dismissed H-1B Case: Information Technology

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachuselts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 0 8 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)( i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15 )(H)(i)(b) 
ON BEHALF OF PETITI ONER: 
INSTRUCTI ONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
_2 0tit/ J !-;{d1;v 
·-r · Ron Rosenberg t:/ 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. The petition 
will be denied. 
On the Form I-129 visa petition, the petitioner describes itself as an IT development and consulting 
firm. In order to employ the beneficiary in what it designates as a "Programmer Analyst" position,1 
the petitioner seeks to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S. C. 
§ 1101( a)(15)(H)(i)(b ). 
The director denied the petition, finding that the petitioner had failed to demonstrate that a 
reasonable and credible offer of employment existed for the beneficiary. Specifically, the director 
concluded that the evidence of record did not demonstrate (1) that the proffered position qualifies 
for classification as a specialty occupation, and (2) that the petitioner had sufficient work available 
for the beneficiary for the requested period of intended employment. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petltwn; (5) the 
Form I-290B and supporting documentation; (6) our RFE requesting a properly-signed Form G-28 
(Entry of Appearance) and Form I -129; and (7) the petitioner's response to our RFE. 
We find that the newly signed and dated documents submitted in response to our RFE cured the 
signature deficits which were the subject of our RFE. However, counsel should take note that we 
stand by the reasons for our initial issues with the Form G-28 and Form I-129 signatures. There is 
no statutory or regulatory basis for us to accept, in lieu of the petitioner's signature, a signature of a 
person acting as an attorney-in-fact pursuant to a power of attorney where the form instructions and 
regulations require the signature of the petitioner. 
For the reasons that we will discuss in this decision's analysis of the evidence of record as it relates 
to the statutory and regulatory framework governing the H-1B specialty-occupat ion program, we 
have concluded that the director's determination to deny the petition on the grounds specified in her 
decision was correct. Accordingly, the appeal will be dismissed, and the petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
As a preliminary matter, and in light of counsel's references to the requirement that we apply the 
"preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review in 
this matter, as in all matters that come within its purview, we follow the preponderance of the 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for the SOC (O*NET/OES) Code 15-1131, the associated Occupational Classification of "Computer 
Programmers," and a Level II prevailing wage rate. 
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evidence standard as specified in the controlling precedent decision, Matter of Chawathe, 25 I&N 
Dec. 369, 375-376 (AAO 2010). In pertinent part, that decision states the following: 
!d. 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence " of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support counsel's contentions that the evidence of 
record requires that the petition at issue be approved. 
Applying the preponderance of the evidence standard as stated in Matter of Chawathe, we find that 
the director's determinations in this matter were correct. Upon review of the entire record of 
proceeding, and with close attention and due regard to all of the evidence, separately and in the 
aggregate, submitted in support of this petition, we find that the petitioner has not established that 
its claims are "more likely than not" or "probably" true. As the evidentiary analysis of this decision 
will reflect, the petitioner has not submitted relevant, probative, and credible evidence that leads us 
to believe that the petitioner's claims are "more likely than not" or "probably" true. 
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II. STATUTORY AND REGULATORY FRAMEWORK 
To meet its burden of proof with regard to the specialty occupation issue, the petitioner must 
establish that the employment it is offering to the beneficiary meets the applicable statutory and 
regulatory requirements. 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 8 4(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. § 21 4.2(h)( 4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1) ] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C. F.R. § 214 .2(h)( 4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into 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. 
As a threshold issue, it is noted that 8 C.F. R. § 21 4.2(h)(4)(iii)(A) must logically be read together 
with section 214( i)(l) of the Act and 8 C. F.R. § 214. 2(h)(4)(ii). In other words, this regulatory 
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language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 291 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 56 1 (19 89); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F.R. § 
214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet 
the statutory and regulatory definition of specialty occupation. To otherwise interpret this section as 
stating the necessary and sufficient conditions for meeting the definition of specialty occupation 
would result in particular positions meeting a condition under 8 C. F.R. § 214.2 (h)( 4)(iii)(A) but not 
the statutory or regulatory definition. See Defensor v. Meissner, 201 F.3d at 387. To avoid this 
result, 8 C. F.R. § 214 .2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions 
of specialty occupation. 
