dismissed H-1B Case: Information Technology

MATTER OF S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
I ' 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as a 
"computer systems analyst" under the H-1B 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-1B program allows a U.S. ~mployer 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not established (1) that the proffered position qualifies as a specialty occupation; and 
(2) that it would exercise a valid employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence presented satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. 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: 
(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. 
Matter of S- Inc 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)( 4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. The Proffered Position 
The Petitioner stated in the H -1 B petition that the Beneficiary would serve as a "computer systems 
analyst." In a letter submitted with the petition, the Petitioner provided the following job duties for 
the position (note: errors in the original text have not been changed): 
• Responsible for end-to-end project management commencing from Project kick-off 
up to final deployment. % of Time 15 
• Analysis and design for a web-based adaptable workflow system for use across the 
business to streamline endorsement procedure for administrative processes. 
%of Time: 20 
• Define templates for , product pages and customize reports using Hyperion 
Interactive Reporting tools. Define dashboards to track performance at user and 
trader levels. % of Time 20 
• Created theTraceability Matrix (RTM), System Requirements Specification (SRS), 
Functional Specification, Technical Specification, High Level design (HLC) and 
test plans (including UAT). % of Time 20 
2 
(b)(6)
Matter of S- Inc 
• Process Discovery by interacting with Users/Clients, Product owners to understand 
use cases, high level business requirements, process flows. % of Time 15 
• Consulting on developing a sales force, a customer service department and a wide 
variety of other business related issues. % of Time 10 
That letter stated that the minimum educational requirement for the proffered position is a Bachelor 
of Science in any discipline in engineering, or computer science or information systems or a related 
analytic or scientific discipline or its equivalent in education or work-related experience. 
According to the Petitioner, the Beneficiary would perform his duties offsite for 
("end-client") in New Jersey. 
The labor condition application (LCA) was 
certified for employment at both the end-client's New Jersey address as well as the Petitioner's 
Illinois location. The Petitioner also named both addresses in a portion of one of its letters entitled 
"Location/Itinerary of Services." 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 2 
The record contains a document headed "Supplier Agreement," which sets out the general terms 
pursuant to which the end-client might utilize workers provided by the Petitioner, as well as a 
document headed "Work Agreement" which indicates the parties have agreed that the Petitioner 
would provide the Beneficiary to work for the end-client. However, neither document 
describes the 
work the Beneficiary would perform. Nor does the additional "Work Agreement" provided on 
appeal describe ths: work the Beneficiary would perform. Although a letter from the end-client 
contains a description of the duties the Beneficiary has performed for it in the past, the end-client did 
not necessarily represent them as the ones he would perform in the future. These documents, 
therefore, provide little insight into whether the proffered position is a specialty occupation. 
In addition, both "Work Agreement" documents were ratified after the H-IB petition was filed. A 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F .R. § 103 .2(b )(I). A visa petition 
may not be approved at a future date after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
1 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 8 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. 
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Matter of S- Inc 
Consequently; the "Work Agreement" documents do not show that, when the Petitioner filed the 
instant H-lB petition, it had procured specialty occupation work to which it could assign the 
Beneficiary. As such, the Petitioner has not established the substantive nature of the ~ork, if any, 
that the Beneficiary would perform if the H-lB petition were approved. 
Further, as indicated, the documents executed by the Petitioner and the end-client do not describe the 
work the Beneficiary would perform if assigned to work at the end-client's location. As such, even 
if those documents predated the petition's filing date, they would still not constitute persuasive 
evidence of the work the Beneficiary would perform if assigned to work at the end-client's location. 
As such, the substantive nature of the work the Beneficiary would perform if the petition were 
approved has not been established. For both reasons, the documents ratified by the Petitioner and 
end-client are not persuasive evidence for the proposition that the proffered position qualifies as a 
specialty occupation position. 
Although the Petitioner has asserted that the end-client has in-house projects to· which the 
Beneficiary would contribute, it provided insufficient evidence to support its claim. For instance, 
the record does not identify, let alone describe, the project or any other projects that could be under 
development. Nor does the record contain sufficient indication that the end-client has previously 
developed and marketed its own proprietary software or developed, on its own premises, computer 
applications commissioned by other companies. The evidence is insufficient to show that the end­
client has facilities at its own address for such work. Therefore, the Petitioner has not demonstrated 
that the end-client has developed, is developing, or will develop software at its own location. The 
Petitioner asserted that the Beneficiary would work at the end-client's location on in-house project or 
projects, but it has not shown that such projects exist. For this additional reason, the Petitioner has 
not established the substantive nature of the duties the Beneficiary would actually perform if this 
H-lB petition were approved. 
Moreover, the employment agreement states that "[the Beneficiary] shall use [his] best energies and 
abilities on a full time basis to perform, at location [sic] designated by [the Petitioner] and including 
customer offices, the employment duties assigned to you from time to time." Thus, the Petitioner 
and the Beneficiary have agreed that the Beneficiary will do whatever duties are assigned to him, 
without regard to whether they conform to the duties the Petitioner and the end-client have described 
in submissions to USCIS. This is an additional reason to find that the Petitioner has not established 
the substantive nature of the duties the Beneficiary would perform if the H-lB petition were 
approved. 
