dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT development company, seeks to extend the Beneficiary's temporary 
employment as a under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(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, California Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner claims that the proffered position 
is a specialty occupation. 
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 P-A-, Inc. 
The regulation at 8 C.P.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.P.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 m1mmum 
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.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 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. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.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. 
2 
(b)(6)
Matter of P-A-, Inc. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals 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-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations , are factors to be considered. users must examine the 
ultimate employment of the individual, 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 or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor , 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. See Defensor v. Meissner, 201 F.3d at 387-88. 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. 
B. The Proffered Position 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that it is a 13-
employee "IT development" company located in Virginia. The Petitioner is seeking to 
extend the Beneficiary's employment as a from March 4, 2015, to March 1, 
2018. The Petitioner also indicated on the Form I-129 that the Beneficiary will work off-site in 
Minnesota. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
3 
(b)(6)
Matter of P-A-, Inc. 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level I (entry) position. The LCA lists two places 
of employment for the Beneficiary: the Petitioner's premises in Virginia, and the off-site address in 
Minnesota. 
In a support letter dated February 27, 2015, the Petitioner explained that it "has a contractual 
relationship through [mid-vendor] to place the Beneficiary to work at [end-client] site as a 
The Petitioner then provided the following list of duties for the Beneficiary 
to perform at the end-client worksite (verbatim): 
• Define, Design and Code various FIN modules to receive and send 
data from the Legacy systems; 
• Define and Design various Technical specification documents to implement 
FIN and SCM modules; 
• Design various Reports using Crystal Reports and Query Manager; 
• Work with the Project Manager to design Functional/Technical Design 
Documents for custom SQR and Application Engine Interface program; 
• Work with Technical Team to write custom Integration Broker messages and 
monitor them. 
• Work on to customize and enhance pages, records and components 
based on the requirements. 
• Writing Scripts to transfer 
data between environments. 
• Interacting with End Users and documenting the requirements and developing the 
project accordingly. 
• Designing/fine tuning complex SQL queries using Oracle Database and SQL 
editor; 
• Provide Post go live production support to the team to deal with any 
issues after they go-live. 
• Submit weekly reports regarding the work that has been completed for that week 
as well as work that will be completed in the coming week. 
The Petitioner further stated that "[u]pon the conclusion of the aforementioned project, [the 
Petitioner] intend[ s] to have the beneficiary return to [its] offices to work on [its] 
development project." The Petitioner 
explained that it has "only recently begun this undertaking and 
[has] leased new office space for the staff that [it is] currently hiring for this project. The product 
development is truly at the infancy stage so a final product or an advanced version has not been 
created at this point." The Petitioner provided the following job duties for the Beneficiary specific 
to the Petitioner's internal 1 project (verbatim): 
1 The Petitioner refers to its in-house project as the and · project. For the sake of consistency, 
we will refer to it as the project. 
4 
(b)(6)
Matter ofF-A-, Inc. 
• Conduct requirement gathering and Fit-Gap analysis for implementing 
General Ledger, Accounts Payables and Purchasing modules. 
• Conduct interviews with the Business owners, Management and Stakeholders to 
review and understand the Client's processes of their legacy systems for 
the Accounts Payable, Purchasing and General Ledger modules. 
• Design various inbound and outbound interfaces that would transmit data to and 
from various legacy subsystems to the new system. 
• Integrate Asset Management with Accounts Payable and Inventory 
module. 
• Develop and implell!ent Approval Work-Flow rule sets for designing the approval 
hierarchy for Accounts Payable and Purchasing modules. 
• Create functional specification documents for the various financials 
modules providing step by step information about vanous set-up and 
configuration processes. 
• Host weekly status meetings for the Accounts Payable and General Ledger project 
plan to track the status of the project and identify any road blocks. 
• Perform Vendor Clean up using MS Access database by designing queries for 
various vendor scenarios to eliminate duplicate entries of vendors with different 
address and Tax Identification Numbers (TIN) 
• Define Test strategy and Test Plan for various testing phases including Unit test, 
System Test, Integration test and User Acceptance Testing. 
