dismissed H-1B Case: Information Technology

(b)(6)
MAY 2 8 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
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)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed 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. 
Thank you 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will be 
dismissed. The petition will be denied. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
information technology services firm established in In order to employ the beneficiary in 
what it designates as a test lead position, the petitioner seeks to classify him 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 on September 29, 2014, concluding that the evidence of record does 
not demonstrate that (1) the petitioner qualifies as an U.S. employer having an employer-employee 
relationship with the beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the petitioner asserts that the director's bases for denial of the petition were erroneous 
and contends that it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
notice of decision; (5) the Form I-290B and supporting documentation for an appeal and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the director's decision that the petitioner 
has not established eligibility for the benefit sought. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed. 
II. THE PROFFERED POSITION 
In the I -129 petition, the petitioner indicated that it is seeking the beneficiary's services as a test lead 
on a full-time basis at the rate of pay of $60,000 per year. In addition, the petitioner stated that the 
beneficiary will work at ' " 
In the March 31, 2014 letter of support, the petitioner provided the duties of the proffered position 
as follows: 
In the specialty occupation of Test Lead, the Beneficiary will lead test strategy and 
test design, and will develop test case specifications by understanding the 
requirements and technical risks associated with the module, and consequently 
making appropriate testing plans. The Test Lead will execute test plans and 
procedures using test programs, scripts, and tools, will document test results, and 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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will prepare reports, test procedures, configurations for features, and training 
documents. In this capacity, the Beneficiary will maintain and update Test plans 
after cycles and exploratory testing and will recommend process improvements for 
domain specific test methodologies. Responsibilities of this specialty occupation 
will also include: tracking defects, re-testing, and verifying features related to the fix 
and closure of verified fixes; timely escalating defects, risks, limitations, and issues 
to the Project Manager and respective stakeholders; and attending bug review 
meetings to provide test progress and problem status. 
The petitioner stated that the proffered position "requires at least a Bachelor's degree or its 
equivalent in the fields of Computer Science, Engineering, Management Information Systems, 
Information Technology, or a related, quantitatively analytical field." 
The petitioner submitted a Labor Condition Application (LCA) in suppoit of the instant H-lB 
petition. The petitioner indicated that the occupational classification for the proffered position is 
"Computer Occupations, All Other"- SOC (ONET/OES Code) 15 -1199. The beneficiary's place of 
employment is listed as 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will consider whether the petitioner has established that it 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 
petitioner must establish that it 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." Id. 
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 212(j)(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 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, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
8 C.P.R. § 214.2 (h)(4)(ii) (emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
We reviewed the record of proceeding in its entirety and finds that it is not persuasive in 
establishing that the petitioner will have an employer-employee relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.P.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-lB visa classification. Section 101(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)(1), (2)(i)(A). Finally, the definition 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-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-1B 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." Id. 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 
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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." 
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 10l(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(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. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"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 
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), affd, 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)(l)(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-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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extend the definition beyond "the traditional common law definition" or, more importantly, that 
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 101(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-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U. S. at 450; see also 8 
C. F.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" 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 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. 
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 L.Ed. 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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Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
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). 
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."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
Ap plying the Darden and Clackamas tests to this matter, 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." 
B. Discussion 
1. Employment Location 
The petitioner provided three itineraries in support of the petition. The first itinerary submitted with 
the Form I-129 indicated that the beneficiary will work at the end-client site, 
_ 
located at from October 1, 2014 to September 1, 2017. 
No other information was provided. 
In response to the RFE, the petitioner submitted another itinerary. In addition to providing the same 
information regarding the beneficiary's work location and dates of employment, the itinerary also 
included the beneficiary's duties, verbatim from the support letter dated March 31, 2014. 
