dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27. 2017 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology management and consulting company, seeks to 
temporarily employ the Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(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 of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that it would have an employer-employee relationship with the Beneficiary. 
On 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 
The Petitioner stated that the Beneficiary will serve as a ·'programmer analyse for its client. A 
submitted statement of work (SOW) specific to the services stated that the Petitioner would provide 
a range of information technology services for its client including '·Data Center 
Services/Operations,'' "Data Network Services/Operations," .. Desktop Management" .. Help Desk:' 
.. Information Disaster Recovery," '·Storage Services.'' ·'Voice Network Services.'' and .. Application 
Management.·· 
The Petitioner described the duties of the position in a provided itinerary as follows: 
Programmer Analyst. In this position. [the Beneficiaryl would consult with Business 
Analysts and end users to gather information about program intent, functions, data 
requirement. input requirements. output requirements, controls and interfaces with 
other systems. She would also develop the Enterprise Integration Application based 
on the understanding of business requirements and drive BI processes through the 
process of understanding and uncovering business needs/intent and reporting 
Matter oj'S-( '-
requirements. In addition, [the Beneficiary] would interact with business clients to 
define. analyze, and deliver customer requirements. Furthermore. [the Beneficiary l 
would perform the following duties: (i) analyze and develop reporting tools to be 
used by the data warehousing group: (ii) using her strong knowledge of SQL skills 
and relational database, model business requirements into both relational and star­
schema/snowflake data structures: (iii) responsible for technical and functional testing 
of applications to ensure quality control and expand/modify systems to serve new 
purposes or improve data f1ow: (iv) determine computer software or hard\vare needed 
to set up or alter the given project system: (v) discuss specific recommendations. 
projects, parameters, and tools with clients and train the client employees and report 
to top management about training results and system updates and performance. 
In addition, the Petitioner also submitted the following table setting forth the duties of the proffered 
position: 
DUTY BREAKDOWN [THE o;., 
BENEFICIARY) HOURS 
Using computers and computer systems 10 25 
(including hardware and software) to 
program, write software. set up functions. 
enter data. or process information 
Processing Information- Compiling, coding, 5 12.5 .. calculating, tabulating, categonzmg. 
auditing. or verifying information or data. 
Making Decisions and Solving Problems-
Analyzing information and evaluating 
results to choose the best solution and solve 
problems 
Getting Information- Observing, receiving, 5 12.5 
and otherwise obtaining information from 
all relevant sources 
Identifying Objects, Actions. and Events- 5 12.5 
Identifying information by categorizing, 
estimating, .. differences recogmzmg or 
similarities, and detecting changes 111 
circumstances or events. 
Analyzing Data or Information- Identifying 5 12.5 
the underlying principles, reasons, or facts 
of information by breaking down 
information or data into separate parts. 
Updating and Using Relevant Knowledge- 3.5 8.75 
2 
.
Matter ofS-C-
Keeping up-to-date technically and app lying 
new knowledge to your job 
Communic ating with Supervisor and 3.5 8.75 
Providing information to supervi sor. by 
telephone , Ill written form, e-mail, or Ill 
person ; 
Develop ing, designing, or creating new 3 7.5 
applications, ideas , relationships , syste ms, 
or products , including artistic contributions 
Total: 40 hours 100% 
weekly 
According to the Petition er, the position requires a bachelor's degree in computer science, computer 
information systems , electric engineering, or a related field. 
II . PLACE OF EMPLOYMENT 
As a preliminar y matter, we find that the Petitioner has provided incon sistent information regarding 
the Beneficiary's place of employment. The table below summarizes the variances in the 
Petitioner's statements. 
Record of Employment Information 
Proceedings 
Fonn I-129 3. Address 1d1erc the hendic·iary(es) will 11 ork if different [r(lm address in Part L rStrccr ;tumln·;·"''d nail'<'. cin · roHP .. \hi/c. ::1p 
Labor 
Condition 
Application 
(LCA) 
codet 
,__[ ... _ ....... _ ... _ .. -·-_···_·-·-_ ....... _ ....... _ ....... _ .... _ .... _.----~---------------------·---J 
~- han itinerary induckd with the pctiti1111'' 0 No [8] Yes 
Page 4 
[8] No O Ye> a. lhe hcnctlciarv of this petition will he a;,signcd tn work at an l'ft~sit.: location li>r all nr part ,,f the pcri1•d f1> r 
IYhiclJ H-1 B c!aS>ilkati on slltt!,!lll. 
