dismissed H-1B Case: Information Technology

MATTER OF S-S-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 30, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, -an IT consulting firm, seeks to temporarily employ the Beneficiary as an "Oracle 
functional consultant" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 
The H-IB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petiti0ner had not demonstrated: (1) that the proffered position qualifies as a specialty occupation 
position; and (2) the existence of a valid employer-employee relationship between the Petitioner and 
the Beneficiary such that the Petitioner could meet the definition of a United States employer under 
8 C.F.R. § 214.2(h)(4)(ii). 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence 
submitted is sufficient to show that the petition should be approved. 
I Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address the Director's determination that the evidence of record does not demonstrate 
that the Petitioner would engage the Beneficiary in an employer-employee relationship, as our 
finding on that matter impacts the remaining issues before us. 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(p) of the Act defines an H-IB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
Matter of S-S-, LLC 
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 in the Code of Federal Regulations at 8 C.P.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 
(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.P.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.P.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) 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)(1). The intending employer is described~ as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the 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.P.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.P.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. 
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Matter of S-S-, LLC 
The United States Supreme Court has determined that where federallaw 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 ofthe 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." 
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)(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-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.' 
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 
I 01 (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 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). 
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Matter of S-S-, LLC 
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-lB "employee." 8 C.F.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.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. C.f 
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) of the Act, section 212(n) of the 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-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer~' are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-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) 
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" supervisit:~g and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of S-S-, LLC 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-1B 
nurses under 8 C.F.R. § 214.2(h), even though a medital 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 
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 reqqired 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 
Applying the Darden and Clackamas tests to this matter, we find that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-lB temporary "employee." · 
The Petitioner, which is located in Virginia, 4 claims that although it will act as the 
Beneficiary's employer, the Beneficiary would actually perform his duties in California, for 
the (end-client), pursuant to a contract executed between the Petitioner 
and (first middle-client). The record contains a copy of a contract executed 
between the Petitioner and the first middle-client, as well was a work order executed pursuant to that 
contract, which calls for the Beneficiary to provide services at the address. However, the 
record does not contain documentary evidence of a similar arrangement having been made between 
4 The Petitioner relocated its office during the pendency of the H-1 B petition . Publicly-available online mapping tools 
and real estate websites indicate that the Virginia office location from which the Petitioner was conducting 
business at the time it filed the petition was a residential apartment 
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(b)(6)
Matter of S-S-, LLC 
the first middle-client and the end-client. As such, there is no evidence of any binding obligation on 
the part of the end-client to provide any work to the Beneficiary. Absent evidence of actual work for 
the Beneficiary to perform, we cannot determine who would supervise and otherwise control such 
work. 
While the letter from the end-client is acknowledged, we note that the letter introduces a fourth 
actor, (second middle-client), into the contractual path. This is the record's 
first and only mention of the second middle-client, and that company's place within the contractual 
path is not clear.? In any event, the record contains no agreements executed between the second 
middle-client and 
any of the other actors, and this evidentiary deficiency raises further questions as 
to whether there is any binding obligation on the part of the end-client to provide any of the work 
referenced in this H-lB petition. Again, absent evidence of actual work for the Beneficiary to 
perform, we cannot determine who would supervise and otherwise control such work. 6 
Even absent these evidentiary deficiencies we would still find that the evidence of record does not 
establish the existence of an employer-employee relationship. For example, the Petitioner 
emphasizes its own repeated assertions, as well as those of the first middle-client and end-client/ 
that the Petitioner would act as the Beneficiary's "employer." However, this characterization of the 
position by the Petitioner or any of the other actors is not persuasive. Rather, the issue is whether, 
pursuant to all the indices in the record, the Petitioner would exercise an employer-employee 
relationship with the Beneficiary. 
5 We find this a significant deficiency in that it raises questions regarding the possible omission of other potentially 
important actors, factors, or evidence. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. The H-1 B 
classification is not intended to be utilized to meet possible workforce needs arising from potential business expansions 
or the expectation of potential new customers or contracts. For example, a 1998 proposed rule documented this position 
as follows: 
Historically, the Service has not granted· H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
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 wh.ether an alien is properly 
classifiable as an H-1 B 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. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 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). 
