dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services ' 
MATTER OF T-S-ITG- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish ( 1) that the proffered position is a specialty occupation; and (2) the validity of the labor 
condition application (LCA) submitted in support of the petition. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de novo review, we will dismiss the appeal.
1 
I. 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 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 20 I 0). A petitioner must show that what it claims is "more likely than not" or "probably'' true. To determine 
whether a petitioner has met its burden under the preponderance standard, we consider not only the quantity, but also the 
quality (including relevance, probative value, and credibility) of the evidence. ld at 376; Matter of E-M-, 20 I&N Dec. 
77, 79-80 (Comm'r 1989). However, as we will discuss further below, the Petitioner has not sufficiently demonstrated 
that its claim is "more likely than not" or "probably" true. 
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Matter of T-S-ITG- LLC 
(B) attainment of a bachelor's or higher degree in the specific specialty {or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(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). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated in the H-IB petition that the Beneficiary will serve as a "programmer analyst." 
The Petitioner, which is located in New Hampshire, explained that the Beneficiary would perform 
his duties in Montana for an end-client, and the record contains documentation regarding the 
project upon which he would work. In its support letter, the Petitioner stated that the 
Beneficiary would spend 55% of his time performing the following duties: 
• Program in C++, C# to manage high volumes of raw data. 
• Development of C# Web & Console applications with a mix of GUI and server-
side development. 
• Apply technical expertise to investigate and resolve software issues. 
• Develop XML web services. 
• Produce maintainable/extensible software components that operate as part of a 
large multi-process system. 
• Translate processes into WYSIWYG user interfaces. 
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Matter ofT-S-ITG- LLC 
• Program in C++, C# to perform data analytics and develop real time display 
dashboards and reports. 
• Ensure the code is scalable and meets performance requirements through 
performance tuning. 
• Maintenance, Enhancing, debugging existing architecture to support vanous 
programming and Web scripting languages. 
o Languages: C, C++, MFC, ATL, COM, Win 32 programing. 
o Web Script Languages: HTML 5.0, JavaScript, PHP, CSS, Ajax, XML 
and Web Frameworks 
• Maintain databases. 
o Database/Languages: Oracle 91, lOg, SQL Server, PLSQL and 
MySQL. 
The Petitioner stated that the Beneficiary would spend 25% of his time performing the following 
duties: 
• Perform functional testing of the system on a full installation that replicates real 
world use. 
• Develop simulation tools for testing and validation. 
• Produce unit tests to verify the behavior and resilience of code. 
• Provide content 
for functional and technical documentation. 
The Petitioner stated that the Beneficiary would spend 20% of his time performing the following 
duties: 
• Liaise with the team to translate their requirements into elegant 
solutions. 
• Designing and documenting all types of applications consistent with established 
specifications. 
• Identify and define technical, operational and data analysis requirements. 
III. ANALYSIS 
A. Specialty Occupation 
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 .. 
Specifically, the record does not establish that the proffered position requires an educational 
background, or its equivalent, commensurate with a specialty occupation? As we will discuss 
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. 
3 
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Matter of T-S-ITG- LLC 
below, we find that two factors both independently preclude a determination that the proffered 
position is a specialty occupation. 
First, as was noted by the Director in her notice of intent to deny (NOlO) the petition and in her 
decision, portions of the end-client's description of project appear to have been 
plagiarized from m"'i!ltiple online sources. In both notices, the Director provided hyperlinks. On 
appeal, the Petitioner contends that "the NOID and the denial decision [were] unlawfully limited" 
because the hyperlinks "do not directly prove the Service's implications of plagiarism." The 
Petitioner also contends that if any portions of the project documents were plagiarized, those 
portions were "clearly not about the actual specialty occupation duties but, rather, about the 
substantive nature of the project that clearly relates to a known social phenomenon." 
Upon review, we find that the Petitioner did not sufficiently address the Director's concerns 
regarding the end-client and plagiarism. Though the Petitioner submitted a letter from the end­
client, that letter was written in September 2016- before the NOID was issued- and it does not 
adequately address the Director's concerns. Nor will we parse the end-client's project documents 
and attempt to ascertain which portions were plagiarized and which were not, as the Petitioner seems 
to suggest on appeal. 
