dismissed H-1B Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OFT-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 30. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions provider. seeks to temporarily employ the 
Beneficiary as an "IT Consultant (Database Administrator)" 1 under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner had 
not properly filed the petition and not established that it would have an employer-employee 
relationship with the Beneficiary during his proposed employment. In its appeal, the Petitioner 
asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
The Petitioner states that the Beneficiary would be assigned to provide services to its client S-S-T­
on the client's' ·project. The Petitioner, based in Georgia, indicated that 
the Beneficiary would work at the client's office location in Texas. 
In a support letter provided with the petition. the Petitioner described the duties of the proffered 
position as follows: 
• Test programs or databases, correct errors, and make necessary modifications. 
• Modify existing changes and database management systems or direct 
programmers and analysis to make changes. 
1 
The Petitioner indicated on the H-1 B petition that the job title of the proffered position is ''IT Consultant," but 
elsewhere identified it as "IT Consultant (Database Administrator).'' 
Matter ofT- Inc. 
• Plan, coordinate and implement security measures to safeguard information in 
computer files against accidental or unauthorized damage, modifications or 
disclosure. 
• Work as a part of a project team to coordinate database development and 
determine project scope and limitations. 
• Write and code logical and physical database descriptions and specify identifiers 
of databases to management system or direct others in coding descriptions. 
• Specify users and user access levels for each segment of database. 
• Schedule and plan the installation and testing of new products and improvements 
to computer systems such as the installation of new databases. 
• Review project requests describing database user needs to estimate time and cost 
required to accomplish project. 
• Develop standards and guidelines to guide the use and acquisition of software and 
to protect vulnerable information. 
• Review procedures in database management system manuals for making changes 
to database. 
• Develop methods for integrating different products so they work properly together 
such as customizing commercial databases to tit specific needs. 
• Develop data model describing data elements and how they are used, following 
procedures and using pen, template or computer software. 
• Select and enter codes to monitor database performance and to create production 
database. 
• Establish and calculate optimum values for database parameters, using manuals 
and calculator. 
• Other related duties as assigned. 
In its letter submitted in response to the Director's second request for evidence (RFE), the Petitioner 
explained the duties of the proffered position, and percentages of time spent on the duties. as 
follows: 
ANALYSIS, REVIEW & REQUIREMENT GATHERING 
• Contribute in architecting Data model based on requirements. Including 
normalization, creating indexes and partitioning. 5% 
• Work with the business to identify and clarify the business requirements on 
projects, in order to analyze and determine the best solution utilizing the 
applications available or identifying the needs for additional applications or 
services. 5% 
• Create solution specification documentation that consists of UML compliant 
diagrams (entity relationship diagrams, data security hierarchy diagram, etc.), 
technical details in addition to the high and low level flow of the application 
processes for developers. 5% 
2 
Matter ofT- Inc. 
DEVELOPMENT AND IMPLEMENTATION 
• Review SLAs, operations, procedures, and processes, Dev/QA systems and test 
methodologies. 2% 
• Write, update and maintain computer programs of software packages to handle 
specific jobs such as tracking inventory, storing, controlling and retrieving data. 
Create and maintain all databases required for development, testing, training and 
production usage using Oracle Si, 9i, 1 Og/11 g on various 0/S platforms like Unix. 
Linux, and Windows. 30% 
• Update project artifacts on the progress and generate reusable assets. 3% 
• Review various complex maintenance free ETL Programs using PLISQL. Batch 
tiles, Database tables, triggers, Forms, Reports and Designer Controls. 5% 
MAINTENANCE AND SUPPORT 
• Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced. Investigate and identify application 
runtime issues which include memory leaks. connection issues. sever exceptions. 
latency issues. Perform ongoing tuning of the database instances by analyzing 
reports from Automatic Database Diagnostic Monitor (ADDM). SQL Tuning 
Advisor SQL Access Advisor, Memory Advisor and Segment Advisor. 25% 
• Resolve business and technical issues identified in production systems. 15% 
• Create technical specification, perform risk analysis, create disaster recovery and 
auto-failover for less than !-second recover of full system failure. 5% 
In a support letter provided with the petition, the Petitioner stated that the position requires ·'at least a 
Bachelor's Degree or its foreign equivalent in a specialized field of study that is directly related to 
this position." In a RFE response letter, the Petitioner indicated that the position requires "a 
Bachelor's Degree in Computer Science, Information Systems or a related Engineering discipline." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address the issue of whether or not the Petitioner qualifies as an H-1 B employer. 2 We 
find that the Petitioner has not established that it 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, tire, supervise. or otherwise control the work of any such employee." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
2 The Petitioner submitted documentation to support the H-1 B 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. 
3 
Matter r?f T- Inc. 