Page 19 
a. Place of Employment 1 (Also see ADDENDUM 1 - Additional Worksites) 
-----·~-~ - ----· - -- ---·------
1. Address 1 * 
I 
2 --Ac-,d-:-dr-e-ss- 2=----================== --- ---· - --.. -----.. ------.. ·--· -·-------------- ... --------
------ -------- ----- ---- ----- ------ - ---------·---- --,- ----- - .------ .. -..... __ ,_ 
3 City * ! 4. County 
-=--
1 5. State/District/Territory • 
[__ PENNSYLVANIA 
' 6 Postal code • 
Page 3 
.
Matter ofS-C-
1. Address 1 • 
I 
·-····-·-- ·-- --------
2 Address 2 
1-::------------- ----- ----------·· ... ------- - - ---- -- ------ ----- --------
,_ , _____ 
3. City. 4 County • 
t--::--- _ . . . 
5 S tate/Dislnct/Terntory • 
~--~ 
6 Postal code • 
PENNSYLVANIA 
~-- ' -- --·-------
r · •···~----~~?•?• < - • = o G ··-~ - ·---~---•· ••••• uu ,.~-~~---·x.o·- •. ~· ' oO •••n•···o·o 
"" 
.>< r ~~ ., . , < ~ - - ___ , -~- .•. ,_.., '' ' 
Page 6 
Letter of The beneficiary will be workin g o n a project at our office with a location of 
Support PA for the entire duration of the 
(March 26, requested employment. ... The beneficiary will be workin g from our ot1ice which is 
201 3) and [client] which has an office location in the same buildin g but 
(Page 1) 
SOWs Contractor [(the Petitioner)] will perform all work pursuant to this sow at the 
[client] offi ce in PA unless other wise spec ified or direct ed b y [the 
client's ] m anagement. (Page 6) 
Itinerary Work Site: 
[Client] 
[(Petitioner's 
suit e numb er)] 
,, PA 
Response to [The Benefi ciary J would be assigned to work at the company s ite in 
Request tor PA. (Page 8) 
Eviden ce 
(RFE) 
Offer Letter [The Beneficiary] will be based and w ork at [the Petitione r· s] Client oflice s in USA 
or [the Petitioner's] PA office locat
ed at 
PA (Page 1) -
The Petitioner did not prov ide an explanati on for the variances in the Beneficiary's work site. 
Ill. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will now a ddress whether the eviden ce of reco rd establi shes that the Petitioner will be a ''U nited 
States emplo yer'' havi ng ·'an emplo yer-empl oyee relationship with respect to emplo yees under this 
part, as indicat ed b y t he fact that it may hire, pay, tire, supervise , or otherwise control the work of 
any such employ ee." 8 C .F.R. § 214.2(h)(4 )(i i). 
A. Legal Fram ewo rk 
Section 10l (a)( 15)( H)(i)(b) o f the Act d efines an H - IB non imm igra nt, 111 pettin ent part, as an 
individual: 
4 
Maller ofS-C-
[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 )(I) ... , 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 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: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this pari. as indicated hy 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, Ill, 61 J 21 (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 tenns ·'employee'' and ·'employer-employee relationship'' are not defined for purposes of the 
H-IB visa classification. Section IOI(a)(IS)(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)(l ). 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-1 B 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-1 B beneficiary. and that this relationship 
be evidenced by the employer's ability to "'hire. pay, tire, 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 nor U.S. Citizenship and Immigration 
Services defined the terms '·employee'' or •·employer-employee relationship" by regulation for purposes 
of the H-1 B 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." 
ld. Therefore, for purposes of the H-1 B visa classification. these tetms are undefined. 
Matter ofS-C-
The United States Supreme Court has determined that where federal law fails to clearly define the tem1 
"employee," courts should conclude that the tenn was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide i'Vful. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 710 
(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 arc 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 Gastroenterolo?Jl 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 r. 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) ofthe 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-1 B visa classification, the regulations define the tenn 
"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' 
in ERISA, unlike the definition of ·employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition.'' See, e.g .. Bmt·ers 1'. Andre1r 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 01 (a)( 15)(H)(i)(b) of the Act, ·'employment'' in section 212(n)( I )(A)(i) of the Act. or "employee" in section 
2 I 2(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). 
Ma/ler ofS-C-
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-IB ""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-la\v 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. Cl 
Darden, 503 U.S. at 318-19. 2 
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, we 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) 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); Delensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries· services, arc the "true employers'' of H -1 B 
-' 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. Rohhins, 519 U.S. 452. 461 ( 1997) (citing Rohertson v. Methmr Valley Citi::.ens Council. 