7 As the record contains no documentation from, or regarding, the second middle-client, there are no statements from that 
entity making similar claims. 
' I 
6 
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Matter of S-S-, LLC 
The Petitioner provided evidence indicating that it would perform an evaluation of the Beneficiary's 
performance, and that it would issue the wages the Beneficiary earned. However, it is not clear 
from the record whether the evaluations would necessitate any meaningful level of interaction with 
the Beneficiary or any in-depth knowledge of his day-to-day activities': The record contains one 
completed evaluation, and the Petitioner's input appears to have been limited largely to checking 
boxes. It is not clear whether the evaluation process involves face-to-face contact between the 
Beneficiary or anyone affiliated with the Petitioner. Notably, in the instant case, the Petitioner is 
located in Virginia, and would provide the Beneficiary's services through an intermediary to an end­
user in California. There is no indication that the Petitioner will send a supervisor to the California 
site to assign duties to the Beneficiary and to observe and critique his performance of those duties. 
Rather, it seems likely that either the end-client or an intermediary, whichever is overseeing the 
development of the project, would perform those duties. This seems especially true given the 
Petitioner's relatively small size- with only two employees, it is unclear how much time either of 
them would be able to spend supervising the Beneficiary's performance from Virginia. Nor is there 
any other persuasive evidence that there will be any meaningful interaction between the Beneficiary 
and anyone affiliated with the Petitioner.8 
Assigning duties and supervising their performance is central to an employer-employee relationship. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control a beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
beneficiary is assigned, rriust also be assessed and weighed in order to make a determination as to 
who will be the beneficiary's employer. In the instant case, it appears that some entity other than the 
Petitioner would exercise that control over the Beneficiary. 
We find that the Petitioner has not demonstrated, by a preponderance of the evidence that, if the 
H-lB petition were approved, the Petitioner would exercise an employer-employee relationship 
within the meaning of the statute, regulation, and case law set out above. The appeal will therefore 
be dismissed on this basis. 
8 In its support letter the Petitioner, described its interaction with the Beneficiary as consisting of "phone calls" when the 
Beneficiary is working at a client site, and "daily reporting in person" when he is working at the Petitioner's office in 
Virginia. However, the evidence of record, including the Form 1-129 and the certified labor condition application 
(LCA), make clear that the Beneficiary would work at only one location during the three-year period requested petition 
approval -the end-client's site in California. It is therefore appears that the only interaction between the Petitioner and 
Beneficiary would be "phone calls" and submission of"weekly time sheet[s]." 
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Matter of S-S-, LLC 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "spetialty 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. 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 v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-88. 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 ofthe requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
8 
Matter of S-S-, LLC 
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. The Proffered Position 
In the H-1B petition, the Petitioner stated that the Beneficiary would work serve as an "Oracle 
functional analyst." A letter submitted with the H-1B petition provides the following description of 
the duties of the proffered position: 
• Analyzing, designing, and configuring the oracle applications and modules . 
including GL, AP, AR, PO, iProcurement;[ ]iExperise and OTL modules (20%); 
• Participating and documenting the requirement gathering sessions and analyzing the 
impact ofthe changes (5%); 
• Individually contributing to the entire set up of AP, Image Processing Management 
(IPM), ODC and OFR, in route approvals for requisition and invoice approval for 
AP invoices (15% ); 
• Designing and developing the approval work flow for requisition, purchase orders 
and invoices using AME (1 0% ); 
• Completely customizing the iProcurement responsibility and providing search 
functionalities for invoices, purchase orders, and requisitions with drill-down 
functionality to payments and bank accounts (25% ); 
• Performing Root Cause Analysis (RCA) for various repetitive problems and 
providing suggestions for speedy problem resolution (15%); and 
• Supporting the team as a subject matter specialist in financial modules and business 
processes (10%). 
On the LCA submitted in support ofthe H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification code 15:1132.9 
On appeal, the Petitioner states that the position requires "considerable training, experience, and 
advanced education due to the complexity of the role." 
9 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. · 
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Matter of S-S-, LLC 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 10 Specifically, we find that the Petitioner has not credibly and 
sufficiently demonstrated what work the Beneficiary will perform for the claimed end-client. 
