dismissed H-1B Case: Information Technology Consulting

MATTER OF SCMD-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10.2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software and information technology consulting company, seeks to classify the 
Beneficiary as a temporary worker in a specialty occupation under the H-1 B nonimmigrant 
classification, for a position with the job title ··business analyst." 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-lB program 
allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires 
both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite tor entry into the position. 
The Director, California Service Center, denied the petition on several independent grounds. The 
Director concluded that (1) the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation; (2) the Petitioner did not provide an itinerary tor the entire H-1 B requested 
employment period; (3) the labor condition application (LCA) docs not correspond to the type of 
position tor which the petition was tiled, and therefore does not satisfy the pertinent H-1 B regulatory 
requirement tor an LCA certified tor the proffered position; and ( 4) the evidence does not establish 
that the Beneficiary is qualified to perform the duties ofthe proffered position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and additional 
evidence and asserts that the proffered position qualifies as a specialty occupation. 
Upon de novo review. we will dismiss the appeal. 
I. 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 
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Matter <?fSCMD-Inc. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the protTered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or. in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( ../) 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). U.S. Citizenship and Immigration Services (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 S'iam Cmp. v. Cherudt; 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 
pa11icular position''); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
We note that as recognized by the court in Defensor, 201 F.3d at 387-88. where - as in the matter 
before us - 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 of the requirements imposed by the entities using the beneficiary" s 
services. !d. Such evidence must be sutliciently 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. Proffered Position 
The Petitioner is a 196-employee software and information technology consulting company located 
in New Jersey. The Petitioner seeks to employ the Beneficiary as a full-time ''business 
analyse for a three-year period from October I, 2015 to September 14. 2018, at an annual salary of 
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Matter of SCAlD- Inc. 
$63,100. The Petitioner states that the Beneficiary will be employed at 
CA 
The LCA was certified for use within the management analysts occupational group (identified in the 
Occupational Information Network (O*NET) by the Standard Occupational Classification (SOC) 
code 13-1111) at a Level I (entry level) wage rate, the lowest of four assignable wage rates. 
The record of proceedings reflects that four business entities are involved in the Beneficiary" s 
employment scenario. They are (1) the Petitioner. (2) (3) and ( 4) the 
end-client. 
C. Evidence of Record 
Here we will survey relevant information that we gleaned from the four entities· submissions into 
the record and from documents which they executed in the course of arranging for the Beneficiat-y" s 
ultimate assignment to the end-client, 
1. From the Petitioner 
As already noted. the Petitioner identified the proffered position as a job within the management 
analysts occupational group and identified it by the job title .. business analyst.'' The Petitioner's 
letter of support tiled with the Form 1-129. Petition for a Nonimmigrant Worker, identities as 
a '·vendor'' and states that the Petitioner had '·entered into a contract with through 
where we provide information technology development and infrastructure support 
services for enhancing, supporting, and maintaining its Projects.''
1 
The letter of support ascribes over a dozen sets of duties to the protTered position. The Petitioner's 
response to the Director's request for evidence (RFE) includes an expanded list of ·'proposed duties 
and responsibilities.'' 
The Petitioner submitted 
copies of an employment agreement between it and the Beneficiary and an 
offer-of-employment letter that it issued to the Beneficiary for employment as a business analyst to 
commence on September 5, 2014. Both documents are dated September 3. 2014. 
The Petitioner also submitted copies of several computer screenshots of email communications in 
which the Beneficiary participated in June and July 2015. 
1 Although the Petitioner refers to 
are separate entities and that 
would provide. 
as the end-client, the evidence of record reflects that and 
as the end-client, has contracted with for services which the Beneficiary 
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Matter l~(SCMD- Inc. 
2. From 
The record includes a letter of July 8, 2015, from CEO. submitted to confirm that 
"contracted [with the Petitioner] for the services of [the Beneficiary] as a Business Analyst to work 
on assignment"' at client. ""pursuant to a confidential agreement between 
and CEO declined to provide a copy of the contract, claiming 
confidentiality and standard policy. The letter asserts, however. that the Beneficiary was 
currently working full-time, as a business analyst for at location in California. The 
letter lists 13 sets of duties as included in those ""assigned by [the Beneficiary" s] employer.·· The 
CEO also stated that the project upon which the Beneficiary was working was ·•an ongoing one and 
expected to continue for a longer period.·· 
The record of proceedings also includes a statement of work (SOW) signed by the Petitioner and 
The SOW listed the Beneficiary as the only person from the Petitioner who was performing 
services "for Client located at CA."' In the section of "Duration/End Date" 
the SOW stated ·'6+ months.·· The start 
date is listed as March 30,2015. 