As such and consonant with section 214 (i)(1) of the Act and the regulation at 8 C. F.R. § 
214. 2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C. F.R. 
§ 21 4.2(h)( 4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 147 (1 st Cir. 2007) (describing "a degree requirement in a specific specialt y" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USCIS regularly approves H-lB petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such occupations. 
These professions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former INS had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a 
proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. !d. at 384. Such evidence must be sufficiently detailed 
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to demonstrate the type and educational level of highly specialized knowledge m a specific 
discipline that is necessary to perform that particular work. 
III. INTRODUCTORY OVERVIEW 
Here, the petition's specialty-oc cupation claim resides in the work that the petitioner claims the 
beneficiary will provide per contractual agreement between the petitioner and another entity, or 
entities. Thus, to meet is burden of proof, it is incumbent upon the petitioner to provide evidence of 
the pertinent contractual requirements that is sufficient to show that their actual performance would 
require the theoretical and practical application of at least a bachelor's degree level of a body of 
highly specialized knowledge in a specific specialty- in compliance with the "specialty occupation" 
definition at section 214 (i)(1) of the Act and the regulation at 8 C.P.R. § 21 4.2(h)( 4)(ii). Further, 
the petitioner must establish that the petition was filed on the basis of definite, non-speculative 
employment that had been secured for the beneficiary by the time the petition was filed. 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.P.R. 10 3.2(b )(1) . A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp. , 17 I&N Dec. 248 (Reg. Comm'r 19 78). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 16 9, 17 6 (Assoc. Comm'r 
19 98). For the reasons we shall now discuss, the evidence of record is insufficient to meet either of 
these requirements. 
As previously noted, the petitioner indicated on the Form I-12 9 and in supporting documentation 
that it seeks the beneficiary's services in a position to which it assigned "Programmer Analyst" as 
the title, to work on a full-time basis at a salary of $62,733 per year? 
One consideration that is necessarily preliminary to, and logically even more foundational and 
fundamental than the issue of whether a proffered position qualifies as a specialty occupation, is 
whether the petitioner has provided substantive information and supportive documentation 
sufficient to establish that, in fact, the beneficiary would be performing services for the type of 
position for which the petition was filed (here, a programmer analyst). Another such fundamental 
preliminary consideration is whether the petitioner has established that, at the time of the petition's 
filing, it had secured non-speculative work for the beneficiary that corresponds with the petitioner's 
claims about the nature of the work that the beneficiary would perform in the proffered position. 
We find that the petition has failed in each of these regards. 
As discussed above, the record does not establish that, by the petition's filing, the petitioner had 
secured any work that would require the beneficiary to perform the duties of the proffered position 
2 While the petitioner and counsel seem to use "computer programmer" and "programmer analyst" 
interchangeably, it must be noted that, as evidenced in the LCA's designation of Computer Programmers as 
the pertinent occupational classification, the petition presents the proffered position as being at a computer 
programmer occupational and related prevailing-wage level, rather than at the Computer Systems Analysts 
level to which the Handbook and the O*NET Online places true programmer analysts. 
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for the period specified in the petition. Although the petitioner has established a contractual 
relationship with the claim in this petition is that the beneficiary will work for a third-party 
employer through that agreement with The fact that the petitioner may in fact have had its 
own direct agreement in the past with the third-party employer here, is irrelevant, since 
the ultimate terms and scope of the beneficiary's employment and placement onsite at are 
governed by the agreement between which has not been submitted here. 
Additionally, we find that the record is devoid of any documentation establishing in-house work 
that would require the beneficiary to perform the duties and responsibilities that the petitioner has 
attributed to the proffered position. 
While we note counsel's submission of a sworn statement from the petitioner's Human Resources 
Manager on appeal, the fact remains that the record contains no evidence establishing the true 
nature of the beneficiary's employment during the requested validity period. This statement 
provides no details regarding potential tasks of the beneficiary, and there is no documentation 
establishing the nature of the beneficiary's claimed employment or the true nature of the duties the 
beneficiary would actually perform. 
Accordingly, as the petitioner has not provided documentary evidence substantiating the 
beneficiary's actual work, we cannot conclude that the petitioner established that it would employ 
the beneficiary in a specialty occupation. 
