dismissed H-1B Case: Information Technology

(b)(6)
JUL 0 1 2015 
DATE: 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section l0l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act,8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will be 
dismissed. 
I. PROCEDURAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
information technology services firm established in In order to employ the beneficiary in 
what it designates as a technical architect, the petitioner seeks to classify him 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 on October 28, 2014, concluding that the evidence of record does 
not demonstrate that (1) the petitioner qualifies as a U.S. employer having an employer-employee 
relationship with the beneficiary; (2) the proffered position qualifies as a specialty occupation; and 
(3) the Labor Condition Application (LCA) is not valid for all work locations. On appeal, the 
petitioner asserts that the director's bases for denial of the petition were erroneous and contends that 
it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's 
notice of decision; and (5) the Form I-290B and supporting documentation for an appeal and 
supporting documentation. We reviewed the record in its entirety before issuing our decision.
1 
For the reasons that will be discussed below, we agree with the director's decision that the petitioner 
has not established eligibility for the benefit sought? Accordingly, the director's decision will not 
be disturbed. The appeal will be dismissed. 
II. THE PROFFERED POSITION 
In the I-129 petitiOn, the petitioner indicated that it is seeking the beneficiary's services as a 
technical architect on a full-time basis at the rate of pay of $79,000 per year. In addition, the 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
2 
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 our purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). 
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. 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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petitioner stated that the beneficiary will work at its location at " 
MI" and end client's location at " MI." 
In the March 18, 2014 letter of support, the petitioner stated that the beneficiary will "design, 
develop, and test operating systems-level software, compliers, and network distribution software for 
various computing applications." The petitioner also provided the duties of the proffered position 
as follows: 
• Analyze the system requirements for development of the windows form 
application using Microsoft technologies (C#, EDMX and WCF). 
• Create and maintain project related documentation (Business Requirements 
Document, Functional Requirements Document, Technical Design Document, 
etc.)[.] 
• Update Traceability Matrix to ensure traceability of the requirements (Business 
and Functional) in the design. 
• Established development guidelines and coding standards. 
• Work closely with the Development Team to gather Test plan information and 
trace them to the requirements as part of the Traceability Matrix. 
• Mentored other team members in technical and design problems and ensure team 
follow the set standard. 
• Oversee and selectively participate in code review process. 
• Work closely with the QA Team to ensure traceability between Test Cases and 
Requirements. 
• Support the QA team with QA, Regression Testing and work closely with 
Business teams in UAT phase. 
• Work hand in hand with the Project Manager with documentation, status decks, 
project plan, etc.[,] and assisting the Project Manager in estimation and planning. 
• Post Implementation Support. 
• Coordinating with offsite/onshore counterpart. 
The petitioner stated that "a qualified applicant for the position must possess a Bachelor's Degree in 
Computer Applications or related or equivalent." 
The petitioner submitted an LCA in support of the instant H-lB petition. The petitioner indicated 
that the occupational classification for the proffered position is "Software Developers, Systems 
Software" -SOC (ONET/OES Code) 15-1133. The beneficiary's places of employment are listed 
as MI and 
MI 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We 
will consider whether the petitioner has established that it meets the regulatory definition of a 
United States employer as that term is defined at 8 C.P.R. § 214.2(h)(4)(ii). In this context, the 
petitioner must establish that it will have "an employer-employee relationship with respect to 
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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." !d. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined 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. 
8 C.F.R. § 214.2(h)(4)(ii) (emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
We reviewed the record of proceeding in its entirety and finds that it is not persuasive m 
establishing that the petitioner will have an employer-employee relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(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 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). 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.F.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-lB beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
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Page 5 
the work of any such employee." 8 C.F.R. § 214.2(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 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
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. 
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 classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
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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.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB 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 318-319.4 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R.§ 214.2(h).5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
"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 legislativeintent 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), ajfd, 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 law definitions. Instead, in the context 
of the H-1B 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). 
4 
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)). 
5 
That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 
C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that 
a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; 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)(l) 
(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" ofH-1B nurses under 8 C.F.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). 
When examining the factors relevant to determining control, USCIS must assess and weigh each actual 
factor itself as it exists or will exist and not the claimed employer's right to influence or change that 
factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 323-324. For 
example, while the assignment of additional projects is dependent on who has the right to assign them, 
it is the actual source of the instrumentalities and tools that must be examined, 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.'" Id. 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-lB temporary "employee." 
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B. Discussion 
1. Independent Contractor Agreement ("ICA") 
The petitioner submitted a document entitled, " . 
- Independent Contractor 
Agreement" between and the petitioner. The effective date of the agreement 
was May 10, 2012. Section 8 states that this agreement will "commence on the Effective Date and 
automatically expire upon the date of Contractor's satisfactory completion of all Services under all 
current and future Work Orders issues pursuant to this agreement." 
The ICA under Section 1 defines "Services" as "from time to time, the Company and Contractor 
will enter into Project Work Orders ("Work Orders"), the terms of which are hereby deemed 
incorporated into this Agreement, that set forth the professional services ("Services") to be provided 
by Contractor to the Company and other related information, including the deliverables, time-table 
and payments ("Deliverables")." The petitioner also submitted a "Work Order No. ," which 
expired on July 13, 2012. 
