dismissed H-1B Case: It Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-T-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 24,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT services company, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that it (I) will engage the Beneficiary in an employer-employee 
relationship; and (2) provided an acceptable itinerary for the Beneficiary's services. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
An H-IB nonimmigrant is an individual: 
[S]ubject to section,212U)(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 [ofLabor] an application under section 212(n)(l) .... 
Section 101(a)(15)(H)(i)(b) ofthe Act. The term "United States employer" is defined ·as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
Matter of V- T-, Inc. 
(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 ofany such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
8 C.F.R. § 214.2(h)(4)(ii) (emphasis added); see Temporary Alien Workers Seeking Classification 
Under the Immigration and Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be 
codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii) 1 we 
note that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1 8 visa classification. Section 1 01 (a)( 15)(H)(i)(b) of the Act indicates that an individual 
coming to the United States to perform services in a specialty occupation will have an "intending 
employer" who will file a Labor Condition Application with the Secretary of Labor pursuant to 
section 212(n)(l) 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-1 8 "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-18 temporary "employees." 8 C.F.R. § 214.2(h)(1), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-18 beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H-18 visa classification, even though the regulation describes 
H-1 8 beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that 'Yhere federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non- Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of ag~ncy, we consider the hiring party's right to control the manner and means 
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Matter of V-T-, Inc. 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
!d.; see also Clackamas Gastroenterolom; 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)). 
The Act does not exhibit a legislative intent to extend the definition of "employer" in section 
101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" 
in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law 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.' 
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-IB 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 
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. § 1002(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 0 I (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee'' in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. · Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. De( Council, 
Inc., 467 U.S. 837,844-45 (1984). 
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Matter of V-T-, Inc. 
~'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) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether a beneficiary is an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1 B 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; Clackan1as, 
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. a~ § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
Notably, 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 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship,'' 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation.'" Auer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the ~mployment of 
unauthorized individuals). 
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Matter of V- T-, Inc. 
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."' Jd. at 451 (quoting Darden, 503 U.S. at 324). 
II. ANALYSIS 
A. Proffered Position 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "programmer analyst." 
In its initial letter of support, the Petitioner described the position and its associated job duties as 
follows: 
Specifically, as a Programmer Analyst, the beneficiary will analyze computer and 
business problems of existing and proposed systems as well as initiate and enable 
specific technologies that will maximize our company's ability to deliver more 
efficient and effective technological and computer related solutions to our business 
clients. The beneficiary will gather information from users to define the exact nature 
of system problems and then design a system of computer programs and procedures 
to resolve these problems. As a Programmer Analyst, the beneficiary will plan and 
develop new computer systems and devise ways to apply the IT industry's already 
existing technological resources to additional operations that will streamline our 
clients' busines~ processes. This process of developing new computer systems will 
include the design-or addition of hardware or software applications that will better 
harness the power and usefulness of our clients' computer systems. In this position, 
the beneficiary will employ a combination of techniques including structured 
analysis, data modeling, information engineering, mathematical model building, 
sampling and cost accounting to plan systems and procedures to resolve computer 
problems. As part of the duties of a Programmer Analyst, the beneficiary will also 
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Matter of V- T-, Inc. 
analyze subject-matter operations to be automated, specify the number and type of 
records, files, and documents to be used as well as format the output to meet user's 
needs. As a Programmer Analyst, the beneficiary is· also required to develop 
complete specifications and structure charts that will enable computer users to 
prepare required programs. Most importantly , once the systems have been instituted , 
the beneficiary will coordinate tests of the systems, participate in trial runs of new 
and revised systems and recommend computer equipment changes to obtain more 
effective operations. 
The Petitioner also submitted a letter from the mid-vendor , 
claiming that the Beneficiary would be workirlg on a project for end-client , onsite 
at offices in California. The mid-vendor's letter provided the following 
description of the Beneficiary's duties: 
a) Participate in all phases of the ETL process, which includes requirement 
gathering , analysis , conceptual approach, physical design, development , Source­
Target Mapping document , Testing , Implementatio~ support. Participate in code 
reviews , unit testing and integration testing. 
b) Develop ETL Process for loading and extracting data from various schemas 
relating to db2 database using Spark Core. Validating the data according to the 
Business /Transformation Rules, processing it and sending it to the target systems 
in the required file format. 
c) Schedule the jobs in Scheduler and load the data into target tables and sending the 
files to Target System on periodic basis. 24 x 7 Production Support for ETL jobs 
for daily, Monthly and Weekly Schedule . 
d) Involve in complete system Software Development Life Cycle (SDLC) of Data 
warehousing and work on project planning and effort estimation . 
e) Optimize/Tune Spark Code for better performance and efficiency . 
f) Developing & implementation ofUnit Test Plans specification and Unit Test Data 
according to changes[.] 
g) Handle Deployments and Migration of the Code to Prod/Test regions. Involve in 
various EME data store operation s like creating sandbox , code check-in, code 
checkout , creating project parameters according to the environment settings for 
this application. 
h) Uses the following tools and technologi es to catTy out his duties : IntelliJ, UNIX, 
DB2, Sharepoint, Git, MS office, Load Runner, Junit, Jenkins etc. 