• Provide Production support post go-live for Accounts Payable and Purchasing 
modules by handling day to day issues by logging them into database 
tool and resolve them. 
• Provide Standard Industry practice recommendations around implementation of 
PS Financials modules including General Ledger and Accounts Payable. 
• Provide guidance and recommendations to the client to design their 
security controls for General Ledger, Accounts Payable and Purchasing modules 
by reviewing their existing controls for Sarbanes Oxley (SoX) compliance. 
The Petitioner submitted an itinerary with the visa petition and another in response to the Director's 
request for evidence. Each itinerary discusses the Beneficiary's assignments to the end-client site in 
Minnesota as well as to the Petitioner's internal project. The itineraries 
list the same job duties for the Beneficiary as previously listed in the Petitioner's support letter. 
With respect to the end date of the project, the first itinerary states "TBD [to be determined]." The 
second itinerary also identifies the dates of the Beneficiary's assignment to the end-client as "TBD," 
but also indicates under "Dates of Service," "[u]pon approval of this petition with extensions 
anticipated through March 2018." 
C. Analysis 
Upon review of the record, we find that the evidence of record is insufficient to establish that the 
proffered position qualifies as a specialty occupation. 
5 
(b)(6)
Matter of P-A-, Inc. 
The Petitioner has submitted varying and inconsistent statements and evidence regarding where the 
Beneficiary will work and what he will be doing. The Petitioner initially indicated on the Form 
I-129 and LCA that the Beneficiary will be working at two locations: the end-client's premises in 
Minnesota, and the Petitioner's office in Virginia. The Petitioner specifically explained in its 
support letter that "[u]pon the conclusion of the [end-client] project, [the Petitioner] intend[s] to have 
the beneficiary return to [its] offices to work on [its internal] eFinancial development project." 
However, subsequently submitted documentation indicates that the Beneficiary's assignment at the 
end-client will extend through the end of the requested validity period. Specifically, the mid­
vendor's letter states "as per estimates provided by the current project is expected to be 
continued through 2018." The Petitioner has not sufficiently explained why it is claiming 
that the 
Beneficiary will work on both the end-client assignment and the Petitioner's internal 
project, when the Beneficiary's assignment at the end-client is expected to last through the end of the 
validity period requested in this petition. 
In fact, the record of proceedings contains inconsistencies regarding duration of the end client 
assignment. Specifically, two itineraries provided by the Petitioner state that the "Project end-date" 
for the end-client is "TBD." However, as noted, in the second itinerary, the Petitioner also indicates 
in "Dates of Service," "[u]pon approval of this petition with extensions anticipated through March 
2018." Further, "Schedule A" of the Independent Contractor Service Agreement between the 
Petitioner and the mid-vendor indicates "Anticipated Duration" as "As determined by client." The 
"Work Order Summary" provides a "start date" of "11/17114," but the "duration" and the "end date" 
columns are left blank. As noted, the mid-vendor states that the project is expected to continue 
through 2018 per estimates provided by however, its statements are not substantiated 
by documentary evidence. 2 
It is unclear what exactly the Beneficiary will be doing and where he will be working throughout the 
requested validity period. "[I]t is incumbent upon the Petitioner to resolve the inconsistencies by 
independent objective evidence." Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). "Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition." !d. 
Regardless of whether the Beneficiary will be assigned to the end-client and/or will be working in­
house on the Petitioner's internal project, we nevertheless find insufficient evidence to establish the 
substantive nature of the proffered position and its constituent duties. 
2 If the Petitioner and the end-client had not agreed to an end date for the Beneficiary's services as of the time of filing 
and the Petitioner was merely claiming that the Beneficiary would be assigned to its internal project if necessary, this, in 
essence, would amount to speculative employment, which is not permitted in the H-1 B program. The agency made clear 
long ago that speculative employment is not permitted in the H-1 B program. See 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). 