IV. FACTUAL AND PROCEDURAL BACKGROUND 
In the petition signed on March 22, 2013 , the petitioner indicated that it is seeking the beneficiary's 
services as a programmer analyst on a full-time basis, at the rate of pay of $62,733 per year. In its 
March 25, 2013 letter of support, the petitioner stated that it provides "cost effective and quality 
Consultancy and out sourcing services worldwide." 
Regarding the proffered position, the petitioner stated that the beneficiary will be working onsite at 
the offices of its end-client, Missouri, via agreements between the petitioner 
and its intermediate client, __ The petitioner further asserted that the contracts with and 
"are extendible indefinitely into the future," and that "there are no future unanticipated 
worksites at this time." 
As noted previously, the LCA which the petitioner submitted had been certified for a job prospect 
within the occupational classification of "Computer Programmers" - SOC (ONET/OES Code) 15-
11 31, at a Level II wage. 
The documents filed with the Form I-129 also included: (1) a copy of the petitioner's offer-of­
employment letter to the beneficiary dated March 25, 2013 ; (2) a copy of a letter from dated 
March 15 , 2013 , outlining the nature of agreement with the petitioner; (3) a copy of a 
document from entitled "WOI terms and conditions;" (4) a copy of a document from 
entitled ' standard purchase order terms and conditions;" (5) an evaluation of the beneficiary's 
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foreign academic credentials; and (6) a copy of the petitioner's 2011 federal tax return. 
The petitioner's aforementioned support letter described the proposed duties as follows: 
• Involved in analysis and supporting the Legacy and ETL applications. 
• Extensive programming in COBOL , MVS, VSAM, JCL. 
• Extensively used debugging tools like Abend Aid and Fault Analyzer and Job 
monitoring tools like Ctrl-M, CA-7, Jobtrac, SAR, SDSF and IOF. 
• Experience in self review, peer review for technical specification, batch 
(COBOL ) programs, test plans, test cases, test data, test result etc. 
• Involve in coding of batch programs (COBOL ), copybooks (working storage as 
well as procedure division copybooks), Jobs & Procedures (JCL). 
• Involve in monitoring production batch cycle and resolving different abends for 
smooth running of batch cycle and responsible for production support, 
estimation and test modules. 
• Worked on major areas of SDLC process i.e. analysis of source code, code 
review, preparing UTP, UTR, testing, implementing the code into production 
and doing a post-implementation check. 
• Performed Root Cause Analysis (RCA) on various issues and prepared 
troubleshooting documents. 
• Coordinating with different applications which are dependent on PPR and 
CRDW[. ] 
• Make sure every request is completed as per expectation and make sure all 
necessary quality documents are created for each and every task. 
• Drive and support the completion of all required Offshore/Onsite activities for 
assigned tasks. 
• Working with Project Lead to properly identified [sic] Risks and appropriate 
fisk response strategies are determined and applied as needed. 
However, it serves no purpose for us to address those duties, as nowhere in the record does , or 
for that matter, confirm, endorse, adopt, or in any way acknowledge those 
duties as comprising the work that the beneficiary would perform for any period. 
With regard to the documentation from we note that the March 15, 2013 letter did not identify 
the beneficiary by name, and further the letter did not specify the exact duration of the agreement 
under which it is claimed that the beneficiary would work, aside from simply stating that "the 
project is expected to last for three years." Specifically, the letter states: 
In order to fulfill this Purchase Order, [the petitioner] will select professionals. We 
expect at least thirty employees to be used in order to fulfill these WOis [Web Order 
Invoices] and POs [Purchase Orders]. Although [the petitioner] will select all 
professionals, in our opinion, we believe that all positions require a Bachelor's Degree 
in Engineering, Information Technology, Business or a similar discipline. 
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In addition, the documents outlining the terms and conditions of eb Order Invoices and 
Purchase Orders appear to be no more than templates of forms tha routinely uses. They are 
not signed by any party. Their content does not mention either the beneficiary or the petitioner. 
Moreover, these documents appear to be printed directly from website, and they appear to be 
representative samples of the standard forms that uses as part of its contractual dealings with 
companies like the petitioner that would be providing services for As such, these documents 
have no material bearing upon the appeal before us and they are not probative evidence toward 
satisfying any criterion at 8 C. F.R. § 214. 2(h)(4)(iii)(A). 