On appeal, the petitioner submitted another itinerary which includes the same information regarding 
the beneficiary's work location and dates of employment. However, this itinerary provides a job 
description that varies from previous submissions. For example, it states that the beneficiary will 
"be responsible for managing [the petitioner's] engagement projects with ' It also states that 
the beneficiary will "be the main point of contact between the client and [the petitioner] and 
oversees the day-to-day operation of the project through completion." As noted, the petitioner filed 
the designated the proffered position as a Level I (entry-level) position on the LCA. 5 That is, the 
5 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
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Level I wage designation is indicative of a low, entry-level position relative to others within the 
occupational category, and hence one not likely managing the petitioner's engagement projects and 
overseeing the day-to-day operation through completion. It further indicates that the beneficiary 
will be responsible for the following: 
• Gathering functional and non-functional requirements and specifications for 
the project. 
• Interacting with the customer and end users to understand clearly their 
Business needs and expectations. 
• Attending requirement walkthroughs from Bas at onsite & explain to offshore 
team. 
• Identifying the functional and non-functional specification gaps and to 
communicate it to the Project Stakeholders. 
• Participating in design and code walkthrough to understand the impact of the 
new enhancements to TurboCAR, CRM, Gross Loans, Warrant Tracking & 
other peojects. 
• Interacting with the Business Analysts to obtain a walkthrough or knowledge 
on the requirements. 
• Participation in design of data follow diagram and flow charts. 
• Configuring user profile, setting up of environment & test design suite. 
• Preparing Test Strategy report & ensure that it is aligned with business 
objectives of the project constructed. 
• Preparing Test Effort estimations & Test Plan for functional requirements. 
• Providing Test Plan & Strategy Walkthrough to all the Project Stakeholders. 
• Designing test scenarios and test cases for the functional requirements. 
• Prepare an Impact Analysis document & keep project team informed of it, in 
case there are any changes to the requirements at later stages in the Project 
life cycle. 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
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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• Developing Test Summary Reports and Requirement Traceability Matrix and 
procure Client's Sign off by providing Test Deliverables for each Release. 
• Coordinating with other project Team Members at Client and at Offshore. 
In addition to varying job descriptions, the petitioner states on appeal that "the rb leneficiary will be 
placed off-site at the offices of 
_ 
The petitioner did not explain the discrepancies. 6 
2. Master Consulting Agreement ("MCA") 
The MCA states that the agreement is between 
principal place of business in 
petitioner's company in India. 
a company organized under the laws of India and having its 
India. In other words, the agreement appears to be for the 
It does not specifically refer to the petitioner in this case. 
The agreement was entered into on October 1, 2009. Section 10.1 states that the agreement "shall 
remain in effect for an initial period of two (2) years" and the client "has the right to extend the 
Agreement for another two (2) years by giving thirty (30) day written notice." In response to the 
RFE and also on appeal, the petitioner submitted amendments to the master consulting agreement 
that extended the agreement until December 31, 2015. 
The MCA under Section 1.4. defines "Deliverables" as "the result of the Services to be provided by 
[the petitioner] as per the relevant Statement of Work and the related Documentation." The 
petitioner submitted previous statements of work (SOW) as evidence of the relationship between the 
petitioner and but did not provide any specific statements of work for the 
beneficiary. Moreover, the record of proceeding does not contain SOWs valid for the requested 
period of employment for the beneficiary. On appeal, the petitioner asserts that the "[a]greement 
between the parties has been in existence for many years and is extended regularly by written notice 
30 days prior to the term's end." However, US CIS regulations affirmative! y 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). 7 
6 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 visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
7 The agency made clear long ago that speculative employment is not permitted in the H-1B program. 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-lB 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 
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Further, the MCA contains a section on resource descriptions which provides 33 job functions and 
technical and functional skills required for its projects. Notably, the proffered position as a "test 
lead" is not one of the job functions listed. 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 of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
3. Letter from 
The petitioner submitted a letter from dated February 13, 2014. The letter 
stated that the petitioner and entered into a Master Service Agreement on 
October 1, 2009 for the "provision of IT solutions and services." The letter also stated that the 
"current Statement of Work pur suan t to the MSA is valid to 31-July-2014 and is renewable." The 
letter stated that the beneficiary will perform the following duties: 
• Interaction with the onsite coordinator to understand and work upon the 
daily deliverables. 
