dismissed H-1B Case: Information Technology

MATTER OF JVRS-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 10,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"digital analyst" under the H -1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1 B 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 California Service Center denied the petition. The Director concluded that the 
record does not establish that (1) the Petitioner will have a valid employer-employee relationship with 
the Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence, and asserts that the Director erred 
in her decision. · 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212( n )(1) .... 
Matter of.JVRS-, Inc. 
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 relatim;zship with respect to employees 
under this part, as indicated by the fact that it may hire. pay. fire. 
supervise, or otherwise control the ·work ofany such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1 B visa 
classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the United 
States to perform services in a specialty occupation will have an "intending employer" who will file a 
labor condition application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(1). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act. 
Further, the regulations indicate that "United States employers" must tile a Form l-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-lB 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 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-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the tem1 
"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) (qu,oting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
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Matter of JVRS-, Inc. 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (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)(l5)(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-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 1 
Specifically, the regulatory definition of "United St~tes 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.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
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., 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 
101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A .. Inc. v. Natural Res. D4 Council, 
Inc., 467 U.S. 837,844-45 (1984). 
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Matter of JVRS-, Inc. 
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. cy. 
Darden, 503 U.S. at318-19? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h)? 
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) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the ·hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945))). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See. e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c )(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). · 
4 
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Matter of JVRS-, Inc. 
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, 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 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 ofthe relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Upon review, we find that the Petitioner has not submitted sufficient evidence establishing that it 
will have an employer-employee relationship with the Beneficiary. 
The Petitioner, located in Texas, asserted that the Beneficiary will work for the end-client, an 
insurance company, at the end-client's worksite in Michigan for the duration of the validity period 
requested (October 2016 through September 20 19). Regarding the contractual chain, the Petitioner 
stated that it has an agreement with the vendor (Vendor E), which in turn has an 
agreement with another vendor (Vendor A), which has an agreement 
with the end-client. 
In support of the petition, the Petitioner submitted, inter alia, the master services agreement (MSA) 
between the end-client and Vendor E, accompanied by the end-client's purchase order for the 
Beneficiary's services as a digital analyst. However, these documents are problematic in several 
aspects. 
Foremost, the MSA states the following: 
[Vendor E] shall have sufficient authority as to maintain a right of direction and 
control over the Contingent Labor assigned to [end-client's] locations, and shall 
retain sole authority to hire, terminate, discipline and reassign such sufficient 
direction and control over the Contingent Labor as is necessary to conduct [end­
client's] business and without which [end-client] would be unable to conduct its 
5 
Matter of JVRS-, Inc. 
business, discharge any fiduciary responsibility that it may have or comply with 
any applicable licensure, regulatory, or statutory requirement of [end-client]. Such 
authority maintained by [end-client] shall include the right to accept or cancel the 
assignment of any Contingent Labor. Additionally, [end-client] shall have sole 
and 'exclusive control over the day-to-day job duties of all Contingent Labor and 
Vendor shall have no responsibilities with regard to the Contingent Labors 
performance of such day-to-day duties. Furthermore, Vendor shall have no control 
over the job site at which, or from which, the Contingent Labor perform their 
Services. Control over the day-to-day job duties of the Contingent Labor and over 
the job site at which, or from which, Contingent Labor perform their Services is 
solely and exclusively assigned to [end-client]. 
As evident from the above, the MSA makes clear that the end-client has "sole and exclusive control" 
over the Beneficiary's daily job duties performed at its worksite. While the MSA indicates that 
Vendor E also has some degree of control over the Beneficiary (primarily in the form of hiring, 
terminating, disciplining, and reassigning him), Vendor E has no such control over his actual job 
duties performed at the client site. These provisions in the MSA strongly undermine any assertion 
that the Petitioner will control the Beneficiary's employment and will otherwise have an employer­
employee relationship with him. 
The submitted purchase order does not support the finding that the Petitioner will have an employer­
employee relationship with the Beneficiary, either. The purchase order, like the MSA, only 
recognizes Vendor E as the Beneficiary's "supplier." There is no indication in the purchase order or 
elsewhere in the record that the end-client expressly recognizes the Beneficiary as the Petitioner's 
employee. The Petitioner's statement on appeal that "[t]he End-Client ... has provided Petitioner 
with the right to control the beneficiary" remains uncorroborated. 