Absent reliable documentation from the end-client regarding the claimed project upon which the 
Beneficiary would work, we cannot determine whether a specialty-occupation exists, let alone find 
that it satisfies 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 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. We therefore agree with the 
Director that the Petitioner did not demonstrate the existence of a specialty occupation positon: 
Second, we note that as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is 
to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. !d. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. Setting our plagiarism concerns as they relate to 
the end-client's project documents aside, we observe that nowhere does the end-client state that a 
bachelor's degree in a specific specialty, or the equivalent, is required to perform the duties proposed 
for the Beneficiary. For this additional reason, the evidence of record does not establish that the 
proffered position is a specialty occupation. 
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Matter ofT-S-ITG- LLC 
Though these factors are dispositive of the specialty-occupation issue, we will nonetheless 
temporarily set them aside and evaluate the evidence of record under the aforementioned criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) in order to provide the Petitioner with a more complete decision. 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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)4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 
corresponding to the Standard Occupational Classification code 15-1131.5 The Handbook states, in 
pertinent part: "Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in computer science 
or a related subject." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook, Computer Programmers (20 16-17 ed. ). 
According to the Handbook, this occupational category accommodates a wide spectrum of 
educational credentials, including ones that require less preparation than a bachelor's degree in a 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.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 we regularly review 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 is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
5 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, and skill 
requirements of the Petitioner's job opportunity. /d. 
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Matter ofT-S-ITG- LLC 
specific specialty, or the equivalent. For example, the Handbook states that some employers hire 
workers who have an associate's degree. Moreover, while the Handbook ·s narrative indicates that 
most computer programmers obtain a degree (either a bachelor's degree or an associate's degree) in 
computer scienceor a related field, the Handbook does not report that at least a bachelor's degree in 
this field, or its equivalent, is normally required. The Handbook, therefore, does not establish that 
the occupational category is one for which normally the minimum requirement for entry is a 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. 
In addition, the Petitioner stated on the LCA that it will pay the Beneficiary a Level I wage, which 
indicates that this is an entry-level position. Given the Handbook's implication that a bachelor's 
degree in a specific specialty, or the equivalent, is not normally required for positions located within 
this occupational category, it seems unlikely that an entry-level position possessing these 
characteristics would have such a requirement. 6 
For all of these reasons, the evidence of record does not support a finding that the particular position 
proffered here, an entry-level position located within the computer programmers occupational 
category, would normally have such a minimum specialty degree requirement, or the equivalent. 
The Petitioner therefore 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 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 perfonned only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
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. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: 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 establish that such firms "routinely 
6 Recent policy guidance supports this interpretation of the Handbook. USC IS Policy Memorandum PM-602-0 142, 
Rescission of the December 22, · 2000 "Guidance memo on HI B computer related positions" (Mar. 31, 20 17), 
https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0 142-H-1 BComputerRelatedPositions 
Recission.pdf. 
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Matter of T-S-ITG-LLC 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 
1989)( considering these "factors" to infolll1 the commonality of a degree requirement). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a 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." 7 
The record contains five job vacancy announcements for our consideration under this prong. To be 
relevant for this consideration, the job vacancy announcements must involve "parallel positions," 
and the announcements must have been placed by organizations that ( 1) conduct business in the 
Petitioner's industry and (2) are also "similar" to the Petitioner. Upon review, we find that none of 
these job vacancy announcements satisfy that threshold. 
We will first consider whether any of the advertised job opportunities could be considered "parallel 
positions." As noted, the Petitioner attested to DOL that the proffered position is a Level I, entry­
level position. However, all five of the advertised positions require experience - some significant. 