The director found the evidence insufficient to establish eligibility for the benefit sought, and issued 
an RFE on July 16, 2013. The petitioner was asked to submit probative evidence to establish that a 
specialty occupation position exists for the beneficiary, and that the petitioner would maintain the 
requisite employer-employee relationship with the beneficiary. Noting the nature of the petitioner's 
business, the director requested specific evidence, such as contracts and work orders with the 
claimed end-client, demonstrating that specialty occupation work was available for the 
beneficiary for the entire requested validity period. 
On October 6, 2013 , counsel for the petitioner responded to the RFE. Counsel clarified that the 
beneficiary would be working onsite for via the petitioner's agreement with and 
submitted additional documentation in support of this contention. 
Those various agreement-documents submitted in response to the RFE deserve some separate 
comments at this point, and we will address them in the order in which they appear as exhibits in 
the RFE response. 
Counsel submitted a copy of a "Technical Services Agreement" between and the petitioner, 
also referred to as the "Base Agreement," dated July 17 , 2007. The agreement was signed by the 
petitioner on July 31, 2007 and by on January 2, 2008. The introductory paragraph of the 
agreement stated that the Base Agreement "establishes the basis for a multinational procurement 
relationship under which [the petitioner] will provide the Deliverables and Services 
described in SOWs and/or WAs [(Work Authorizations)] issued under this Base Agreement." 
Counsel also submitted a copy of a document entitled "Master Application Development and 
Maintenance Agreement" dated May 19 , 2004 between the petitioner and as well as 
some subsequent amendments. According to Section 2 of this agreement, entitled "Services," the 
petitioner was required to provide information technology services to "on a project-by-
project basis pursuant to written Statements of Work upon written request by · for such 
services." The agreement further stated that "[t]he Services to be performed by the [petitioner] at 
request will be described in a Statement of Work that must be signed by officers of both 
parties." Moreover, the agreement specifies that: 
Each Statement of Work will state the name of a project manager for (the 
Project Manager"), who will be authorized to act as primary 
contact for [the petitioner] with respect to the parties' obligations under the Statement 
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of Work, and the names of [the petitioner's] key project personnel, including (1) the 
name of a project manager for [the etitioner] who will be authorized to act as [the 
petitioner's] primary contact for with respect to the parties' obligations 
under the Statement of Work, and (2) the names of any other key project personnel, if 
any (collectively, the "Key Employees") [and the percentage of each Key Employee's 
time that will be dedicated to the project covered by the Statement of Work]. Each 
statement of Work shall be consecutively numbered. 
Whether entitled "Technical Services Agreement," "Base Agreement," or "Master Application 
Development and Maintenance Agreement," the language of these documents indicates that they 
consist of terms and conditions that would be automatically incorporated into any particular 
agreement for specific work that would fall within its scope. That is to say that, without follow-on 
contractual commitments for specific work in such forms as Statements of Work, Work 
Authorizations, Schedules, or Purchase Orders, these Agreement documents do not indicate that the 
petitioner has secured any definite work to be performed for any particular period. The sample Web 
Order Invoice and Purchase Order documents previously submitted were generic in nature and 
appeared to be representative samples of a typical agreement between and a client. They were 
unsigned and nowhere referenced the petitioner. We find that, while the documents discussed 
above indicate that the petitioner has had business relationships with both they 
do not establish that those relationships actually had generated work that the beneficiary would 
perform in accordance with the duties and responsibilities that the petitioner ascribed to the 
proffered position. 
Finally, we note that counsel's RFE response also includes a letter from dated August 26, 
. 2013 , confirming that the beneficiary will work for as a consultant, and will be part of 
CRDW, PPR Applications support team. The letter further indicated that the 
beneficiary would be employed in this capacity through December 31, 2014 , at which time his 
assignment could be extended depending on project requirements. 
According to the inferences drawn from this document and the claims of counsel, the petitioner 
seeks to employ the beneficiary onsite at offices through the mid-vendor, 
Although the record above demonstrates that the petitioner has previously had contractual relations 
with as evidenced by the "Master Application Development and Maintenance 
Agreement" submitted in response to the RFE, this relationship is irrelevant here, since the 
petitioner claims to be providing personnel to work for through a contractual agreement 
with The letter submitted in response to the RFE clearly states that in this particular 
case, the beneficiary's services will be provided to via an outsourcing agreement that 
a division of the recently entered into with 
The director reviewed the information provided by the petitioner and counsel to determine whether 
the petitioner had established eligibility for the benefit sought. The director determined that the 
petitioner failed to establish that specialty occupation work existed for the beneficiary for the 
duration of the requested validity period. The director denied the petition on November 14, 2013. 