The Petitioner also submitted a copy of a Master Services Agreement (MSA) between the Petitioner 
and The MSA identifies terms and conditions to be automatically incorporated into any 
contract that might be executed under the MSA's auspices. It acknowledges that its terms and 
conditions would extend to contracts whereby the Petitioner. as "Contractor." would provide 
consultants to 
to provide ·'computer consulting and/or data processing. and/or programming 
work or any other 
skills (hereinafter referred to as 'Services"). either directly or indirectly to 
Client.'' 
3. From 
The Petitioner submitted a letter from The letter states 
that the Beneficiary is ·'assigned to work with us on the Portfolio distribution 
project," and that the Beneficiary was working ·'in the capacity of a Business Analyst" at 
offices in California. The letter 
also listed 15 sets of duties as comprising the work that the 
Beneficiary will be performing. They are substantially the same as the duties that listed in its 
employment-confirmation letter. 
4. From the end-client. 
The documents submitted on appeal include an employment-confirmation letter from 
section. The letter states that the Beneficiary has been "'resourced 
as Contractor through our vendor for our project in the role of Business Analyst at our 
facility [at the work address designated in the petition]." In contrast to the far more expansive 
descriptions elsewhere in the record. the letter provides only four sets of duties. 
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Matter f?fSCMD- Inc. 
D. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the profTered position qualifies as a specialty occupation, as the 
evidence of record is insufficient to establish the substantive nature of the position and its constituent 
duties as they would be performed for the end-client. 
As recognized in Defensor v. Meissner, 201 F.3d 384, 387-8. where the Petitioner is providing a 
beneficiary to work for another business entity, the end-client must provide int()fmation, 
about the proposed job duties and associated performance requirements. that is sufficiently detailed 
to substantiate the minimum educational requirements necessary to perform the work to which the 
beneficiary would be assigned. In other words. as the nurses in that case would provide services to 
the end-client hospitals and not to the petitioning staf1ing company, the Petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 
The record of proceedings before us contains only one document from the end-client, 
the aforementioned employment-confirmation letter. 
that is. 
The employment-confirmation letter from 
in" 
states that the Beneficiary ''is primarily involved 
• Gathering business requirements and understanding business needs. Open action 
items from meetings for project team[;] 
• Creating various Portfolio reports for management, required for organizational 
analysis including head count data & financial data such as Contractor and proto 
expense[;] 
• Data Analysis. validation of various Business Intelligence Reports, gap analysis, etc. 
• Work extensively with team to find the solutions, coordinate with team to ensure 
change request[ s] have been implemented. Be a part of various meetings and 
representations. 
We find that limits its duty descriptions to generalized and generic functions. For example. the 
Petitioner listed one of the Beneficiary's job duties as '·gathering business requirements and 
understanding business needs.'' However. the Petitioner did not further elaborate on the specific tasks, 
methodologies, and applications ofknowledge that would be required in furtherance of this overarching 
duty. As such, they do not convey the substantive nature of the actual tasks that the Beneficiary 
would perform on assignment to and they do not establish any particular educational level of 
any body of highly specialized knowledge in a specific specialty that the Beneficiary would have to 
theoretically and practically apply in order to perform his duties. 
We also note that the job and duty descriptions provided separately by and 
substantially the same as those provided by either the Petitioner or the end-client, 
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are not 
Further, the 
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Matter ofSCMD- Inc. 
Petitioner's descriptions of the profTered position and its constituent duties are substantially di ffcrent 
from descriptions. Although the information from the end-client, is critically 
important for substantiating the nature and substantive requirements of the proffered position, and 
although the information from is materially deficient in this regard, we must also note that the 
overall discrepancies in the duty descriptions from the 
entities involved in the Beneficiary's 
assignment undermine the 
credibility of the petition as to the nature and educational requirements of 
the profTered position. Further still, while the record reflects that is the end-client who is 
ultimately paying for the Beneficiary's services and determining their 
scope and duration, there is no 
document from that endorses or adopts the duties and responsibilities that either the Petitioner, 
or ascribed to the proffered position. 
We next note additional evidence underlining the indefinite nature of the record's information about 
the project work that would engage the Beneficiary for the employment period sought in the petition. 