A. Legal Framework 
Section l0l(a)(l5)(H)(i)(b) of the Act defines an H-18 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 )(1) .... 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)( 1) .... 
The term "United States employer" is defined at 8 C.F.R. § 214.2(h)( 4 )(ii) as follows: 
United States employer means a person, firm. corporation, contractor. or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States: 
(2) Has an employer-employee relationship with re.\pect to employees 
under this part, as indicated hy the fact that it may hire. pay. fire. 
supervise. or otherwise control the work o{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). 
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-IB visa classification. Section 101(a)(l5)(H)(i)(b) of the Act indicates that an individual coming to 
the United States to perform services in a specialty occupation will have an "intending employer" who 
will tile a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) ofthe 
Act, 8 U.S.C. § 1182(n)(l ). The intending employer is described as offering full-time or part-time 
"employment" to the H-1 B "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, in order to classify individuals as H-1 B 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-1 B beneficiary. and that this relationship be evidenced by the employer's 
ability to "hire, pay, tire, 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"). 
4 
Matter ofT- Inc. 
Neither the former Immigration and Naturalization Service nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms '"employee'" or ""employer-employee relationship'" by regulation for 
purposes of the H-1 B visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an ""employer-employee relationship'" with a '"United States 
employer." Id Therefore, for purposes of the H-1 B visa classification, these tem1s 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 Mut. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.fhr Creative Non-Violence r. 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 pariy'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.'" 
!d.; 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 fom1Ula 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. 
(~(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)(1)(A)(i) of the Act. or 
"employee'" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. S'ee 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the term 
"United States employer'' to be even more restrictive than the common law agency definition:' 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U .S.C. § I 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
5 
Matter ofT- Inc. 
Specifically, the regulatory definition of "United States employer'' requires H-1 B 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-18 ''employee." 8 C.F.R. ~ 214.2(h)(4)(ii). 
Accordingly, the term ''United States employer" not only requires H-1 B 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.F.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. C 'f." 
Darden, 503 U.S. at 318-19.4 · 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act. and 8 C.F.R. ~ 214.2(h).5 
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-1 B nonimmigrant petitions, we 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, tire. 
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) (~j'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 
IOI(a)(l5)(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-1 B 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 Res. De( Council. 
Inc., 467 U.S. 837,844-45 (1984). 
~ 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 Citi:::ens Council. 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945)). 
5 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 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
.
Matter ofT- Inc. 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor, 201 F.3d at 384, 388 (determining that hospitals. 
as the recipients of beneficiaries' services, are the ''true employers" of H-1 B nurses under 8 C.F.R. 
§ 214.2(h), even though a medical contract service agency is the petitioner, because the hospitals 
ultimately hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
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 patties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met: however, the fact tinder 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 patties, 
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, we 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 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined. and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. ''Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324 ). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an ··employer­
employee relationship" with the Beneficiary as an H-1 B temporary '·employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation confirming and describing who will exercise control over the Beneficiary. 
As noted, the Petitioner is located in Georgia, and states that the Beneficiary will work for its client 
in Texas. The Petitioner asserts that it will maintain an employer-employee relationship with 
the Beneficiary. However, the Petitioner has not submitted sufTicient documentation to corroborate 
that it will maintain control over the Beneficiary while assigned to the client location. 
