dismissed H-1B Case: Information Technology

(b)(6)
U.S. lkpartment or llomdand S(•euri•y 
l!.S. Citilcn.,;hip and lrnmigral.io11 S-:n·icc 
Adminislrati'c -'\pp<:als Onic-: (1\/\0J 
20 Mas�achusdts ;\,c .. N.W .. VIS �(l')(l 
Washinl'.ion. Dl' 10529-::090 
U.S. Citizenship 
and Imrnigration 
Services 
DATE: MAR 2 6 2015 OFFICE: CALIFO RNIA SERVICE CENTE R FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(I S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § I I 0 I (a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INST RUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F. R. § I 03.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON- PRECEDENT DECISION 
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DISCUSSION: The service center dir ector denied the nonimm igrant visa petition. The matter is now 
before the Admi nistrative Appeals Office (AAO). The appeal wi ll be dism issed. The petition will be 
denied. 
I. PROC EDURA L HISTORY 
On the Petition fo r a Nonim migrant Worker (Form 1-129), the petitioner describes its elf as a 26-
employee "Sof tware Development and IT Solutions Provider" establis hed in In order to 
employ the beneficiary in what it designates as a "Programmer Analy st" position, the petitio ner 
seeks to classi f y him as a nonimm igrant worker in a specia lty occupation pursuant to section 
10l (a)(15)(H)(i )(b) of the Immi gration and Nationality Act (the Act), 8 U.S.C. 
§ 1101 (a)(l5)(H)(i)(b). 
The director denied the petition find ing that the petitioner fai led to establish that (1) the proffered 
position qualifies as a specialty occupation in accordance with the applica ble statutory and regulatory 
provisions; (2) it will be a "Unit ed States employer" having an employer-employee relationship with 
the benefi cia ry as an H- 1 B temporary employee; and (3) the beneficiary is qualif ied for the proffe red 
position. On appeal, the petitioner asserts that the dir ector's bases fo r denial are erroneous and 
contends that the petitioner has satisfied all evidentiary requirements. 
We base our decision upon our review of the entire record of proceeding, which inclu des: (I ) the 
petiti oner's Form I-129 and the supporting documentation fil ed with it; (2) the service center's 
request fo r additional evidence (RFE); (3) the petition er's response to the RF E; (4) the directo r's 
denial letter; and (5) the Form I-290B and the petiti oner's submis sions on appeal. 
For the reasons that wi ll be di scussed below, we agree with the dir ector's decision that the petitioner 
fail ed to establis h eligibili ty for the benefit sought.1 Accordi ngly, the dir ector's decis ion wil l not be 
dis turbed. The appeal wi ll be dism is sed, and the petition will be denied. 
II. THE PETITIONER AND THE PROFF ERED POSIT ION 
In a letter dated March 22, 2014, the petitioner in dicated that it is a "leading global consulting and IT 
services company. " The petitioner further stated that it has a contract with 
to provide qualif ied personnel to work on projects for clien t, 
The petitioner indicated that "i n this particular instance, I _ has requested the services of a 
qualified Programmer Analyst to work on Project," and 
that it has provided the beneficia ry's services per its contract. 
The petitioner described the beneficiary's duties as a programmer analyst as follows: 
As a Programmer Analyst, the Benefi ciary's duties will in clude: 
• Execute account management campaigns. 
• Design, develop and admi nistrat ion of analytical data constructs/structures. 
1 We conduct appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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NON-PRECEDENT DECISION 
• Create analysis datasets, and produce SAS based reports with the areas of 
data access and deli very technolo gies. 
• Bui lding programs to create SAS datasets from the external data sources, and 
other sources 
• Conduct advanced ad hoc analysis through data extraction queries and 
int erpret findings; make recommendations to support decis ions. 
• Submit weekly reports regarding the work that has been completed fo r that 
week as well as work that wi ll be completed in the coming week. 
The petiti oner further indi cated that the "requir ements of this positio n inclu de a minimum of a 
Bachelor degree, or its equi valent, in Engi neering, Computer Scien ce, Information Technology, or a 
closely related field." 
The petitioner submitted a Labor Condi ti on Application (LCA) in support of the in stant H-1 B 
petitio n. The LCA designation for the prof fe red position corresponds to the occupational 
classification of "Computer Systems Analysts" - SOC (ON ET/O ES) Code 15-1121, at a Level II 
(qualifi ed) wage. The LCA is certified fo r emp loyment at 
Illin ois. 
III. EMPLOY ER-EM PLOYEE 
We wi ll now address whether the petitioner has establish ed that it meets the regulatory defin it ion of 
a "Uni ted States employer" as that term is defined at 8 C.F.R . § 214.2(h)( 4)(ii). We review ed the 
record of proceeding to determine whether the petitioner has established that it will have "an 
employer-employee relationship with respect to employees under this part, as in di cated by the fact 
that it may hir e, pay, fire, supervise, or otherwis e control the work of any such employee." !d. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F. R. 
§ 214.2(h)(4)(ii) as fo llows (emphasis added): 
United States employer means a person, firm, corporation, contractor. or other 
associat io n, or organization in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or othenvise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax ide ntif ication number. 
8 C.F.R . § 214.2(h)(4)(i i) ; see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). In the in stant case, 
the record is not persuasive in establish ing that the petit i oner wi ll have an employer-employee 
relationsh ip with the benefi cia ry. 
Although "Uni ted States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(i i), it is noted 
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that the terms "employee" and "employer-employee relationship" are not defined fo r purposes of the 
H-IB visa classifica tion. Section 10l(a)(15)(H)(i )(b) of the Act indicates that an alien coming to the 
United States to perf orm services in a specia lty occupation will have an "i ntending employer" who will 
file a Labor Condition Appli cation (LCA) wit h the Secretary of Labor pursuant to section 212(n)( 1) of 
the Act, 8 U.S.C . § 1182(n)( l) . The intending employer is described as off ering full-time or part-time 
"employment" to the H-lB "employee ." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indi cate that "United States 
employers" must file a Petition for a Nonimmi grant Worker (Form 1-129) in order to classif y aliens as 
H-lB temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the defi nition of "United 
States employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i. e., the H-lB beneficiary, and that this relati onshi p 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee.'' 8 C.F.R. § 214.2(h)(4)(ii) (defining the tem1 "United States employer"). 
Neither the former Immigrat ion and Naturalizati on Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relati onship" by 
regulation for purposes of the H-lB visa classific ation, even though the regulation describes H-lB 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-1 B visa classi fication, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "i ntended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Natiomvide Mutual Ins. 
Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Communityf(Jr Creative 
Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determi ning whether a hir ed party is an employee under the general common law of 
agen.cy, we consider the hiri ng party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquir y 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 additio nal projects to the hired party; the extent of the hired party's discr etion 
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 provi si on of employee benefits; 
and the tax treatment of the hired party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates. P.C. v. Wells, 538 U.S . 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand fo rmula 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 deci sive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 258 (1968)). 