The SOW executed by the Petitioner and indicated that the Beneficiary would work at the 
client site for ''6+ months'" from 
the specified start date of March 30, 2015. This vague period does 
not comport with the three-year employment period specified in the petition. In the same vein, the 
employment-confirmation letter from CEO. which is dated July 8, 2015, indicated an 
imprecise period for the Beneficiary's work at just stating that the Beneficiary joined .. the 
project'" on April 30, 2015, and that the ·'project" was •·an ongoing one and expected to continue for 
a longer period." So, too, the letter from dated October 5, 2015, does not specify a definite 
work-period, as it states that the Beneficiary ''joined the project on 30the April 2015 and is presently 
working on an ongoing project,'' and that expects its need for his services to continue until 
December 2017. ''with possibility of extensions.'' Particularly in context with relatively 
broad and abstract descriptions of the Beneficiary's at and with the lack of substantive 
information regarding the ''the project" for which the Beneficiary is assigned to .. the 
project's" indefinite end-time buttresses our finding that the record of proceeding does not establish 
the substantive scope ofthe Beneficiary's duties. 
In the same regard. we also note that the SOW does not describe the project to be assigned beyond 
stating that the position is for senior business analyst. Without suflicient information regarding the 
Beneficiary's duties and duration of the project, this document docs not establish availability of 
continued, non-speculative employment for the Beneficiary for the entire H-1 B validity period. 2 
2 It is noted that the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 
I 03.2(b )(1 ). A visa petition may not be approved 
at a future date after the Petitioner or the Beneficiary becomes eligible under a new set of facts. See lvlatter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg'! Comm'r 1978). As such, eligibility for the benefit sought must be assessed and 
weighed based on the facts as they existed at the time the instant petition was filed and not based on what were merely 
speculative facts not then in existence. 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example. a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
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Matter l?(SCMD- Inc. 
We also note a discrepancy between the MSA submitted into the record and the Petitioner 
SOW. The SOW references an MSA with a later date, which is not included in the record. Thus, the 
record's MSA has little probative value towards establishing that the proffered position is a specialty 
occupation; and it begs question of why it was submitted instead of the particular MSA one under 
which the SOW was issued. However, the Petitioner's submission of the MSA has a negative 
evidentiary impact in that the scope of services that it identifies as falling within the MSA expressly 
includes '·computer consulting and/or data processing, and/or programming work, and 
any other 
skills,'' but not management analysis. 
The fact that the record of proceedings does not establish the substantive nature of the work to be 
performed by the Beneficiary precludes a 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 detern1incs (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 tor 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 tor 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. 
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 qualities for classification as a 
specialty occupation. Accordingly. the petition will be dismissed. 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute. the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "'Act"). The 
Service must then determine whether the alien has the appropriate degree tor the occupation. In the 
case of speculative employment. the Service is unable to perform either part of this two-prong analysis 
and. therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover. there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 
C .F.R. pt. 214 ). While a petitioner is certainly permitted to petition for H-1 8 classification on 
the basis of facts not in existence at the time the instant petition was filed, it must nonetheless tile a new petition to have 
these facts considered in any eligibility determination requested, as the agency may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
,\cfatter ofSCMD- Inc. 
II. ADDITIONAL ISSUES 
Since our determination on the specialty-occupation is dispositive of the Petitioner"s appeal, we need 
not address the other grounds that the Director specified for denying the petition. However. we will 
address one of them: we further conclude that the evidence of record as expanded on appeal 
overcomes the Director's determination that the petition should also be denied for lack of an 
itinerary supporting all of the locations where the Beneficiary would work if the petition were 
approved. The pertinent documentary evidence indicates that the Petitioner was claiming only a 
single place of employment for the Beneficiary. Accordingly. that determination is withdrawn and is 
no longer a basis for denying the petition in this particular case. 3 
We will now briet1y note and summarize a ground of ineligibility, not identified by the Director. that 
we observe in the record of proceedings. We do this with the hope and intention that, if the 
Petitioner seeks again to employ the Beneficiary or another individual as an H-1 B employee in the 
protTered position, it will submit sufficient independent objective evidence to address and overcome 
this additional ground in any future tiling. 
As we shall now discuss. the record of proceedings as presently comprised docs not demonstrate that 
the indicia of control over the Beneficiary and his day-to-day work on assignment to the end-client 
weigh decisively in favor of the Petitioner as having an employer-employer relationship with the 
Beneficiary as a U.S. employer in accordance with the regulatory definition at 8 C.F .R. § 
214.2(h)( 4 )(ii). 
The United States Supreme Court 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 lvful. Ins. Co. v. 
