dismissed H-1B Case: Information Technology

(b)(6)
MATTER OF K-C-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29,2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting and software development business, seeks to 
temporarily -employ the Beneficiary as a "Senior Business Intelligence Developer" under the H -1 B 
nonimmigrant classification . See Immigration and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b), 8 
U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition. The 
matter is now before us on appeal. The appeal will be dismissed. 
I. ISSUES 
The issues before us are whether (1) the Petitioner has the requisite employer-employee relationship 
with the Beneficiary; and (2) the proffered position qualifies as a specialty occupation position in 
accordance with the applicable statutory and regulatory provisions. 1 
II. THE PROFFERED POSITION 
In the Form I-129, Petition for a Nonimmigrant Worker, and the supporting documents, the 
Petitioner stated that the Beneficiary 
would be assigned to its end client, . 
In the letter dated April 9, 2015, the Petitioner indicated that the Beneficiary's duties include the 
following: 
• Participate in all phases of software development and maintenance lifecycle. 
• Develop ETL solutions using SQL Server Integration services (SSIS). 
• Develop reports through SQL Server Reporting Services (SSRS) from a 
variety of data sources. 
1 We conduct appellate review on a de novo basis. Matter of Simeio Solutions, LLC, 26 l&N Dec. 542 (AAO 20 15); see 
also 5 U.S.C. § 557(b) ("On appeal from or review ofthe initial dec-ision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of K-C-S-, LLC 
• Design and develop Web based User Interface, middle tier components, Data 
Access components [sic] and T-SQL code[.] 
• Perform requirements and impact analysis. 
• Write and review of design specifications. 
• Document business and technical requirements. 
• Implement Unit tests and work with QA to review Test Cases. 
• Support defect analysis and resolution. 
• Work with senior management, customers, and other team members. 
• Work independently with minimal supervision. 
The Petitioner further indicated that the requirement for the position is "a Bachelor's degree in 
computer science, engineering, information technology, its equivalent or other closely related field." 
Ill. EMPLOYER-EMPLOYEE RELATIONSHIP 
To file an H-IB petition, a petitioner must qualify as a "United States (U.S.) employer" in 
accordance with the definitional provisions at 8 C.F.R. § 214.2(h)(4)(ii). Even if the evidence of 
record were to establish that the particular position for which the petition was filed is a specialty 
occupation, that feature of the petition would have no practical effect, for a petition filed by an entity 
not entitled to file it as a U.S. employer cannot be approved. 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-IB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.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 
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(2) 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). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
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)(15)(H)(i)(b) ofthe 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-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
· employer." Id Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general 
common law of agency, we consider the hiring party's right to control the manner 
and means by which the product is accomplished. Among the other factors relevant 
to this inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
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Matter of K-C-S-, LLC 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Id; 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)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law defmitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.2 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R.§ 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB 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.P.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the defmition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this marmer would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-19.3 
2 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 ERlSA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to exterid 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 01 (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-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). 
3 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, 
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Matter of K-C-S-, LLC 
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).4 
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-IB 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) (defming 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 ofthe employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
4 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. § ll84(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-18 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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Matter of K-C-S-, LLC 
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 ofadditional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
. the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, 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 petition is based upon the Beneficiary 's project at where the Petitioner asserts that the 
Beneficiary will be assigned as a "Senior Business Intelligence Developer" from April 10, 2015 to 
April2, 2018. ThePetitioner did not indicate any other assignments or additional work sites for the 
Beneficiary. 
The record reflects that another business-entity was interposed between the Petitioner and . 
This entity, is Indiana 
, which provides information technology (IT) personnel to various clients, including 
1. Contractual Agreements between the Petitioner and 
The record contains an Itinerary of Services by the Petitioner listing the Beneficiary's work 
responsibilities. The itinerary confirms that the Beneficiary will be assigned to work on a project 
with the Petitioner's end client, The Beneficiary will be tasked to "perform the job duties of 
Sr. BI Developer" for "at their location AZ 
and the duration of the project would be approximately 3 years ending on April2, 2018. The 
itinerary alsostates the Petitioner as the Beneficiary 's employer, and names an individual employed 
by the Petitioner to supervise the Beneficiary. 