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In this matter, the Act does not exhibit a legi slative intent to extend the definition of "employer" in 
section 101(a)( 15)(H)(i)( b) of the Act, "employment" in section 2I 2(n)(1)(A)(i) of the Act, or 
"employee " in section 212(n)(2)(C)(vii) of the Act beyond the traditi onal common law definitions. 
See generally 136 Cong. Rec . Sl7 I06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context of the H- 1 B vis a classification, the regulati ons 
define the term "United States employer" to be even more restrictive than the common law agency 
d fi . 
. 2 e 1mtlon. 
Speci fic ally, the regulatory definition of "United States employer" requir es H-I B e m ployer s to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relatio nship" with the H-18 "employee." 8 C.F.R. § 214.2(h)(4)(i"i). 
Accordin gly, the term "United States employer" not only requires H- I B employers and employees 
to have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes addition al requirements of having a tax identi fica tion number and to employ persons in the 
Unit ed States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally ci rcular 
definiti o n of Unit ed States employer in 8 C.F.R . § 214.2(h)(4)(ii) in dicates that the regulations do 
not intend to extend the defi n iti o n beyond "the traditional common law defi nition" or, more 
im portantly, that construing these terms in this manner would thwart congressio n al design or lead to 
absurd results. C.Y. Darden, 503 U. S. at 318-3 19.3 
Accordingly, in the absence of an express congressional intent to i m pose broader definitions, both the 
"convention al master-servant relationship as understood by common-law agency doctri ne" and the 
Darden constructi on test apply to the terms "employee" and "employer-employee relations hip" as used 
2 While the Dard en court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § I 002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See. e.g.. 
Bowers v. And rew Weir Shipping, Ltd ., 810 F. Supp. 522 (S.D.N.Y. 1992), qjj'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 ( 1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section I 0 I (a)( I 5)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1 8 visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, USA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless "'plainly 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson 
v. Methow Valley Citizen s Council, 490 U.S. 332, 359, 109 S. Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
( 1945)). 
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NON-P RECEDENT DECISION 
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in section 10l(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R. § 214.2(h).4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-l B nonimmi grant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.R. § 214.2(h)(4)(ii) (defin ing a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as in dica ted by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly deli neated 
in both the Darden and Clackamas deci sions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) ( 1 958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relati onship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Oppor tunity Commis sion, § 2-HI(A)( l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir . 2000) (determin ing that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ulti mately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors li sted in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may aff ect the determina tion of whether an employer-employee relationship exis ts. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact tinder must 
weigh and compare a combi nation of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the cir cumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(I). 
Furthermore, when exami ning the factors relevant to determining control, USCIS m ust assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the in strumentalities and tools that must be examined, not 
who has the right to provide the tools requir ed to complete an assigned proje ct. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
4 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See. e.g, section 
2l4(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1 8 intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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whether [an in dividual] is an employee depends on 'all of the incidents of the relationship . . . with no 
one factor being decisive ."' ld at 451 (quotin g Darden, 503 U.S. at 324). 
The petitioner claims that it wi ll have an employer-employee relationship with the benef iciary . 
However, as will be discussed, there is insuf fi cient probative evidence in the record to support this 
assertio n. Going on record with out supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceeding s. Matter of So.ffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (ci ting Matter a.[ Treasure Craft of Cal�fornia, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). For the reasons explain ed in detail below, the record does not establish that the petitioner 
will be a "United States employer" havin g an " employer-employee relationship" with the 
benefi ciary as an H- 1 B temporary "employee. ";, 
A. Offer of Employment Letter 
For H-1 B classification, the petitioner is req uired to submit written contracts between the peti tio ner 
and the benefic iary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and 
(B). Wi th the Form I-129 petition, the petitio ner submitted an offe r of employment letter dated 
March l, 2014. Notably, the petitioner states it is off ering the position as "Sr. .NET Developer, " but 
lists the benefic iary's duties as a programmer analyst. The petitioner did not explain the varia nce. 
B. Employment Agreement 
In response to the RFE, the petitioner submitt ed an employee agreement. ft is stated that the 
agreement is between the petitioner of Florida and the 
beneficiary of ll However, in section 12, it 
states that the agreement will be governed by the laws of the State of Vir ginia. The petitioner did 
not provide furthe.r explanatio n. Moreover, the agreement is dated January 11, 201 4 and signed by 
the benefic iary, but is not signed by the petitioner. 
On appeal, the petiti oner submitted another copy of the same employee agreement. However, this 
agreement is date d September 2, 2014, and signed by both the beneficiary and the petitioner. 
Notably, the section 12 has been changed and states that the agreement will be governed by the laws 
of the State of Florida. The petitioner did not explain the va rianc e. 
C. Employee Handbook 
In response to the RFE, the petitioner submitted a fe w pages from its employee handbook. Notably 
the petitio ner's address is listed as VA 
5 Furthermore, as wi ll be disc ussed, there are numerous inconsistencies and discrepancies in the petition and 
supporting documents, which undermine the petitio ner's credib ility with regard to several aspects of the 
beneficiary's claimed employment. When a petition includes numerous errors and discrepancies, those 
inconsistencies will raise serious concerns about the veracity of the petitioner's assertions. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the vis a petition. Matter of Ho, 19 l&N Dec. 582, 591 (B!A 1988). 
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The petition er only provi ded the pages for the table of content and section 9 to 12, which di scusses 
overtime, wage and performance review, and promotion. Notably, the preceding section to 
overtime is cut off , but emphasizes that "[i]t is necessary for each employee to 'clock in' at the start 
of work and 'clock out' when he or she leaves." The petiti oner did not provide in fo rmation on how 
an off -sit e employee would comply with this procedure. The petition er did not provide pages 
pertinent to provisio n of employee benefits. 
D. Performance Review Process 
We also reviewed the record of proceeding with regard to how the beneficiary's performance would 
be evaluated. In the letter dated March 22, 2014, the petitio ner stated that it "supervis e[s] the 
benefic iary's work through weekly reports the beneficia ry is required to send us. " However, the 
petitioner did not explain how such weekly reports would translate to performance standards, how 
they are used fo r assessing and evaluating the beneficiary's work, and/or the crit eria for determi nin g 
bonuses and salary adju stments. On appeal, the petiti oner submi tted documents entitl ed "Weekly 
Reports for September. " Notably, the project ti tle is "Sales Engi neer/Retent ions," which di ffers 
from the proje ct described in the petiti oner's letter dated March 22, 20 14. The report lis ts the 
project name, for example, "Debt Product Code," and also the tasks associa ted with the project, 
such as "started coding, data pull from dai ly, and analyti cal files." 