Darden, 503 U.S. 318. 322-23 (1992) (quoting Only. 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 
' The Petitioner should note that. as reflected in the Director's instructions included with her decision denying the 
requested change of nonimmigrant status. that issue is outside our jurisdiction., but could have been contested by a 
timely motion to the Director. 
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Matter (~fSCMD- Inc. 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment ofthe hired party.'' 
!d.; see also Clackamas Gastroenterology Assoc.\· .. 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. (?fAm .. 390 U.S. 254, 258 (1968)). 
In applying the Darden and Clackamas tests to this matter, it appears to us that the Petitioner has not 
established that it will be a .. United States employer'" having an .. employer-employee relationship'" 
with the Beneficiary as an H-1 B temporary ''employee.'' In reaching this conclusion, we have taken 
into account all of the statements and documentary evidence submitted into the record by the 
Petitioner and by the three other business entities involved in the Beneficiary's 
assignment to 
We note that the Petitioner claims to be the Beneficiary's employer and that and also 
expressly identify the Petitioner as the Beneficiary's employee. We also have taken into account the 
letter's statement that the Petitioner alone retains all control over the Beneficiary· s 
employment. including, but not limited to the right to hire, fire. pay, and supervise the Beneficiary's 
work. Further, we acknowledge that, in light of the overall evidentiary context of this petition. it is 
likely that the Petitioner has retained some control over future assignments of the Beneficiary. 
Along with all of the other information indicative of the Petitioner's relationship with the 
Beneficiary. we also note that the Petitioner has identified a member of its staff as the Beneficiary's 
supervisor and also attested that it requires weekly reports from the Beneficiary. 
While these factors weigh in favor of a common-law employer-employee relationship, they are not 
decisive. The record lacks contractual and other documentary evidence from the end-client that are 
relevant to determining such material factors of control over the Beneficiary and his work as, for 
instance, where the authority would reside to determine and assign day-to-day project tasks for the 
Beneficiary. and who would evaluate the quality. efficiency, and acceptability of the Beneficiary"s 
work as it is being performed at the end-client's location. 
We see, for instance, that the Petitioner would receive regular, periodic reports from the Beneficiary 
as to work that he has been perfonning at but there is no evidence in the record that in 
anyway defers to, depends on, takes into account, or even considers those reports. Further. there is 
no evidence in the record that -presumably the ultimate decider of the terms and conditions by 
which temporarily assigned workers would perform project work - has entered into any 
contractual relationship with the Petitioner or has in any way recognized considered the Petitioner as 
a party to any specific decisions regarding the Beneficiary's assignment and supervision of specific 
tasks during the Beneficiary's assignment to Also, the evidence of record does not establish 
that is depending on the Petitioner, through the Beneficiary. to provide any instrumentalities 
necessary tor the assignment. Nor does the evidence indicate that is relying upon the 
Petitioner 
for any proprietary applications or services. 
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Matter ofSCMD- Inc. 
Then, too, there is countervailing evidence regarding the Petitioner's claim to the reqUisite 
employer-employee relationship. For instance, the email screenshot's identification tag for the 
Beneficiary · at suggests that the project team with whom he is working 
regards him as a asset- not an asset of the Petitioner. 
Upon our review of the totality of the evidence, it appears that the Petitioner's contact and 
relationship with the Beneficiary does not exceed that of a staffing agency that maintains control of 
administrative matters regarding the Beneficiary, such as pay distribution and employment-related 
tax requirements, but cedes day-to-day control over beneficiary and his work to the end-client and 
other stafling entities interposed between it and the end-client. So, too, in the evidentiary context 
now before us, it appears that the Beneficiary is functioning as a temporary addition to staff 
without substantive supervision or control by the Petitioner over the day-to-day services that he is 
providing to 
The documentary evidence is relevant, but it does not convey sufficiently extensive and credible 
common-law indicia of control to establish the requisite relationship between the Beneficiary and the 
Petitioner to qualify the Petitioner as a U.S. employer as defined at 8 C.F.R. § 214.2(h)(4 )(ii). 
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 detennining who will control the Beneficiary. other incidents of the relationship, e.g., who will 
oversee and direct the work ofthe Beneficiary, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be 
assessed and weighed in order to make a determination as to who will be the Beneficiary· s 
employer. Without full disclosure of all of the relevant factors, we are unable to find that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
III. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; A1atter (~(Otiende, 26 l&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofSCMD- Inc., ID# 16338 (AAO May 10, 2016) 
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