On appeal, counsel for the petitioner submitted a brief and contends that the director's findings were 
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erroneous, and submits an updated purchase order for the beneficiary's services in support of this 
contention. 
V. LAW AND ANALYSIS 
A. Lack of Standing to File the Petition as a United States Employer 
As a preliminary matter and beyond the decision of the director, we will first discuss whether the 
petitioner has established that it meets the regulatory definition of a "United States employer" and 
whether the petitioner has established that it will have "an employer-employee relationship with 
respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or 
otherwise control the work of any such employee" as set out at 8 C. F.R. § 214. 2(h)(4)(ii)? 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services. . . in a specialty occupation described in section 
214(i)(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 in the Code of Federal Regulations 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 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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
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 
3 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101( a)(1 5)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 21 2(n)(1) of the 
Act, 8 U.S.C. § 11 8 2(n)(l) (201 2). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 21 2(n)(1 )(A)(i) and 21 2(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 11 82(n)(1 )(A)(i), (2)(C)(vii) (201 2). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129 ) in order to classify 
aliens as H-1B temporary "employees." 8 C.P .R. § 214.2 (h)(1), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an "employer­
employee relationship" with the "employees under this part, " i.e., the H-1B beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.P .R. § 21 4.2(h)(4)(ii) (defining the term "United States 
employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" by 
regulation for purposes of the H-1B visa classification, even though the regulation describes H-1B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." /d. Therefore, for purposes of the H-1B visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318 , 322-323 (19 92) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1 989)). 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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 75 1-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, .. . all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
(b)(6)
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Page 13 
Co. of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 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. 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 of the H-1B visa classif�cation, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.4 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R. § 214. 2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.R. § 214. 2(h)(4)(ii) indicates that the regulations do not intend to 
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. 5 
4 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or " employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common Jaw definitions. Instead, in the context 
of the H-lB visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
5 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
(b)(6)
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Page 14 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C. F.R. § 214. 2(h). 6 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U. S. at 450; see also 8 
C. F.R. § 214. 2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (Emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U. S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-1B nurses under 8 C.P. R. § 214. 2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(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 
6 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-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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."' Jd. at 451 (quoting Darden, 503 U. S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
beneficiary as an H-1B temporary "employee ." 
We note the petitioner's assertion that the beneficiary will work at the offices of 
Missouri, and further note the petitioner's contentions that at all times it will maintain an 
employer-employee relationship with the beneficiary. However, the record of proceeding does not 
establish what project(s) would require the beneficiary to perform the duties and responsibilities that 
the petitioner ascribed to the proffered position. In this regard we here incorporate our earlier 
comments and findings with regard to the documentary evidence that the petitioner submitted as 
indicia of its business relationships with various companies. As there reflected, the record of 
proceeding does not contain persuasive evidence that any of the agreements referenced by the 
petitioner had actually produced projects that would engage the beneficiary in the proposed duties 
and responsibilities during the period of requested employment. 
First, the record lacks evidence corroborating the claimed contractual path that would result in the 
beneficiary's placement onsite at the offices of According to the sworn statement from 
the petitioner's Human Resources Manager submitted on appeal, "[the beneficiary] is not working 
on a direct contract between and [the petitioner]." Rather, the petitioner's representative 
indicates that the beneficiary's ultimate assignment to the project is via its agreement 
with mid-vendor 
While we do not dispute that the petitioner has engaged in direct contractual relationships with both 
in the past, the record as currently constituted does not establish the contractual 
path through which _ as the mid-vendor in this instance, will place the beneficiary onsite to 
work for The issue here, therefore, is the absence of the contractual agreement between 
and which is referred to in the " urchase orders" document submitted in response to 
the RFE. That document indicates that recently elected to outsource some of its 
information technology projects to and that, pursuant to that agreement, would provide 
resources, including the petitioner, to work on projects. However, absent evidence of 
this contractual agreement, we are unable to determine (1) whether such an agreement actually 
exists; and (2) the nature and associated tasks of the claimed projects upon which the beneficiary 
would ultimately be assigned. More importantly, absent contracts between . the 
ultimate end-client - or, in their stead, comprehensive and credible statements, from the appropriate 
officials with the requisite knowledge, delineating the contractual terms and conditions relevant to 
the employer-employee common law touchstone of control - we are unable to determine that 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
balancing all of the relevant indicia of control would favor the petitioner so as to establish the 
requisite employer-employee relationship. 