The record does not contain any further specific inf ormation from the petiti oner regarding if and 
when the reports are review ed or analyzed and, if so, by whom; the methods used fo r assessin g the 
reports; any in structions provi ded to the beneficiary regarding the reports; the consequences, if any, 
of fai ling to prepare the reports; etc. Thus, the petitioner has not demonstrated the probative value 
and relevance of its claim regarding the weekly reports to the question presented here, i. e., whether 
the petiti oner wi ll have the requisite employer-employee relationship with the benefic ia ry. It 
appears that if the petiti oner were controllin g the work of the beneficia ry, then the petitioner would 
be directing the work to be completed, not requestin g a report from the benefici ary regarding his 
own duties or the end-client's plans for the work to be performed . 
The petitioner also submitted a copy of the Performance Evaluation. Upon review·, the document 
lacks sufficient in formation regardin g how work and perf ormance standards were establi shed, the 
methods for assessing and evaluating the benefic iary's perf ormance, the crit eria fo r determinin g 
bonuses and salary adj ustments, et cetera. Importantly, there is a lack of inf ormation as to how the 
day-to-day work of the beneficia ry has been and will be supervi sed and overseen when the 
beneficiary is placed approxim ately 1,200 mil es away from the petiti oner in Illinoi s. 
E. Independent Contractor Agreement 
In its initia l submi ssion with the Form I-129, the petitioner provided an "Independent Contractor 
Agreement, " dated February 20, 2014 with The agreement states that the petiti oner wi ll 
provide specialized services directly to the thir d party user client, It further states that 
"[the petiti oner]'s services under this Agreement shall termina te at the end of the min imum time 
requir ement stated in the Purchase Order and any renewals or extensions thereof (the "end date"), or 
upon twenty-four hours' notice if for any reason the I I no longer desires the servic es of 
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[the petitioner] ." 
Notably, the agreement states "if [ I determines that [the petiti oner]'s personnel is not 
qualified fo r the position and is to be replaced, [the petit ioner] will fo rego payment fo r up to fiv e 
days of services." This provision suggests that it is or the end-cli ent that wi ll evaluate 
the benefi cia ry's credentials and perf ormance. 
F. Purchase Order 
The petitioner submitted a "Purchase Or der," issued by to the petitioner fo r the benefi ciary 's 
services. The Purchase Order states that the petitioner is contracted to perf orm work fo r · 
beginning March I, 20 14 and termina ting on September 9, 2014. It further states that "unless 
otherwise notified ... this Purchase Order shall be deemed to have been extended beyond the original 
'end date' on a month-to-month basis to a new 'end date' .. . until such time as the above mention ed 
project is completed or [the petitioner] provides 2 weeks/14 days prior written notice of a ref usal to 
extend this Purchase Or der. " It further adds that "the purpose of this paragraph is not to extend the 
end date indefinitely and create a contin uous relation ship, but is instead to cover situ ations where 
the ori ginal esti mates fo r project completio n require adju stment." Based on the purchase order, 
there is no evidence that this contract would be valid for the duration of the requested H-1 8 period. 
G. Letters from 
The record contai ns a March 12, 20 14 letter from , Assistant Manager-HR of . 
The letter states that _ has engaged for the proje ct " 
" 
and has subcontracted with the petiti oner. Agai n, this project description di ff ers from what 
was stated in the petit ioner's letter dated March 22, 20 14. The letter further states that 
has an ongoing contract with . and it has a Master Service Agreement, but it will not be 
shared with any third party due to confide ntial nature of the agreement. The letter provides a job 
description, which overlaps with the petitioner's jo b duties, but includes additional duties . 
In response to the RFE, the petitioner submitted a July 9, 2014 letter from HR 
Specialist of The letter states that ' has engaged 
fo r the Data Analyst and has sub contracted with [the petitio ner] to help full up this 
future require ment." It further indicates that the services will be rendered at office 
location at IL The letter provides a jo b description, 
which is verbatim from the petit ioner's letter. The letter further states that the benefici ary "is 
expected to be reinstated on the Proje ct again ef fTsic] 09/0 1/20 14 with ' and it would be 
"ongoing, long term project and the services fo r this proje ct will be substantiated through the terms 
of the Purchase Ord er." 
The letters provided by 
descri ptio n, prof fe red position, 
explanation fo r the varianc e. 
contain di screpancies regardi ng the work location, proje ct 
and dates of service. However, the petitioner did not provide 
H. Letters from 
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The record contains a letter from of dated March 6, 20 14. The letter 
states that the beneficiary is "currently based at IL, " 
The letter further in dica tes that "provides various consulti ng services to · ' and 
that the beneficia ry "has been assigned to work at in the professio nal positio n of 
Data/Information Analy st. " The letter further states to "ref er to the enclosed support statement from 
the beneficia ry's employer for a detailed descri ption of the of fered posi tio n." However, there is no 
further in fo rmation regarding which support statement that thi s letter is referri ng to. 
On appeal, the peti tioner submitted a September 4, 20 14 letter from Data Analysis 
Manager at The letter states that the beneficiary is "currently based at . 
- · 
IL " The letter further ind icates that 
"provides various consulting services to ' and that the benefic iary "has been 
assigned to work at in the prof ession al positio n of Data/Information Analyst." The 
letter further states to "ref er to the enclosed support statement from the beneficiary's employer fo r a 
detailed description of the off ered positio n." Again, there is no further in f ormation regarding which 
support statement that this letter is ref erri ng to. 
I. Dates of Employment 
We note that there are in consis tencies in the record of proceeding with regard to the beneficiary's 
dates of intended employment. On the Form I-129, the peti ti oner requested that the benefici ary be 
granted H-lB classifi cation from October I, 2014 to September 9, 2017. The petit ioner also 
submi tted a Purchase Order, which indi cates that the proje ct will begin March I, 20 14 and 
terminating on September 9, 20 14. As noted, whil e the purchase order stated that it "shall be 
deemed to have been extended beyond the origin al 'end date' on a month-to-month basi s," this 
provision is "not to extend the end date indefini tely and create continuous relationship" but "is 
inst ead to cover sit uations where the ori ginal estim ates fo r proje ct completion requires adju stment." 
Further, the letters from does not indi cate the duration of its projects. As mentioned, 
while the letters fr om state that it has ongoing contract with through a master 
services agreement, such agreement was not provided due to confide ntial nature of the agreement. 6 
6 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-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 
temporary 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 21 4(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 
(b)(6)
NON-PRECEDENT DECISION 
Page II 
J. Itin erary 
On the Form I-129 and the LCA, the pet it ioner indica ted that the benefici ary would be employed at 
IL . However, as mentioned above, the beneficiary 
appears to be employed at more than one location. The letter from dated July 9, 20 14, and 
the letter fr om dated September 4, 20 14 indi cated that the benefi ci ary was working at 
214. 2(h)(2)(i)(B) provides as fo llows: 
IL The regulation at 8 C.F.R . § 
Service or training in more than one location. A petition that requires services to be 
perf ormed or training to be received in more than one location must include an 
itin erary with the dates and locations of the services or training and must be filed 
with USCIS as provided in the fo rm instructions. The address that the petitioner 
specifi es as its location on the l-129 shall be where the petitioner is located fo r 
purposes of this paragraph. 
