dismissed H-1B Case: Information Technology

(b)(6)
DATE: JUL 0 9 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Securit y 
U.S. Citizenship and Immigr ation Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(h) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclos ed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R . § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision . The Form I-290B web page (www .uscis .gov/i-290b) contains the latest information on fee, filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
263,637-employee (worldwide) "Information Technology Consulting Firm," established in In 
order to employ the beneficiary in a position it designates as a "Web Developer" position, the 
petitioner seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition determining that the evidence of record did not establish: (1) that 
the proffered position qualifies for classification as a specialty occupation; (2) the existence of an 
employer-employee relationship between the petitioner and the beneficiary; and (3) that the Labor 
Condition Application (LCA) submitted by the petitioner covers all of the locations where the 
beneficiary will be employed. On appeal, the petitioner asserts that the Director's bases for denial 
of the petition were erroneous and contends that it has satisfied all evidentiary requirements. 
The record of proceeding includes: (1) the Form I-129 and supporting documentation; (2) the 
service center's Request for Evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the notice 
of decision; and (5) the Form I-290B, Notice of Appeal or Motion, and the petitioner's brief in 
support of the appeal and additional evidence. We reviewed the record in its entirety before issuing 
our decision.
1 
Upon review of the entire record of proceeding, we find that the petitioner has not overcome the 
Director's grounds for denying this petition. Accordingly, the appeal will be dismissed and the petition 
will remain denied. 
II. THE PROFFERED POSITION 
On the Form I-129, the petitioner indicated that it is seeking the beneficiary's services as a web 
developer on a full-time basis at a rate of pay of $62,400 per year with an employment start date of 
October 1, 2014. The petitioner submitted the required LCA certified for a job prospect within the 
occupational classification of "Web Developers" -SOC (ONET/OES Code) 15-1134, at a Level II 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the petitioner's references, on appeal, to the requirement that U.S. Citizenship and 
Immigration Services (USCIS) apply the "preponderance of the evidence" standard, we affirm that, in the 
exercise of our appellate review in this matter, as in all matters that come within our purview, we follow the 
preponderance of the evidence standard as specified in the controlling precedent decision, Matter of 
Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). 
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Page 3 
wage. The LCA identifies the beneficiary's work location as 
Minnesota. On the Form I-129, the petitioner noted that the beneficiary would work off-site. 
In its letter, dated March 28, 2014, in support of the petition, the petitioner stated that it "selected 
the Beneficiary to participate onsite in [its] project for [its] client, ' and that "[it] 
is not involved in staffing this project for (i.e. supplying employees to meet 
staffing needs." The petitioner added that ' has engaged 
[the petitioner] to undertake and complete information technology project(s) to meet its business 
needs" and that "the work the Beneficiary will perform is part of [the petitioner's] regular business. " 
The petitioner stated that in the proffered position of Web Developer, "the Beneficiary will apply 
her technical expertise in computer science, analysis and programming and her responsibilities will 
include, but not be limited to, the following: 
• Design, build, or maintain web sites, including performing web site updates. 
• Confer with management or development teams to prioritize needs , resolve 
conflicts, develop content criteria, or choose solutions. 
• Back up files from web sites to local directories for instant recovery in case of 
problems. 
• Identify problems uncovered by testing or customer feedback, and correct 
problems or refer problems to appropriate personnel for correction. 
• Evaluate code to ensure that it is valid, is properly structured, meets industry 
standards and is compatible with browsers, devices, or operating systems. 
• Analyze user needs to determine technical requirements. 
• Develop or validate test routines and schedules to ensure that test cases mimic 
external interfaces and address all browser and device types. 
The petitioner added: 
[T]he position requires the application of sophisticated technologies and principals 
that can only be gained through the attainment of at least a bachelor's degree or its 
equivalent in Computer Science, Engineering, Information Systems, or a directly 
related field. [The petitioner's] policy is to hire as Web Developers only individuals 
who possess at least a bachelor's degree or its equivalent in Computer Science, 
Engineering, Information Systems, or a directly related field. 
In response to the service center's RFE, the petitioner submitted a letter stating that the beneficiary 
had been engaged to work on the project as a web developer and that 
her services would be required through at least August 2017. The letter also listed the beneficiary's 
duties as follows: 
• Analysis and gathering of requirements from Clients and make sure all 
developing and documentation processes are developed as per [the petitioner] 
and client quality standards. 
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• Preparing Low Level Design, Program, Unit Test Specifications and System test 
plan for the components. 
• Understand the requirements thoroughly from the customer and building the web 
pages including layout, appearance, and function. 
• Complete design and construction of various functional modules and unit testing 
them. 
• Preparing test case documents based on the requirements/design documents. 
• Setting up the Test environment and involving in test data setup activities. 
• Responsible for fixing any bugs and enhancing the web pages according to 
requirements from end users. 
• Development of new features based on the requirements. 
• Providing status updates to Clients & Coordination with the Off-shore team to 
ensure quality deliverable. 