The record lacks relevant Statements of Work, Schedules, Purchase Orders, or any like documents 
that would establish the existence of a project that would engage the beneficiary to perform the 
duties that the petitioner ascribes to the proffered position. Further, we also note that the evidence 
of record does not establish how any actually existing project requires the beneficiary to perform the 
duties and responsibilities that the petitioner ascribes to the proffered position. Again, while the 
petitioner submitted copies of various master agreements and sample overviews of terms and 
conditions governing projects, no evidence in the record establishes the nature of the 
beneficiary's proposed employment for the requested period. 
In addition, despite the petitioner's contentions to the contrary, the record contains various other 
documents that suggest that the beneficiary's ultimate assignments, and supervisors, may vary. For 
example, the letter from submitted in response to the RFE indicates that the end date of the 
claimed assignment with . �- is December 31, 2014. Although both counsel and 
the petitioner contend that the contracts with "are extendible indefinitely into 
the future," this statement is not persuasive, since it refers to the petitioner's direct agreements with 
__ _ � and not the agreement between that is at issue here. Again, 
although the letter briefly discusses the beneficiary's claimed assignment with , there 
is no evidence of the substantive content of a contractual agreement between 
Therefore, there is no evidence sufficiently outlining the nature and duration of any particular 
project upon which the beneficiary would work during the requested validity period. 
We find, therefore, that the evidence of record does not establish that, by the date of the filing of the 
petition, the petitioner had yet secured definite, non-speculative work for the beneficiary for the 
period of employment specified in the petition. In this respect, we also find that the record does not 
support a finding that the beneficiary's services would be required for the previously quoted duties 
that the petitioner claimed for the proffered position. The record of proceeding simply lacks 
documentary evidence from the asserted end-client , / of the existence of, or details 
regarding, any particular project to which the beneficiary would be assigned in the United States. 
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. 10 3.2(b )(1) . A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. at 176. Consequen tly, we cannot 
reasonably conclude that the petitioner is engaging the beneficiary to perform work in the United 
States - as the existence of such work for the beneficiary has not been established. 
While social security contributions, worker's compen�ation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control an alien 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
alien beneficiary is assigned, must also be assessed and weighed in order to make a determination as 
to who will be the beneficiary's employer. While we have considered the petitioner's attestations 
that it alone would control the beneficiary and his work, because the evidence of record does not 
establish either an actual project that would require the beneficiary's services, or the actual scope of 
such services that would be required, or the contractual terms set by whatever client would generate 
such a project, we cannot conclude that it is more likely than not that the petitioner - and not a client 
or intermediate party between the petitioner and the client - would have the requisite employer­
employee relationship. In short, we will not speculate about relevant indicia of control in a case, as 
here, where the essential facts regarding the actual work to be performed have not been established. 
Without full disclosure of all of the relevant factors relating to the end-client, including evidence 
corroborating the beneficiary's actual work assignment, we are unable to find that the requisite 
employer-employee relationship will exist between the petitioner and the beneficiary; and such 
disclosure is precluded where there is no definite employment. 
The evidence of record, therefore, is insufficient to establish that the petitioner qualifies as a 
"United States employer, " as defined by 8 C.P.R . § 214. 2(h)(4)(ii). Merely claiming in its letters 
that the beneficiary is the petitioner's employee does not establish that the petitioner exercises any 
substantial control over the beneficiary and the substantive work that he performs. Nor do clauses 
in overarching agreements such as the Technical Services Agreement or the Master Application 
Development and Maintenance Agreement carry probative weight in the absence, as here, of 
specific contractual documents that bring such agreements into play with regard to work for which 
it is shown that the beneficiary would be employed. 