The mid-vendor concluded by stating that the Beneficiary "is a critical resource helping us in our 
project activities some of which have been listed above." 
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(b)(6)
Matter of V- T-, Inc. 
L 
B. 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. 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-lB temporary "employee." See Darden, 503 U.S. at 322-23; Clackamas, 538 
U.S. at 445. 
The record contains a copy of the employment agreement between the Petitioner and the 
Beneficiary , which generally states the terms and conditions of the Beneficiary's employment. 
However, this document does not specifically articulate the nature and manner in which the 
Petitioner would exercise and retain control over the Beneficiary while he is employed onsite at 
client locations. Although the Petitioner claims this right of control in its supporting letters, the 
record does not contain sufficient evidence that demonstrates the actual control. 
The Petitioner also submitted a basic itinerary for the Beneficiary, which indicated that he would be 
working as a programmer analyst in California from October 1, 2016, through 
September 14, 2019. In response to the Director 's request for evidence (RFE) , the Petitioner 
submitted a revised itinerary , which identified the end-client and mid-vendor and listed the same 
description of duties included in Jetter submitted in support of the petition . 
The Petitioner also submitted another letter from in response to the RFE, again 
restating the duties listed above and affirming that the Beneficiary was not its employee, but was an 
employee of the Petitioner. In addition, the Petitioner submitted a copy of a Professional Services 
Agreement with indicating that the Petitioner's personnel "shall perform their 
assignments in accordance with the directions of the client , as specified on Exhibit(s) A, to which 
they have been assigned ." However, a review of this document reveals that the referenced Exhibit A 
was not included , apd no documentation was submitted which outlined the end client's assignments , 
directions or other expectations for the Beneficiary and his work product. Instead, the agreement 
had a document entitled "Final Execution of Exhibit A/Work Order" appended to it,~ which simply 
identified as the client, outlined the terms of payment, and was signed by a representative of the 
Petitioner and 
Despite submitting copies of timesheets and payroll records and claiming that it controls the 
Beneficiary ' s work, the Petitioner did not submit any document which outlined in detail the nature 
and scope of the Beneficiary.' s employment , specifically including his direct supervision and review 
and approval of his work at/for the end-client. Although the Petitioner submitted an organizational 
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.Malter of V-T-, Inc. 
chart in response to the RFE, the Beneficiary is not identified on this chart. Moreover, the chart 
indicates a generic line and block overview of the Petitioner's internal hierarchy, and provides no 
insight with regard to the chain of supervision exercised over the Beneficiary at the claimed end­
client worksite. 
As noted by the Director in the decision denying the petition, the record contains copies of email 
correspondence that suggest an individual named who, according to a 
review of the documentation submitted, appears to be an employee of is the Beneficiary's 
actual supervisor. While the Petitioner disputes this finding on appeal, we note that this unresolved 
discrepancy casts doubt upon the validity of the Petitioner's claim. "[I)t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter ofHo, 19 I&N 
Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. !d. at 
591-92. Based on the above, the key element in this matter, which is who exercises actual co~trol 
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, unemp.loyment 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 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 , 
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. 
Therefore, the evidence 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. A petitioner's unsupported statements are of very limited weight 
and normally will be insufficient to carry its burden of proof. See .A1atter of So_ffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing 1\1atter o.fTreasure Craft o(Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)); see also kfatter of Chm1/athe, 25 I&N Dec. 369, 376 (AAO 201 0). The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter o.( 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 
emplo)'er" having an "employer-employee relationship" \vith the Beneficiary as an H-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
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(b)(6)
Matter of V- T-, Inc. 
C. Itinerary 
We next consider whether the Petitioner submitted a complete itinerary and thus established filing 
eligibility at the time the Form 1-129 was received by USCIS. 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form 1-129 shall be where the petitioner is located for purposes 
of this paragraph. 
The itinerary language at 8 C.F.R. § 214.2(h)(2)(i)(B), with its use of the mandatory "must" and its 
inclusion in the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
material and necessary document for an H-lB petition involving employment at multiple locations , 
and that such a petition may not be approved for any employment period for which there is no 
submission of at least the employment dates and locations. 
