dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JAN. 23, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a 13-employee information technology and outsourcing services company, seeks to 
temporarily employ the Beneficiary as a business analyst under the H-1 B nonimmigrant 
classification for specialt y occupations. See Immigration and Nationality Act (the Act) section 
lOI(a)(IS)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b) . The H-lB 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 it will have an employer-employee relationship with the Beneficiary. Further , 
the Director found that the Petitioner did not demonstrate that the proffered position qualifies as a 
specialty occupation. 
The 
matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review , we will dismiss the appeal. 
I. PROFFERED POSITION 
The Petitioner, located in Nebraska , indicated on the Form I-129, Petition for a · 
Nonimmigrant Worker, that the Beneficiary would work off-site as a business analyst in 
Nebraska, and supporting evidence reflected that this work would be for a mid-vendor 
In a support letter, indicated that the Beneficiary would work at its 
location in providing professional IT services to its clients. 
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 
Matter of S-, Inc. 
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). 
A. Legal Frame\vork 
Section 101 (a)(15)(H)(i)(b) of the Act defines an H-1 B 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 tiled 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.F.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 re.spect to employees 
under this part, as indicated by the fact that it may hire. pay. fire, 
supervise. or othenvise 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). 
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
lB 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 US.C. § 1182(n)(1). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the r~gulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1 B 
temporary "employees." 8 C.F.R § 2 I4.2(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 
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Matter of S-, Inc. 
relationship" with the "employees under this part," i.e., the H-18 beneficiary, and that this relationship 
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 te1m "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-18 visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H -18 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. fiJr Creative Non- Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employe~ 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 imd 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 Assoc.~ .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
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-18 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. § I 002(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' 
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Matter of S-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B 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.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. C(: 
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) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
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-1 B 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)). 
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. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)( 15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(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-1 B 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. Methov.· Valley Citi:::ens 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-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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(b)(6)
Matter of S-, Inc. 
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 323-24; Clackamas, 538 U.S. at 
445; see also Restatem ent (Second) ofAgency § 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 . .i'vfeissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
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 evafuated 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. 
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). 
When examining the factors relevant to detennining 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 
I ' 
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 . . . 1 with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.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 Form I-129, the Petitioner requested that the 
Beneficiary be granted H-IB classification from October 1, 2016, to September 30, 2019. However , 
the Petitioner has not submitted supporting documentation to substantiate that the Beneficiar y will 
be engaged at location during the entire period of the requested visa. For instance , the 
Petitioner submits a Jetter from an affidavit from the Beneficiary ' s asserted supervisor , an 
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(b)(6)
Matter of S-, Inc. 
employment letter, and agreement between it and the Beneficiary, amongst other documentary 
evidence, none of which details the period of the Beneficiary's engagement for In fact, two 
letters provided from both vaguely state that the "project end dates vary for projects that [the 
Beneficiary] will . be assigned to" and that ">ve expect to have ongoing projects for [the 
Beneficiary]." A supplier agreement between the Petitioner and ret1ects that the assignment of 
each Petitioner employee is dictated by a purchase order. However, the Petitioner's vice president 
states in a submitted letter that the purchase order will "not [be] established until [the Beneficiary] 
has been granted work authorization by USCIS." 
The evidence reflects that the Petitioner has not established non-speculative work for the Beneticiary 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)(l). 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 J\1atter 
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 Although the Petitioner attests that work will 
be available for the Beneficiary throughout the requested period, this is not supported by 
documentary evidence. 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' Sof{ici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter a_( 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 ofChawathe, 25 I&N Dec. at 376. 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically , the Service has not granted H-1 8 classification on the basis of speculative, or 
undetennined , prospective employment. The H-1 8 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-1 8 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 analy sis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification , 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g ., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C. F. R. § 214.2(h )(2)(i)(E). 
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(b)(6)
Matter ofS-, 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-l B 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 vendor at its work'-site in 
Nebraska providing services for its unidentified clients. The Petitioner asserts that it has 
submitted sufficient evidence to demonstrate by a preponderance of the evidence that it \Vill control 
the Beneficiary while he is assigned to location, including letters from indicating that it 
will not employ the Beneficiary, control her, have the ability to hire or fire her, or administer her 
payroll or benefits. The Petitioner further references a submitted employment letter and agreement 
indicating that it will handle the Beneficiary's payroll and benefits and an agreement between the 
Petitioner and stating that the PeHtioner will "at all times retain the primary control over its 
personnel." 