That the Petitioner has not established the substantive
1 
nature of the duties the Beneficiary would 
perform precludes a finding that the proffered position is a specialty occupation under any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) 
the normal minimum educational requirement for the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
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Matter of S- Inc 
prong of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an i~sue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. The H-lB petition must be 
denied on this basis alone. 
Nevertheless, we will continue our analysis of whether the proffered position qualifies as a specialty 
occupation for the purpose of performing a comprehensive analysis. We will next discuss the record 
of proceedings in/relation to the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.4 The Handbook states the 
following about the educational requirements of computer systems analyst positions: 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
3 All of our references a;e to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.b1s.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
' information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ !flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009 .pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, anq skill 
requirements of the Petitioner's j~b opportunity. /d. 
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Matter of S- Inc 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www. bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited Sept. 26, 20 16). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
in this occupation, including general-purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, 
it does not report that such a degree is normally a minimum requirement for entry. 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees, but does not specify a requisite degree level (e.g., associate's degree, baccalaureate) for 
these technical degrees. Moreover, it specifically states that such a degree is not always a 
requirement. Thus, the Handbook does not support the claim that the occupational category of 
computer systems analyst is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
Further, we find that, to the extent that they are described in the record of proceedings, the numerous 
duties that the Petitioner ascribes to the proffered position indicate a need for a range of technical 
knowledge in the computer/IT field, but do not establish any particular level of formal, 
postsecondary education leading to a bachelor's or higher degree in a specific specialty as minimally 
necessary to attain such knowledge. 
For the reasons explained above, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positiops 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
Matter of S- Inc 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
( 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry'.s professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." Nor does the record contain any other evidence for our consideration under 
this criterion. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
~w~. I 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that its duties can only be performed by a person possessing at least a 
bachelor's degree in a specific specialty, or its equivalent. Even when considering the Petitioner's 
general descriptions of the proffered position's duties, the evidence of record does not establish why 
Matter of S- Inc 
a few related courses or industry experience alone would provide insufficient preparation for the 
proffered position. 
For example, while a few related courses may be beneficial, or even required, in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of such 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. The description of the duties does not 
specifically identify any tasks that are' so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
As noted above, the Petitioner attested on the submitted LCA that the wage level for the proffered 
position is a Level I (entry-level) wage. Such a wage level is for a position which only requires a 
basic understanding of the occupation; the performance of routine tasks that require limited, if any, 
exercise of judgment; close supervision and work closely monitored and reviewed for accuracy; and 
the receipt of specific instructions on required tasks and expected results. 5 It is, instead, appropriate 
for a position in which the employee would have only a basic understanding of the occupation. In 
order to attempt to show that parallel positions require a winimum of a bachelor's degree in a 
specific specialty or its equivalent, the Petitioner would be obliged to demonstrate that other wage 
Level I computer systems analyst positions, entry-level positions requiring only a basic 
understanding of computer systems analysis, require a minimum of a bachelor's degree in a specific 
specialty or its equivalent, the proposition of which is not supported by the Handbook. 
For all of these reasons, the evidence of record does not establish that this position is significantly 
different from other positions in the occupation such that it refutes the Handbook's information to 
the effect that there is a spectrum of degrees acceptable for such positions, including degrees not in a 
specific specialty. In other words, the record lacks sufficiently detailed information to distinguish 
the proffered position as unique from or more complex than positions that can be performed by 
persons without at least a bachelor's degree in a specific specialty, or its equivalent. 
As the Petitioner did not demonstrate how the proffered position is so complex or unique relative to 
other positions within the same occupational category that do not require at least a baccalaureate 
•s The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certajn occupations (doctors or lawyers, for example), an entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination ofwhether a proffered position meets the requirements of section 214(i)(l) ofthe Act. 
8 
Matter of S- Inc 
degree in a specific specialty or its equivalent for entry into the occupation in the United States, it 
cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The Petitioner provided vacancy announcements it placed for systems analysts, software engineers, 
and system ad,ministrator/database administrator positions. Each of those vacancy announcements 
states, "All the positions require US equivalent master or bachelor degree with/without experience. 
In lieu of Master degree, we will accept Bachelor degree with five years' experience." The vacancy 
announcements therefore do not appear to relate to the proffered position which, by virtue of the 
LCA's wage-level designation, is an entry-level position. 
The Petitioner stated in the H-lB petition that is a 49-employee information technology firm 
established in 2003. It did not indicate how many computer systems analysts it employs or has 
employed in the past, and it did not provide any information regarding the educational qualifications 
of any such individuals. 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, that opinion alone without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to 
perform any occupation as long as the petitioner artificially created a token degree requirement, 
whereby all ipdividuals employed in a particular position possessed a baccalaureate or higher degree 
in the specific specialty or its equivalent. See Defensor v. Meissner, 201 F.3d at 388. In other 
words, if a petitioner's stated degree requirement is only designed to artificially meet the standards 
for an H-lB visa and/or to underemploy an individual in a position for which he or she is 
overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition 
of a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the 
term "specialty occupation"). 