Accordingly, we cannot determine whether the proffered position qualifies as a specialty occupation. 
As discussed earlier, the Petitioner has not demonstrated the existence of any non-speculative work 
for the Beneficiary to perform, and we incorporate here our previous discussion of the matter. The 
record lacks evidence of any binding obligation on the part of the claimed end-client (and also the 
role of the second middle-client) to provide any work for the Beneficiary to perform, and we cannot 
determine whether such speculative duties might collectively constitute a specialty occupation 
position. 
Even if we were to set that deficiency aside, we would still fjnd that the record does not establish the 
nature of the duties that the Beneficiary would perform. Absent such a demonstration we simply 
cannot ascertain whether such duties would constitute a specialty occupation position. For example, 
while the letter from the claimed end-client is acknowledged, that letter's description of the duties is 
distilled into five generalized bullet-points such as "design and develop the approval workflow for 
requisition, purchase order and _invoices using AME" or "analyze, design and configure the Oracle 
applications and modules including GL, AP, AR, PO, iProcurement, iExpense and OTL modules," 
that do not sufficiently explain what the Beneficiary would actually be doing. See Defensor v. 
Meissner, 201 F.3d at 387-88. 
Further problematic is the Petitioner's wage-level designation on the LCA. Again, in designating the 
proffered position at a Level I wage rate, the Petitioner has indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation, and that the 
Beneficiary would: (1) be expected to perform only routine tasks that require limited, if any, exercise 
of judgment; (2) be closely supervised and his work closely monitored and reviewed for accuracy; 
and (3) receive specific instructions on required tasks and expected results. However, many of the 
Petitioner's assertions appear to conflict with this wage-level designation. For example, the 
Petitioner claimed the following: 
• That the Beneficiary would support his team "as a subject matter specialist"; 
• That the Beneficiary would be required "to take initiative"; 
• That the Beneficiary would "manage projects"; 
10 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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• That the proffered position requires "considerable" experience due to the "complexity of the 
role"· 11 
' • That "project management" would be one of the "three main skills required of the role"; and 
• That the Beneficiary has eleven years of relevant work experience. 12 
The Petitioner's designation of the proffered position as a Level I, entry-level position is inconsistent 
with these assertions, and it raises additional questions regarding the substantive nature of the 
proffered position:13 It also calls into question the reliability of the Petitioner's description of the 
duties ofthe position. 14 
Consequently, we are precluded from finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the 
normal minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner 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 evidence does not satisfy any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
For all of these reasons, we find that the evidence of record has not established that proffered 
position is a specialty occupation for two reasons. First, the Petitioner has not demonstrated the 
existence of non-speculative work for the Beneficiary to perform, regardless of its substance. 
However, if we set that finding aside we would still decline to find that the positon described in this 
H-lB petition constitutes a specialty occupation position, because the Petitioner has not established 
11 The Petitioner indicated that a candidate with a master's degree would also be required to possess three to five years of 
work experience. This is not indicative of an entry-level position requiring limited, if any, exercise of judgment. 
12 The test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, 
but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. However, in 
this case the fact that the Beneficiary possesses eleven years of "relevant work experience" combined with the 
Petitioner's stated desire for such a candidate, undermines the Petitioner's attestations to DOL made as part of the LCA 
certification process that the proffered position is an entry-level position requiring limited, if any, exercise of judgment. 
13 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I ~age-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
14 It also raises questions as to whether the LCA corresponds to and supports the H-1 8 petition. 
11 
Matter of S-S-, LLC 
the position's substantive nature such that we can make such a determination. For both reasons, we 
agree with the Director that this petition cannot be approved. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. 15 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 ofS-S-, LLC, ID# 17684 (AAO Aug. 30, 2016) 
15 As the issues discussed above preclude approval of this petition we need not discuss any of the additional deficiencies \ -
we have identified on appeal, except to note that if the Director considers approval of this H-1 8 petition at some point in 
the future, she must first explore: (1) whether the LCA corresponds to and supports the H-1 8 petition; and (2) the 
significance the liquidated damages clause contained in the Beneficiary's employment contract. 
12