In addition, the purchase order is only valid for 880 MHR (man hours), which the Petitioner clarified 
runs through the beginning of January 2017. While the Petitioner claims the purchase order "is 
expected to be extended," the Petitioner has not submitted evidence demonstrating the likelihood of 
extension. 
The record also contains the MSA between the Petitioner and Vendor A.4 This MSA contains 
provisions in which the Petitioner agreed that it "[ w ]ill not direct inquiries to [end-client] regarding 
the services provided pursuant to these Terms," and "[w]ill not discuss Contractees by name." The 
Petitioner also agreed "to deal exclusively with Vendor with regard to the services provided pursuant 
to this Agreement and will not, directly or indirectly, deal with [end-client] in any way which 
circumvents Vendor's contract to provide contract personnel to [end-client]." Through these and 
4 This MSA is missing page 8. 
In addition, the Petitioner did not submit a MSA between Vendor E and Vendor A to complete documentation of the 
contractual chain. Instead, the Petitioner submitted pages I and 5 of the "letter of agreement" between these parties. 
Matter of JVRS-, Inc. 
other provisions, the Petitioner explicitly agreed that it will not have direct ·contact with the end­
client regarding any services provided by the Beneficiary. 
Moreover, this MSA indicates that Vendor A may assess the quality of Beneficiary's work. It states 
that, "[i]f necessary, Vendor will assess Subcontractor's performance according to Vendor's 
assessment criteria and objectives and may require Subcontractor to align its processes to conform to 
Vendor's criteria and objectives." The MSA further indicates that Vendor A will primarily supply 
and control the tools and instrumentalities Beneficiary will utilize on the job. It states, for example, 
that the Petitioner is granted limited "right to access Vendor's technology and services only for the 
purposes of serving [end-client]," and that such technology was constructed by the Vendor. These 
provisions, plus the contractual prohibition on direct communication between the Petitioner the end­
client, further undermine any assertion that the Petitioner will control the Beneficiary's employment 
and will otherwise have an employer-employee relationship with him. 
On appeal the Petitioner points to the letters from Vendor E and Vendor A, both of which state in 
conclusory terms that the Petitioner is the Beneficiary's "employer." Vendor E's letter states that the 
end-client and both vendors "have no employment relationship with [the Beneficiary]," and that the 
Petitioner is responsible for salary, benefits, training, and "any discretionary decision making, such 
as hiring, firing, performance evaluations and assignment of daily tasks." Vendor A's letter 
similarly states that the Beneficiary "will be operating at all times under the control of [the 
Petitioner's] management and all activities, including managerial supervision and hiring and firing 
decisions." 
But the vendor letters provide no additional details as to who, when, where, and how the Petitioner 
will exercise such supervision and control; including the "assignment of daily tasks." Nor do the 
letters explain how the Petitioner could legally do so, in light of the above-referenced contractual 
provisions giving the end-client "sole and exclusive control" over the Beneficiary's daily job duties 
and prohibiting direct communication between the Petitioner and the end-client. 
As evidence of its claimed control over the Beneficiary, the Petitioner submitted its performance 
review of the Beneficiary. However, the performance review was completed jointly by the 
Petitioner's human resources manager and the Beneficiary. The Petitioner has not explained such 
aspects as (1) why the Beneficiary's performance review was signed by the company's human 
resources manager rather than its chief technology officer, whom the Petitioner identified as the 
Beneficiary's direct supervisor; and (2) the basis of the human resources manager's knowledge to 
oversee the work of a digital analyst. In fact, we observe that the bulk of the evaluation consists of 
information provided by the Beneficiary about his work assignments and future objectives. That the 
Beneficiary is the one providing the Petitioner with such information, and not the other way around, 
raises additional questions as to how much knowledge and control the Petitioner has over the 
Beneficiary's daily assignments. 
Matter of.JVRS-, Inc. 
The Petitioner additionally submitted copies of the Beneficiary's identification badge 5 and the end­
client's weekly newsletter recognizing the Beneficiary as a new member of its "digital experience 
team." This evidence confirms only that the Beneficiary has been assigned to the end-client project 
team. This evidence does not contain any reference to the Petitioner, and thus, does not convey any 
type of employment relationship between the Petitioner and the Beneficiary. 
