omission of documentary evidence of contracts among the parties raise questions 
regarding the extent to which the Petitioner would direct and control the Beneficiary's work at the 
end-client's location. 
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. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-, ID# 4719741 (AAO Sept. 16, 2019) 
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