The petitioner's reliance on claims that it would pay the beneficiary's salary, provide health and 
employment benefits, and withhold federal and state income tax is misplaced. First of all, as we 
have noted, the existence of actual work for the beneficiary has not been established. As the record 
of proceeding before us does not document the full panoply of employer-employee related terms 
and conditions that would control the beneficiary's day-to-day work, we do not have before us a 
sufficiently comprehensive record to identify and weigh all of the indicia of control that should be 
assessed to resolve the employer-employee issue under the above discussed common law 
touchstone of control. We will not speculate where those indicia would lie. 
Additionally, as we already noted, the evidence of record does not establish the petitioner as 
performing the essential U.S. Employer function of engaging the beneficiary to come to the United 
States for actual work established for the beneficiary at the time of the petition's filing. 
In short, the petitioner has not provided documentary evidence sufficient to establish actual work 
that the beneficiary would do and the actual nature of any business relationship that would exist 
between the beneficiary and the petitioner with regard to such work. Without evidence supporting 
the petitioner's claims, the petitioner has not established eligibility in this matter. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 16 5 (citing Matter of 
Treasure Craft of California, 14 I&N Dec. at 190). For this reason, the petition may not be 
approved. 
(b)(6)
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Page 18 
For the above-discussed failure of the evidence of record to establish the requisite employer­
employee relationship between the petitioner and the beneficiary, the petition must also be denied. 
B. Failure to Establish the Proffered Position as a Specialty Occupation 
As reflected in the preceding section's discussion and findings, a materially determinative aspect of 
the evidence of record is its failure to establish that, at the time of the petition's filing, the petitioner 
had secured definite, non-speculative employment for the beneficiary. Thus, we concur with the 
director's determination that the evidence submitted fails to establish non-speculative employment 
for the beneficiary for the period specified in the petition. 
This feature of the evidence of record is also a determinative factor in our concluding that the 
evidence of record fails to establish the proffered position as a specialty occupation. 
Now, to meet its burden of proof with regard to the specialty occupation issue, the petitioner must 
establish that the employment it is offering to the beneficiary meets the applicable statutory and 
regulatory requirements. 
Section 214(i)(l) of the Act, 8 U. S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C. F.R. § 214. 2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F .R. § 214. 2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into 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 
(b)(6)
Page 19 
NON-PRECEDENT DECISION 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C. P.R. § 214 .2(h)( 4)(iii)(A) must logically be read together 
with section 21 4(i)(l) of the Act and 8 C. P.R. § 214. 2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U. S. 28 1, 29 1 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp. , 489 U.S. 56 1 (19 89); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C. P.R. § 
214 .2(h)( 4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet 
the statutory and regulatory definition of specialty occupation. To otherwise interpret this section as 
stating the necessary and sufficient conditions for meeting the definition of specialty occupation 
would result in particular positions meeting a condition under 8 C. P.R. § 214 .2(h)(4)(iii)(A) but not 
the statutory or regulatory definition. See Defensor v. Meissner, 201 F.3d at 387. To avoid this 
result, 8 C. P.R. § 21 4.2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions 
of specialty occupation. 
As such and consonant with section 21 4(i)(l) of the Act and the regulation at 8 C.P .R. § 
214 .2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C. P.R. 
§ 214 .2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139 , 147 (1s t Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USCIS regularly approves H-lB petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such occupations. 
These professions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former INS had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a 
proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. !d. at 384. Such evidence must be sufficiently detailed 
to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
As previously noted, the petitioner indicated on the Form I-129 and in supporting documentation 
that it seeks the beneficiary's services in a computer programmer position titled "Programmer 
Analyst," to work on a full-time basis at a salary of $62,733 per year. 
Although the petitioner requested, on the Form I-129, that the beneficiary be granted H-1B 
classification from October 1, 2013 to September 12, 2016, there is a lack of substantive 
documentation regarding particular work for the beneficiary for that period. The record contains no 
contracts, statements of work, work orders, or other contractual documents that are sufficiently 
detailed to establish the substantive nature work that the beneficiary is to perform, let alone that the 
performance of that work would require the theoretical and practical application of at least a 
bachelor's degree level of a body of highly specialized knowledge in a specific specialty. 
