dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7269263 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 6, 2020 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as a "LINUX administrator" under the H-IB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-IB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition and a subsequent motion to reopen 
and motion to reconsider, concluding that the record did not establish that 1) the Petitioner would have 
an employer-employee relationship with the Beneficiary, 2) the availability of specialty occupation 
employment for the requested period, and 3) the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
In this matter, the Petitioner states that the Beneficiary will work off-site at an end-client location via 
two mid-vendors. In her decision, the Director explained her conclusions and addressed the 
shortcomings in the submitted evidence. For example, the Director informed the Petitioner that it must 
demonstrate "specific and non-speculative qualifying assignments in a specialty occupation" and that, 
consistent with Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000), where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. 2 She then discussed the evidence submitted and the lack of contractual documentation from 
1We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
2 The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and 
regulations as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation on 
the basis of the requirements imposed by the entities using the beneficiary's services . Id. Such evidence must be 
sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
the end-client. The Director also addressed the issues with the letter from the end-client, including 
that the authority of the signatory to provide such a letter had not been established and the general 
nature of the provided duties. She determined that, absent additional and corroborating information 
from the end-client, such as contracts or statements of work, the Petitioner had not established that it 
had a specific work assignment for the Beneficiary for the requested period or that the proffered 
position is a specialty occupation. 
Upon consideration of the entire record 3, including the arguments made on appeal, we adopt and affirm 
the Director's decision with the comments below. See Matter of P. Singh, Attorney, 26 l&N Dec. 623 
(BIA 2015) ( citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 
F.3d 5, 7-8 (1st Cir. 1996) ("[l]f a reviewing tribunal decides that the facts and evaluative judgments 
prescinding from them have been adequately confronted and correctly resolved by a trial judge or 
hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order 
reflects individualized attention to the case). 
As an initial matter, the Petitioner did not address the availability of specialty occupation work on 
appeal.4 For this reason alone, the petition may not be approved. 
The Petitioner also incorrectly asserts that the Director failed to discuss the new piece of evidence, an 
advisory opinion letter, submitted on motion. On page 13 of the decision, however, the Director directly 
addressed the letter and found it insufficient to establish that the proffered position qualifies as a 
specialty occupation. We would add that the letter was not provided to the Petitioner for the proffered 
position of LINUX administrator at the end-client in this matter, but rather for the position of network 
engineer for a different company with different duties. As noted by the author himself: "when 
evaluating the minimum degree requirement for a certain employment position, the nature of the 
specific responsibilities must be closely examined." It is, therefore, unclear what probative value the 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 While evidence in the record establishes that the Beneficiary was performing work at the end-client prior to filing, there 
is no evidence from the end-client, such as a work order or letter from an authorized official that addresses the project 
duration. The agency made clear long ago that speculative employment is not permitted in the H-lB program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-1 B 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 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-lB classification. Moreover, there is no assurance that the alien will 
engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) 
(to be codified at 8 C.F.R. pt. 214). 
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letter holds, and we agree that it does not sufficiently demonstrate that the proffered position qualifies 
as a specialty occupation. 
Regarding the Petitioner's citation to Matter of Smith, 12 I&N Dec. 772 (D.D. 1968), subsequent to 
that decision, the United States Supreme Court determined that where federal law fails to clearly define 
the term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to conclude the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 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" of 
H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As discussed by the Director, the only documentation directly from the end-client is a letter, which 
indicates that the Beneficiary reports to the author, not the Petitioner. 5 In addition, according to the 
5 As previously noted, the letter also lacks such peitinent information as whether the signatory is an authorized official of 
the end-client and the expected duration of the project. In addition, it does not contain a sufficiently detailed description 
3 
letter from I l it is the end-client who "reserves the right to terminate [the Beneficiary's] 
services any time." The "Associate Vendor Flowdown Agreement," states that onlyl I or the 
end-client can terminate the Beneficiary's assignment at the end-client. These statements appear to 
be at odds with the Petitioner's claims. Without foll disclosure of all of the relevant factors, including 
the contractual relationships between all of the parties, the Director cannot properly assess whether 
the requisite employer-employee relationship would exist between the Petitioner and the Beneficiary, 
and, thus, the Petitioner has not established that it meets the regulatory requirement at 8 C.F.R. 
§ 214.2(h)(4)(ii). 
The Petitioner also argues that the Director erred by citing to Defensor because she "seems to rely 
upon this case in order to require that [the Petitioner] show documentation from the End-Client as to 
what duties and requirements this position entails," yet "reject[ ed]" the letter from the end-client. The 
Petitioner then asserts that it has established that the proffered position is a specialty occupation based 
upon the end-client letter and the advisory opinion letter. However, as previously noted, the advisory 
opinion is not for the proffered position in this matter and the shortcomings in the evidence from the 
end-client have been thoroughly discussed. Without a sufficiently detailed description of the duties 
from the end-client 6 to demonstrate the substantive nature of the work the Beneficiary will be 
performing for the end-client, and the associated applications of specialized knowledge that their 
actual performance would require, the Petitioner has not established the substantive nature of the work 
the Beneficiary will perform. This precludes a conclusion that the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines 
( 1) the normal minimum educational requirement for entry into the particular position, which is the focus 
of criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of 
criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, when 
that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion 4. 
In light of the above, we cannot conclude that the Petitioner has overcome the Director's decision. 
II. ADDITIONAL ISSUE 
Since the identified bases for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note 
an additional issue below. 
of the duties to demonstrate the substantive nature of the work the Beneficiary will be performing for the end-client, and 
the associated applications of specialized knowledge that their actual performance would require. The listed duties provide 
little meaningful insight into what the Beneficiary would actually be doing on a daily basis and are not sufficiently 
descriptive to allow us to discern the nature of the position or the educational level of highly specialized knowledge in a 
specific discipline that is necessary to perform the work. 
6 The Director provided a number of documents the Petitioner could submit besides a letter from an authorized 
representative of the end-client. 
4 
The Petitioner has not established that the designation of a Level II wage on the labor condition 
application (LCA) was correct. In response to the Director's request for evidence, the Petitioner stated 
that it "committed ... to our end client that we shall provide a candidate with MS degree in computer 
field with at least two years related experience for this position." According to the Department of 
Labor's Prevailing Wage Determination Policy Guidance, the more than two years of experience 
requirement would necessitate a one level increase in Step 2 and the master's level degree requirement 
would also necessitate a one level increase in Step 3 of the five-step process for determining the correct 
prevailing wage. 7 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
7 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/ 
NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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