dismissed H-1B Case: Information Technology

(b)(6)
u.s. Citizenship . 
and Inu:nigtation 
Services 
MATTER OF I-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology service provider with 15 employees, seeks to temporarily 
~mploy the Beneficiary as a programmer analyst under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 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 the Petitioner 
did not establish that: (1) it will engage the Beneficiary in an employer-employee relationship; and 
(2) the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
On the Form I-129, the Petitioner described itself as a 15 employee information technology services 
company located in Texas. The Petitioner indicated that the Beneficiary would work off-site for a 
client, in CA. The Petitioner explained that the Beneficiary would 
provide services to the end-client through a contractual relationship with direct vendor 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer'' having "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:" 8 C.F.R. § 214.2(h)(4)(ii). 
Matter of 1-T-, Inc. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.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: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see 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.P.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the :Seneficiary. 
Although "United States employer" is defined in the regulations at 8 C.P.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 individual 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)(1) of the Act, 
8 U.S.C.· § 1182(n)(1). The intending employer is described as offering full-time or part-time 
"employment" to the H-IB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.P.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this relationship 
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Matter of 1-T-, Inc. 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 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 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 of the hired party." 
/d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic. phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quotingNLRB v. United Ins. Co. 
of Am., 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.1 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of '~employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
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Matter of 1-T-, Inc. 
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-lB "employee." 8 C.P.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification numt?er 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.F.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 318-19? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h)? 
' 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... "(emphasis added)) .. 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
1992). 
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-lB visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). · 
2 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 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,414 (1945)). 
3 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-1B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of 1-T-, Inc. 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; 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 EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' 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 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 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. 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."' !d. at 451 (quoting Darden, 503U.S. at 324). 
B. Analysis 
As a preliminary matter, the' Petitioner has not established the duration of the Beneficiary's 
employment for the entire requested period. On the FoQTI I-129, the Petitioner requested that the 
Beneficiary be granted H-1B classification from October 1, 2016, to September 13, 2019. However, 
the Petitioner has not submitted supporting documentation to substantiate that the Beneficiary will 
be engaged at the client location during the entire period of the requested visa. For instance, a 
submitted statement of work ("SOW") between and the Petitioner dated February 26, 2015, 
reflects 
that the time period of the engagement is "estimated" and "to be announced." In response to 
the Director's request for evidence (RFE), the Petitioner provided a letter from stating that 
the Beneficiary will perform his duties "for the duration of the assignment." On appeal, the 
5 
(b)(6)
Matter of 1-T-, Inc. 
Petitioner provides another letter from stating that the Beneficiary's work assignment with 
the end-client will extend until December 31, 2018, with a "possible extension." Therefore, the 
evidence of the record is not consistent with the requested period of employment stated as ending on 
September 13, 2019. The Petitioner has not resolved these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
In addition, a letter submitted on appeal from the end-client provides no definitive statement as 
to the Beneficiary's period of engagement, only indicating that he began working at this location on 
March 16, 2015. A~ such, the record does not contain a written agreement between the Petitioner 
and or even between the mid-vendor and establishing employment for the 
Beneficiary for the duration of the requested period. Although the Petitioner submitted an 
employment letter indicating that the Beneficiary will be engaged by for the entire requested 
period, it did not submit probative evidence substantiating additional projects or specific work for 
the Beneficiary for this entire time. A petitioner's unsupported statements are of very limited weight 
and normally will be insufficient to carry its burden of proof, particularly when supporting 
documentary evidence would reasonably be available. See Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); 
see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 
376. 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. USCIS 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 o_r Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Thus, even if it were found that the 
Petitioner would be the Beneficiary's United States employer as that term is defined at 8 C.F.R. § 
214.2(h)(4)(ii), the Petitioner has not demonstrated that it would maintain such an employer-employee 
relationship for the duration of the period requested.4 
4 The agency made clear long ago that speculative employment is not permitted in the H-lB program. For example, 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 ih a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-lB nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to asc~rtain 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 
6 
(b)(6)
Matter of 1-T-, Inc. 
Furthermore, applying the Darden and Clackamas tests to this matter, we find that the evidence of 
record does not sufficiently establish that the Petitioner will be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-1B temporary "employee." 
Specifically, we find that the record of proceedings does not contain sufficient, consistent, and 
credible documentation confirming and describing who exercises control over the Beneficiary. 
The Petitioner states that the Beneficiary will work for the end-client at its work-site in 
CA. The Petitioner asserts that it has submitted sufficient evidence to demonstrate by a 
preponderance of the evidence that it will control the Beneficiary while he is assigned to the end­
client's location. The Petitioner emphasized in a support letter that it retains 
"complete control" over 
its employees assigned to client locations, noting that it retains the right to hire or fire the 
Beneficiary and complete his performance evaluations. In support of this assertion, the Petitioner 
provided an employment letter with an attached document titled "[The Petitioner's] Right of Control 
over: [the Beneficiary]" stating that the Beneficiary will "work under the supervision and control" of 
the Petitioner, that he will communicate with his Petitioner supervisor at least once per week 
regarding progress, that it will have the sole ability to hire, pay, fire, conduct his performance 
reviews, assign additional duties, and provide all his "instrumentalities and tools." 