Therefore, the petiti oner did not comply with the itin erary requirement. 
K. Conclusion 
Upon review, there is insuf ficie nt documentary evi dence in the record corroborating the avai labil ity 
of work fo r the benefi ci ary fo r the requested period of employment and, consequently, what the 
beneficia ry would do, where the beneficiary would work, as well as how thi s would imp act the 
cir cumstances of his relation ship with the petitioner. Again, USCIS regulations affi rmatively 
requir e a petitio ner to establis h eligibil ity for the benefit it is seeking at the tim e the petition is filed. 
See 8 C.F.R. 103.2(b)( l) . A vis a peti tion may not be approved based on speculation of future 
eligibi li ty or after the petit ioner or beneficiary becomes elig ible under a new set of facts. See 
1\1atter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg. Comm'r 1978). Moreover, the burden of 
proving elig ibili ty fo r the benefit sought remains entirely with the petitio ner. Section 29 1 of the 
Act. The petitio ner has fail ed to establish that, at the time the petitio n was submitted, it had located 
H-1 B caliber work for the beneficiary that would entail perforn1ing the duties as described in the 
petition, and that was reserved for the benefici ary for the duration of the period requested. 
Notwith standing the lack of non-speculative work fo r the benefi cia ry for the requested employment 
period, we assessed and weighed the availab le relevant factors as they exist or will exist, and the 
evidence does not support the petitio ner's assertion that it wi ll be a "United States employer" having 
an "employer-employee relationship" with the beneficiary as an H-IB temporary "employee ." See 
8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). The petitioner claims that 
the benefici ary will be employed at and the evi dence indica tes that or 
possibly some other future clie nt will have di scretion over when and how long the benefic ia ry will 
work, as well as assigning proje cts to the beneficiary. It appears that he will use the tools and 
unable to adjudica te properly a request for H-l B classifica tion. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
(b)(6)
NON- PRECEDENT DECISION 
Page 12 
in strumentalitie s of the client. There, is a lack of evid ence establis hin g the petitioner's right to 
control or actual control in the ins tant case, as well as the beneficiary's role (if any) in hiring and 
paying assistants. Furthermore, as di scussed, a substantive determination cannot be made or 
inf erred with regard to the provi sion of benetits. The petitioner fail ed to establish such aspects of 
the employment, such as who will oversee the day-to-day work of the beneficiary and who will be 
responsible fo r his perf ormance evaluations. In the instant case, it appears that the petiti oner's role 
is li kely li mi ted to in voi cing and proper payment fo r the hours worked by the benefi ciary. Wit h the 
petitione r's role limited to essentially the functions of a payroll admini strator, the beneficiary is even 
paid, in the end, by the client. See Defensor v, Meissner, 20 1 F.3d at 388. 
Upon review of the record of proceeding, we therefore cannot conclude that the petitioner has 
satis fied it s burden and established that it qualifies as a United States employerwith standing to file 
the ins tant petition in this matter. See section 214(c)(l) of the Act (requiring an "Importing 
Employer"); 8 C.F .R. § 214. 2(h)(2)(i )(A) (stating that the "Unit ed States employer ... must file" the 
petition); 56 Fed. Reg. 61 111, 61112 (Dec. 2, 1991) (explainin g that only "Unit ed States employers 
can file an H- 1B petition" and adding the defin iti on of that tem1 at 8 C.F.R . § 214.2(h)(4)(ii) as 
clarifica tion) . Based on the tests outlined above, the petitioner has not establi shed that it will be a 
"Unit ed States employer" havin g an "employer-employee relationship" with the benefici ary as an 
H-1B temporary ''employee ." 8 C.F .R. § 214.2(h)(4)(ii). 
IV. SPECIALTY OCC UPATION 
For an H-1 B petition to be granted, the petitioner must provide suf fi cient evidence to establi sh that 
it will employ the beneficiary in a specia lty occupation position. To meet its burden of proof in this 
regard, the petit ioner must establish that the employment it is off ering to the benefic iary meets the 
fo llowing statutory and regulatory requir ements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "speci alty occupation" as an 
occupation that requi res: 
(A) theoretical and practical application of a body of hi ghly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a mi nim um fo r entry in to the occupation in the Unit ed States. 
The regulation at 8 C.F.R. § 214.2 (h)(4)(ii) states, in pertinent part, the fo llowin g: 
Specialty occupation means an occupation which [(1 )] requires theoretical and 
practical application of a body of hig hly specialized knowledge in fields of human 
endeavor in cluding, but not li mit ed to, archite cture, engine ering, mathematics, 
physical sciences, social sciences, medicine and health, education, busi ness 
speci alties, accounting, law, theology, and the arts, and which [(2)] requir es the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimu m for entry into the occupation in the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Pursuant to 8 C.F.R. § 214.2(h)(4)(i ii) (A), to qualif y as a specialty occupation, a proposed position 
must also meet one of the fo llowing criteria: 
(I) A baccalaureate or higher degree or its equivalent is nor�ally the minim um 
requirement fo r entry in to the particular position; 
(2) The degree requirement is common to the industry in parallel positiOns 
among simila r organizations or, in the alternative, an employer may show 
that its particula r position is so complex or uniqu e that it can be perf ormed 
only by an in divid ual 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 associa ted with the 
attainment of a baccalaureate or hig her degree. 
As the director set out, 8 C.F.R. § 214.2(h)(4)(ii i)(A) must logica lly be read together with section 
214(i)( l) of the Act and 8 C.F.R. § 214.2(h)(4)( ii). In other words, this regulatory language must 
be construed in harmony with the thrust of the related provisions and with the statute as a whole. 
See K Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 291 (1988) (holdin g that construction of language 
which takes into account the des ign of the statute as a whole is pref erred); see also COlT 
Independence Jo int Venture v. Federal Sav. and Loan Ins. Corp. , 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R . § 214.2(h)(4)(iii)(A) 
should logical ly be read as being necessary but not necessari ly suff ici ent to meet the statutory and 
regulatory definition of specialty occupation. To otherwise int erpret this section as stating the 
necessary and suffic ient conditions fo r meeting the defin ition of specialty occupation would result 
in particular positions meeting a condi tio n under 8 C.F.R. § 214.2(h)(4)(iii) (A) but not the statutory 
or regulatory definition . See Defensor v. Meissner, 201 F.3d at 387. To avoid this result, 8 C.F.R . 