The record also contains a Master Services Agreement ("Agreement") between 
and the Petitioner dated November 19, 2012. The Agreement states that the Petitioner will provide 
"certain temporary staffing services" to to be able to work on projects to the 
end-user, the State of Arizona.5 The Agreement includes a number of exhibits, including a 
Temporary Worker Agreement. The Temporary Worker Agreement merits particular attention for 
5 We will assume that 
binding on 
is an agency in the State of Arizona and the agreements executed by the State o~ Arizona is 
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Matter of K-C-S-, LLC 
what they reveal about (1) the relationship between and the Petitioner; (2) the extent of 
control that would have over persons assigned to under the umbrella of 
the Agreement; and (3) the extent of control that would exercise over the Beneficiary's day­
to-day work. 
The Temporary Worker Agreement outlines the Beneficiary's responsibilities that relate to the 
services provided to The preamble of the contractual agreement states: 
WHEREAS, [the Petitioner] has contracted with 
("MSP") for·[the Petitioner] to provide certain services, including work performed on 
a temporary basis by [the Beneficiary], to 'client (defined 
below); and 
WHEREAS, 
("Client") related to 
has contracted with State of Arizona 
Client's temporary workforce under a program managed by 
(the "Program "); and 
WHEREAS, [the Beneficiary] may be assigned by [the Petitioner] to work for 
Client on a Temporary Basis. 
The Temporary Worker Agreement continues by stating, "[The Beneficiary] may, in 
sole discretion, be engaged to provide services to through the Program as an 
employee of [the Petitioner] and not as an employee of " While this document describes the 
relationship between the Petitioner, and the end~user, as it relates to the 
Beneficiary , we found insufficient evidence in the record to corroborate the actual work that the 
· Beneficiary would complete for 
The Itinerary of Services does list the location where the Beneficiary would work as corroborated by 
the Labor Condition Application (LCA). The Master Services Agreement indicates the relationship 
between the Petitioner and : The Temporary Worker Agreement outlines that 
the Beneficiary is an employee of the Petitioner and not 
However , all three documents fail to establish the contractual relationship between and 
expectations for the Beneficiary , and how the Petitioner would 
supervise the Beneficiary when he is working at Therefore , we accord little weight to these 
.documents as evidence that the Petitioner maintains control over the matter and means of the 
Beneficiary's day-to-day work assignments at or that the Petitioner exercises supervisory 
control of the Beneficiary and the particular assignments to be performed by him at 
2. Letter from confirming services of Beneficiary 
The record contains a letter dated April 10, 2015, from explaining the 
Beneficiary's duties. The letter confirms the Beneficiary's position, duties, and the work location. It 
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Matter of K-C-S-, LLC 
further indicates that the "project is long term with open end date and can go for more than 2-3 
years." 
While we find that the letter outlines what work expects the Beneficiary to 
complete at the Petitioner did not establish duration of the relationship between 
and More specifically, on the Form I-129, the Petitioner requested that the 
Beneficiary be granted H-1B classification from April 10, 2015 to April 2, 2018." The Petitioner 
provided an itinerary that stated the Beneficiary would work on this project for a "period of 
approximately 3 years" "ending on April 2, 2018." However, the letter from 
stated the project duration is "long term with open end date and can go for more than 2-3 years." 
On appeal, the Petitioner submitted a printout titled "Contract Amendment," between 
and The printout indicates that the contract is "extended for an additional one year 
period from September 2, 2014, to September 3, 2015. Another printout titled 
' from the State of Arizona lists as the 
primary vendor. It indicates that the master blanket/contract end date is September 3, 2017, which 
also does not cover the entire requested employment period for the Beneficiary. Further, there is no 
evidence that these contracts involve the Beneficiary. 
Therefore, we find that the Petitioner has not established that the petition was filed for non-speculative 
work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(1). Merely claiming that the 
Beneficiary would be assigned to for the duration of requested employment period, without · 
sufficient corroborating evidence supporting the claim, does not establish eligibility in this matter. 
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 Matter of Michelin Tire Corp., 17 I&N 
Dec. 248,249 (Reg'l. Comm'r 1978).6 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
I 998 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 
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-lB 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 analysis 
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. 
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Matter of K-C-S-, LLC 
3. Email Correspondence from 
work with 
and the Petitioner regarding the 
The record contains an email correspondence between and the Petitioner 
acknowledging that the end client, does not provide end client letters. The email 
correspondence states that is unable to provide a letter from , as "they are 
not contracted directly with the vendor community." 