(b)(6)
Matter ofP-A-, Inc. 
For instance, as noted, the Petitioner submitted the Independent Contractor Service Agreement 
between the Petitioner and the mid-vendor, as well as the accompanying "Schedule A" which 
assigned the Beneficiary to the end-client. However, this document is not sufficient for purposes of 
establishing the specific duties the Beneficiary will perform or other terms and conditions of his 
assignment. More specifically, the "Description of Services to be Performed" is described simply 
as "Application Systems Engineer 6," without further details regarding the actual work to be 
performed. In contrast, the Beneficiary's purported job title for the end-client is 
In addition, as previously noted, the anticipated duration of the assignment is "As 
determined by client." 
The Petitioner also submitted a "Work Order Summary" for Work Order which 
summarizes the Beneficiary's assignment to the end-client as an "APPS SYSTEMS ENGINEER 6." 
This document, too, is insufficient, as it provides little relevant details regarding the specific work to 
be performed. Notably, this document indicates that more detailed descriptions of the position are 
available under the tab "Position and Resource Details," and possibly under separate 
documentation. 3 However, the Petitioner did not submit additional documentation detailing the 
Beneficiary's assignment. Also notable is the work order summary which identifies the mid-vendor 
as the "Supplier Organization" of the Beneficiary, as opposed to the Petitioner. As noted, the work 
order summary also does not list an end date for the Beneficiary's assignment. 
While the evidence of record contains letters from the Petitioner and the mid-vendor which 
identically list the Beneficiary's proposed duties, we accord little probative value to these letters, as 
they were not issued directly by or from the end-client.4 Even if we considered these letters, 
however, we find that the job duties listed therein are insufficient to convey the substantive nature of 
the proffered position. That is, the job descriptions provided by the Petitioner and the mid-vendor 
3 The work order summary states: "The Summary Page below provides the pertinent terms of the Work Order. For 
greater details on a particular section, select the appropriate tab(s) above." One of the tabs appears to be "Position and 
Resource Details." The work order summary further states that "[a]s a precondition to the commitment of the work 
assignment described in this Work Order, Supplier Organization shall cause the Resource identified below to deliver an 
Acknowledgement of Temporary Assignment. A form of Acknowledgement will be provided under separate cover 
following Supplier Organization Approval of this Work Order." Neither the Beneficiary's Acknowledgement of 
Temporary Assignment nor the mid-vendor's Acknowledgement was submitted for the record. 
4 The Petitioner asserts that it "requested a letter from [the end-client] but was told that per their policy at this worksite, 
[they] will not issue a client letter for non-employees such as the Beneficiary." However, the Petitioner did not provide 
evidence to corroborate this statement regarding the end-client's "policy." "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." In re Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCal., 14 I&N Dec. 190 (Reg'! Comm'r 
1972)). While a petitioner should always disclose when a submission contains confidential commercial information, the 
claim does not provide a blanket excuse for a petitioner not providing such a document if that document is material to the 
requested benefit. Although a petitioner may always refuse to submit confidential commercial information if it is 
deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter of 
Marques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth 
Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). 
(b)(6)
Matter ofF-A-, Inc. 
are overly broad and inadequate to convey the specific tasks to be performed. For example, the 
Beneficiary is listed as performing the duty of "[p ]rovide [p ]ost go live production support to the 
PeopleSoft team to deal with any issues after they go-live." However, there is no further explanation 
of (1) what is meant by the phrase "[p]ost go live production support," (2) who the 
team" is, and (3) what system(s) or 
application(s) is to be developed or is otherwise involved. 
Another example of the generalized job descriptions is the stated duty of "[i]nteracting with End 
Users and documenting the requirements and developing the project accordingly." There is 
insufficient explanation of what is meant by the vague terms "[i]nteracting" and "developing the 
project accordingly," and who the "End Users" are. Despite this job duty's reference to "the 
project," the Petitioner has not submitted any explanation and documentation identifying what 
specific "project" the Beneficiary will be assigned to at the end-client site. 