On appeal, the Petitioner asserts that the Beneficiary will be supervised by a technical lead. an 
employee of the Petitioner assigned to the client location. The Petitioner indicates that this technical 
Matter ofT- Inc. 
lead supervises three other computer programmers employed by the Petitioner assigned to the same 
client project. However, other submitted evidence conflicts with this assertion. For instance. the 
Petitioner submits an organizational chart on appeal reflecting that the technical lead will supervise a 
senior software engineer, who in turn oversees three computer programmers. This chart does not 
include an IT consultant or database administrator, only a '·systems administrator, .. who is not shown 
as reporting to the technical lead, but to an employee engagement manager and project manager. 
The Petitioner previously provided an organizational chart indicating that a "database 
developer/administrator" would report to a "healthcare business solutions manager.·· The project 
documentation does not specifically list a '·technical lead" as one of the required resources, and 
indicates that computer programmers report to a senior programmer analyst, while the database 
administrator reports to a senior database administrator. The Petitioner also submitted an "itinerary .. 
listing only a client manager. but no identified manager for the Petitioner. The evidence submitted 
on appeal does not clarify these discrepancies. While the Petitioner states that employees assigned 
to client locations are obligated to adhere to the terms and conditions of their employment 
agreements and that it retains the "right to control" those assigned. the Petitioner does not provide 
detail or documentary evidence to substantiate how and in what form it would maintain and exercise 
control over the Beneficiary at the client location, and that it has a manager assigned there. 
In addition, the Petitioner submitted agreements meant to demonstrate its employee-employer 
relationship with the Beneficiary. However, these agreements only leave further question as to the 
supervision of the Beneficiary when assigned to the client location. For instance. the Petitioner 
states on appeal that the Beneficiary must comply with the terms of his employment agreement when 
assigned to the client location, including its employee handbook. However. this agreement also 
states in Article 1 that the Beneficiary "agrees to participate in telephone conferences with [the 
Petitioner] and provide status reports, progress reports and timesheets to the [the Petitioner]... The 
Petitioner likewise stated in its support letter that ''[t]he Beneficiary will submit time sheets 
documenting work performed." Contrary to the Petitioner's assertions, this language suggests that 
the Beneficiary would not be regularly supervised by onsite Petitioner managers. but that he would 
be remotely updating the Petitioner as to his status and progress. 
Further, although we acknowledge that the Master Services Agreement (MSA) between the 
Petitioner and S-S-T- states that those assigned by the Petitioner will remain its employees, other 
sections of this agreement suggest substantial control on the part of the client. For instance. Section 
3.1 states that the client will specify the "scope of work" of the assigned "I.T. professionaL" 
including his or her "minimum qualifications" and "hours to be worked ... Section 3.6 also indicates 
that the client may remove "placement candidates" in cases of "unsatisfactory performance.'· 
Meanwhile, Section 2.02 of the Beneficiary's employment agreement references the Petitioner's 
"marketing" of the employee, and a work order issued under the MSA refers to the Beneficiary as a 
"staffing resource" and also to "project-based stat1ing requirements." 
There is also some question as to whether S-S-T- will be the ultimate client recetvmg the 
Beneficiary's services as claimed. For instance, the MSA defines the term ··assignment" as "the 
task(s) for project resources that [the Petitioner] will perform for [S-S-T-J and their client's [sic] in 
accordance to the Work Order or Statement of Work (emphasis added)." In addition. the letter from 
Matter ofT- Inc. 
S-S-T- states: "'Our company does not have the right to assign additional projects to [the 
Beneficiary] without notifying [the Petitioner]. specifically. the chen! 's personnel must coordinate 
all terms and scope of service with [the Petitioner] (emphasis added)."'6 The record does not further 
identify S-S-T-'s "client'" or '"clienfs personnel'' with whom the Petitioner '"must coordinate .. with 
respect to the Beneficiary" s assignment. 
In sum, this documentary evidence suggests that the Beneficiary would be placed as a part of a 
staffing arrangement more likely under the primary direction and control of the client (whether S-S­
T- or its client company). In contrast, the Petitioner has submitted little documentary evidence to 
substantiate its control over personnel assigned to the client location. Likewise. the Petitioner 
provides little evidence to indicate who will provide the tools and instrumentalities necessary for the 
Beneficiary's work, particularly given the distance between the Petitioner and client worksites. The 
Petitioner must resolve inconsistencies and ambiguities in the record with independent. objective 
evidence pointing to where the truth lies. Matter o[Ho. 19 I&N Dec. 582,591-92 (BIA 1988). 