However, the Petitioner has submitted little supporting documentation to conoborate that it will 
exact daily control over the Beneficiary while she is assigned to location. Submitted letters 
from state that thy Beneficiary will be supervised by a manager for the 
Petitioner and further indicate that this manager \Vill regularly supervise and control the 
Beneficiary's work, the terms and details of her employment, and her salary, benefits, and expenses. 
The Petitioner also provided an affidavit of listed as vice president , stating that the 
Petitioner retains the .right to control of the work "of the Business Analyst." First, it is noteworthy 
that the affidavit of makes no direct reference to the Beneficiary, and only vaguely 
references business analysts, in general. Further, the Petitioner has provided no direct evidence to 
substantiate that the Beneficiary will be under the supervision and control of the Petitioner or 
The Petitioner does not explain how, how often, and in what form will 
supervise the Beneficiary at location. The Petitioner did not submit an organizational chart or 
a description of its performance review process , as requested by the Director , to substantiate that 
will have primary supervisory control over the Beneficiary. [ndeed , a submitted 
employment agreement between the Petitioner and the Beneficiary indicates that she agreed to 
"follow the instruction from [a Petitioner] project manager under whom you are working ," an 
employee not referenced or documented on the record. 
The Petitioner did not submit a purchase order covering the Beneficiary's engagement, a document 
required pursuant to its contract with and the Petitioner admits that this will not be issued until 
an approval of the Beneficiary's petition. In sum, the evidence does not support a conclusion that · 
the Beneficiary will be primarily controlled and supervised by the Petitioner performing work at 
location for its unidentified end-clients . Again, 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 ofSo.ffici , 22 I&N at 
Dec. 158, 165 (citing Matter of Treasure Crqft of Cal., 14 l&N Dec. at 190 see also Matter qf 
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(b)(6)
Matter of S-, Inc. 
Chawathe, 25 I&N Dec. at 369, 376. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See !d. 
Further, the Petitioner provides other conflicting evidence leaving question as to whether it will 
actually control the Beneficiary's work on a daily basis, For instance , a provided employment 
agreement between the Beneficiary and the Petitioner indicates that work will be assigned by the 
Petitioner "or its clients" and an agreement between the Petitioner and reflects that assigned 
Petitioner employees submit weekly timesheets to clients for approval. The agreement further 
indicates that is engaged in "locating technical services personnel" for its clients, suggesting 
that the Beneficiary will be further contracted out to provide labor under the direct supervision of 
clients on a daily basis. The Petitioner does not otherwise submit any evidence reflecting its 
oversight of the Beneficiary or the provision of materials and instrumentalities necessary for the 
completion of work by the Beneficiary. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter <~f Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). The evidence indicates that the Beneficiary acts largely autonomous from the 
Petitioner, reacting to client requests as they arise ; and that she is in essence, under the direction of 
clients. 
Although we do not doubt that the Beneficiary is likely being paid and that her benefits are being 
administered by the Petitioner, the preponderance of the evidence appears to indicate that the 
Beneficiary is primarily under the direction of or its end-clients. 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 its client. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.P.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. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § ll84(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
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Matter of S-, Inc. 
(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. , § 2'14.2(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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R . § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertl?ff; 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor, 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 qualiti es for classification as a 
specialty occupation. 
The record of proceedings is absent sufficient information from end-clients regarding the 
specific job duties to be performed by the Beneficiary for these companies. In fact, the Petitioner 
does not specifically identify the identity of clients or the specific projects on which the 
Beneficiary will be working. 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 
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Matter of S-. Inc. 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor , 
201 F.3d at 387-88. Here, the record is insufficient to establish that, in fact, the Beneficiary would 
be performing services for the· type of position for which the petition was filed, in this matter, a 
business analyst position. Indeed, as we stated previously, the Petitioner has not submitted the 
purchase order required to establish the Beneficiary's position pursuant to its agreement with 
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 . 
