dismissed H-1B Case: It Consulting

MATTER OF K- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT consulting firm, seeks to temporarily employ the 
Beneficiary as an "Oracle PLISQL developer" under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(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 for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that: (1) the Petitioner will engage the Beneficiary in an 
employer-employee relationship; and (2) the protiered position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal.' 
I. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as an "Oracle PLISQL 
developer." Throughout the record, the Petitioner described the job duties tor the position as 
follows: 
• Responsible for project implementation or single dimensional business 
functions. (10%) 
• Participate in multiple areas of application development, business analysis, and 
system administration. (5%) 
1 
We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(b)(6)
Matter of K- Inc. 
• Apply technical skills that includes analyzing, designing, coding, testing, and 
implementing mid to complex applications per user department specifications. 
• Involvement with the entire life cycle of the applications, enhancements and 
troubleshooting. ( 1 0%) 
• Responsible to offer suggestions where enhancements may be needed and react 
in a positive way toward problems that may arise in existing applications[.] 
(15%) 
• Analyzing and implementing functionality into the existing systems 
per 
business requirements with minimal supervision[.] (10%) 
• Responsible for maintaining the integrity, security, and optimum performance 
ofthe applications[.] (15%) 
• Involved with end user training, production documentation, and turnover. 
(15%) 
• Other similar professional 
responsibilities as needed. (15%) 
The Petitioner submitted a letter where the mid-vendor, acknowledges 
its agreement with the end-client, and confirms the duties 
and requirements of the proffered position. In the letter, states that the minimum entry 
requirement for the proffered position is a bachelor's degree or equivalent in computer science or a 
closely related field. · 
II. UNITED STATES EMPLOYER 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it meets the regulatory definition of a United States employer as 
that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner has not established that 
it will have "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." !d. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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) .... 
2 
Matter of K- Inc. 
The term "United States employer" is defined 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 re.\pect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work o.fany 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-IB visa classification. Section 10l(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) ofthe Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering full­
time or part-time "employment" to the H-IB "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C. §§ 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form 1-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1B temporary "employees." 8 C.F.R. §§ 214.2(h)(l ), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-IB beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of ~he H-IB visa classification, even though the regulation describes 
H-lB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." I d. Therefore, for purposes of the H-1 B visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
3 
Matter of K- Inc. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. fi.Jr CreatiVe Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring pm1y 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 10l(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. 2 
2 
While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to 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)(l5)(H)(i)(b) of the Act, ''employment" in section 212(n)(1 )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of tJle 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). 
4 
Matter of K- Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-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 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 
3 absurd results. Cf Darden, 503 U.S. at 318-19. 
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).4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes ofH-18 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); Def'ensor v. Meissner, 201 F.3d 384, 388 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
4 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 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). 
c 
(b)(6)
Matter of K- Inc. 
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 
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 required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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." 
Specifically, the record does not establish who exercises actual control over the Beneficiary on a 
day-to-day basis. In support of the petition, the Petitioner submitted its employment agreement with 
the Beneficiary stating that it has the right to control the Beneficiary's work "in situations where the 
employee is working offsite at a client location" and that it has the right to control "any work 
performed by Employee at a client site." The Petitioner submitted its subcontractor master services 
agreement with the mid-vendor, indicating that the Petitioner is responsible for compensating 
the Beneficiary and ensuring employee compliance with mid-vendor and client requirements. The 
Petitioner also submitted a letter from the end-client, confirming that the Petitioner is providing 
the services of the Beneficiary,·' and stating that the Petitioner is the Beneficiary's employer and 
responsible for the payment of his salary, as well as hiring, tiring, and all other employer 
responsibilities. 
(b)(6)
Matter of K- Inc. 
However, no actual documentation of a relationship between the mid-vendor and the end-client, such 
as copies of contracts, agreements, or statements of work, was submitted. Further, although the 
Petitioner submitted evidence, such as letters from the end-client and the mid-vendor, the Petitioner 
did not submit any document which outlined in detail the nature of the agreement with these entities, 
or the nature and scope of the Beneficiary's employment. Without such documents, we are unable to 
determine who oversees and directs the Beneficiary's work on a regular basis. 
Moreover, the record does not sufficiently establish how the Petitioner reviews and approves the 
Beneficiary's work at/for the end-client. In its letter of support, the Petitioner stated that it conducts 
monthly and periodic performance reviews of each employee to ensure satisfactory completion of 
work and that each of its employees complete a weekly status sheet. The Petitioner submitted copies 
of some the Beneficiary's weekly status sheets while on OPT at the client site and a copy of the 
Beneficiary's report of performance evaluation for February 2016, listing his position as Oracle 
PLSQL developer and listing his major responsibilities identical to the duties of the proffered 
position listed above. However, the performance evaluation is signed by an unidentified person 
whose title is "HR Manager." Further, given that the end-client is located in Ohio, a 
significant distance from the Petitioner's offices in North Carolina, it would appear that the 
information used to generate the evaluation was provided by the Beneficiary, not the Petitioner, and 
therefore is not indicative that the Petitioner exercises actual control over the Beneficiary's work. 
Further, the Petitioner did not provide an organizational chart or other documentation to identify the 
Beneficiary's actual supervisor and whether his work will directly by controlled by an employee of 
the end-client, mid-vendor, or the Petitioner. We note that the subcontractor master services 
agreement between the Petitioner and provides that weekly timesheets will be "signed by an 
authorized representative of the [end-]client" of to whom the Petitioner's employees are 
assigned." This statement suggests that a third-party 
representative of the end-client will monitor 
and supervise the Beneficiary's work. 