Therefore, while payroll and other employment benefits are relevant factors in determining who will 
control the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work 
of the Beneficiary, who has the right or ability to affect the project~ to which the Beneficiary is 
assigned, and who will provide the instrumentalities and tools, have not been established in the 
Petitioner's ·favor. After considering the entire record, we find that the Petitioner has not 
demonstrated that it will have the requisite employer-employee relationship with the Beneficiary. 
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). 
II. SPECIALTY OCCUPATION 
We also find the evidence of record insufficient to 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 
5 
Even his identification badge recognizes him as a contractor of Vendor A, and contains no reference to the Petitioner. 
Matter of JVRS-, Inc. 
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 spec_ialized 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" 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. 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 proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. ld. 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 
As discussed above, the record lacks sunicient documentation from the end-client regarding the 
Beneficiary's assignment. While we have considered the end-client's purchase order, it is only valid 
until January 2017. The Petitioner has not sufficiently documented that this same end-client 
assignment will be extended until the end of the requested validity period in September 2019. 
Furthermore, the purchase order contains no information about the proffered position beyond the 
title of digital analyst. The Petitioner has not submitted evidence directly from the end-client 
confirming the Beneficiary's specific job duties as well as the position's minimum educational 
requirement. See id. (requiring evidence of the client company's job requirements). 
Moreover, upon review of the various job descriptions provided by the Petitioner and vendor 
companies, we find several ambiguities and inconsistencies that preclude us from understanding the 
true nature of the proffered position and its associated job duties. 
For instance, the Petitioner classified the proffered position on the certified labor condition 
application (LCA) as a position under the "Computer Occupations, All Other" occupational 
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Matter of.JVRS-, Inc. 
category, corresponding to the Standard Occupational Classification (SOC) code 15-1199, at a Level 
II wage level.6 The Petitioner later clarified that the proffered position falls under th~ sub-category 
. of "Business Intelligence Analysts," SOC code 15-1199.08, and submitted the Occupational 
Information Network (O*NET) Summary Report for this sub-category. 
Yet the Petitioner also claimed that the proffered position is "a subset of a Computer Systems 
Analyst," and submitted for the record the Occupational Outlook Handbook's chapter and O*NET 
Summary Report for the "Computer Systems Analysts" occupational category. The problem is that 
O*NET recognizes "Computer Systems Analysts," SOC code 15-1121, as an occupational category 
and code distinct from "Business Intelligence Analysts," SOC code 15-1199.08. The Petitioner has 
not adequately explained the relationship between the "Business Intelligence Analysts" and 
"Computer Systems Analysts" occupational categories to the proffered position, and why it chose 
the former occupational category instead of the latter on the LCA. 
Although not expressly asserted here, for positions involving duties of more than one occupational 
classification (which appears to be the Petitioner's claim here), the LCA should reflect the 
O*NET/SOC category and code of the most relevant, i.e., highest-paying, occupation. 7 According 
to the LCA, the prevailing wage for a Level II "Business Intelligence Analysts" position under the 
"Computer Occupations, All Other" occupational category in the area and time period of intended 
employment is $71,594 per year. The Beneficiary is being offered $72,000 per year. But the Level 
II prevailing wage for a "Computer Systems Analysts" position in the same area and time period of 
intended employment is higher, at $78,250 per year. 8 Thus, even if the Petitioner believed its 
position to be a combination of duties represented by both the "Computer Systems Analysts" and 
"Business Intelligence Analysts" occupational categories, it still should have chosen the higher­
paying occupational category of "Computer Systems Analysts" on the LCA. That the Petitioner 
submitted an LCA for the lower-paying "Computer Occupations, All Other" position, without 
further explanation, precludes us from understanding the Petitioner's intent in describing this 
position as a "subset" of "Computer Systems Analysts." 
Aside from the position's occupational classitication, we observe additional ambiguities and 
inconsistencies in the record. For example, the Petitioner's response to the Director's request for 
evidence identified the Beneficiary's position's title as "senior database developer." This title is 
6 The "Prevailing Wage Determination Policy Guidance" issued by the Department of Labor describes a Level II wage 
rate as generally appropriate for positions for which the Petitioner expects the Beneficiary to have a good understanding 
of the occupation, but will only perform moderately complex tasks that require limited judgment. U.S. Dep't of Labor, 
Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _I 1_2009.pdf A prevailing 
wage determination starts with an entry level wage (Level I) and progresses to a higher wage level (Levels II, III, and 
IV) after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d. 