'We find then that the petitioner has not provided documentary evidence sufficient to establish the 
existence of the work claimed in the petition as specialty occupation work for the beneficiary for the 
requested H-1B validity period. The petitioner also did not submit documentary evidence regarding 
any additional work for the beneficiary. Thus, the petitioner has failed to establish that the petition 
was filed for non-speculative work for the beneficiary that existed as of the time of the petition's 
filing, for the period requested. 7 USCIS regulations affirmatively require a petitioner to establish 
7 The agency made clear long ago that speculative employment is not permitted in the H-lB program. A 
1998 proposed rule documented this position as follows: 
Histor ically, the Service has not granted H-lB classification on the basis of speculative, or 
undetermined, prospective employment. The H-lB classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine 
whether an alien is properly classifiable as an H-lB nonimmigrant under the statute, the 
Service must first examine the duties of the position to be occupied to ascertain whether the 
duties of the position require the attainment of a specific bachelor's degree. See section 
214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine 
whether the alien has the appropriate degree for the occupation. In the case of speculative 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(1). A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248. 
One consideration that is necessarily preliminary to, and logically even more foundational and 
fundamental than the issue of whether a proffered position qualifies as a specialty occupation, is 
whether the petitioner has provided substantive information and supportive documentation 
sufficient to establish that, in fact, the beneficiary would be performing services for the type of 
position for which the petition was filed (here, a computer programmer). Another such fundamental 
preliminary consideration is whether the petitioner has established that, at the time of the petition's 
filing, it had secured non-speculative work for the beneficiary that corresponds with the petitioner's 
claims about the nature of the work that the beneficiary would perform in the proffered position. 
We find that the petition has failed in each of these regards. 
As discussed above, the record does not establish that, at the petition's filing, the petitioner had 
secured any work for the period of intended employment that would require the beneficiary to 
perform the duties of the proffered position for the period specified in the petition. 
Although the petitioner has established a contractual relationship with the claim in this 
petition is that the beneficiary will work for a third-party entity - through that 
agreement with However, the ultimate terms and scope of the beneficiary's employment and 
placement onsite at are governed by the agreement between which 
has not been submitted here. 
Additionally, we find that the record is devoid of any documentation establishing in-house work 
that would require the beneficiary to perform the duties and responsibilities that the petitioner has 
attributed to the proffered position. 
Accordingly, as the petitioner has not provided documentary evidence substantiating the 
beneficiary's actual work, we cannot conclude that the petitioner established that it would employ 
the beneficiary in a specialty occupation. 
That is, the petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under any 
employment, the Service is unable to perform either part of this two-prong analysis and, 
therefore, is unable to adjudicate properly a request for H-1B classification. Moreover, there 
is no assurance that the alien will engage in a specialty occupation upon arrival in this 
country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
criterion at 8 C. F.R. § 214. 2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Thus, the petitioner has failed to 
establish that the proffered position is a specialty occupation under the applicable provisions.8 
For the reasons related in the preceding discussion, we find that the petitioner has failed to establish 
that it has satisfied any of the criteria at 8 C. F.R. § 214. 2(h)(4)(iii)(A) and, therefore, it cannot be 
found that the proffered position qualifies as a specialty occupation. According! y, the petition 
cannot be approved for this additional reason. 
VI. CONCL USION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision.9 See Spencer Enterpr ises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal . 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff'd. 345 F.3d 
683. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
8 It is noted that, even if the proffered position were established as being that of a programmer analyst, a 
review of the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (the Handbook) does not 
indicate that, simply by virtue of its occupational classification, such a position qualifies as a specialty 
occupation in that the Handbook does not state a normal minimum requirement of a U.S. bachelor's or higher 
degree in a specific specialty or its equivalent for entry into the occupation of programmer analyst. See U.S. 
Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Computer 
S ys terns Analysts," http://www. bls.gov /ooh/compu ter -and-information -tech no logy/computer -systems­
analysts.htm#tab-4 (last visited June 24, 2014). As such, absent evidence that the position of programmer 
analyst satisfies one of the alternative criteria available under 8 C.F.R. § 21'4.2(h)( 4)(iii)(A), the instant 
petition could not be approved for this additional reason. 
9 As the appeal will be dismissed for the reasons discussed above, we need not address the additional 
deficiencies that we observe in the record of proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U. S.C . § 13 61; Matter of Otiende, 26 I&N Dec. 12 7, 12 8 (BIA 201 3). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.