Although we acknowledge that the Petitioner will likely pay the Beneficiary and administer his 
benefits, the preponderance ofthe evidence appears to indicate that the Beneficiary will primarily be 
under the direction of the client, and that he will only occasionally check in with the Petitioner as to 
his progress. While payroll, tax withholdings. and other employment benefits are relevant factors in 
determining who will control the Beneficiary, other aspects 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. Here, we find that the preponderance of the evidence 
demonstrates that the Beneficiary will more likely be primarily under the control of the client and 
not the Petitioner. Based on the above, the Petitioner has not established that it qualities as a 
"United States employer'' as defined at 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
We also determine that the Petitioner has not demonstrated that the proffered position qualities as a 
specialty occupation. Specifically. the record does establish that (1) there is sufficient specialty 
occupation work available for the Beneficiary for the entire requested period of employment or (2) 
that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation. 
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: 
6 Considering S-S-T-'s references to itself in the first person throughout the rest of the letter, it is reasonable to assume 
that this reference to ''client's personnel" refers to a third-party's personnel. 
9 
Matter ofT- Inc. 
(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 protTered 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 hy 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 have consistently interpreted 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. Cherf(?[f; 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, 201 F.3d at 387. 
B. Analysis 
On the H-IB petition, the Petitioner requested a validity period from October 2016 to July 2019. 
However, the Petitioner has not submitted sufficient supporting documentation to substantiate that 
the Beneficiary would be engaged at the client location during the entire period of the requested visa. 
On appeal, the Petitioner states that the work would continue for '"an extended duration due to the 
ongoing nature of the software development.'' The client indicated in response to the one of the 
Director's RFEs that it "anticipate[d] utilizing [the Beneficiary's] services for 3 years with periodic 
extensions to follow." In apparent contradiction. the work order provided in support of the petition 
indicates that the services would only be for 18 months ''with an ongoing option to renew annually 
thereafter." 
10 
.
Matter ~~ T- Inc. 
There are also inconsistencies with respect to the proffered position's job duties. For example, the 
Petitioner identified the Beneficiary's job title as an "IT Consultant (Database Administrator):' and 
submitted a certified labor condition application (LCA) 7 for a position located under the occupational 
category "Database Administrators'' (corresponding to the Standard Occupational Classification 
code 15-1141) at a Level I wage rate. The Petitioner's initial job description for the Beneficiary 
listed duties that were essentially identical to those listed in the Occupational Information Network 
(O*NET) Details Report for the "Database Administrators" occupation (a copy of which was 
submitted for the record). 
Yet in later job descriptions, the Beneficiary's job duties appear to have evolved. For example, the 
Petitioner's RFE response indicated that 40% of the Beneficiary's time would consist of 
"development and implementation" duties, and clarified that the Beneficiary would be a part of the 
client's "IT Development Center," particularly, its' · In the client's 
project documentation , it identifies the Beneficiary's job title as "Computer Programmer," and then 
indicates that he would spend substantial time on higher level programming and software 
development duties such as "develop software solutions, " "design solutions to problematic 
programming," "[d]esign and develop programming systems making specific determinations about 
system performance utilizing software engineering tools:· '·[ d]esign and develop 
'and "[d]eveloping complex business and financial rep011ing solutions:· The Petitioner 
has not explained how these various job descriptions are consistent with each other, and with the 
certified LCA for an entry-level position within the ·'Database Administrators" occupational 
category. 8 
For all the above reasons , the record does not sufficiently establish the substantive nature of the 
work to be performed by the Beneficiary. This precludes a 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 entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
7 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Malter o(Simeio Solutions , LLC, 26 I&N Dec. 542. 545-546 (AAO 20 15). 
8 In designating a Level I wage, the Petitioner effectively attested to the U.S. Department of Labor (DOL) that the 
proffered position is an entry-level position for an employee who has only basic under standing of the occupation. U.S. 
Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance. Nonagric. Immigration 
Programs (rev. Nov. 2009), available at http://tlcdatacenter.com /download/NPWHC _Guidance _ Revised_11 _2009.pdf 
A wage determination starts with an entry level wage (Level I) and progresses to a higher wage level (up to Level IV) 
after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d. The DOL 
guidance referenced above also states that an employer should consider a Level I wage designation when the job offer is 
for a research fellow , a worker in training , or an internship . /d. Such indicators do not appear consistent with the 
claimed job duties requiring the Beneficiary to design software solutions for "problematic programming· · and "complex ·· 
reporting . 
I I 
Matter ofT- Inc. 
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 for classification as a 
specialty occupation. It also cannot be found that the Petitioner has non-speculative \Vork for the 
Beneficiary for the entire period requested, secured as of the petition's filing.9 USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. § 103.2(b)(l). 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 ol Michelin Tire Corp., 17 I&N Dec. 248 (Reg'! Comm'r 1978). A 
petitioner may not make material changes to a petition in an etlort to make a deficient petition 
conform to USCIS requirements. See Matter ollzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 
1998). 
In addition, the Petitioner provides conflicting statements on the record regarding the speci tic 
bachelor's degree required for the position leaving question as to whether the proflered position 
qualifies as a specialty occupation. For instance, in a support letter provided with the petition, the 
Petitioner stated that the position required "at least a Bachelor's Degree or its foreign equivalent in a 
specialized field of study that is directly related to this position.'' In a RFE response letter, the 
Petitioner indicated that the position requires ·'a Bachelor's Degree in Computer Science, 
Information Systems or a related Engineering discipline.'' In addition, the Petitioner provides letters 
from two companies it claims are similarly situated in the industry, stating that they typically require 
that its database administrators have a degree in "Computer Science, Management Information 
9 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example. a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising fl·om potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Acf'). 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-1 B classification. Moreover. there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419. 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C. F. R. ~ 214.2(h)(2 )( i)( E). 
12 
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Matter ofT- Inc. 
Systems, Engineering, Electronics/Electrical, Mathematics or [a] related field." Meanwhile, the 
Petitioner submitted the opinion of a professor of computer science at 
stating that the knowledge required for the proffered position is ""normally 
acquired while earning one of the computer-related baccalaureate degree[ s]... The letter from S-S-T­
states that it requires "at least a Bachelor's degree in IT or equivalent." 
As such, the Petitioner has provided statements and evidence with varying 
assertions regarding the 
required specialty degree for the proffered position. The Petitioner did not originally indicate that 
there was a specific degree requirement, but then stated that it would need to be in computer science, 
information systems, or a "related engineering discipline." However, letters from companies 
asserted as in the industry state that they would accept an individual with a general engineering 
degree or a degree in mathematics, while appears to indicate that only a computer­
related bachelor's degree would suffice. The letter from S-S-T- appears to narrow down the types of 
acceptable degrees even more, to only a degree in IT. In sum, these apparent inconsistencies leave 
question as to whether the position requires a bachelor's degree in a specific specialty for minimum 
entry, or whether any number of bachelor of science degrees would suffice. Again, the Petitioner 
must resolve these inconsistencies in the record with independent, objective 
evidence pointing to 
where the truth lies. Ho, 19 I&N Dec. at 582, 591-92. 
Therefore, the Petitioner has not demonstrated that it would have sufficient specialty occupation 
work available for the Beneficiary for the entire requested period, or that the position requires a 
bachelor's degree in a specific specialty for minimum entry. For these additional reasons, the appeal 
will be dismissed. 
IV. IMPROPER FILING 
The Director also denied the petition finding that it had been improperly tiled, concluding that it the 
petition was signed by an individual without apparent signatory authority. However, we conclude 
that the Petitioner has provided sufficient evidence that the signatory of the petition, more likely than 
not, had signatory power to sign on behalf of the Petitioner. For this reason, this basis for denial is 
withdrawn. 
V. CONCLUSION 
The Petitioner has not established that it would have an employer-employee relationship with the 
Beneficiary, and that the proffered position is a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT- Inc., ID# 586212 (AAO Aug. 30, 2017) 
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