dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF R-T-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
PETITION: FORM 
I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT enables services' company, seeks to temporarily employ the Beneficiary as a "QA 
engineer" under the H-IB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § IIOI(a)(IS)(H)(i)(b). The H-IB 
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, Vermont Service Center, denied the petitiOn. The Director 
concluded that the 
Petitioner had not demonstrated: (1) that sufficient specialty occupation work was available for the 
Beneficiary; and (2) the Beneficiary was qualified to perform the duties of the pro tiered position. 
On appeal, the Petitioner submits a brief and additional ev;idence and asserts that it has satisfied all 
evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In a letter of support accompanying the H-1 B petition, the Petitioner stated that the Beneficiary "will 
be utilized in the professional position of Software Developer for us in TX and 
VA." The Petitioner provided the following overview of the Beneficiary 's proposed duties (note: 
errors in the original text have not been changed): 
Specifically, as a QA Engineer, the beneficiary will be responsible for full life 
cycle software application development. This will include analyzing users' needs 
and then designing, testing, and developing software to meet those needs. The 
Beneficiary will also be expected to design each piece of an application or system 
and plan how the pieces work together. This can involve creating a variety of 
models and diagrams that instruct programmers on how to write software code for 
the application or system. Further, the Beneficiary will be expected to 
recommend software upgrades for customers' existing programs and systems. As 
Matter of R-T-S-, Inc. 
a QA Engineer, the Beneficiary must ensure that a program created by the 
Beneficiary continues to function normally through software maintenance and 
testing, as well as, create a plan for future maintenance and upgrades. The QA 
Engineer will also be responsible for: project planning and project management; 
maintaining standard compliance; building new systems and applications 
programming and maintaining networks; determining etlicient coding processes 
and procedures; and diagnosis bugs and software problems. 
In response to the Director's request for evidence (RFE), the Petitioner provided an expanded list of 
proposed duties, as follows: 
• Design and implement testing infrastructures by writing code to validate a large 
scale application deployment, partner with software developers to create/code 
test tools and implement automation concurrent with product development. -
30% 
• Participate in code/design review processes to assist with deciding what tests to 
write and ensure testability of new code. - 20% 
• Collaborate with Software Quality Assurance. System Engineering and 
Architecture, Program Management, and Software Development teams in all 
aspects of the development lifecycle from early design feedback, functional 
automation, reliability, stress, performance, integration testing, through to 
supporting production issues.- 35% 
• Create, maintain, and execute test plans and test cases. Analyze and report 
results, track defects, support the development of an automated regression suite 
and participate in day to day QA support activities. - 15% 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.
1 
The Petitioner stated that "the usual minimum requirement for performance of the job duties is a 
bachelor's degree, or equivalent, computers, engineering, or a related technical field." The 
1 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
2 
(b)(6)
Matter of R-T-S- , Inc. 
Petitioner also indicated that it is "not uncommon" for the incumbent to possess a master's degree 
and/or a number of years of~ experience, despite its Level I, entry-level wage designation for the 
position. 
According to the documentation submitted by the Petitioner, the Beneficiary will be working ofisite 
at the offices m Virginia. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Though the. Director premised her denial of the petition upon the availability of specialty-occupation 
work and the Beneficiary's qualifications, we have determined in our de novo review of the matter 
that the Petitioner has not established that it meets the regulatory definition of a United States 
employer. 8 C.F.R. § 214.2(h)( 4)(ii).2 Specifically, the Petitioner has not established that it will 
have "an employer-employee relationship with respect to employees under this pa1i, as indicated by 
the fact that it may hire, pay, fire, supervise , or otherwise control the work of any such employee ." 
!d. We will address this issue before we address the issues raised by the Director. · 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-IB nonimmigrant, m 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)(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 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 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 
2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
3 
Matter of R-T-S-, Inc. 
(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-
1B visa classification. Section 101(a)(l5)(H)(i)(b) ofthe Act indicates that an individual coming to the 
United States to perform ser\rices in a specialty occupation will have an "intending employer" who will 
file an LCA with the Secretary of Labor pursuant to section 212(n)(l) ofthe Act, 8 U.S.C. § 1182(n)(1). 
The intending employer is described as offering full-time or part-time "employment" to the H-1 B 
"employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 U.S.C. § 1182(n)(l)(A)(i), 
(2)(C)(vii). Further, the regulations indicate that "United States employers" must file a Forn1 I-129, 
Petition for a Nonimmigrant Worker, in order to classify individuals as H-lB temporary "employees." 
8 C.F.R. §§ 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States employer" indicates in its 
second prong that the Petitioner must have an "employer-employee relationship" with the "employees 
under this part," i.e., the H-IB 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 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-lB visa classification, even though the regulation describes H-18 beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1 B 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 pmiy'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." 