• Report the weeki y and monthly status in the specified format. 
• Be responsible for the overall quality and timeliness of the deliverable. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first consider whether the evidence of record establishes that the petitioner meets the 
regulatory definition of a United States employer as that term is defined at 8 C.F.R. 
§ 214.2(h)(4)(ii). In this context, the evidence of record must establish that the petitioner will have 
"an employer-employee relationship with respect to employees under this part, as indicated by the 
fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." !d. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) .. 
. , who meets the requirements for the occupation specified in section 214(i)(2) .. 
. , and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
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(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire. pay, fi"re, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee
11 
and "employer-employee relationship" are not defined for purposes of the H­
lB visa classification. Section 10l(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the 
Act, 8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an "employer­
employee relationship
11 
with the "employees under this part," i.e., the H-1B beneficiary, and that this 
relationship 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 term "United States 
employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" by 
regulation for purposes of the H -lB visa classification, even though the regulation describes H-1B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-1B visa classification, 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 "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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 
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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 employe~ 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 formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the tenn 
"United States employer" to be even more restrictive than the common law agency definition? 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R.§ 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
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 circular definition 
of United States employer in 8 C.P.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(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. Andrew Weir Shipping, Ltd., ·810 F. Supp. 522 (S.D.N.Y. 1992), aff'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 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(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 
ofthe H-1B 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, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
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construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms ''employee" and "employer-employee relationship" as used 
in section 10l(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.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-1B nonimmigrant 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) (defining a "United States employer" as one who "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 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 delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship 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 Opportunity Commission, § 2-III(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) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" ofH-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed 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 affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
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 Citizens 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 LEd. 1700 
(1945)). 
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 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1B 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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weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances 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)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must 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 instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. 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 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the evidence of record does not establish 
that the petitioner will be a "United States employer" having an "employer-employee relationship" 
with the beneficiary as an H -1B temporary 
11 
employee. 
11 
The petitioner initially submitted excerpts from its Master Professional Services Agreement 
(MPSA) with its end-client _ In 
response to the service center's RFE, the 
petitioner submitted what appears to be the complete MPSA, but did not provide any specific 
statements of work (SOWs) for the beneficiary. The record of proceeding does not contain SOWs 
valid for the requested period of employment for the beneficiary or any evidence from 
_ other than the MPSA and the supplements discussed above. There are no documents 
from with specific references to the beneficiary by name. 
Moreover, a complete copy of Supplement G was not submitted. 5 The submitted portion of 
Supplement G shows that the petitioner had extensive work at the facility that would 
continue for the majority of the requested employment period and includes language restricting the 
petitioner's rights regarding the beneficiary. For example, section 18 of the Supplement G 
specifically allows the end-client the option to replace the petitioner's personnel. 6 While the 
5 
Specifically, under the heading Statement of Work (page 3) of the Supplement G, the parties noted that the 
services the petitioner would perform are set forth in Schedule G-2, and that the petitioner will ensure that its 
personnel assigned to services under the G-2 supplement will have certain certifications and those skill sets 
identified in Schedule G-15. Supplement G referenced 16 attached schedules in all but the evidence of 
record does not include these attachments. 
6 
This option references the MPSA at section 8.5(b) which provides the framework for the end-client's 
replacement of the petitioner's personneL 
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exercise of this option may or may not occur, this is a limitation on the petitioner's right to utilize 
the beneficiary's services for this particular assignment. It is this language, along with the Jack of 
attachments to the Supplement G that raise questions regarding other limitations on the petitioner's 
right to control. For example, the Supplement G does not include the G-2 attachment outlining the 
description of proposed services. Thus, it is not possible to conclude that the beneficiary's services 
would even be required under the Supplement G. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Absent all documents surrounding the chain of proposed 
employment, delineating the contractual terms and conditions relevant to the employer-employee 
common law touchstone of control - we are unable to determine that balancing all of the relevant 
indicia of control would favor the petitioner- rather than one of the other parties - so as to establish 
the requisite employer-employee relationship. 
Next, we note that 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 an alien 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 alien beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. We fully 
considered all of the submissions from the petitioner in this matter. However, without full 
disclosure of all of the relevant factors relating to the end-client, including evidence corroborating 
the beneficiary's actual work assignment, for the duration of the requested employment period, we 
are unable to find that the requisite employer-employee relationship will exist between the 
petitioner and the beneficiary. 
The evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.P.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the 
beneficiary is the petitioner's employee and that the petitioner exercises control over the beneficiary, 
without sufficient, corroborating evidence to support the claim, does not establish eligibility in this 
matter. Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Based on the tests outlined above, the petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the beneficiary as an H-1B temporary 
"employee." 8 C.P.R.§ 214.2(h)(4)(ii). For this reason the petition must be denied. 
IV. SPECIALTY OCCUPATION 
The next issue in this matter is whether the record establishes that the proffered position qualifies as 
a specialty occupation. 