In addition to the concerns regarding the Beneficiary's claimed assignment to the end-client, the 
evidence of record also contains discrepancies and deficiencies with respect to the Petitioner's claim 
that it will assign the Beneficiary to its internal project. 5 
For instance, on page 3 of the project document which was submitted with the visa 
petition, the Petitioner stated that "[t]he development of [the] project will begin starting the second 
quarter of year 2009 and initial design and documentation of the project is under way .... " 
However, in the timeline that appears in the same document at pages 46-4 7, the Petitioner stated that 
the first "Requirements" phase will start more than two years later, on October 15, 2011. In other 
documentation submitted at the same time, the Petitioner provided conflicting information. 
Specifically, in its support letter dated February 27, 2015, the Petitioner stated that it has "only 
recently begun" developing the eFinancials product, and that "product development is truly at the 
infancy stage." It is not clear when the Petitioner actually begun work on its eFinancials project. In 
fact, there is insufficient evidence that the eFinancials project has actually begun. 
It is also unclear when or how the Beneficiary's services will be utilized on the project. 
In the 
Labor Requirements section of the project document at page 47, the Petitioner stated: "Since 
the project is in requirements phase, current labor requirements are identified as Business Analyst/s 
who will perform the requirements gathering and functional design process." According to the first 
5 We observe that the "Market Analysis" portion of the Petitioner's 
plagiarized from a copyrighted document by 
project document appears to have been 
2006-2011, available at: 
(last visited Mar. 
29, 2016). For example, the content in pages 48-49 of the Petitioner's project document is identical to content found in 
pages 1-2 of the The Petitioner did not credit in its project document. The 
Petitioner's apparent unauthorized reproduction of copyrighted literature undermines the Petitioner's credibility. For 
instance, because the Petitioner copied the work of others in its project document, we cannot determine the 
level of research, planning, and other resources that the Petitioner has actually devoted to this project. We also cannot 
determine which aspects of the document are credible and accurately represent the Petitioner's work, and which do not. 
It is again emphasized that doubt cast on any aspect of the Petitioner's proof may lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
0 
(b)(6)
Matter of P-A-, Inc. 
submitted itinerary, the Beneficiary will specifically perform the following duties for the internal 
project: "[ c ]onduct requirement gathering," and "[ c ]onduct interviews with the Business 
owners, Management and Stakeholders to review and understand the Client's processes of 
their legacy systems .... " These duties essentially amount to requirements gathering, which, 
according to the project document, were supposed to have been performed in 2009, or alternatively, 
from October 15, 2011, to April 13, 2013. 
Another example of the conflicting information surrounding the Beneficiary's role in the 
project is the project document timeline which states that the last phases ("Support" and 
"Migration/Conversion/Go Live") will end on December 24, 2016. However, the Petitioner is 
requesting a March 1, 2018, end date for the Beneficiary's services. The Petitioner has not 
explained what other phases of the project the Beneficiary would or could be involved in, as the last 
phases of the project are scheduled to be completed at the end of 2016. Moreover, the Petitioner has 
not explained, nor is it readily apparent, why the Beneficiary would conduct interviews with 
"Business owners," "Stakeholders" and "Client[s]" to review and understand their legacy systems 
when is purportedly an internal project in its infancy stage. 
Further, the Petitioner claimed in the first itinerary that the Beneficiary will work on its internal 
project at its office located in Virginia. The 
Petitioner also claimed that it has "leased new office space for the staff that we are currently hiring 
for [the project." However, the Petitioner has not established that it has or will have 
sufficient work space to house the Beneficiary, other staff purportedly being hired for the 
Project, as well as any of the Petitioner's 13 other employees who may work on-site.6 
The Petitioner's lease to which expired on March 31, 2015, indicates that 
consists of only 340 rentable square feet. 7 The record does not contain a new lease or other 
documentation confirming its lease, and the size, of a "new office space. "8 
Overall, we cannot find that the Petitioner's claimed internal project is bonafide, or even 
if it were bona fide, that the Beneficiary would be assigned to this project. 