490 U.S. 332,359 (1989) (quoting Bowles\'. 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 8 intracompany 
transferees having specialized knowledge); section 274A of the Act. 8 U.S.C. ~ 1324a (referring to the employment of 
unauthorized individuals). 
Matter ofS-C-
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 
detem1ination 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-IIJ(A)(l ). 
Furthermore, when examining the factors relevant to detennining controL we 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 riKhl to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the riKhf 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. 503 U.S. at 324 ). 
B. Analysis 
First, we find that the Petitioner has not adequately established that it has secured definite. non­
speculative specialty occupation work for the Beneficiary for the entire validity period requested. 
On the Form 1-129, the Petitioner requested that the Beneficiary be granted H-lB classification from 
October L 2013, to September L 2016. However, the Petitioner has not submitted sufficient 
documentation to substantiate that the Beneficiary would work for the end-client for the entire period 
of the requested visa. 
For instance, in response to the Director's RFE, the Petitioner submitted an SOW executed between 
itself and its client for "strategic IT outsourcing:· The SOW had an effective date of June L 2011 
and Section 7 of the agreement indicated that it was set to expire on June 30.2012. The SOW also 
stated that the client had the right to extend the term of the SOW until June 30, 2013. On appeal, the 
Petitioner submits an updated SOW stating that it would be effective on April L 2014, and continue 
until July 1, 2016. However, the SOW submitted on appeal is not properly executed by the parties; 
neither party signed the SOW. The Petitioner did provide a letter on appeal from the client stating 
that it agreed to extend the contract with the Petitioner and that it would execute the agreement by 
September 29. 2014; however. this executed SOW is not submitted on appeal. 
Matter o(S-C-
Furthermore, even if the Petitioner were to provide the SOW, it would be executed after the 
Director's RFE. Thus, the SOW does not establish that the Petitioner had secured this work 
assignment as of the time of filing the petition. The Petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. 8 C.F.R. ~ I 03.2(b )(1 ). A visa petition may not be 
approved at a future date after the Petitioner or the Beneficiary becomes eligible under a new set of 
facts. See Matter oj'Michelin Tire Corp., 17 I&N Dec. 248 (Reg'! Comm'r 1978). 
Moreover, even if effective, the SOW does not address specific services, but only general categories 
of information technology services that the Petitioner would provide for the client, including vaguely 
stated services such as data center services and operations, data network services and operations, 
desktop management, help desk, information disaster recovery, storage services, voice network 
services, and application management. At no point does the Petitioner describe in detail the services 
to be provided within these general categories; and more importantly, how the SOW establishes the 
need for the Beneficiary's position for the entire requested period of employment. The Petitioner 
otherwise submits no contractual documentation, such as work or purchase orders, statements of 
work, or other contractual documentation from the end-client to substantiate that the Beneficiary 
would be engaged on a project for the end-client for the entire validity period. 
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. It is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. ~ 1361; Matter of' Skirhall 
Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 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-1 8 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 
undetermined. 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 pmt 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 
Matter (~lS-C-
Furthermore, applying the Darden and Clackamas tests to this matter, we find that the evidence does 
not sufficiently establish that the Petitioner will be a ''United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-1 B temporary ··employee." Specifically, we 
find that the record of proceedings does not contain suf1icient consistent, and credible 
documentation substantiating and describing who exercises control over the Beneficiary. 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary: 
however, the Petitioner has submitted little supporting documentation to corroborate that it will have 
control over the Beneficiary while assigned to the end-client. Although the Petitioner indicates that 
the Beneficiary will report to its president, the Petitioner does not indicate how. when. and in what 
form this supervision will take place nor the tools or instrumentalities it will provide pursuant to this 
assignment. 
In contrast, other documentation submitted by the Petitioner indicates that the client will exact 
substantial control over the Beneficiary during her proposed assignment. First, it is noteworthy that 
the submitted SOW is an "IT Outsourcing Contract" suggesting that the Petitioner is providing 
staffing services to the client. Further, in a support letter, the Petitioner states that it is a ''temporary 
services employer," and notes that it "contracts with clients or customers to supply workers to 
perform services for the client or customer.'' Although the Petitioner asserts that it will control the 
assignments and supervision of it resources once assigned, it does not describe or document how 
these assignments would be made and how control over its resources would be maintained on a daily 
basis. In fact, as we have discussed, the SOW does not define the scope ofthe Petitioner's work, but 
only addresses general information technology services the Petitioner may provide, indicating that 
the services will vary based on the direction of the client. For instance, Section 16 of the SOW 
states that ''contractor's developers'' and "business analysts'' will work with client subject matter 
experts to provide services to the end-client's clients. In addition. Section 17 of the SOW indicates 
that the client would provide the Beneficiary's workspace and other instrumentalities necessary for 
the performance of her work. In sum. the evidence reflects that the Beneficiary is being placed 
pursuant to a staffing arrangement, rather than for the provision of a specific set of predetermined 
services, suggesting that the nature of her work will be determined by client direction. 