§ 214.2(h)(4)(iii) (A) must theref ore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory defin iti ons of specialty 
occupation. 
Consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F.R . § 214.2(h)(4)(i i), USCIS 
theref ore consi stently int erprets the term "degree" in the criteria at 8 C.F.R . § 214.2( h)( 4)(i ii)(A) to 
mean not ju st any baccalaureate or hi gher degree, but one in a specific specialty that is directly 
related to the prof fe red position. See Royal Siam Corp. v. Cherto_ff; 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 responsibil it ies of a particular position"). App lying this standard. USCIS regularly 
approves H- 1 B petitions fo r qualified aliens who are to be employed as engi neers, computer 
scienti sts, certified public accountants, college professors, and other such occupations. These 
prof essions, fo r which petitioners have regularly been able to esta blish a minim um entry 
requirement in the Unit ed States of a baccalaureate or hi gher degree in a specific specialty or its 
equivalent directly related to the duties and responsi bil ities of the particu lar position, fai rly 
represent the types of specialty occupations that Congress contemplated when it created the H-1 B 
vis a category. 
(b)(6)
---- -·------------ -
NO N-PRECEDENT DECISION 
Page 14 
Moreover, we reiterate that to determin e whether a particula r jo b qualifies as a specialty occupation, 
USCIS does not simply rely on a posit ion's ti tle. The specific duties of the prof fe red position, 
combined wit h the nature of the peti tionin g entity's busin ess operations, are factors to be 
consid ered. USCIS must examine the ultimate employment of the alien, and determi ne whether the 
position qualifi es as a specia lty occupation. See generall y Defensor v. Meissner, 201 F. 3d 384. 
The critical element is not the title of the positi on, but whether the position actually requir es the 
theoretical and practical applic ation of a body of hi ghly specializ ed knowledge, and the attainment 
of a baccalaureate or hig her degree in the specific specialty as the mini mum for entry into the 
occupation , as requir ed by the Act. It must be emphasized that determinin g whether a prof fered 
position qualif ies as a specialty occupation is a separate is sue from determinin g whether a 
beneficiary is qualifie d fo r the proffered position. 
In ascertai ning the in tent of a petiti oner, USCIS looks to the Form I-129 and the documents fi led in 
support of the petition. It is only in this manner that the agency can determine the exact position 
of f ered, the location of employment, the prof fe red wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the director has the responsibil ity to consider all of the evid ence subm i tted by a 
petit ioner and such other evi dence that he or she may in dependently requir e to ass is t his or her 
adjudi cation. Further, the regulation at 8 C.F.R. § 214.2( h)(4)(iv) provides that "[a]n H- 1 B petition 
in volving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other requir ed 
evid ence sufficie nt to esta blis h ... that the services the benefici ary is to perf orm are in a specialty 
occupatio n." 
A critic al aspect of this matter is whether the record adequately demonstrates the requirements fo r 
the prof fe red position. We find that, as currently constitu ted, it does not do so. 
In this matter, the petiti oner stated that the "requir ements of the position inclu de a min im um of a 
Bachelor degree, or its equi valent, in Engineering, Computer Science, Information Techno logy, or a 
closely related field." Such an assertion, i. e., that the duties of the prof fered position can be 
performed by a person with a degree in any one of those disci plin es, (i.e., engineering, computer 
science, information technology, or a related field) suggests that the proffered position is not, in 
fact, a specialty occupation. More specifically, the degree requir ement set by the statutory and 
regulatory framework of the H- 18 program is not ju st a bachelor's or higher degree, but such a 
degree in a .specffic .specialty that is dir ectly related to the position. See section 214(i)( 1 )(b) of the 
Act, 8 U.S.C. § 1184(i)( l) (b), and 8 C.F.R . § 214.2( h)(4)(ii). 
Provi ded the specialties are closely related, e.g., chemi stry and bio chemi stry, a mm1mum of a 
bachelor's or hi gher degree in more than one specialty is recognized as satisf ying the "degree in the 
specific specialty" requirement of section 214(i)( l )(B) of the Act. In such a case, the required 
"body of highly special ized knowledge" would essential ly be the same. Sin ce there must be a close 
correlation between the requir ed "body of highly specializ ed knowledge" and the position, however, 
a min imum entry requirement of a degree in dis parate fi elds, such as phil osophy and engineering, 
would not meet the statutory requirement that the degree be "in the specif ic specia lty, " unless the 
petition er establi shes how each field is dir ectly related to the duties and responsibil ities of the 
(b)(6)
NON- PRECEDENT DECISION 
Page 15 
particular position such that the required "body of highly special ized knowledge" is essential ly an 
amalgamation of these dif ferent specialties. Section 214(i)( l) (B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a si ngular "specialt y," 
we do not so narrowly in terpret these provi sions to exclude positions from qualif ying as specialty 
occupations if they permit, as a mi ni mum entry requirement, degrees in more than one closely 
related speci alty. See section 214(i)( 1)(B) of the Act ; 8 C.F.R . § 214.2(h)(4)(ii). This also inclu des 
even seemingly di sparate specialties providing, again, the evi dence of record establis hes how each 
acceptable, specif ic fi eld of study is dire ctly related to the duties and responsi bil ities of the 
particula r position. 
Here, the petitioner indica ted that a bachelor's degree in a number of disc iplin es is acceptable fo r the 
prof fe red position, specific ally, engineering, computer science, in formation technology, or a closely 
related field. However, it must be noted that these in clude broad categories that cover numerous 
and various specialties. Theref ore, it is not readi ly apparent that a degree in any and all of these 
field s is directly related to the duties and responsibi lit ies of the particula r position prof fe red in this 
matter. 
Moreover, we note that, as recognized by the court in Defensor, supra, where the work is to be 
perf ormed fo r entities other than the peti tion er, evidence of the client company's jo b requirements is 
critical. See Defensor v. Meissner, 20 1 F.3d at 387-388. That is, it is necessary fo r the end-client to 
provide suff ici ent inf ormation regarding the proposed jo b duties to be perf ormed at its location in 
order to properly ascertain the mi nimu m educational requirements necessary to perf orm those 
duties. Id at 387-388. The court held that the fo rmer INS had reasonably interpreted the statute and 
regulations as requiring the petitioner to produce evidence that a prof fered position qualif ies as a 
specialty occupation on the basis of the requir ements imposed by the entities using the benef iciary's 
services. !d. at 384. Such evid ence must be sufficiently detailed to demonstrate the type and 
educationa l level of highly special ized knowledge in a specific discipli ne that is necessary to 
perf orm that particular work. Here, we observe that both and ' did not specif y 
the requirements for the position. 
