dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-G- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
\ 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
a "system support analyst" under the H-1B 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-1B 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish: (1) that the Petitioner will engage the Beneficiary in an 
employer-employee relationship; (2) that the Petitioner has specialty occupation work for the 
Beneficiary for the entire requested period; and (3) that it meets the regulatory filing requirements. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In its support letter, the . Petitioner submitted the following duties for the proffered position 
(verbatim): 
• Single point of contact in operations, owning few critical applications and has 
extensive knowledge both in technical and functional areas 
• Initiate or deployments (remotely) using 
• Coordinate cross-functional team located globally for the smooth handoff and 
maintaining the sync across team members. 
• Work on Tier3 escalation issues to keep system available 24/7 
• Implement and administer security policies and disaster recovery processes. 
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Matter of D-G- Inc. 
• Designing automation techniques and monitoring methods to reduce manual 
efforts by identifying the scope of need. 
• Work with AD, SQL, liS, SSL certificates and their deployment· 
• Planning and execution of 
• Script using to automate processes and writing SOP's 
• Perform various brainstorming, Joint Application Design sessions and Use-case 
scenario techniques for requirement 
elicitation 
• Managing project forecasting, budgeting and inventory 
• Effectively resolving project issues and escalations 
• Managing changes in priorities, demands, timeliness and scope 
• Remote execution of automated deployments via System Center Configuration 
Manager 
• Approving project time entries, invoices and expenses 
• Developing best practices and tools for project execution, management, training 
and support 
• Follow post-deployment validation checklist shared by Microsoft to determine 
successful deployment 
• Assisting 
with implementation services as necessary 
• Supporting training, post-go-live, installation, documentation and process creation 
initiatives 
On appeal, the Petitioner identifies the above listed duties as the "Work Site 1" duties and adds 
additional duties for "Work Site 2" as follows: 
J 
• Initiate or deployments using 
• Work on Tier3 escalation issues to keep system available 24/7 
• Execution of 
• Implement and administer security policies and disaster recovery processes. 
• Follow post-deployment validation checklist shared by to determine 
successful deployment 
• Assisting 
with implementation services as necessary 
• Supporting training, post-go-live, installation, documentation and process creation 
initiatives 
• Manage project forecasting, budgeting and inventory 
• Effectively resolving project issues and escalations 
In another letter submitted on appeal, the Petitioner reiterates the above job duties and adds another 
list of job duties, as follows: 
Database Administrator: 
• Installation, configuration, database security, and server monitoring 
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Matter of D-G- Inc. 
• Migration and upgrade to new versions, and applying service packs 
• Implementation of High Availability solutions Disaster Recovery, Database 
backups and Recovery strategies 
• Capacity planning, performing tuning, disaster recovery, troubleshooting, backup 
and restore procedures 
• Tuning SQL queries, improve the performance of database 
• Plan disaster recovery 
• Monitor server performance and windows server issues 
• Prepare and document database backup and maintenance plans 
• Troubleshoot, tune input/output to reduce the disk contention and enhance the 
database performance 
According to the Petitioner, the proffered position requires at least a bachelor's degree in computer 
science, computer applications, computer engineering, computer information systems, computer 
technology, management information systems, electrical/electronic engineering, or any related field, 
or its equivalent. 
To support the H-lB petition, the Petitioner submitted a Labor Condition Application (LCA) for a 
position located within the "Computer Systems Analysts" occupational category corresponding to 
Standard Occupational Classification (SOC) code 15-1121 at a Level I wage level. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
J 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant m pertinent part as an 
individual: 
[S]ubject 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 in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4 )(ii) as follows: 
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Matter of D-G- Inc. 
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; 
(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. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
The record 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.F .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 -1 B visa classification. Section 1 01 (a )(15)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file an LCA with the Secretary of Labor pursuant to section 
212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering full­
time or part-time "employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals 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" 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 legacy 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." !d. Therefore, for purposes of the H-lB 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 
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Matter of D-G- Inc. 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 ( 1992) (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 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)). 
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. 
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 ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 
Specifically, the regulatory definition of"United States employer" requires H-lB 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-lB "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 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § 1 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
5 
Matter of D-G- Inc. 
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 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) ofthe Act, section 212(n) ofthe Act, and 8 C.P.R.§ 214.2(h).3 · 
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 323-24; 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 EEQC Compl. Man. at § 2-III(A)(1) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 P.3d 384, 388 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-1B nurses under 8 C.P.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). 