4 
Matter of R-T-S-, Inc. 
!d.; see also Clackamas Gastroenterology Assocs .. P.C v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
. weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
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)(l)(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-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 3 
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-1B "employee." 8 C.F.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 number and to employ persons in the United 
States. The lack of an express expansiqn 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 318-19.4 
3 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 u.·s.c. § 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' 
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)(I5)(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). , 
4 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
5 
,'tdatter of R-T-S-, Inc. 
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). 5 
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-18 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 
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-IIJ(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 of beneficiaries' services, are the "true employers" of H -18 
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 othemise 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 
5 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g, section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
6 
(b)(6)
Matter of R-T-S-, Inc. 
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 ans\ver 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, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H -1 B temporary "employee." 
The Petitioner is located in Texas. It claims that although it will act as the Beneficiary's 
employer, the Beneficiary would actually perform her duties in Virginia for the 
end-client, pursuant to a subcontractor agreement executed between the Petitioner and In 
addition to a copy of the executed subcontractor agreement, the record contains a copy of a purchase 
order identifying the Beneficiary as the personnel designated to perform services in accordance with 
the agreement, as well as a letter from confirming the Beneficiary's assignment. 
The Petitioner and both state that the Petitioner will retain the right to hire, fire, pay, and 
supervise the Beneficiary, and we note that the letter from specifically states that the 
Petitioner "retains the right to control the Beneficiary's daily activities." However, the Petitioner has 
not submitted a sufficient explanation, corroborated by credible evidence, detailing the manner in 
which the Beneficiary's •supervisor \vould actually oversee, direct, and otherwise control the off-site 
work of the Beneficiary. This is particularly important in light of the Petitioner's statement in the 
LCA that the position is a Level I position wherein the Beneficiary will be expected to perform 
routine tasks that require limited, if any, exercise of judgement, will be closely supervised and her 
work closely monitored and reviewed for accuracy, and will receive specific instructions on required 
tasks and expected results. It is unclear from the record from whom the Beneficiary would receive 
such close scrutiny. 
For example, the Petitioner did not submit any documentation regarding the Beneficiary's onsite 
supervisor or otherwise explain how the Petitioner will control the Beneficiary's work and 
administer her work assignments while the Beneficiary is \Vorking off-site. It is not clear exactly 
how the Petitioner is supervising the Beneficiary's day-to-day duties when she is at the client site. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Chawathe, 25 I&N Dec. at 376. 
Moreover, although the record contains a copy of the executed purchase order and a letter from the 
end-client outlining the nature of the Beneficiary's assignment in basic terms, these documents do 
..., 
(b)(6)
Matter of R- T-S-, Inc. 
not discuss in sufficient detail the nature and manner in which the Petitioner will supervise or 
otherwise control the Beneficiary's work performed on the end-client's premises. The documents do 
not identify to whom the Beneficiary will r~port at premises, who she would receive her 
assignments and daily instructions from regarding her work, and the reporting relationship, if any, 
between and the Petitioner. Notably, the Petitioner's offer of employment letter shows that 
she will report to an employee based in the Petitioner's Texas location, but no 
additional explanation is contained in the record with regard to the reporting relationship between 
the Beneficiary and this offsite supervisor. 
Further, the 
record lacks sufficient documentation evidencing exactly what the Beneficiary would do 
for the period of time requested. That is, the claimed end-client in this matter, does not 
provide a detailed description of the proposed duties, but merely provides a summarized version of 
the Petitioner's description of duties, which is generic, general, and not project-specific. Given this 
specific lack of evidence on what work the Beneficiary will be expected to perform while at 
the Petitioner cannot establish the condition and scope of the Beneficiary ' s services. That is, the 
Petitioner has not established that it controls the Beneficiary's work so that her services while at 
will fall within the parameters of a specialty occupation. 
The record, thus, does not include sufficient information on who will supervise and direct the 
Beneficiary's work while at worksite, or if the Beneficiary will even be rendering services 
to as claimed. 6 The omission of critical details, coupled with the discrepancies above, render 
the minimal documentary evidence of limited evidentiary value. 
For all of these reasons , the key element in this matter, which is who exercises actual control over 
the Beneficiary and her work , has not been substantiated. While the record contains multiple 
assertions from the Petitioner regarding its claimed right to control the work of the Beneficiary, 
again a petitioner's unsupported statements are of very limited weight and normally will be 
insufficient to carry its burden of proof. The Petitioner must support its assertions with relevant , 
probative, and credible evidence. See Chawathe , 25 I&N Dec. at 376. 