In this case, the Petitioner indicates that the Beneficiary will work both at its location in 
Texas, as well as at the claimed end-client's location in California. However, the 
generic itinerary submitted indicates that all of the Beneficiary's time will be spent onsite at the 
client location in California. While we note the record contains a labor condition application (LCA) 
certified for this location, the record contains no documentary evidence , such as contracts , 
agreements, or work orders, that definitively establish the existence of a legitimate assignment for 
the Beneficiary at this location for the entire requested validity period. In fact, the letters from the 
mid-vendor, , indicate that "the duration of our customer engagement is ongoing and is 
expected to exceed two years." Again, aside from this speculative language regarding the duration 
of the claimed assignment , the record contains no evidence to corroborate the existence and claimed 
duration of this project at the third party client ' s location. 
Therefore , given the indications in the record that the Beneficiary would work at multiple locations 
during the requested period of employment and as the Petitioner did not provide this initial required 
evidence when it filed the Form l-129 in this matter, the Director was correct in the determination to 
deny the petition because the Petitioner did not provide an itinerary as required by 8 C.F.R. 
§ 214.2(h)(2)(i)(B) . 
D. Specialty Occupation 
We note that for purposes of the H-1 B adjudication , the issue of bona fide employment is viewed 
within the context of whether the Petitioner has offered the Beneficiar y a position that is viewed as a 
specialty . occupation. Beyond the Director ' s decision , therefore , is the question of whether the 
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Matter of V-T-, Inc. 
r 
Petitioner has provided sufficient evidence to establish that the services to be performed by the 
· Beneficiary are those of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among' 
similar organizations or, in the alternative, an employer may show that its 
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. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor, 201 F .3d 
384, 387 (5th Cir. 2000). . 
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. 
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Matter of V-T-, Inc. 
The record of proceedings in this case is devoid of any information from the end-client, 
regarding the job duties to be performed by the Beneficiary and the requirements for the position. 
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 perform 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. 
Here, 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 determine that the Beneficiary will be employed in the capacity specified in the petition for the 
duration of the requested employment period. Specifically, the Petitioner's letters outlining the 
Beneficiary's duties as a programmer analyst are starkly different from the description of duties 
contained in the letters provided by In addition, the letters do not provide any 
particular details regarding the demands , level of responsibilities and requirements necessary for the 
performance of these . duties for the end-client , and the record of proceedings does not contain a 
contract with the end-client. Again, a petitioner ' s unsupported statements are insufficient to carry its 
burden of proof. See Matter of Soffici, 22 I&N Dec. at 165 (Comm 'r 1998). 
Taken as a whole, the record of proceedings does not contain sufficient, reliable evidence 
demonstrating the substantive nature of the proffered position and its constituent duties. Although 
we note the Petitioner's assertion that will not provide documentation because the Beneficiary 
is not its employee , the Petitioner nevertheless has the burden of establishing that an actual 
assignment involving specialty occupation caliber work exists, and it has not done so here. Simply 
submitting photos of the Beneficiary in front of various logos will not suffice. 
Absent evidence to the contrary, we cannot analyze whether the Beneficiary ' s duties at the claimed 
end-client worksite would require at least a baccalaureate degree in a specific specialty, or its 
equivalent, as required for classification as a specialty occupation. Accordingly 7 the Petitioner has 
not established that the proposed position qualifies as a specialty occupation under any of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) or that the Beneficiary would be coming temporarily to the United 
II 
Matter of V- T-, Inc. 
States to perform the duties of a specialty occupation as that term 1s defined at 8 C.F.R. 
§ 214.2(h)(4)(ii).4 
( 
For the reasons set forth above, even if the other stated grounds of ineligibility were overcome on 
appeal, the Petitioner has not supplemented the record with sufficient evidence to establish tJ:mt the 
Beneficiary would be perfom1ing the duties of a specialty occupation, and the petition cannot be 
approved for this additional reason. 
III. CONCLUSION 
We will deny the petition and dismiss the appeal for the above stated reasons, with each considered 
as an independent and alternative basis for the decision. The burden is on the Petitioner to show 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fV-T-, Inc., ID# 157899 (AAO Jan. 24, 2017) 
4 It is noted that, even if the proffered position were established as being that of a programmer analyst, a review of the 
U.S. Department of Labor's Occupational Outlook Handbook (Handbook) does not indicate that such a position qualifies 
as a specialty occupation in that the Handbook does not state that a U.S. bachelor's or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into the occupational category of computer 
systems analyst. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Systems Analysts, available at http://www.bls.gov/ooh/computer-and-infonnation-technology/computer­
systems-analysts.htm#tab-4 (last visited Jan. 23, 20 17). As such, absent evidence that the position of programmer 
analyst qualifies as a specialty occupation under one of the alternative criteria available under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), the instant petition could not be approved for this additional reason. 
12