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 
2 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 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, (1945)). 
3 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-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § !324a (referring to the employment of 
unauthorized individuals). 
6 
(b)(6)
Matter of D-G- Inc. 
exists. 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 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
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, 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, we find that 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 "employee." Specifically, we find that the 
record of proceedings does, not contain sufficient, consistent, and credible documentation confirming 
and describing the projects on which the Beneficiary will work, as well as all the locations where the 
Beneficiary will perform his duties. Therefore, the key element in this matter, which is who 
exercises control over the Beneficiary, has not been substantiated. 
On the Form I-129, the Petitioner represented that the Beneficiary will work off-site at the address of 
New Jersey. The Petitioner submitted an LCA certified for this 
address - specifically identified as belonging to - as well as for the 
P~titioner's office in New Jersey.4 In one of its initial support letters, the Petitioner 
stated that the Beneficiary "would be required to work from [the Petitioner's] location [in 
New Jersey] and/or client location NJ In response to 
the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
"is going to work 
at at NJ." 
4 The LCA is certified for the Petitioner's previous address of m New 
Jersey. On appeal, the Petitioner states that it has relocated to in New 
Jersey, and submits the first and forty-fifth page of its lease. The Petitioner states that its new address is still within the 
same metropolitan statistical area (MSA) and therefore does not require the filing of a new LCA. 
7 
(b)(6)
Matter of D-G- Inc. 
Despite the Petitioner's repeated identification of as the ultimate client and 
m New Jersey, as business premises, the Petitioner indicates on 
appeal that this address belongs to a different client: ·More specifically, on appeal the 
Petitioner identifies the address as the Beneficiary's "Work Site 2" and writes 
underneath this address: is implementing part of its project at Address." 5 The 
Petitioner also submits a letter from identifying its business location as iri 
Washington (not in New Jersey). The Petitioner has not sufficiently explained 
whether the ultimate client is or and where the Beneficiary will provide his off-site 
services. 
"[I]t is incumbent upon the petitiOner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. "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." !d. at 591. An inaccurate statement anywhere on the Form 
I -129 or in the evidence submitted in connection with the petition mandates its denial. See 8 C.F .R. 
§ 214.2(h)(lO)(ii); see also id. § 103.2(b)(l). 
Assuming that the ultimate client in this matter is the Petitioner has not adequately explained 
and documented the terms and conditions of the Beneficiary's assignment to While the 
. Petitioner submitted a purchase order for work on an Project," this purchase order does not 
specifically list the Beneficiary or an "application support analyst" as an assigned resource. Even if 
it did, the purchase order does not provide pertinent details regarding the Beneficiary's assignment, 
including the amount of time he will spend at this location, to whom he will report, and his job 
duties. The record does not contain any other contractual agreements with 
Furthermore, the record indicates that the Beneficiary may be assigned to other clients. The record 
contains a statement of work between the Petitioner and (located in India) for services to 
an unidentified "End Customer." On appeal, the Petitioner supplements the record with three 
additional statements of work. Although these agreements are also made with they are 
for services ultimately to be provided to clients: and another 
unidentified client. Meanwhile, the Petitioner continues to identify the only client involved as 
who implements "part of its project at address." The Petitioner does not make any 
references to or any other clients in its appeal brief. 
Again, "it is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&.N Dec. at 591-92. In addition, "going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
5 Regarding "Work Site 1," the Petitioner explains that the Beneficiary will also work from the Petitioner's business 
premises to provide remote 
services for 
8 
(b)(6)
Matter of D-G- Inc. 
proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
However, even if we were to ignore these foundational deficiencies, we would still find the evidence. 
of record insufficient to establish the requisite employer-employee relationship between the 
Petitioner and the Beneficiary. This is because the Petitioner has not explained and documented in 
detail how it would supervise arid otherwise control the Beneficiary's day-to-day activities while he 
performs his duties off-site at client location(s). 
Here, it is important to consider the language in the Petitioner's statement of work with 
for its client This document states, in part, that ' is engaging [the Petitioner] 
on a Time and Materials basis to provide onsite support services." This document contains 
numerous other references to "onsite" work and even contains a list of 31 countries (including the 
United States) in which users and/or worksites are apparently located, But the Petitioner has not 
explained and documented exactly where all of these "onsite support services" are located, and more 
importantly, to which of these sites (if any) the Beneficiary will be assigned. 