Based on the tests outlined above, we find that the Petitioner has not established that it will be a 
"United States Employer" having an "employer-employee relationship" with the Beneficiary as an 
H-IB temporary "employee ." 8 C.F .R. § 214 .2(h)(4)(ii). Additionally , based on the discrepancies 
6 Finally, we note that is a Maryland-based company. A search of publicly available records reveals that the 
proposed work location of the Beneficiary, Virginia is not a satellite 
location of as claimed, but rather a virtual office currently available for rent by 
See (last visited Feb. 22, 20 17). 
The lack of any documentation to establish that a legitimate business location of or a third-party client of 
occupies the claimed work location of the Beneficiary undermines the claims of the Petitioner in these proceedings . The 
Petitioner must resolve any material inconsistencies in the record by competent , objective evidence. Unresolved material 
inconsistencies may lead us to reevaluate the reliabilit y and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
8 
Matter of R- T-S-, Inc. 
and evidentiary deficiencies discussed above, we concur with the Director's finding that the record 
as currently constituted does not establish that sufticient specialty occupation work is available for 
the Beneficiary. Thus, the Petitioner has not demonstrated that it will have an employer-employee 
relationship with the Beneficiary. 
III. SPECIALTY OCCUPATION 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, a beneficiary's credentials to perform a particular job are relevant only 
when the job is found to qualify as a specialty occupation. USCIS is required to follow long­
standing legal standards and determine first, whether the proffered position qualifies as a specialty 
occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that 
the position in which the petitioner intends to employ him falls within [a specialty occupation].") In 
the instant case, the record of proceeding does not establish that the proffered position qualifies as a 
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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
9 
Matter of R-T-S-, Inc. 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" 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. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor, 201 F.3d at 
387. 
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 
id. The court held that the former Immigration and Naturalization .Service had reasonably 
interp~eted 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. Id. 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. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation.
7 
Specifically, we find that the Petitioner has not credibly and 
sufficiently demonstrated what work the Beneficiary will perform for the claimed end-client. 
Accordingly, we cannot determine whether the proffered position qualifies as a specialty occupation. 
As discussed earlier, the Petitioner has not demonstrated the existence of any non-speculative work 
for the Beneficiary to perform, and we incorpor(\te here our previous discussion of the matter. Given 
the minimal documentation submitted and the discrepancies regarding the ultimate work location of 
the Beneficiary, we cannot determine whether the speculative duties described herein might 
collectively constitute a specialty occupation position:8 
7 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
8 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 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
10 
Matter of R- T-S-, Inc. 
Even if we were to set that deficiency aside, we would still find that the record does not establish the 
nature of the duties that the Beneficiary would perform. Absent such a demonstration we simply 
cannot ascertain whether such duties would constitute a specialty occupation position. For example, 
while the letter from the claimed end-client is acknowledged, that letter's description of the duties is 
distilled into five generalized bullet-points such as "writing, preparing, and executing test scripts" 
and "support continuous integration process improvement and innovation," that do not sufficiently 
explain what the Beneficiary would actually be doing. See id. 
Further problematic is the Petitioner's wage-level designation on the LCA. Again, in designating the 
proffered position at a Level I wage rate, the Petitioner has indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation, and that the 
Beneficiary would: (1) be expected to perform only routine tasks that require limited, if any, exercise 
of judgment; (2) be closely supervised and her work closely monitored and reviewed for accuracy; 
and (3) receive specific instructions on required tasks and expected results. The Petitioner's 
designation of the proffered position as a Level I, entry-level position is inconsistent with its 
assertions that the position is specialized and complex. For example, the Petitioner's assertion that 
the position requires an "expert knowledge" of numerous programming languages including C#, 
Javascript, HTML, XML, and Visual Studio, while simultaneously asserting it is an entry-level 
position raises additional questions regarding the substantive nature of the proffered position.9 
Consequently, we are 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 
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 2J4(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 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). 
9 The Petitioner's designation of this position as a Leven, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
II 
Matter of R-T-S-, Inc. 
normal minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner n01mally 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 evidence does not satisfy any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
IV. BENEFICIARY'S QUALIFICATIONS 
We do not need to further examine the issue of the Beneficiary's qualifications because the 
Petitioner has not provided sufficient evidence to demonstrate that the proffered position is a 
specialty occupation. In other words, a beneficiary's credentials to perform a particular job are 
relevant only when the job is found to be a specialty occupation. 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the proffered position, it also 
cannot be determined whether the Beneficiary possesses that degree, or its equivalent. Therefore, 
we need not and will not address the Beneficiary's qualifications further. 
V. CONCLUSION 
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 of R-T-S-, Inc., ID# 186761 (AAO Feb. 28, 2017) 
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