As discussed above, }he Petitioner also provided an SOW between it and the mid-vendor, 
relevant to the Beneficiary's provision of services for the end-client, beginning March 16, 
2015, for an estimated duration "TBA [to be announced]." The SOW stated that the assignment 
would not "exceed 8 hours/day without client manager's prior approval." The SOW reflected that 
the Petitioner would submit timesheets and invoices for the Beneficiary's services to via fax 
each week. 
In response to the Director's RFE, the Petitioner again stated that it retains control over the 
Beneficiary at the end-client location. The Petitioner provided a "Consulting Services Agreement" 
between it and stating that the parties would execute an SOW prior to the Petitioner 
providing any services for end-clients. The Petitioner also submitted a letter from 
stating that the Petitioner retains control over the Beneficiary's employment "including but not 
limited to the right to hire, fire, pay, supervise and control its employee's work," that the Petitioner 
will administer the project timeline and the compensation of its employees, and indicating that 
does not have the power to assign him to other projects. The Petitioner provided a signed 
declaration from its president stating that he supervises the work of the Beneficiary, that the end­
client does not have the ability to reassign the Beneficiary, that he conducts "regular status 
and, therefore, is unable to adjudicate properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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(b)(6)
Matter of 1-T-, Inc. 
meetings" with him; and that he determines whether further assistance is required to complete 
assignments. On appeal, the Petitioner submits a letter from the end-client stating that the 
Beneficiary will be "evaluated, supervised and managed by a non- manager only," that it will 
not employ him, and that it has "limited visibility" to his day-to-day activities. 
However, the Petitioner provided other conflicting evidence leaving question as to whether it 
actually controls the Beneficiary's work on a daily basis. The Petitioner submitted a "Non-compete 
agreement" between it and the Beneficiary indicating in Section 1(c) "Tools, Instruments and 
Equipment" that "[The Beneficiary] shall provide [the Beneficiary's] own tools, instruments and 
equipment and place of performing the Services, unless otherwise agreed between the Parties." This 
evidence is in direct contradiction to the Petitioner's assertion that it will provide all the tools, 
instrumentalities, and equipment relevant to the Petitioner's assignment. Likewise, the Petitioner 
submitted a letter from its president indicating that he supervises the Beneficiary, but it otherwise 
provides an organizational chart on appeal reflecting that the Beneficiary is supervised by a technical 
project manager, overseen by a technical operations manager who is supervised by the president. 
This contradiction leaves question as to the Petitioner's assertion that the president controls the 
Beneficiary on a daily basis. Again, the Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 582, 
591-92. 
In addition, others submitted evidence leaves doubt that the Beneficiary is primarily controlled by 
the Petitioner. For instance, in Section 3(c) "Payment" of the aforementioned non-compete 
agreement it states that "[the Beneficiary] shall submit to the Company a monthly invoice detailing 
the Services performed during the proceeding month and the amount due." In addition, the 
Petitioner provides weekly reports submitted by the Beneficiary from April through June 2016. The 
reports reflect that tl}e Beneficiary "reported and worked with the Ops Team to identify the bad 
servers" and worked on' issue which was reported by FMS Team" in April 
2016. The reports further indicate that he "fixed a bug reported by the marketing team" in May 2016 
and "requested marketing team for content freeze until the release" in June 2016. In sum, this 
evidence suggests that the Beneficiary acts with autonomy at the client location, without daily 
supervision on the part of the Petitioner, and that he largely directs the course of his own work based 
on client needs. Likewise, an SOW between the Petitioner and notes that the Beneficiary's 
daily work should not exceed eight hours, indicating that the Beneficiary acts largely autonomous 
from the Petitioner, reacting to client requests as they arise, and in essence, under the direction of the 
end-client. 
Otherwise, the Petitioner does not provide definitive objective evidence to overcome the conflicting 
evidence suggesting that the Beneficiary is primarily under the direction and supervision of 
For instance, on appeal, the Petitioner provides a letter from the end-client stating that the 
Beneficiary will be evaluated, supervised, and managed by the Petitioner and that it has limited 
visibility to his work. However, this statement is not credible in light of the evidence reflecting that 
the Beneficiary only reports to his supervisor once per week, thereby leaving question as to whom he 
reports during the remainder of the time. This, and the evidence referenced above, suggests that the 
8 
Matter of 1-T-, Inc. 