Again, given the distance between the Petitioner's offices and the Beneficiary's worksite, and the 
absence of evidence demonstrating that an employee of the Petitioner is stationed at the end-client's 
location to supervise the Beneficiary, the evidentiary value of the performance evaluation, and the 
claim that the Petitioner retains exclusive control over the Beneficiary, is minimal. In other words, 
absent evidence identifying the evaluator and the manner in which such evaluations were conducted, 
we cannot determine who directly supervises the Beneficiary's work and what level of control that 
party may exercise. Therefore, the key element in this matter, which is who exercises actual control 
over the Beneficiary, has not been substantiated. 
On appeal, the Petitioner contends that the Beneficiary is employed by the Petitioner and that the 
Petitioner controls the Beneficiary's salary and conditions of employment. 
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 the Beneficiary, other incidents of the relationship, e.g., who will 
Matter of K- Inc. 
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 afTect 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. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibility in this matter. The Petitioner must support its assertions with relevant, probative, 
and credible evidence. See Chawathe, 25 I&N Dec. at 376 .. 
Based on the tests outlined above, 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." 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
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 does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 5 
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: 
5 The Petitioner submitted documentation to support the H-1 B 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. 
(b)(6)
Matter of K- Inc. 
(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). We have 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 Cotp . v. Cherto[f; 
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 in 
Defensor , 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words , 
as the nurses in that case would provide services to the end-client hospitals and not to the petitioning 
staffing company , the Petitioner-provided job duties and alleged requirements to perfonn those 
duties were irrelevant to a specialty occupation determination. See id. 
Specifically, where the work is to be performed for entities other than the Petitioner, evidence of the 
client companies' job requirements is critical. In Defensor, 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 a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as 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 
The record of proceedings in this case is devoid of sufficient information from the end-client , 
regarding the job duties to be performed by the Beneficiary and the requirements for the position. 
While the letters from the Petitioner , and are acknowledged , without a contract that 
outlines the substantive nature of the Beneficiary ' s work for the end-client , we are unable to 
9 
(b)(6)
Matter of K- Inc. 
determine that the Beneficiary will be employed in the capacity specified in the petition for the 
duration of the requested employment period . Specifically, all letters submitted contain identical 
statements of duties to be performed by the Beneficiary. However, the le_tters do not provide any 
particular details regarding the demands, level of responsibilities and requirements necessary for the 
performance of these duties, and the record of proceedings does not contain a contract with the 
end-client. As previousl y noted , the Petitioner must support its assertions with relevant
, probati ve, 
and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
There is insufficient evidence in the record from the end-client to corroborate the claimed duties and 
scope of the Beneficiary 's assignment. The Petitioner's letters, as well as the letters provided by 
and describe the Beneficiary's job duties in brief, generalized terms that fall short of 
conveying the substantive nature of the proffered position and its constituent duties. The record of 
proceedings does not contain a more detailed description explaining what particular duties the 
Beneficiary will perform on a day-to-day basis for Nor is there a detailed explanation regarding 
the demands, level of responsibilities , complexity , or requirements necessary for the performance of 
these duties as imposed by 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that 
work that determines (1) the normal minimum educational requirement for entry into the particular 
position , which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement , under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position , which is the 
focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner 
normally requiring a degree or its equivalent , when that is an issue under criterion 3; and (5) the 
degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) , it cannot be found that the proffered position qualifies for classification as a 
specialty occupation . 
IV. SPECULATIVE EMPLOYMENT 
The period of employment requested in the instant H-1 B petition is from October 1, 2016, to August 
1, 2019. The evidence provided is insufficient to demonstrate that, if the H-lB petition were 
approved, the Beneficiary would work at the end-client's location throughout the entire period of 
requested employment. 
We note that Exhibit A of the subcontractor master services agreement between the Petitioner and 
indicates that the Beneficiary will be assigned to work on site at the offices of through 
December 31, 2017. Although the document indicates that the project many possibly be extended 
beyond this date , it simultaneously states that extension will be "based on performance and funding 
10 
Matter of K- Inc. 
of additional projects." There is no guarantee, therefore, that this assignment would continue 
beyond December 2017. Further, the record does not contain evidence sufficient to show that the 
Petitioner has work for the Beneficiary to perform at any other location. 
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. 
§ 103.2(b)(1). A visa petition may not be approved at a future date after the Petitioner or the 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg'l 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 m the H-lB 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-lB classification on the basis of 
speculative, or undetermined, prospective employment. The H -1 B classification is 
not intended as a vehicle for an alien to engage in a job search within the United 
States, or for employers to bring in temporary foreign workers to meet possible 
workforce needs arising from potential business expansions or the expectation of 
potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1B 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-lB 
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-1B classification on the basis of facts not in existence at the time the instant petition 
was filed, it must nonetheless file 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. Thus, even if it were found that the Petition.er would be the 
Beneficiary's United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the 
Petitioner has not demonstrated that it would maintain such an employer-employee relationship for the 
duration of the period requested. 
II 
Matter of K- Inc. 
V. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofK- Inc., ID# 213535 Feb. 27, 2017) 
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