Furthermore, none of the job descriptions in the record provide any in fo rmation with regard to the 
order of importance and/or frequency of occurrence with which the benefi cia ry will perform the 
functions and tasks. Consequently, the record does not establish which tasks are majo r functions of 
the proffered posit ion and the fre quency with which each of the duties will be performed (e .g., 
regularly, peri odically or at irregular inter vals). Moreover, the duties of the prof fe red position have 
been stated in generic terms that fail to convey the actual tasks the beneficia ry wi ll perf orm on a 
day-to-day basis. As a result, we cannot disc ern the prim ary and essential functions of the prof fe red 
position. 
Upon review, the job descriptions submit ted in thi s matter do not adequately convey the specific 
tasks the benefi cia ry is expected to perf orm to establish eligibili ty for H- 1 B classif ica tion. For 
example, the abstract level of inf ormation provided about the prof fe red positio n and its consti tuent 
duties is exempli fied by the petitioner's assertion that the beneficiary's duties inclu de "execute 
account management campaigns," "design, develop and administration of analytical data 
constructs/structure," "create analysis datasets, and produce SAS based reports with the areas of 
(b)(6)
NON- PRECEDENT DECISION 
Page 16 
data access and deli very technologi es," "buil din g programs to create SAS datasets from the external 
data sources," and "conduct advanced ad hoc analysis through data extraction queries and in terprete 
findings ." The petition er's statements - as so generally described - do not ill umin ate the 
substantive application of knowledge in volved or any partic ular educational attainment associa ted 
with such application. 
For the reasons dis cussed above, the proposed duties do not provide a sufficient factual basis for 
conveying the substantive matters that would engage the beneficia ry in the perf ormance of the 
prof fered position for the entire period requested. Accordingly, the petitioner has not establish ed the 
nature of the prof fered position and in what capacity the beneficiary will be employed . 
The petitioner's fail ure to establish the substantive nature of the work to be perf ormed by the 
benefic iary precludes a finding that the proffe red 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 fo r the particular position, which is the focus of criterion 1; 
(2) in dustry positions which are parallel to the proff ered 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 uniqu eness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification fo r a petitioner normally requiring a degree or its equiv alent, when that is an 
is sue under criterion 3; and (5) the degree of specialization and complexit y of the speci fic duties, which 
is the focus of criterion 4. 
Nevertheless, assuming, arguendo, that the duties of the prof fered position as described by the 
petitioner would in fact be the duties performed by the beneficiary for the entire employment period 
requested, we wi ll next dis cuss the prof fe red position in relation to the criterion at 8 C.F.R . 
§ 214.2(h)(4)(ii i)(A)( l) , which requires that a baccalaureate or hi gher degree in a specific specialty, 
or its equivalent, is normally the minimu m requirement fo r entry in to the particular positi on. 
As previ ously mentioned, the petitioner asserts in the LCA that the prof fe red position falls under the 
occupational category "Computer Systems Analys ts. " We recognize the U.S Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirem ents of the wide variety of occu pation s that it ad dresses .7 We reviewed the 
chapter of t he Handbook en tit led "Computer Systems Analysts," in cludin g the sections regardi ng 
the typical duties and requirements fo r thi s occupational category. 8 However, the Handbook does 
not in di cate that "Computer Systems Analysts" comprise an occupational group fo r which at least a 
bachelor's degree in a specific specialty, or its equivalent, is normally the minim um requirement fo r 
entry. 
The subchapter of the Handbook entitled "How to Become a Computer Systems Analyst" states the 
7 All of our references are to the 2014-201 5 editio n of the Hand book, wh ich may be acces sed on the Internet 
at http:/ /www. bls .gov/OCO/. 
8 For additional informatio n regarding the occupatio na l category "Computer Systems Ana lysts," se e U.S. 
Dep't of Labor, Bureau of Labor Statis tics , Occupational Outlook Handbook, 2014-15 ed. , Com puter 
Systems Ana lysts, on the Int ernet at http://www.bl s .gov/ooh/computer -and-in formation­
technolo gy/comput er-systems -analys ts.h tm#tab- l (last vis ited March 25, 2014 ). 
(b)(6)
NON- PRECEDENT DECISION 
Page 17 
fo llowing about this occupational category : 
A bachelor's degree in a computer or inf ormation science field is common, although 
not always a requirement. Some firms hir e analysts with business or lib eral arts 
degrees who have skills in in fo rmati on technology or computer programming. 
Ed ucation 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily in volved in the business side of a company, it 
may be helpf ul to take busin ess courses or majo r in management inf ormation 
systems. 
Some employers pref er applicants who have a master's degree in business 
admini stration (MBA) with a concentration in inf ormation systems. For more 
techni cally complex jo bs, a master's degree in computer sci ence may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have lib eral arts degrees and have gained 
programmin g or technical expertise else where. 
Many systems analysts continue to take classes throughout their careers so that they 
can learn about new and innovative technologies and keep their skills compet itive. 
Techno logi cal advances come so rapidly in the computer fi eld that conti nual study is 
necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospi tal may want an analyst with a background or coursework in health 
management, and an analyst working fo r a bank may need to understand finance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupat ional Outlo ok Handbook, 2014 - 15 ed , 
Computer Systems Analysts, avai lable on the Internet at http://www. bls.gov/ooh/computer-and­
inf ormation -technology/computer -systems-analysts. htm#tab-4 (last vi sited March 25, 2015). 
The Handbook does not support the assertion that at least a bachelor's degree in a speci fic specia lty, 
or its equivalent, is normally the min imum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there are a wide-r ange of degrees that are acceptable fo r 
positions in this occupation, inclu ding general purpose degrees such as business and lib eral arts. 
Whi le the Handbook indica tes that a bachelor's degree in a computer or in fo rmation science field is 
common, it does not report that such a degree in normally a mi nimum requirement for entry. 
According to the Handbook, many systems analysts have lib eral arts degrees and have gained 
programming or technic al expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that the Handbook does not specif y a degree level (e.g., associa te's degree, 
baccalaureate) fo r these technical degrees. Moreover, it specifical ly states that such a degree is not 
(b)(6)
NON- PRECEDENT DECISION 
Page 18 
always a requirement. Thus, the Handbook does not support the claim that the occupational 
category of computer systems analyst is one fo r which normally the min i mum requirement for entry 
is a baccalaureate degree (or hig her) in a specific specia lty, or it s equi valent. Even if it did, the 
record lacks suffici ent evid ence to support a findin g that the partic ular position prof fe red here, an 
entry-level computer systems analyst positio n, would normally have such a mini mum, specialty 
degree requirement or its equivalent. 
In the instant case, the duties and requirements of the posttlon as described in the record of 
proceeding do not in dicate that this particula r position proffered by the petiti oner is one fo r which a 
baccalaureate or higher degree in a specific specialty, or its equiv alent, is normally the mini mum 
requirement for entry. Thus, the petitioner fail ed to satisf y the criteri on at 8 C.F.R. 