We accord little weight to the email correspondence between and the Petitioner 
as it does not address the Beneficiary's role at In addition, the Petitioner did not provide 
sufficient information regarding the contracting relationship between and 
Finally, the Petitioner did not provide any work orders or scope of assignment from 
4. The Beneficiary's Identification Card 
The record contains a photocopy of the identification card that issued to the Beneficiary. It 
identifies the Beneficiary as a contractor; further indicating that recognizes the Beneficiary as 
a contractor but does not identify the contracting company. Further, it does not provide information 
regarding who is managing the Beneficiary on a daily basis at 
5. The Petitioner's Time Sheets as entered in the 'software 
The record of proceedings contains copies of the Beneficiary's time sheets. They appear to reflect 
that the Beneficiary is working at the end client - The time sheets are approved by several 
individuals, but there is no evidence in the record that these individuals are employed by the 
Petitioner. Specifically, the evidence in the record does not establish that .the Petitioner is involved 
in supervising the activities of the Beneficiary in any meaningful way. 
6. Conclusion 
Upon complete review of the record of proceeding, we find that the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F.R. § 214.2(h)(4)(ii). Despite the Director's specific request for evidence on this issue, the 
Petitioner did not submit sufficient evidence to corroborate its claim. The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
For the reasons set forth above, we agree with the Director's conclusion that the evidence of record 
does not demonstrate that the Petitioner would engage the Beneficiary in the employer-employee 
relationship that the provision 8 C.F.R. § 214.2(h)(4)(ii)(2) requires for status as United States 
employer. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
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Matter of K-C-S-, LLC 
III. SPECIALTY OCCUPATION 
Further, we find that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation in accordance with the applicable statutory and regulatory provisions. For an 
H-lB petition to be granted, the Petitioner must provide sufficient evidence to establish that it will 
employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
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.P.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the 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. 
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Matter of K-C-S-, LLC 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U,.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. § 214.2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. 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"). Applying this standard, USCIS regularly approves · H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
As a preliminary matter and as recognized in Defensor, 201 F.3d at 387-88, it is necessary for the 
end-client to provide sufficient information regarding the proposed job duties to be performed at its 
location(s) in order to properly ascertain the minimum educational requirements necessary to 
perform those duties. In other words, as the nurses in that case would provide services to the end-
11 
(b)(6)
Matter of K-C-S-, LLC 
client hospitals and not to the petitioning staffing company, the Petitioner-provided job duties and 
alleged requirements to perform those duties were irrelevant to a specialty occupation determination. 
See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient information from the end­
client, regarding the specific job duties to be performed by the Beneficiary for that company. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
8 C.F.R. § 2l4.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) 
the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
IV. CONCLUSION AND ORDER 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001); see also Matter 
of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) (noting that we conduct appellate review 
on a de novo basis). · 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff 
can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the . enumerated 
grounds. See Spencer Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
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 
7 Since the identified basis for denial is dispositive of the petitioner's appeal, we need not address other grounds of 
ineligibility we observe in the record of proceeding. Nevertheless, we will briefly note and summarize them here with 
the hope and intention that, if the Petitioner seeks again to employ the Beneficiary or another individual as an H-1 B 
12 
Matter of K~C-S-, LLC 
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 Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofK-C-S-, LLC, ID# 15175 (AAO Dec. 29, 2015) 
employee in the proffered position, it will submit sufficient independent objective evidence to address and overcome 
these additional grounds in any future filing. 
We find that the Petitioner has not established that the LCA corresponds to the proffered position. Specifically, while 
the LCA is filed for the occupational category, "Computer Occupations, All Other," SOC (ONET/OES) code 15-1199, 
on appeal, the Petitioner claims that the "duties are consistent with that of a Software Engineer or Developer." We note 
that the prevailing wage for "Software Developers" is higher than the occupational category for "Computer Occupations, 
All Other." 
We further note that the combined evaluation of the Beneficiary's education and work experience submitted by the 
Petitioner is insufficient to establish that the Beneficiary possesses the equivalent of a U.S. bachelor's degree in any 
specific specialty. SpeCifically, the claimed equivalency was based in part on experience; however, there is no evidence 
that the evaluator has authority to grant college-level credit for training and/or experience in the specialty at an 
accredited college or university which has a program for granting such credit based on an individual's training and/or 
work experience, and that the Beneficiary also has recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
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