For all of the above reasons, we find that the Petitioner has not established the substantive nature of 
the work to be performed by the Beneficiary, which therefore precludes a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature 
of that work that determines (1) the normal minimum educational requirement for entry into the 
particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
6 According to the project document, the staff required for the 
Analysts, System Analysts, ERP Developers, Programmer Analysts, 
Project Manager. 
7 The instant petition was filed on March 4, 2015. 
8 On the second itinerary, the Petitioner listed a new address of 
accompanying G-28, the Petitioner again listed its address as 
represents. 
9 
project consists of one or more Business 
Database Analysts, Oracle Developers, and a 
However, on the Form 1-2908 and 
It is not clear what the address 
Matter of P-A-, Inc. 
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 for classification as a 
specialty occupation. 
II. ADDITIONAL ISSUES 
Because 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 additional 
issues to inform the Petitioner that these matters should be addressed in any future proceedings. 9 
Specifically, we find that the Petitioner has not demonstrated that (1) it qualifies as a United States 
employer; and (2) it is in full compliance with the applicable statutory and regulatory provisions 
regarding payment of the required wage, fees, and costs. 
A. Employer-Employee Relationship 
The Petitioner has not established that it qualifies as a United States employer. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(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 in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
9 In reviewing a matter de novo, we may identify 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), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
10 
(b)(6)
Matter of P-A-, Inc. 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re.spect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
As detailed above, the record of proceeding lacks sufficient documentation evidencing what exactly 
the Beneficiary would do for the period of time requested or where exactly and for whom the 
Beneficiary would be providing services. Given this specific lack of evidence, the Petitioner has not 
corroborated who has or will have actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary's services. In other words, the Petitioner has not established 
whether it has made a bona fide offer of employment to the Beneficiary based on the evidence of 
record or that the Petitioner, or any other company which it may represent, will have and maintain 
the requisite employer-employee relationship with the Beneficiary for the duration of the requested 
employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and 
requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an 
employer-employee relationship with respect to the sponsored H-1B nonimmigrant worker). Again 
and as previously discussed, there is insufficient evidence detailing where the Beneficiary will work, 
the specific project(s) to be performed by the Beneficiary, or for which company the Beneficiary will 
ultimately perform these services. 
To this end, we observe that the Petitioner's itinerary identifies the end-client project coordinator as 
Project Manager. However, the Petitioner has not provided additional details 
regarding such as what company he works for and the extent of his control over the 
Beneficiary's work. The Petitioner also has not described in detail the nature of the relationship 
between and the Petitioner's President, who is identified as the Beneficiary's immediate 
supervisor at the Petitioner's premises, with respect to the supervision and control of the 
Beneficiary's day-to-day work conducted off-site. Furthermore, neither the work order summary nor 
other documentation in the record describes in detail the role of the mid-vendor, i.e., the "Supplier 
Organization," in assigning, supervising, and otherwise controlling the Beneficiary's work. We note 
the Petitioner's statement that "we allow [the end-client] to schedule and prioritize the work that we 
have assigned to the beneficiary due to the nature of the project, but we reserve the right, per our 
contractual agreement with [the mid-vendor] to control the work of the beneficiary on a day-to-day 
basis should we have to." However, the employer-employee 
relationship must also take into account 
actual control over the Beneficiary's day-to-day work, not just the right to control. See Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992). 
II 
Matter of P-A-, Inc. 
As the evidence of record is insufficient to establish that the Petitioner qualifies as a U.S. employer 
having an employer-employee relationship with the Beneficiary, the petition is further precluded 
from approval. 