§ 214.2(h)(4)(ii i) (A)(l ). 
Next, we wi ll review the record regarding the fir st of the two alternative prongs of 8 C.F. R. 
§ 214.2(h)( 4 )(iii) (A)(2). This prong alternati vely calls fo r a petitioner to establish that a 
requirement of a bachelor's or hig her degree in a specific specialty, or its equiv alent, is common fo r 
positions that are identi fiable as bei ng ( 1) in the petitioner's industry, (2) parallel to the prof fered 
position, and also (3) located in organizations that are simi lar to the peti tio ner. 
In determining whether there is such a common degree requirement, factors often consid ered by 
USCIS include: whether the Handbook reports that the industry requir es a degree; whether the 
industry's professio nal association has made a degree a minimu m entry requir ement; and whether 
letters or affidavits from firms or individuals in the in dustry attest that such firms "routinely employ 
and recruit only degreed individua ls." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously disc ussed, the petitioner has not established that its proffe red position is one fo r which 
the Handbook (or other in dependent, authoritative source) reports a standard, industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
inco rporate by reference the previous discussion on the matter. Also, there are no submis sions from 
the industry's prof essio nal association indica tin g that it has made a degree a minimu m entry 
requirement. Furthermore, the petitioner did not submit any letters or atlidav its from sim i lar firms 
or in div iduals in the relevant in dustry attesting that such firms "routinely employ and recruit only 
degreed indivi duals." The petitio ner did not provide any documentation to satisf y the first 
alternativ e prong of 8 C.F.R . § 214.2(h)(4)(ii i)(A)(2). 
We will next consider the second alternative prong of 8 C.F .R. § 214.2(h)( 4)(ii i)( A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or uniqu e that it can be 
performed only by an in divi dual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the prof fe red posttlon qualif ies as a specialty occupation, the 
petitioner submitted various documents. We reviewed the record of proceeding in it s entirety. 
However, the petitio ner fa il ed to sufficiently develop relative complexit y or uniqueness as an aspect 
of the prof fe red position. 
(b)(6)
NON- PRECEDENT DECISION 
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More specifica lly, the petiti oner has not credibly demonstrated that the duties the beneficia ry will be 
responsible fo r or perform on a day-to-day basis constitu te a position so complex or unique that it 
can only be performed by a person with at least a bachelor's degree in a specific specialty, or its 
equival ent. For in stance, the petitioner did not submit inf ormation relevant to a detai led course of 
study leading to a specia lty degree and did not establish how such a curriculu m is necessary to 
perform the duties it may assert are so complex and ll;niqu e. While a fe w related courses may be 
beneficial, or even required, in perf orming certain duties of the position, the pet itio ner has not 
shown how an established curriculum of such courses leading to a baccalaureate or hi gher degree in 
a specific specialty, or its equivalent, is requi red to perform the duties of the prof fe red position. 
This is further evid enced by the LCA submitted by the petitioner in support of the instant petition. 
Again, the LCA indica tes a wage level based upon the occupational classi fication "Computer 
Systems Analysts" at a Level II wage. In accordance with the relevant DOL explanatory 
inf ormation on wage levels, a Level II positio n is in dicative that, relative to other positions falling 
under the occupational category, the benefic ia ry is expected to have a good understanding of the 
occupation but that he will only perf orm moderately complex tasks that requir e lim ited judgment. 
Without further evidence, it is not credible that the petition er's profTered position is complex or 
uni que as such a position falling under this occupational category would lik ely be classif ied at a 
hig her-level, such as a Level III (experienced) or Level IV (f ully competent) position, requiring a 
si gnif icant ly hi gher prevail ing wage. For example, a Level IV (f ully competent) position is 
desi gnated by DOL for employees who "use advanced skills and di versified knowledge to solve 
unusual and complex problems. "9 The evidence of record does not establish that this position is 
signi fica ntly dif fe rent fr om other positions in the occupational category such that it ref utes the 
Handbook' s in formation that a bachelor's degree in a specific specialty is not required for the 
prof fered position. 
The petitioner ind icated that the beneficia ry is hig hly quali fied programmer analyst. However, the 
test to establis h a position as a specia lty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifie s as a specialty occupation. In the instant case, 
the petitioner has not establi shed which of the duties, if any, of the prof fe red position would be so 
complex or unique as to be di stingui shable from those of simila r but non-degreed or non-specialty 
degreed employment. Consequently, it cannot be concluded that the petitioner has satisf ied the 
second alternative prong of 8 C.F.R. § 214.2(h)(4)(ii i)( A)(2). 
The third criterion of 8 C.F.R . § 214.2(h)( 4)(ii i)(A) entai ls an employer demonstrating that it (or in 
this case, the end-client) normally requires a bachelor's degree in a specific specia lty, or its 
equivalent, fo r the position. To this end, we usually review the petitioner's (or end-cJi ent's) past 
recruitin g and hiring practices, as well as inf ormation regarding employees who previously held the 
position, as well as any other documentation submitted by the petitioner in support of this criterion. 
9 For add itional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guida nce, No nagric. Immigration Programs (rev. 
Nov. 2009), available at http://www .foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ ll _ 
2009.p df 
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NON-PRECEDENT DECISION 
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To merit approval of the peti tio n under this criterion, the record must establis h that the impos ition 
of a degree requirement is not merely a matter of pref erence fo r hi gh-calib er candidates but is 
necessit ated by perfo rmance requirements of the position. Upon review of the record of 
proceeding, the petiti oner has not establi shed a prior hi story of recruitin g and hiring fo r the 
prof fe red position only persons with at least a bachelor's degree in a specific specialt y, or its 
equi valent. 
While a petitioner may assert that a prof fe red position requires a specific degree, that opinion alone 
wit hout corroborating evidence cannot establis h the position as a specialty occupation. Were 
USCIS limit ed solely to reviewing a petiti oner's (or end-client's) claimed self -imp osed 
requirements, then any in div idu al with a bachelor's degree could be brought to the Unit ed States to 
perf orm any occupation as long as the petitioner created a token degree requir ement, whereby all 
indi viduals employed in a particula r position possessed a baccalaureate or hig her degree in the 
specific specia lty, or its equivalent. See Defensor v. Meissner, 20 1 F.3d at 388. In other words, if a 
petiti oner's stated degree requir ement is only designed to artificially meet the standards fo r an H- 1 B 
visa and/or to underemploy an in div idual in a position fo r which he or she is overqualif ied and if the 
prof fe red position does not in fact requir e such a specialty degree or its equivalent, to perform its 
duties, the occupation would not meet the statutory or regulatory defin ition of a specialty 
occupation. See section 214(i)( l) of the Act; 8 C.F.R . § 214.2(h)(4)(i i) (definin g the term "specialty 
occupation "). 