7 !d. 
8 
For more information regarding wages for "Computer Systems Analysts" in the Ml MSA 
for the period 7/2015 - 6/2016, see the Foreign Labor Certification Data Center at http://www.tlcdatacenter.com/ 
OesQuickResults.aspx?code= 15-1121 &area= &year= 16&source= I (last visited Apr. I 0, 20 17). 
10 
Matter of JVRS-, Inc. 
neither consistent with the H-1 B position title of "digital analyst" nor with the Level II wage level 
designation on the LCA.9 Then in its organizational chart, the Petitioner identified the Beneficiary 
as holding a "database management and analytics" position. Further, the end-client's weekly 
newsletter recognizes the Beneficiary as a new member of its "digital experience team," specifically, 
its "mobile app team." None of the proffered duties contains any duties specific to database 
management or mobile applications. 
We also observe that the Petitioner, Vendor E, and Vendor A, all listed the proffered job duties in 
the same vague language. To illustrate, they identically state that the Beneficiary will "[c]ollaborate 
with project team, business SME's and vendors to identify changes to business processes, people or 
systems based on implementation of a large scale project." They do not further explain such aspects 
as (1) what is meant by the word "collaborate," i.e., what specific duties and tasks are involved; (2) 
the nature of these "business processes, people, or systems"; and {3) what "project" is involved. 
Several other job duties refer. to the "project" as well, but do not identify and further define the 
"project." 
Beyond the listed job duties, the Petitioner added that the Beneficiary "will be responsible for 
working collaboratively with Business and IT SMEs to document the requirements in an agile 
format. The requirements capture the wants of the business and presents them in a format for the 
development team. Serves as consultant for other digital analysts." This additional description does 
not provide substantial insight into the nature of this position's duties and their level of difficulty, 
complexity, uniqueness, and/or specialization. Given this lack of evidence, we cannot determine the 
substantive nature of the work the Beneficiary will perform. 
We are therefore precluded from finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii){A), because it is the substantive nature of that work that determines ( 1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
9 
Again, the Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
have a good understanding of the occupation, but will only perform moderately complex tasks that require limited 
judgment. 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_ll_2009.pdf The Level II wage level is the second lowest offour wage levels. 
11 
.
Matter of JVRS-, Inc. 
C. Position Evaluation 
Finally, we will briefly address the position evaluation from associate dean of 
academic affairs at provides a brief 
description of the Petitioner's operations, reproduces the list of job duties provided by the Petitioner 
and both vendors , and concludes that the proffered position requires an individual with at least a 
bachelor's degree in business analytics, information systems, or a related field. 
letter does not appear to be based upon sufficient information about the position 
proposed here. While his letter references the Petitioner's operations, it does not reference the 
particular end-client, project, or project team to which the Beneficiary will be assigned. 
Accordingly, does not demonstrate in-depth knowledge of how the proffered duties 
will actually be perfom1ed within the context of the end-client's particular business operations. We 
consider these to be significant omissions which suggest an incomplete review of the position in 
question. 
also states that the proffered duties "are not those of a lower level employee 
performing tasks such as those duties performed by an Administrative Assistant or Office Worker." 
He further characterizes the position as serving "a great level of responsibility within the company" 
and a "highly skilled leadership role." We question how these statements relate to the proffered 
position. The Director did not compare the proffered position to an administrative assistant or office 
worker. Moreover, statements belie the Petitioner's submission of an LCA for a 
Level II position . Through this designation , the Petitioner indicated that the position is a 
comparatively lower level position relative to others within its occupation, and is unlikely one with 
leadership-level responsibilities. 10 
As a matter of discretion, we may use opmton statements submitted by the Petitioner as 
advisory. Matter o.fCaron lnt'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we are not 
required to accept an opinion or give it full weight if it is not in accord with other information in the 
record or if it is in any way questionable. ld. For all of the above reasons, we conclude that Dr. 
McAdams' opinion letter is not sufficient to establish the proffered position as a specialty occupation 
under any criterion at 8 C .F.R. § 214 .2(h)(4)(iii)(A). 
III . CONCLUSION 
The Petitioner has not sufficiently established that (1) it will have a valid employer-employee 
relationship with the Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
10 See id. 
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Matter of JVRS-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of JVRS-, Inc., ID# 298764 (AAO Apr. 10, 20 17) 
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