For example, one of the advertised positions, requires more than eight years of experience, and 
another requires five. We observe further that one of the advertised position's job title indicates that 
it is not an entry-level position; it is titled "Systems Analyst If' (emphasis added). Finally we 
observe that one of the advertised position's offered salary (the only vacancy announcement to state 
a salary) is $170,000 - a figure substantially higher than the Petitioner's $60,000 proffer to the 
Beneficiary. Finally, we observe that several of the vacancy announcements contain descriptive 
phrases that are not consistent with the Petitioner's Level I designation ("ability to mentor junior 
developers," "will be leading some technical team members," "ability to . . . solve problems 
independently," "provide leadership," "managing global projects and diverse teams," "working 
independently," "outstanding leadership skills," "perform daily supervision," etc.). Considered 
collectively, these factors indicate that the advertised positions are not entry-level positions, and 
therefore, they are not "parallel positions" to the one proffered here. 
Nor did the Petitioner submit evidence sufficient to establish that any of these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and 
(2) are also "similar" to the Petitioner. 
For all of these reasons, the Petitioner has not established that any of these job vacancy 
announcements are relevant. Even if that threshold had been met, we would find that they did not 
7 Though acknowledged, the articles submitted by the Petitioner on appeal do not satisfy this criterion. These articles do 
not discuss or otherwise establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required. 
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Matter ofT-S-ITG- LLC 
satisfy this prong of the second criterion, as they do not all indicate that a bachelor's degree in a 
specific specialty, or the equivalent, is common to the industry in parallel positions among similar 
organizations.8 To the contrary, one company indicated that a bachelor's degree in any field of study 
would suffice. Again, we interpret the term "degree" to mean not just any baccalaureate or higher 
degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp., 484 F.3d at 147; Defensor, 201 F.3d 384 at 387. A bachelor's degree in business 
administration is not a degree in a specific specialty. Royal Siam Corp., 484 F .3d at 14 7. 
Consequently, the Petitioner has not satisfied the first alternative prong of 8 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 . . 
equivalent. 
We find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an 
aspect of the proffered position. In other words, the Petitioner has not demonstrated how the duties 
of the proffered position as described in the record require the theoretical and practical application of 
a body of highly specialized knowledge such that a bachelor's or higher degree in a specific 
specialty, or its equivalent, is required to perform them. For example, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and establish how 
such a curriculum would be necessary to perform the duties it believes are so complex and unique. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, we find that 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. 
8 In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could be drawn from the job 
postings with regard to the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Moreover, given that there is no 
indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately 
determined even ifthe sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom selection is the 
key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, 
which provides the basis for estimates of population parameters and estimates of error"). 
As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, it could not be found that such a limited number ofpostings that appear to 
have been consciously selected could credibly refute the findings of the Handbook published by the Bureau of Labor 
Statistics that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its 
equivalent, for entry into the. occupation in the United States. 
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Matter ofT-S-ITG- LLC 
Moreover, the Petitioner designated the proffered position as an entry-level position within the 
occupational category (by selecting a Level I wage). This designation, when read in combination 
with the Petitioner's job description and the Handbook's account of the requirements for this 
occupation, further suggests that this particular position is not so complex or unique relative to other 
computer programmers that the duties can only be performed by an individual with a bachelor's 
degree or higher in a specific specialty, or its equivalent. The Petitioner's implications that the 
knowledge and associated entry requirements associated with the proffered position exceed those of 
other positions located within the occupational category are acknowledged. However, the 
Petitioner's Level I wage designation undercuts any claim that it satisfies this criterion.9 In other 
words, if typical positions located within the occupational category do not require a bachelor's 
degree in a specific specialty, or the equivalent, then it is unclear how a position with the Level 1 
characteristics described above would, regardless of these assertions. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty oc;cupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its e_quivalent. We find that Petitioner did not sufficiently develop 
relative complexity or uniqueness as an aspect of the duties of the position, and that it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not 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 
record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing the 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 created a token degree 
requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
9 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, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, 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 relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act 
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Matter of T-S-ITG- LLC 
The record contains information regarding the individuals the Petitioner claims occupy the same 
position proposed for the Beneficiary. However, this information does not satisfy the third criterion. 