B. Payment of Required Wage, Fees, and Costs 
The Petitioner has not established that it is in full compliance with the applicable statutory and 
regulatory provisions regarding payment of the required wage, fees, and costs. 
The Petitioner's offer letter to the Beneficiary states, in pertinent part: 
In the event that you breach the termination notice or other provisions of this 
agreement or that your employment is terminated voluntarily for cause, you agree (1) 
to repay in full all expenses towards obtaining work permit, relocation, air fare 
expenses, training costs or other advances paid or reimbursed to you by [the 
Petitioner] and you authorize [the Petitioner] to deduct and withhold such repayment 
in full from any compensation or amounts otherwise owed or payable to you. (II) to 
pay [the Petitioner] as liquidated damages and not as a penalty a further sum of Ten 
Thousand ($10,000) Dollars or any penalties that the client imposes on [the 
Petitioner] whichever is higher . . . . (III) to pay eight thousand ($8,000) Dollars 
towards the cost of the training provided. 
The Petitioner signed, under penalty of perjury, the Form I-129, H Classification Supplement, 
thereby certifying that it: agrees to and will abide by the terms of the LCA for the duration of the 
Beneficiary's authorized period of stay for H-1B employment; it understands that it cannot charge 
the Beneficiary the additional fees mandated by the American Competitiveness and Workforce 
Improvement Act (ACWIA) and that any other required reimbursement will be considered an offset 
against wages and benefits paid relative to the LCA; and that it will be liable for the reasonable costs 
of return transportation of the Beneficiary abroad if he is dismissed from employment before the end 
of the period of authorized stay. In addition, when filing and signing the LCA, the Petitioner 
declared that it would comply with the statements as set forth in the cover pages of the LCA and the 
DOL regulations at 20 C.F.R. § 655, Subparts Hand I. The Petitioner also signed the Form I-129 
petition under the penalty of perjury, certifying that the information supplied to users on the 
petition and supporting evidence was true and correct. 
Pursuant to the terms of the Petitioner's offer letter, if the Beneficiary's employment is terminated, 
he is obligated to repay the Petitioner an unspecified amount for "all expenses towards obtaining 
work permit, relocation, [and] air fare expenses," in addition to $18,000 in liquidated damages and 
training costs. However, under the H-1B program, the Petitioner is prohibited from deducting an 
H-1B employee's wages with regard to recouping a business expense of the employer, which 
includes "attorney fees and other costs connected to the performance of H-1B program functions 
12 
Matter of P-A-, Inc. 
which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B 
petition)." See section 101(a)(15)(H)(i)(b) ofthe Act; 20 C.F.R. § 655.731(c)(9)(iii). 
The Petitioner is also prohibited from requiring an H-1B employee to pay a penalty for ceasing 
employment with the Petitioner prior to a contracted date. See section 101(a)(15)(H)(i)(b) of the 
Act; 20 C.F.R. § 655.731(c)(10)(i). The Petitioner also may not recoup any part of the ACWIA 
additional filing fee, whether directly or indirectly, voluntarily or involuntarily, from the 
Beneficiary. See section 214(c)(12)(A) of the Act; 20 C.F.R. § 655.731(c)(10)(ii). Moreover, the 
Petitioner is legally liable for the reasonable costs of return transportation of the Beneficiary abroad, 
and thus, may not require him to repay such costs. See Section 214(c)(5) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(iii)(E). The Petitioner's offer letter imposes conditions that violate statutory and 
regulatory provisions related to the Petitioner's payment of the required wage, the ACWIA fee, and 
reasonable costs ofreturn transportation. See generally 20 C.F.R. § 655.73l(a), (b), (c). 
III. CONCLUSION 
The evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation, that the Petitioner will have an employer-employee relationship with the Beneficiary, 
and that the Petitioner is in compliance with legal requirements relating to the payment of the 
required wage, fees, and costs. 
The appeal will be 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 
495 (BIA 1966)). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-A-, Inc., ID# 16090 (AAO Mar. 31, 2016) 
13