As noted, the Petitioner did submit letters fro.m 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 list duties such as 
"identifies, develops, and evaluates alternatives to meet business requirements," "coordinates with 
internal and external business partners in designing and developing new systems," "coordinates, 
plans, and performs enhancements, upgrades , and on-going maintenance ," "reviews, analyzes , 
test[s], and recommends new software 
applications and equipment ," "develops and maintains current 
knowledge of assigned business areas," completes "UI mockups, test cases, functional 
specifications, workflow process diagrams , data t)ow/data model diagrams ," and "perform[ s] testing 
in Development and UAT environment." However, these letters, nor other evidence, explain the 
nature of these applications or the specific work to 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., the nature of the "UI mockups ," "business requirements ," "business partners ," 
"enhancements ," "software applications and equipment ," "UAT environment ," etc., and what body 
of knowledge is required to perform the duties). 
In fact, the evidence of record does not specifically identify the particular project to which the 
Beneficiary will be assigned at premises. Fm1her, the Petitioner and make no reference 
to the specifics of the project on which the Beneficiary will be working. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Crq(l 
ofCal., 14 I&N Dec. 190 (Reg'J Comm'r 1972)); see also Matter <?(Chawathe, 25 I&N Dec. 369, 
376 (AAO 2010). The Petitioner must support its assertions with relevant , probative, and credible 
evidence. See .Matter ofChawathe, 25 I&N Dec. at 376. 
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 
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(b)(6)
Matter of S-, Inc. 
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. 
Furthermore, even if the Petitioner had established the substantive nature of the Beneficiary's 
position, it has not, at minimum, articulated what bachelor's degree in a specific specialty is required 
for the proffered position. In fact, the Petitioner has made conflicting statements regarding the 
specific bachelor's degree required for the position leaving question as to whether any specific 
degree is required. For instance, in a petition support letter, the Petitioner states that "the minimum 
I 
requirement of this position [is] a Bachelor's degree in Business or a related field," while in response 
to the Director's RFE the Petitioner stated that the position "required a bachelor's degree in a 
computer-related field." Further still, the Beneficiary's asserted supervisor with the Petitioner, 
indicated in response to the RFE that the position "required a minimum of a bachelor's 
degree in Business or related [field]" and that the Petitioner "has never hired a Business Analyst who 
did not have a bachelor's degree," without mentioning a specific type of bachelor's degree. The 
Petitioner has not res~lved these inconsistencies with independent , objective evidence pointing to 
where the truth lies. ,Hatter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
The Petitioner's statements and the evidence submitted directly indicate that the position does not 
require a bachelor's degree in a spec(fic specialty for minimum entry. The Petitioner has made 
conflicting statements as to the type of specific bachelor's degree required, also indicated that only a 
general degree would suffice, such as that in business, or even any bachelor's degree. As stated 
previously, the H-lB program allows a U.S. emplqyer 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 . It is important to 
note that a position may not qualify as a specialty occupation based solely on either a preference for 
certain qualifications for the position or the claimed requirements of a ,petitioner. ·See Defensor, 
201 F.3d at 384, 387. Instead, the record must establish that the performance of the duties of the 
proffered position requires both the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, as the minimum for entry into the occupation. See section 214(i)(l) of the Act; 8 
C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). A petitioner must demonstrate 
that the proffered position requires a precise and specitic course of study that relates directly and 
closely to the position in question. Since there must be a close correlation between the required 
specialized studies and the position, the requirement of a degree with a generalized title, such as 
business administration, without further specification, does not establish the position as a specialty 
occupation. Cf Matter o.lMichael Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). 
We further acknowledge the Petitioner's submittal of business analyst job postings \Vith other 
companies in the Nebraska area. The · Petitioner asserts on appeal that these job postings 
were not properly considered by the Director. However, consistent with our conclusion, the Director 
found that the Petitioner had not, at minimum, established the substantive nature of the proffered 
position. We, as discussed above, find the same, and further that the Petitioner .has not articulated a 
II 
Matter of S-, Inc. 
specific bachelor's degree requirement for the position. As such, an analysis of the specific criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) is not required. Regardless, upon review, the submitted postings 
only reinforce the Petitioner's ambiguous assertions regarding a specific degree requirement, as they 
reflect various bachelor's degree requirements. For instance, one indicates that a bachelor's degree 
in "Business Administration, Computer Science or an equivalent combination of 
education/experience" would suffice, while two others re'flect that a bachelor's degree in "Computer 
science or equivalent" would meet the educational requirement. Further, a fourth posting reflects a 
bachelor's degree requirement with coursework in "Business Management, Computer Science, MIS 
or Marketing." 
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 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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 270736 (AAO Jan. 23, 2017) 
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