dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5420016 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 8, 2020 
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 California 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). 
(]) 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 Texas, stated that the Beneficiary would work at the end-client location in 
North Carolina. However, the record does not contain sufficient evidence to establish the contractual 
terms among all parties. 
Although the record contains documents related to a contract between the Petitioner and the 
mid-vendor, the documents are incomplete and not properly executed. The record contains a document 
the Petitioner describes as a "service agreement" (SA) between the Petitioner and the mid-vendor. 
However, the document's actual title is "Customer Exhibit A: Customer-Specific Engagement," 
indicating that it is an exhibit to another document. 3 The record does not contain a document that 
incorporates the SA as an exhibit to it. Therefore, we are unable to determine the foll terms of the SA. 
The SA excerpt identifies the end-client as the "customer" and the Beneficiary as a "contractor"; 
however, although the Petitioner signed and dated the excerpt, the document does not contain a 
signature and date from a representative of the mid-vendor. Accordingly, the SA excerpt does not 
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. 
3 Pages of the same document, numbered 25-30, identify themselves as Exhibit 2 through Exhibit 5. The document in the 
record does not contain an "Exhibit l" but rather begins with "Exhibit A." Despite the inconsistent labelling, we consider 
Exhibit A and Exhibits 2-5 as an excerpt from the same SA. 
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appear to be properly executed, raising questions regarding its validity. Doubt cast on any aspect of a 
petitioner's evidence may undermine the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Moreover, even to 
the extent that the SA excerpt is valid, it does not establish the services or products the Petitioner 
contracted to provide. 
The record also contains a document titled "Vendor Personnel - Addendum 1" (VPA). Similar to the 
SA excerpt, the record does not establish the document to which the VP A is an addendum, and the 
terms of that document. 4 Also similar to the SA excerpt, the VP A identifies the end-client as the 
"customer" and the Beneficiary as the "vendor personnel"; however, although the Petitioner signed 
and dated the VP A, the document does not contain a signature and date from a representative of the 
mid-vendor. Accordingly, the VPA also does not appear to be properly executed, raising questions 
regarding its validity. Again, doubt cast on any aspect of a petitioner's evidence may undermine the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of 
Ho, 19 I&N Dec. at 591. 
Additionally, even if both parties had signed the VP A, it states, "Estimated completion date (if 
applicable): 9/3/2018." The VPA does not indicate that it may be extended beyond September 2018 
and, furthermore, the record does not establish that the parties extended the VP A beyond that date­
to the extent that it was ever valid. Accordingly, the VP A does not establish that the parties contracted 
for the Beneficiary to provide services or products during the requested employment period. 
Moreover, the extent of the VP A's"[ d]escription of services" is ".Net Developer, including any duties 
and activities necessary to perform the work." Therefore, even if both parties had signed and dated 
the VPA and even if it were valid beyond September 2018, the brief: generalized duty description 
would prevent us from determining the substantive nature of the work that would be performed. 
Further, the record does not contain documentary evidence of the contract terms between the end-client 
and any other party, raising questions regarding the substantive nature of the work for the Beneficiary 
to perform. Instead, the record contains a letter from the end-client. The letter acknowledges that the 
Beneficiary "is working at our company ... through the [mid-vendor] via contract in the position of a 
Software Developer ... [and] will continue ... for [l]ong [t]erm." However, the letter does not specify 
the actual duration of the assignment and whether any of the parties extended a contract beyond 
September 2018, as indicated in the VP A. Moreover, the signatory of the letter identifies his position 
title as the end-client's "application systems engineer." Accordingly, the letter raises questions 
regarding the signatory's authority to submit the letter on behalf of the end-client. Although the letter 
includes a bullet-point list of "duties and responsibilities," the letter does not state that the end-client 
requires a bachelor's or higher degree in a specific specialty. Furthermore, the language in the 
end-client's duty description contains language that appears verbatim in a letter from the Petitioner, 
raising questions regarding whether the end-client's representative actually wrote the description and, 
therefore, whether the letter reflects the end-client's actual requirements. 
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 
4 If the VP A is an addendum to the SA, the record does not establish that relationship. 
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statute and regulations as requiring the pet1t10ner 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. Here, the record does not adequately establish that the Beneficiary would provide 
services in a specialty occupation for the end-client for the employment period requested in the 
petition. 
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. 5 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether 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. 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 
5 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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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, located in Texas, would direct and control 
the Beneficiary's work at the end-client location in North Carolina. The Petitioner asserts that the 
Beneficiary "will be controlled and supervised by [the Petitioner's] Project Manager throughout the 
duration of the project." However, as noted above, the VPA indicates that the project's duration ended 
in September 2018, before the requested employment period. Additionally, although an organization 
chart identifies a "manager" employed by the Petitioner to whom the Beneficiary would report, neither 
the SA excerpt nor the VP A identify an individual other than the Beneficiary who would be assigned 
at the end-client location for the project. In contrast, the itinerary in the record identifies a "project 
manager," M-S-, an employee of the end-client who signed the end-client letter as its "application 
systems engineer," discussed above. Therefore, the record raises questions regarding whether the 
"project manager" referenced by the Petitioner as the Beneficiary's supervisor is the same individual 
as the "manager" on the Petitioner's organization chart, the end-client's employee identified in the 
end-client's letter as the "project manager," or some other individual. 
Even if the record established an employee of the Petitioner who would supervise the Beneficiary as 
a "project manager," despite the itinerary identifying an employee of the end-client, working at the 
end-client location, as the "project manager," the record does not establish how the Petitioner would 
direct and control the Beneficiary's work. The Petitioner generally states that it "will control each 
assignment and all daily activities." However, the Petitioner does not elaborate how it would do so 
remotely from Texas while the Beneficiary would work at the end-client location in North Carolina. 
Specifically, despite the SA excerpt and VP A indicating that the Beneficiary's assignment began in 
201 7, the record does not contain documentary evidence of how the Petitioner supervised the 
Beneficiary's work at the end-client 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. 
5 
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. 
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