The Petitioner has submitted insufficient evidence to show that it normally requires a minimum of a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, and has not, 
therefore, satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
9 
Matter of S- Inc 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The duties of the proffered position, such as project management and analysis and design of a web­
based adaptable workflow system, do not appear any more specialized and complex than those of 
lower-level systems analyst positions that do not require a bachelor's degree in a specific specialty 
or its equivalent. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, 
and the designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category.6 This is yet further reason to 
find that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
Finally, we note that the period of requested employment extends from October 1, 2015 to August 
31, 2018. As noted, the Petitioner provided two "Work Agreements" it executed with the end-client 
in support its claim of having work for the Beneficiary to perform throughout that period. The first 
of those agreements states that the Beneficiary would work for the end-client from January 3, 2016, 
to June 30, 2017. Although it indicated that the agreement might be extended, it also indicated that 
this would only occur in the event that "the original estimates for project completion require 
adjustment." On appeal, the Petitioner provided another such agreement for the period from May 2, 
2016, to December 31, 2016. The record contains insufficient evidence of any subsequent 
extensions of either of those agreements. 7 The record also contains no other such agreements. 
The evidence of record is insufficient to show that, when the H-1B petition was filed, the end-client 
had work that it had agreed the Beneficiary would perform throughout the period of requested 
employment. This is an additional reason that the Petitioner has not demonstrated that the work the 
Beneficiary would perform, if any, would constitute specialty occupation employment throughout 
the qualifying period. 8 
6 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the 
~osition is particuJarly complex, specialized, or unique compared to other positions within the same occupation. 
In fact, the second agreement indicates that the period of time during which the end-client would utilize the 
Beneficiary's services was reduced. 
8 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
10 
( 
Matter of S- Inc 
II. EMPLOYER-EMPLOYEE 
I 
We will briefly address the issue of whether or not the Petitioner qualifies as an H -1 B employer. 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 
730 (1989)). The Supreme Court stated: 
"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 l.ong 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." 
!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 formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
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 rrom 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) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part ofthis 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. § 2 i 4.2(h)(2)(i)(E). 
I I 
Matter of S- Inc 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal ,and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. . 
As we have found, the evidence of record is insufficient to demonstrate the substantive nature of the 
work the Beneficiary would perform if the H -1 B petition were approved. It is consequently also 
insufficient to demonstrate that the work he would perform in the event of H -1 B approval would be 
assigned and supervised by the Petitioner. For this reason alone, the Petitioner has not demonstrated 
that, if the H-1B petition were ,approved, the Petitioner would exercise an employer-employee 
relationship with the Beneficiary. 
Further, the Petitioner has also not indicated whether it would assign the Beneficiary's tasks and 
supervise his performance of them if the Beneficiary were assigned to the end-client's New Jersey 
location as claimed. Given the Petitioner's statements regarding the nature of the job made as part of 
the LCA certification process - including the attestations that the Beneficiary would be closely 
supervised and his work closely monitored and reviewed for accuracy, and that he would receive 
specific instructions on required tasks and expected results - and its claims that the end-client would 
not provide such supervision, it is unclear how the Petitioner could conduct this level of supervision 
via weekly phone calls alone. With the Beneficiary working in a remote location, on another 
company's projects, which the Petitioner does not appear to be developing, it is unclear how the 
Petitioner would assign the Beneficiary's work and critique his performance as it claims. Instead, it 
appears as though Beneficiary's supervisor at the end-client would be directly involved in the 
development of the project, as he or she would otherwise be unable to assess the suitability of the 
Beneficiary's contributions to that larger project. Assigning tasks and supervising performance are 
central to an employer-employee relationship. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim,. does not 
establish eligibility in this matter. "[G]oing on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings." Matter of Sojjici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft o_(Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
The evidence of record prior to adjudication did not establish that the Petitioner would act as the 
Beneficiary's employer in that it would control the work ofthe Beneficiary. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
12 
Matter of S- Inc 
III. ADDITIONAL BASIS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation or that it 
will engage the Beneficiary in an employer-employee relationship, we need not fully address other 
issues evident in the record. That said, we wish to identify an additional issue to inform the 
Petitioner that this matter should be addressed in any future proceedings. 9 
Specifically, the record does not currently demonstrate that the Beneficiary's combined education 
and work experience is the equivalent of a U.S. bachelor's degree in a specific specialty. While the 
claimed equivalency is based in part on experience, the record does not establish (1) that the 
evaluator has authority to grant college-level credit for training and/or experience in the specialty at 
an accredited college or university with a program for granting such credit, or (2) that the 
Beneficiary's expertise ill the specialty is recognized through progressively responsible positions 
directly related to the specialty. See 8 C.F.R. §§ 214.2(h)( 4)(iii)(C)( 4) and (D)(l). 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS- Inc, ID# 123120 (AAO Sept. 27, 2016) 
9 In reviewing a matter de novo, we may identity additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
13