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A. Legal Framework 
To meet its burden of proof in this regard, the petitioner must establish that the employment it is 
offering to the beneficiary meets the following statutory and regulatory requirements. 
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.P.R. § 214.2(h)( 4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 
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as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint 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 logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition 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 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USers regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher ·degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USers does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. Id. at 384. Such 
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evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
For H-1B approval, the petitioner must demonstrate that a legitimate need for an employee exists 
and that it has secured H-1B caliber work for the beneficiary for the entire period of employment 
requested in the petition. 7 In addition, USCIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
103.2(b)(1). A visa petition may not be approved based on speculation of future eligibility or after 
the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
In this matter, the petitioner asserts that the beneficiary would be assigned to work for the 
end-client, , for the entire validity period requested, October 1, 2014 to August 
11, 2017. However, the evidence of record does not contain sufficient evidence corroborating the 
petitioner's assertions regarding the beneficiary's claimed assignment. That is, the evidence of 
record does not establish that the submitted MPSA and supplements actually relate to the 
beneficiary and authorizes her assignment to for the entire validity period, as 
claimed. The record of proceeding does not contain any evidence from other 
than the MPSA and the supplements discussed above and there are no documents from 
with specific references to the beneficiary by name. Also, no documents from 
specifically reference the proffered position. 
7 The agency made clear long ago that speculative employment is not permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B 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-1B 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 214(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 
unable to adjudicate properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. 
§ 214.2(h )(2)(i)(E). 
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Supplement C to the MPSA which the petitioner claims "governs the project to which the 
beneficiary will be assigned" appears to have expired on October 31, 2014. Also, Supplement G to 
the MPSA which "extend[s] the contractual relationship between [the petitioner] and 
indicates that the supplement term ends on February 1, 2017. Thus, even assuming arguendo that 
the MPSA and Supplements C and G relate to the beneficiary and authorize her assignment to 
_ _ the petitioner still has not sufficiently established how the submitted documents 
constitute reliable evidence of the beneficiary's claimed assignment there for the entire requested 
validity period (October 1, 2014 to August 11, 2017). Although the petitioner's counsel asserts in 
response to the RFE that the petitioner "anticipates that the project will be extended and 
consequently specialty occupation work will exist for the beneficiary for the employment period 
requested in the instant petition," the evidence of record does not contain evidence corroborating 
this assertion. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
As the record of proceeding does not contain sufficient evidence establishing that the beneficiary 
would be assigned to work for for the entire validity period requested - and 
considering that the petitioner is in the business of supplying workers to third-party clients or 
customers - we cannot find that the petitioner has demonstrated a legitimate need for the 
beneficiary's services. In other words, the petitioner has not demonstrated that it has secured 
definitive, non-speculative H-1B caliber work for the beneficiary for the entire period of 
employment requested in the petition. 
Moreover, while the petitioner provided a list of job duties, petitioner-provided duties are often 
outside the scope of consideration for establishing whether the position qualifies as a specialty 
occupation. See Defensor v. Meissner, 201 F.3d 384,. 387-388 (5th Cir. 2000) (stating that the 
petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a 
specialty occupation determination where the nurses in that case would provide services to the end­
client hospitals and not to the petitioning staffing company). Nevertheless, even if we were to 
consider the petitioner's descriptions, we still would not find them sufficient to explain the 
circumstances of the beneficiary's assignment at The petitioner's descriptions 
of the duties of the proffered position are overly broad and not explained in the context of 
or the particular project to which the beneficiary will be assigned. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the beneficiary. The failure to establish the substantive nature of the work, therefore, 
precludes a finding that the proffered position satisfies any criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 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 
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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. 8 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. The appeal will be dismissed for this additional reason. 
V. VALIDITY OF THE LCA 
The remaining issue before us is whether the LCA is valid for all locations where the beneficiary 
will be employed. However, since the employer-employee and specialty occupation bases for 
denial are dispositive of the petitioner's appeal, we need not address the remaining ground identified 
by the Director. 
VI. CONCLUSION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises>. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long 
as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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 
~ It is noted that, even if the proffered position were established as being that of a web developer, a review of 
the U.S. Department of Labor's Occupational Outlook Handbook (hereinafter the Handbook) does not 
indicat~ that such a position qualifies as a specialty occupation in that the Handbook does not state a normal 
minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or its equivalent, for entry 
into the occupation of web developer. The Handbook reports that the educational requirements for web 
developers vary, and that such requirements range from a high school diploma to a bachelor's degree. The 
Handbook also indicates that the typical and most common degree requirement for a web developer position 
is an associate's degree, not a bachelor's degree. See U.S. Dept. of Labor, Bureau of Labor Statistics, 
Occupational Outlook Handbook, 2014-15 ed., "Web Developers," http://www.bls.gov/ooh/computer-and­
information-technology/web-developers.htm#tab-4 (last visited June 29, 2015). 
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