There is no indication that these individuals possess a bachelor's degree in a specific specialty, or the 
equivalent. The record does not contain evaluations of their foreign credentials equating them to 
U.S. bachelor's degrees. Further, there is no evidence establishing the position titles they held or the 
duties they performed during their employment with the Petitioner. Nor is it apparent that these 
individuals hold the type of Level I position proffered here. 
Nor do the Petitioner's advertisements posted to its website satisfy this ·criterion, as it is not apparent 
that they advertise the type of Level I, entry-level position proffered here. To the contrary, the 
"programmer analyst" position requires "5-1 0 years of work experience" and appears to be a more 
senior positon than the one offere~ to the Beneficiary. In fact, every single position advertised by 
the Petitioner requires, at minimum, five years of work experience. In addition, we observe that the 
advertised programmer analyst position requires a degree in engineering or "the sciences." "The 
sciences" encompass a wide variety of fields that are not directly related to the proffered positon's 
duties. Thus, a requirement for such a degree does not appear to constitute a requirement for a 
bachelor's degree in a specific specialty, or the equivalent. 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered 
position. Consequently, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's designation of 
the proffered position in the LCA as a Level I position (of the lowest of four assignable wage-levels) 
relative to others within the same occupational category. The Petitioner has not demonstrated in the 
record that its proffered position is one with specialized and complex duties 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. 
5. Prior H-IB Approvals 
The Petitioner claims that it has received approvals of H-lB filed for similar positions on behalf of 
other beneficiaries. The Director's decision does not indicate whether the prior approvals of the 
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Matter ofT-S-ITG- LLC 
other nonimmigrant petitions were reviewed. However, if the previous nonimmigrant petitions were 
approved based on records of proceedings similar to this one, they were granted in error. We are not 
required to approve petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 
597 (Comm'r 1988). It would be "absurd to suggest that [U.S. Citizenship and Immigration Services 
(USCIS)] or any agency must treat acknowledged errors as binding precedent." Sussex Eng 'g. Ltd. 
v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval 
also does not preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow 
the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). 
These prior H-1B approvals, therefore, do not establish the proffered position as a specialty 
occupation. 
B. LCA 
We also find that the Petitioner did not demonstrate that it submitted a valid LCA that corresponds to 
the petition. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, 
in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1B petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that 
II 
Matter ofT-S-ITG- LLC 
specialty occupation work exists for the Beneficiary in the position and work location identified on 
the LCA. Therefore, the Petitioner has not submitted a valid LCA that corresponds to the petition. 
C. Employer-Employee Relationship 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that the matter should be addressed in any future proceedings. 
Specifically, the record does not currently demonstrate that 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 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 ofthe 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)). 
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. 
The current record of proceedings does not support the Petitioner's claims of control over the 
Beneficiary's work. The Petitioner, which is located in New Hampshire, proposes to send the 
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Matter ofT-S-ITG- LLC 
Beneficiary to work for the end-client in Montana, and does not indicate that it would send a 
supervisor to oversee and control the Beneficiary's ofisite work. The Petitioner stated in its 
December 2016 letter that "there is no fixed schedule for communication [with the Beneficiary]" and 
that the Beneficiary "is responsible to provide [the Petitioner] a timesheet." The Petitioner's 
signatory stated that "I am able to contact [the Beneficiary] at any time to verify the performance of 
work and [the Beneficiary] can contact me with any questions." In other words, there is no fixed 
schedule for communication between the Petitioner and the Beneficiary. While we acknowledge the 
Petitioner's availability to answer questions, mere "availability" does not necessarily equate to 
directing and controlling the Beneficiary's activities as they unfold on a day-to-day basis in 
Montana. We also note the Petitioner's submission of a sample performance review, but it contains 
no specific details pertinent to the Beneficiary's assignment with the end-client, and further indicates 
that performance appraisals are conducted "every 6 months," thereby suggesting that daily, onsite 
supervision is not exercised at the client location by the Petitioner or its employees. 
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. 
IV. CONCLUSION 
The Petitioner has not established its eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S-ITG- LLC, ID# 457563 (AAO Aug. 14, 2017) 
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