To satisf y this criterion, the evidence of record must theref ore show that the specific perf ormance 
requirements of the position generated the recruitin g and hiring hi story. A petitioner's perf unctory 
declarati on of a particular educational requirement will not mask the fact that the position is not a 
specialt y occupation. user s must examine the actual employment requirements and, on the basis 
of that examination, determin e whether the position qualifi es as a specialty occupation. · See 
generall y Defensor v. Meissner, 20 1 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routin ely insi sted on certain educational standards, but 
whether perf ormance of the position actually requir es the theoretical and practical appli cation of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or hig her degree in the 
specific specialty (or its equivalent) as the mi nim um for entry into the occupation as requi red by the 
Act. To interpret the regulations any other way would lead to absurd results: if USCIS were 
constrained to recognize a specialty occupation merely because the petitioner (or end-clie nt) has an 
establis hed practic e of demandin g certain educatio nal requirements for the prof fe red position - and 
without consid eration of how a beneficia ry is to be speci fical ly employed - then any alien with a 
bachelor's degree in a specific specialty could be brought in to the Unit ed States to perform non­
specialty occupations, so long as the employer required all such employees to have baccalaureate or 
hig her degrees. See id. at 388. 
In the ins tant matter, the petition er did not submit any documentation in support of this criterion of 
the regulations. Thus, the petitioner has not satisfied the thir d criterion of 8 C.F.R . 
§ 214.2(h)( 4)(iii )(A). 
The fo urth criterion at 8 C.F.R. § 214.2(h)(4)(i ii )(A ) requires a petitioner to establis h that the nature 
of the specific duties is so specia liz ed and complex that the knowledge requi red to perf orm them is 
(b)(6)
NON- PRECEDENT DECISION 
Page 21 
usually associated with the attainment of a baccalaureate or hig her degree in a specific specialty, or 
its equivalent. 
We reviewed the petiti oner's statements and the documentation provided regarding it s business 
operations and the prof fe red position. However, the petition er has not establi shed that the proffe red 
position satisfies this criterion of the regulations. More specifical ly, in the in stant case, relative 
specializ ation and complexit y have not been sufficiently developed by the petitioner as an aspect of 
the prof fered position. 
We hereby incor porate our earlier discussion and analysis regardin g the duties of the proffe red 
position, and the designation of the prof fe red position in the LCA as a Level II position (out of fo ur 
assignable wage-levels) relative to others within the occupational category, and hence one not li kely 
di stinguis hable by relatively specialized and complex duties. Without further evidence, it is not 
credible that the petitioner's prof fe red position is one with specializ ed and complex duties as such a 
position would li kely be classif ied at a hi gher-level, such as a Level III (experienced) or Level IV 
(f ully competent) position, requiring a substantially higher prevail ing wage. As previously 
di scussed, a Level IV (f ully competent) position is desi gnated by DOL fo r employees who "use 
advanced ski lls and diversified knowledge to solve unusual and complex problems" and requir es a 
sig nifi cantly hig her wage. The petitioner has submit ted inadeq uate probative evid ence to sati sf y the 
criterion of the regulations at 8 C.F.R . § 214.2(h)( 4 )(iii) (A)( 4). 
The petitioner has not submit ted any evidence to satisf y this criterion of the regulations. We 
theref ore conclude that the petitioner fail ed to satisf y the criterion at 8 C.F.R. 
§ 214.2(h )( 4)(iii )(A)( 4). 
For the reasons related in the preceding di scussion, the petitioner has fa iled to establish that it has 
satisf ied any of the criteria at 8 C.F.R . § 214.2(h)( 4 )(iii)( A). Accor dingly, we cannot conclude that 
the proff ered position qualifies as a specialty occupation. 
V. BENEFICIAR Y QUALIF ICATIONS 
If the petitioner had demon strated that the prof fe red position is a specialty occupation position by 
vir tue of requiring a minimu m of a bachelor's degree in a speci fic specialty or its equivalent, then 
the petitioner would also have been oblig ed to demonstrate that the beneficia ry is qualif ied to work 
in that position by vir tue of having a minimum of a bachelor's degree in that .\pec�fic .specialty or its 
equiv alent. See Matter of Matter of Ling, 13 I&N Dec. 35 (R.C. 1968). In the in stant case, the 
petitioner is relying on an evaluation of the beneficiary's education, trai ning, and profession al 
experience, consi dered together, to demonstrate that he has such a specific degree equivalent in 
Quantitative Busin ess Analysis. 
When such an evaluation will rely on employment experience or on prof essi onal trai ning, other than 
college education, even in part, the evaluation must be accompanied by evidence that the evaluator 
"has authority to grant college-level credit for training and/or experience in the specialty at an 
accredited college or university which has a program for granting such credit based on an indiv idual's 
training and/or work experien ce." See 8 C.F.R. § 214.2(h)(4)(ii i)(D) . 
(b)(6)
NON- PRECEDENT DECISION 
Page 22 
In the in stant case, the evaluation is accompanied by a letter from the department 
chair and a prof essor of economics at , stating : "Dr. has gained 
extensive experience in the mechanism by which credit is granted (f or prior studies, transfer credits, 
experiential learning, in ternshi ps, and other appropri ate qualifica tion s). " Nei ther that letter nor any 
other evidence in the record in dicates that Dr. the eval uator, has authority to grant college­
level credit for train ing and/or employment experience either at or 
elsewhere.10 His evaluation, therefore , is not competent evidence, pursuant to the strictures of the 
salient regulation, that the beneficia ry has the equivalent of a bachelor's degree in Quantitative Busi n ess 
Analysis. 
Pursuant to the instant vi sa category, however, a beneficia ry's credentials to perf orm a particular job 
are relevant only when the jo b is found to qualif y as a specialty occupation. As dis cussed in this 
decisi on, the prof fered positio n has not been shown to requir e a baccalaureate or hig her degree in a 
specif ic specialty, or its equiv alent, and has not, theref ore, been shown to qualif y as a posit ion in a 
specialty occupation. Because the findi ng that the petitioner fai led to demonstrate that the protTered 
position quali fies as a specialty occupation position is dis positive, we need not engage in any more 
exhaustive examination of the beneficia ry's qualifi cation s. 
VI. CONCLU SION 
The dir ector's decision wil l be af firmed and the petition wi ll be denied fo r the above stated reasons, 
with each consid ered as an in dependent and alternati ve basis fo r the denial . In vis a petition 
proceedings, it is the petiti oner's burden to establi sh eligibil ity fo r the immi gration benefi t sought. 
Section 29 1 of t he Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 12 8. Here, that burden 
has not been met. 
ORDER: The director's decis ion is affi rmed. The peti tion is denied. 
1° 
Further, the letter pertinent to Dr. experience awarding transfer credits, internship credits, etc. is 
dated roughly one and a half years earlier than Dr. first evaluation.