In response to the RFE, the petitioner provided two new Work Orders between the petitioner and 
. that expired in 2014. The petitioner submitted previous project work orders as 
evidence of the relationship between the petitioner and ., but did not provide any 
current work orders for the beneficiary. Moreover, the record of proceeding does not contain work 
orders valid for the requested period of employment for the beneficiary. users regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 103.2(b )(1). ·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. Cornm'r 1978). 6 
6 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: 
Historically, 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-1B 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 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-lB 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 
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Further, in response to the RFE, the petitioner stated that the relationship with 
is "longstanding" and also stated that "with this longstanding and often informal relationship 
between the entities, some contractual arrangements are unwritten, oral in nature and enforceable 
thereby." On appeal, the petitioner provided another work order valid until February 20, 2015. The 
petitioner asserts the "nature of this project is ongoing and the petitioner cannot provide 
documentation beyond what has been included herein; however, this fact does not negate the point 
that the project will continue for the full duration of the beneficiary's requested H-1B time period." 
Nevertheless, we note that 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. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). Here, the petitioner did not submit sufficient evidence to establish that it has 
a project for the beneficiary valid for the requested employment period. 
2. Other In-house Projects for the Petitioner 
The petitiOner stated in its response to the RFE that the "beneficiary's services as Technical 
Architect for [the petitioner] will be needed for the entirety of the requested validity period" on 
several in-house projects. The petitioner provided a list of "active clients" and provided a 
"sampling of those contracts." However, the petitioner did not submit any contracts or work orders 
that list the beneficiary, and thus, the petitioner has not established that the beneficiary will work on 
any of these projects. 
The evidence of record does not establish how a continuously employed, full-time technical 
architect would be utilized by the petitioner. Upon review of this information, we find that the 
record of proceeding lacks documentation regarding the actual work that the beneficiary will 
perform to sufficiently substantiate the claim that the petitioner has H-1B caliber work for the 
beneficiary for the period of employment requested in the petition. 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. 165 (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190). 
3. Location of employment and supervision 
In the letter of support dated March 18, 2014, the petitioner stated that the beneficiary's primary 
location will be at its location at Michigan. In 
addition, the beneficiary may also work at Michigan on an "as 
needed basis." The petitioner also indicated that the beneficiary will report to . a 
project manager, "through weekly calls." The petitioner stated that "[d]uring these calls, the 
beneficiary will provide Mr. with updates on the status of the project, and in turn, Mr. 
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). 
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Page 10 
will provide direction and feedback on the beneficiary's work progress." Based on these 
statements, it appears that Mr. is not located on the petitioner's premises. 
However, the employment offer letter dated March 13, 2014, stated that the beneficiary will be 
"based out of our Michigan office." It further stated that the beneficiary will be supervised 
by but identified Mr. as a Vice President of Operations. 
The petitioner also submitted an organizational chart that lists the beneficiary as an offshore-senior 
technical lead. It appears that the organizational chart represents the beneficiary's foreign 
employment and not the proffered position. Moreover, the organization chart does not list 
who is responsible for supervising the beneficiary. 
These inconsistencies raise questions about whether the beneficiary will be located and who will 
supervise the beneficiary. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies 
will not suffice unless the petitioner submits competent objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
4. Conclusion 
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 
beneficiary is the petitioner's employee and that the petitioner exercises control over the beneficiary, 
without sufficient, corroborating evidence to support the claim, does not establish 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 
165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
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). Moreover, the record of proceeding does not establish 
eligibility at the time of filing and offer of non-speculative employment for the beneficiary. 
IV. SPECIALTY OCCUPATION 
Further, we find that the petitioner did not establish that the proffered position qualifies as a 
specialty occupation in accordance with the applicable statutory and regulatory provisions. For an 
H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, 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: 
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NON-PRECEDENT DECISION 
(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 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. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.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. 281, 291 (1988) (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. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). 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 
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F.3d 384, 387 (5th eir. 2000). 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)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), USeiS consistently interprets 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 proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 147 (1st eir. 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, 
USeiS 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, USeiS 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. 
In ascertaining the intent of a petitioner, USeiS must look to the Form I -129 and the documents 
filed in support of the petition. It is only in this manner that the agency can determine the exact 
position offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 e.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
As recognized by the court in Defensor, supra, where the work is to be performed for entities other 
than the petitioner, evidence of the end client's job requirements is critical. See Defensor v. 
Meissner, 201 F.3d at 387-388. That is, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. Jd at 387-388. 
The court held that the former INS had reasonably interpreted the statute and regulations as 
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requmng the pet1t10ner 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. 
Here, the record of proceeding in this case does not provide sufficient information from the end­
client, , regarding the job duties, the statement of work for the project, and the 
duration of the project. Further, the petitioner did not provide sufficient information regarding the 
role of the beneficiary on in-house projects. The petitioner did not establish the substantive nature 
of the work to be performed by the beneficiary, which precludes a finding that the proffered 
position satisfies any criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature 
of that work that determines (1) the normal minimum educational requirement for the 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. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
V. VALID LCA FOR ALL WORK LOCATIONS 
The director noted in his decision the "evidence in the record does not 
indicate existence of work 
for the beneficiary at the location shown on the certified LCA." We will reiterate that the petitioner 
did not provide sufficient documentation regarding the work that will be performed by the 
beneficiary. 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 
165 (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190). 
VI. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.