Beneficiary is likely acting independently to client needs as they arise rather than primarily taking 
direction from the Petitioner. Further, it is noteworthy that the letter from the end-client is from its 
"Senior Immigration Specialist" and not from an employee that works with the Beneficiary on a 
daily basis, who is describing his daily activities in detail and how he is not primarily under the end­
client's control. Further, the statements in the end-client letter are in confliCt with the Beneficiary's 
reports, which suggest that the Beneficiary is mostly acting without direction from the Petitioner and 
that other employees.of the end-client are engaging him independent of the Petitioner's supervision. 
The Petitioner provides no other direct documentary evidence to substantiate that it, and not the end­
client, primarily controls and directs the Beneficiary. A petitioner's unsupported statements are of 
very limited weight and normally will be insufficient to carry its burden of proof. See Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 
190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner contends that the Director overemphasized the lack of an end-client letter, 
noting that this evidence is not required by the regulations to substantiate an employer-employer 
relationship. We concur that this evidence is not required by regulation, but note that it can be 
probative in demonstrating the nature of the Beneficiary's work and the realities of his day-to-day 
superviSion. However, the lack of a client letter is not the sole basis of our decision. The 
determinative, issue is the lack of objective documentary evidence corroborating the Petitioner's 
assertion that it priQiary controls the Beneficiary's work, particularly in light of the evidence 
conflicting this assertion that we have discussed above. Therefore, although we do not doubt that the 
Beneficiary is likely being paid and that his benefits are being administered by the Petitioner, the 
preponderance of the evidence appears. to indicate that the Beneficiary is primarily under the 
direction of the end-client and that he only occasionally checks in with the Petitioner as to his 
progress~ While payroll, tax withholdings, and other employment benefits are 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. Here, we find that the preponderance of the evidence 
demonstrates that the Beneficiary will be primarily under the control of the end-client and not the 
Petitioner. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). The Director's decision must be affirmed and the petition 
denied on this basis. 
III. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
9 
Matter of 1-T-, Inc. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), define,s the term "specialty occupation"as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.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.P.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted 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 proposed position. See Royal Siam Corp. v. Chertoff, 
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 at 387. 
B. Analysis . 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
evidence is insufficient to establish that the proffered position qualifies for classification as a 
specialty occupation.· 
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(b)(6)
Matter of 1-T-, Inc. 
Here, the record of proceeding is absent sufficient information from the end-client regarding the 
specific job duties to be performed by the Beneficiary for that company. The end-client letter makes 
no mention of the Beneficiary's job duties and does not convey the substantive nature of the 
proffered position and its duties. As recognized in Defensor v. Meissner, it is necessary for the 
end-client to provide sufficient information regarding the proposed job duties to be performed at its 
location(s), as well as any hiring requirements that it may have specified, in order to properly 
ascertain the minimum educational requirements necessary to perform thqse duties. ·See Defensor v. 
Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide services to 
the end-client hospitals and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. Here, the record is insufficient to establish that, in fact, the Beneficiary 
would be performing services for the type of position for wh~ch the petition was filed, in this matter, 
a programmer analyst position. Accordingly, we concur with the Director's determination that the ' 
record is insufficient to establish that the duties of the proffered position comprise the duties of a 
specialty occupation. 
However, the Petitioner did submit a letter from explaining the Beneficiary's duties, but 
these duties are vague and convey only general tasks and not the specific work and assignments to 
be completed by the Beneficiary. For example, the largely identical letters from the Petitioner and 
list duties such as "maintain[ing] involvement throughout the project lifecycle," "assist[ing] 
and triag[ing] production support issues," and "participat[ing] in and support[ing] the Software 
Development Life Cycle." Further, the letters make reference "dot tools" and applications with 
which the Beneficiary will work, such as ' and '' 
amongst others. However, these letters, nor other evidence, explain the nature of these applications 
or the specific work tp be performed by the Beneficiary. The record of proceeding does not contain 
a more detailed description explaining what particular duties the Beneficiary will perform on a day­
to-day basis, nor is there a detailed explanation regarding the demands, level of responsibilities, 
complexity, or requirements necessary for the performance of these duties (e.g., what '' 
'' ' and ' are and what body of knowledge is required to 
perform the duties).
5 
In fact, the evidence of record does not specifically identify the particular 
project to which the Beneficiary will be assigned at the end-client's premises. Further, the end-client 
letter makes no reference to the specifics of the project, noting that this can be provided by the 
Petitioner, information which is not provided. Once again, a petitioner's unsupported statements are 
of very limited weight and normally will be insufficient to carry its burden of proof. See Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 
190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
5 While a letter from states the educational requirement for this position (i.e., at least a bachelor's degree or 
equivalent in a relevant technology field), this general statement regarding the minimum educational requirement is 
insufficient to explain what body of knowledge is required to perform the job duties. 
11 
Matter of 1-T-, Inc. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 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.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. For this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The petition will be denied an,d 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of I-T-~ Inc., ID# 171368 (AAO Dec. 22, 2016) 
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