We also highlight the following language in this contract: 
[The Petitioner] will supplement project team for this project and provide 
assistance as directed by designated Program Manager, utilizing 
designated project methodologies and Technical Solution. 
Program Manager will provide direction to the overall project team and 
manage the onsite support schedule of which Partner will be a part. Should changes 
be needed to the agreed upon staffing mix, [the Petitioner] will work with the 
Project Manager to execute a Change Request. 
Considering that the Petitioner's personnel will "supplement project team" and will 
"provide assistance as directed by 'we must question the Petitioner's claimed supervision 
and control over the Beneficiary's work, as well as other aspects of the employer-employee 
relationship. 
It is also important to point out the Petitioner's inconsistent statements regarding the Beneficiary's 
direct supervisor. The Petitioner initially stated that the Beneficiary will be supervised by 
the Petitioner's director of sales and solutions. The Petitioner then stated in response to the 
Director's RFE that the Beneficiary will be supervised by manager of operations, 
whom we observe is not listed in the Petitioner's employee list or payroll information. Now on 
appeal the Petitioner states that the Beneficiary will be supervised by project 
manager. The Petitioner has not reconciled these inconsistencies with objective evidence pointing to 
where the truth lies. !d. 
Finally, the Petitioner has not submitted sufficient documentation establishing that it has secured 
work for the Beneficiary for the entire validity period requested (October 1, 2015, through 
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(b)(6)
Matter of D-G- Inc. 
September 19, 2018). For instance, the letter from states that "[t]he Beneficiary is 
currently assigned, or will be assigned in the next six months ... to a project at Not 
only does this language suggest that (not the Petitioner) decides what projects the 
Beneficiary will be assigned to, but it indicates that specific projects have not actually been assigned 
to the Beneficiary. 
And as previously noted, none of the statements of work or purchase orders identify the Beneficiary 
or his title by name. Notwithstanding, the Petitioner's purchase order for the assignment 
indicates that it is valid from October 15, 2014, to February 29, 2016. The statement of work for 
was originally effective May 13, 2015, and is effective until June 30, 2016. The 
statement ofwork for executed in March 2016, states that services will be provided "over 
an estimated 9 month's period." The statements of work for the two unidentified clients, executed 
on February 1, 2015, and May 12, 2015, expire on June 30, 2016, and March 8, 2017, respectively. 
Thus, even if the Beneficiary were included in these contracts, they do not corroborate the 
Petitioner's repeated statements that the Beneficiary's "services are required for this project at least 
till September 19, 2018," and that "[t]he majority of these projects are ongoing for a period of at 
least 36 months and more." 
In fact, the Petitioner appears to contradict its own statements regarding the length of the 
Beneficiary's assignments by submitting a "deliverables overview" which lists June 30, 2016, as the 
"project closure" or "closeout" date. Furthermore, the Petitioner's own project "itinerary" does not 
list the Beneficiary or a "system support analyst" as a required resource.6 Overall, we find that the 
Petitioner has not substantiated the existence of the work to be performed by the Beneficiary for the 
entire validity period requested. 7 users 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 ). 
6 The Petitioner's project "itinerary" lists the following resources on its Microsoft project(s): Project Manager, Team 
Leads, Software Programmer, Software Quality Assurance Analyst, and Systems Administrator. 
7 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
individual 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 individual is properly 
classifiable as an H-1 8 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 individual 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-I 8 classification. Moreover, 
there is no assurance that the individual will engage in a specialty occupation upon arrival in this 
country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,4 I 9-20 (proposed June 4, 
10 
Matter of D-G- Inc. 
For all of these reasons, the evidence of record does not sufficiently demonstrate the requisite 
employer-employee relationship between the Petitioner and the Beneficiary. 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 
Beneficiary's work, 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. Without full disclosure of all of the relevant factors, we are unable to find that the 
Petitioner will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
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: 
(I) 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; 
1998) (to be codified at 8 C.F.R. pt. 214). 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 with8 C.F.R. § 214.2(h)(2)(i)(E). 
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(b)(6)
Matter of D-G- Inc. 
(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). USCIS has consistently interpreted 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 proposed position. See Royal Siam Corp. v. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d at 387. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it will employ the Beneficiary in a specialty occupation. 