As such. the evidence suggests 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. 
Although it appears that the Petitioner will pay the Beneficiary's wages and administer her benefits, 
the preponderance of the evidence indicates that the Beneficiary will likely be primarily under the 
direction of the end-client and that she will only occasionally check in with the Petitioner as to her 
progress. While payroll, tax withholdings, and other employment benefits are relevant factors in 
determining who will control the Beneficiary, other aspects 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 aflect 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 
10 
.
Matter (?fS-C-
demonstrates that the Beneficiary will be primarily under the control of the end-client and the mid­
vendors and not the Petitioner. 
Moreover, we note that the offer letter states that the Beneficiary '"will be based and work at [the 
Petitioner's] Client offices in USA .... '' According to the offer letter , the Beneficiary may be placed 
at various locations in the United States and not necessarily in Pennsylvania. as 
indicated on the H-1 B petition. 
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). 
IV. SPECIALTY OCCUPATION 
The appeal must also be dismissed as the Petitioner has not demonstrated 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. § 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 protTered 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; 
(J) The employer normally requires a degree or its equivalent for the position; or 
Matter ofS-C-
( 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. 
We have consistently interpreted the term '"degree'' 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. 201 F.3d at 387. 
B. Analysis 
We also determine that the evidence is insufficient to establish that the profTered position qualifies 
for classification as a specialty occupation. 
As recognized by the court in De{ensor. 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. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proflered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. !d. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to 
perform that particular work. 
The record of proceedings does not contain sufficient information from the asserted end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. In fact. the 
Petitioner submits no documentation from the end-client setting forth the duties and responsibilities 
of the position, nor its minimum educational requirements. As we have discussed. the provided 
SOW only provides a list of general information technology services the Petitioner may provide to 
its client, but does not cover in detail the specifics of the Beneficiary's proposed assignment. 
Further. the Petitioner only lists general duties that make no reference to the specifics of the project 
and do not convey the substantive nature of the proffered position and its duties. For example. the 
vaguely stated duties include ·'uncovering business needs/intent and repotiing requirements:· 
"'interact[ing] with business clients to define, analyze, and deliver customer requirements, .. 
'"choos[ing] the best solution and solve [sicJ problems."' and ""keeping up-to-date technically and 
applying new knowledge:· The duties. as described. do not contain sufficient information about 
their level of dit1iculty. complexity. uniqueness. or specialization. For instance, the duties provide 
little detail regarding the nature ofthe Beneficiary's specific assignments, the systems she will work 
with or develop, the technology she will utilize, or the knowledge required to perform the duties. 
Given this lack of evidence, we cannot determine 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 (I) the normal 
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Matter ofS-C-
mmunum 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. 
Likewise, to prove that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 214(i)(l) of the Act a petitioner must establish that the 
position requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed, we interpret the degree requirement at 8 C .F.R. § 214.2(h)( 4 )(iii)(A) to 
require a degree in a specific specialty that is directly related to the proposed position. Royal Siam 
Corp, 484 F.3d at 147. However, the Petitioner has not provided the end-client's education 
requirements for the proffered position. 
Moreover, as we stated in the previous section. the Petitioner has not submitted contractual 
documentation sufficient to substantiate the Beneficiary's employment throughout the entire 
requested period of employment. The Petitioner provided a SOW that expired in June 2012 and 
which does not specifically demonstrate the need for the Beneficiary's proposed position. 
Otherwise, the Petitioner submits a more recent SOW purporting to extend the services into July 
2016, but this agreement remains unsigned, leaving question as to whether there would be sufficient 
specialty occupation work for the Beneficiary for the entire requested period of employment. 
Therefore, the Petitioner has not demonstrated that the proffered position qualities as a specialty 
occupation or that there would sutlicient specialty occupation work available to the Beneficiary for 
the entire requested period of employment. 
V. CONCLUSION 
The record does not establish that, more likely than not. the Petitioner will have an 
employer-employee relationship with the Beneficiary, and that the proffered position is a specialty 
occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter (~fS-C-, ID# 869072 (AAO Dec. 27. 2017) 
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