dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4811491 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "solution architect" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both: (a) the 
theoretical and practical application of a body of highly specialized knowledge; and (b) the attainment 
of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite 
for entry into the position . 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that 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; Matter ofSkirball Cultural Ctr., 25 I&NDec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R . § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the actual work that the Beneficiary will perform for the end-client. 1 
As recognized in Defensor, 201 F.3d at 387-388, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the employees in that case would provide services to the end-client and not to the petitioning staffing 
company, the job duties and alleged requirements to perform the duties that the Petitioner provided 
were irrelevant to a specialty occupation determination. See id. 
Here, the Petitioner asserts that the Beneficiary will be employed offsite at an end-client's location. 
The record of proceedings, however, is devoid of information from the end-client regarding the nature 
of the Beneficiary's proposed position and the duties associated therewith. While the record contains 
job descriptions from the Petitioner, there is no evidence in the record from the end-client to 
corroborate the claimed duties and scope of the Beneficiary's assignment. 
1 The Petitioner submitted documentation in support of the H-IB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 
The Petitioner also provided a Master Services Agreement and statement of works between itself and 
the end-client. However, the documents do not contain sufficient evidence outlining the nature of the 
Beneficiary's proposed assignment on the end-client's premises for the requested validity period. For 
instance, the agreements do not mention the Beneficiary's name, job title, or duties. 
Furthermore, the Petitioner has not provided information from the end-client outlining the company's 
educational requirements. The record, therefore, also lacks documentation or information about the 
end-client's educational requirements for the position and whether such educational requirements 
would match the Petitioner's requirements and qualify for a specialty occupation and meet the wage 
level specified on the labor condition application. Consistent with Defensor, where the work is to be 
performed for entities other than the Petitioner, evidence of the client companies' job requirements is 
critical. However, the record of proceedings does not contain such evidence. 
Without documents from the end-client that sufficiently provide pertinent information such as the 
Beneficiary's assigned project and detailed duties to demonstrate what he will actually do on a day­
to-day basis, we cannot determine the substantive nature of the proffered position. As the Petitioner 
has not established the substantive nature of the work to be performed by the Beneficiary, 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 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. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. 2 
Specifically, the Petitioner has not demonstrated that it will have a valid employer-employee 
relationship with the Beneficiary. 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: 
2 In reviewing a matter de nova, we may identify additional issues not addressed in the Director's decision. See Spe!lcer 
EJ1te1prises, IJ1c. v. UJ1ited States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
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"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Given this specific lack of evidence, the Petitioner has not 
established who has or will have actual control over the Beneficiary's work or duties, or the condition 
and scope of the Beneficiary's services. Moreover, the record shows that the Petitioner has provided 
inconsistent information regarding the Beneficiary's supervisor. For instance, in its support letter and 
offer letter, the Petitioner stated the Beneficiary would report tol I Director of Engineering. 
However, in the same support letter, the Petitioner also stated the Beneficiary would be working under 
a project manager at the end-client's location. In addition, the Petitioner stated in its itinerary 
submitted in response to the Director's request for evidence that the Beneficiary would "work under 
I rs (VP Delivery) general direction and supervision." There is no explanation in 
the record for these inconsistencies. Without foll disclosure of all of the relevant factors, we are unable 
to properly assess whether the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. 
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IV. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. The 
appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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