For H-lB approval, the Petitioner must demonstrate1 a legitimate need for an employee exists and 
substantiate that it has H-1B caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
As we discussed earlier, the evidence of the record does not support the Petitioner's assertions 
regarding the Beneficiary's assignments. The record contains inconsistent evidence regarding where 
the Beneficiary will work, and for whom. Furthermore, the record of proceedings contains 
insufficient evidence demonstrating that the Petitioner has secured projects for the Beneficiary for 
the entire period requested (October 1, 2015, through September 19, 2018). We again recall the 
letter from stating that "[t]he Beneficiary is currently assigned, or will be assigned in the 
next six months," which suggests that specific projects have not yet been assigned. In addition, we 
recall that the contractual agreements between the Petitioner and clients do not reference 
the Beneficiary by name or job title, and do not extend beyond March 2017 at the latest. The record 
, of proceedings thus does not demonstrate that the Petitioner has non-speculative work for the 
Beneficiary for the entire period requested that 
existed as of the petition's filing date. 
Without additional information and documentation establishing what projects have been secured, 
and accordingly, the specific duties the Beneficiary will perform on these projects and the 
knowledge required to perform these duties, we are unable to discern the substantive nature of the 
position and whether the position indeed qualifies as ,a specialty occupation. As recognized by the 
court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than the 
12 
(b)(6)
Matter of D-G- Inc. 
petitioner, evidence of the client companies' job requirements is critical. 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. 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 record of proceedings 
does not contain such evidence here. 
While the Petitioner also submitted position descriptions and requirements for the Beneficiary, these 
descriptions- without corroborating evidence from the ultimate client(s) involved- are insufficient 
to demonstrate thy substantive nature of the position. See id; Matter ofSoffici, 22 I&N Dec. at 165. 
But in any event, we wish to point out inconsistencies in the Petitioner's descriptions. For instance, 
on appeal the Petitioner submits a list of the Beneficiary's "detailed responsibilities for the 
Project" which includes a list of "Database Administrator" duties. However, these 
"Database Administrator" duties were not all included in the Petitioner's initial job descriptions, 
which the Petitioner supported with an LCA 
certified for a position falling within the "Computer 
Systems Analysts" occupational category (SOC code 15-1121 ). 8 In addition, the Petitioner listed 
several project management-related duties (such as "[c]oordinate cross-functional team," 
"[m]anaging project forecasting, budgeting and inventory," and "[a]pproving project time entries, 
invoices and expenses") that do not appear consistent with the Level I wage level selected on the 
LCA.9 These inconsistent job descriptions further preclude us from discerning the substantive nature 
of the proffered position and its constituent duties. 
8 For positions involving duties of more than one occupational classification, the LCA should reflect the occupational 
classification of the most relevant, i.e., highest-paying, occupation. See 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 _II_ 2009 .pdf. 
A "Database Administrator" position (SOC code 15-1141) in the New Jersey MSA where the 
Petitioner's office is located has a higher prevailing wage ($72,550 per year) than a "Computer Systems Analysts" 
position in the same MSA ($68,037 per year) for the time period when the LCA was filed (7 /2014-6/20 15). For more 
information about prevailing wages, see generally http://www.tlcdatacenter.com/OESWizardStart.aspx (last visited Sep. 
28, 2016). Thus, if the Petitioner believed its position to be a combination of duties represented by both the "Computer 
Systems Analysts" and "Database Administrators" occupational categories, then it should have chosen the highest­
paying occupation of"Database Administrators" on the LCA. 
9 Many of the proffered job duties- including "[a]pproving project time entries, invoices and expenses"- are listed in 
the Petitioner's project "itinerary" under the duties of its "Project Manager." 
According to the Department of Labor's Prevailing Wage Determination Policy Guidance, a Level 1 wage rate is 
generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the 
occupation. This wage rate indicates: ( 1) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed 
for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. !d. A prevailing 
wage determination starts with 'an entry level wage and progresses to a higher wage level after considering the 
experience, education, and skill requirements of the Petitioner's job opportunity. !d. A Level I wage should be 
considered for research fellows, workers in training, or internships. /d. The Level I wage level selected here is 
inconsistent with these higher-level project management duties. 
13 
Matter of D-G- Inc. 
Consequently, we are precluded from finding 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 particula~ 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. 
As the Petitioner has not established that it satisfies 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. 
IV. 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. 10 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-G- Inc., ID# 103 73 (AAO Oct. 4, 20 16) 
10 
The Directdr also denied the petition for not meeting the regulatory filing requirements with regard to the $2,000 fee 
imposed under Public Law 11 1-230. As the petition must be denied and the appeal dismissed for the reasons discussed 
above, we will not address this Issue at this time. 
14