• Participation in design of data flow diagram and flow charts. The 
responsibility also includes configuring user profile, setup of environment 
& test design suite. 
• Alignment of test strategy with business objectives of the project 
constructed. 
• Preparing Test Plan, test Strategy and test Estimation for functional 
requirements. 
• Involving in gathering functional and non-functional requirements and 
specifications for the project. 
• Identifying the functional and non-functional specification gaps and to 
communicate it to the Project Shareholders. 
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-s peculative 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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• Participating in design and code walkthrough to understand the impact of 
the new enhancements to TurboCAR and CRM projects. 
• Interacting with the Business Analysts to obtain a walkthrough or 
knowledge on the requirements. 
• Provided Test Plan or Strategy Walkthrough of Functional Projects to all 
the Project Stakeholders. 
• Involved in designing test scenarios and test Cases for the functional 
Requirements. Sign off by providing Test Deliverables for each Release 
• Coordinating with other Project Team Members at Client and Offshore. 
The letter further stated that the beneficiary will be supervised by an engagement 
manager, who is one of the petitioner's employees. However, on appeal, the petitioner states that 
the beneficiary will be supervised Mr. an onsite manager for the petitioner. No 
further explanation is provided. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
4. Offer of Employment Letter 
For H-1B classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, 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). In response to the RFE, the petitioner submitted an employment letter. However, the 
employment letter is an offer to join the "IT Services at our ..., office as Senior Test 
Engineer in competency C2." Further, compensation and benefits information offered in Indian 
rupees. The letter is not signed or dated. The letter also states that "[y]ou could be transferred to 
any of other offices/branches/subsidiaries/affiliates either domestic or abroad, should the need 
arise." The record of proceeding does not contain an updated offer of employment that outlines the 
terms of employment in the United States. 
While an employment agreement may provide some insights into the relationship of a petitioner and 
a beneficiary, it must be noted again that 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. 
5. Organization Chart 
The petitioner also submitted an organizational chart that lists the beneficiary as a test lead, but the 
organizational chart lists its address as India. Moreover, as mentioned, the letter from 
indicated that the beneficiary will be supervised by but the 
organization chart does not list such an individual. 
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6. Conclusion 
The evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.F. 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-lB temporary 
"employee." 8 C.P.R . § 214.2(h)( 4)(ii). Moreover, the record .of proceeding does not establish 
eligibility at the time of filing and offer of non-speculative employment for the beneficiary. 
IV. SPECIALTY OCCUPATION 
Further, we find that the petitioner did not establish that the proffered position qualifies as a 
specialty occupation in accordance with the applicable statutory and regulatory provisions. For an 
H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable 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 . F.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. 
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Pursuant to 8 C.F.R . § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into tbe 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)(1) 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 
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.P.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.P.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
P.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.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)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), users consistently interprets the term "degree" in the criteria at 8 C.P.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 
P.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-1B 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 
(b)(6)
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Page 14 
represent the types of specialty occupations that Congress contemplated when it created the H-1B 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. 
In ascertaining the intent of a petitioner, USCIS must look to the Form I-129 and the documents 
filed in support of the petition. It is only in this manner that the agency can determine the exact 
position offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C. P.R. 
§ 214.2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
As recognized by the court in Defensor, supra, where the work is to be performed for entities other 
than the petitioner, evidence of the end client's job requirements is critical. See Defensor v. 
Meissner, 201 F.3d at 387-388. That is, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. Id at 387-388. 
The court held that the former INS 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. 
!d. at 384. Such evidence must be sufficiently detailed to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. 
Here, the record of proceeding in this case does not provide sufficient information from the end­
client, , regarding the job duties, the statement of work for the project, and the 
duration of the project. Further, as discussed, the petitioner provided varied versions of job 
description for the proffered position. The petitioner's failure to establish the substantive nature of 
the work to be performed by the beneficiary, 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 
(b)(6)
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Page 15 
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. 
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 as a specialty occupation. 
For this additional reason, the appeal will be dismissed and the petition denied. 
V. CONCLUSION 
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 
the Act, 8 U. S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.