dismissed H-1B Case: It Solutions

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-T-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an IT solutions provider, seeks to temporarily employ the Beneficiary as a 'java 
developer" under the H-lB nonirnmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(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 for entry into the position. 
The Director of the California Service Center denied the petition , concluding that the proffered 
position does not qualify as a specialty occupation and that the Beneficiary will not perform services 
in a specialty occupation through the duration of the requested employment period. On appeal, the 
Petitioner asserts that the Director erred and the evidence supports an approval of the petition. 
Upon de nova review, we will dismiss the appeal. 1 
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 
(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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of E-T- LLC 
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: 
(]) 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 construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
For the reasons set out below, the record does not establish the substantive nature of the work that the 
Beneficiary will perform, which precludes a finding that the proffered position satisfies any criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the dates of intended 
employment are from October 1, 2018, to September 15, 2021. The Petitioner indicated that the 
Beneficiary will work offsite for an end-client inl ~ California. The Petitioner describes 
the contractual chain as follows: Petitioner ~ .__ ___ ___. (mid-vendor) ~ De end-client). 
However, the record does not contain sufficient evidence of the contractual obligations at the time of 
filing this petition, and there are inconsistencies in the record that undermine the Petitioner's claims 
regarding the Beneficiary's assignment for the requested period of employment. 
For example, the record includes an "agreement for consultant services" between the Petitioner and 
the mid-vendor for the Petitioner to provide contractors "to carry out assignments as required for [the 
end-client]." The record also includes a "staffing services agreement" between the mid-vendor and 
the end-client which refers to a work order that will "specify the [s]ervices to be performed." It further 
2 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
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Matter of E-T- LLC 
states "unless otherwise expressly stated in an applicable Work Order, nothing herein requires [the 
end-client] to utilize [the mid-vendor] for any Services .... " Therefore, the work order appears to be 
critical to the Beneficiary's assignment at the end-client. However, the Petitioner did not submit a 
work order until the appeal. Further, the work order submitted on appeal is signed and dated December 
12, 2018, which is after the petition filing date of April 6, 2018. While the work order states that it is 
an extension of a work order issued on March 1 7, 2018, the prior work order is not in the record. 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)(l). A visa petition 
may not be approved at a future date after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). Further, 
the work order states that it "adheres to the same terms as agreed upon in the master service 
agreement." However, it is not clear if the "master service agreement" refers to the "staffing services 
agreement," and there is no document titled "master service agreement" in the record. 
Moreover, the work order is only from December 1, 2018, until January 31, 2019, or "until earlier 
termination pursuant to Section 10 of the Agreement," whichever is first. Again, it is not clear what 
"agreement" it is referring to. Notably, Section 10 of "staffing services agreement" does pertain to 
termination. 
The record contains further inconsistencies regarding the dates of requested services and whether they 
were established prior to filing this petition. On appeal, the Petitioner submits an email dated 
December 2018 from the end-client to the Beneficiary which states that it is "currently issuing 
contracts month to month basis with the intention to keep you on billing until end of the project, until 
December, 2020"; however, it is not sufficiently substantiated by other documents in the record. For 
example, the record contains documents titled "assigned schedule" that list the Beneficiary, the 
end-client as the client, the period of performance, and compensation information, signed by the 
mid-vendor and the Petitioner. The initial schedule submitted with the petition indicated it was valid 
until March 2019 "plus possible extensions." The second schedule submitted in response to the 
Director's request for evidence, was extended until December 2020, but it was signed in October 2018, 
after the date of filing. While the record also contains letters from the end-client and one of the letters 
states that its contract with the mid-vendor is valid until December 2020 and it will require the 
Beneficiary for at least three years, the letter is dated after the filing, and it also says that "this letter is 
informational in nature and does not alter or create any legal obligation among any involved party." 
Without additional documents that sufficiently establish the terms and conditions of the contractual 
agreements among the parties prior to the date of filing, we are unable to determine if the Petitioner 
established eligibility at the time of filing. 3 
The record also includes additional deficiencies and inconsistences that raise questions about the 
substantive nature of the position. For example, the Petitioner submitted a document which lists the 
minimum requirement as a bachelor's degree in "Computer Science/Engineering/Related Fields with 
at least two years of experience or MS Degree with one year of experience in Computer 
Science/Engineering/Related fields." The end-client and mid-vendor both stated in letters that the 
position requires at least "a bachelor's degree in Computer Science, Engineering, Information 
3 The agency made clear long ago that speculative employment is not permitted in the H-IB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
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Matter of E-T- LLC 
Technology, or other related field in addition to relevant work experience." However, the letters do 
not specify the number of year of work experience required. In addition, the mid-vendor did not 
mention an experience requirement in its work order when it stated that the minimum requirement for 
the position is a bachelor's degree in Computer Science or Engineering in a directly related field. The 
Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Based on the inconsistencies and lack of contractual agreements, the Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
conclusion 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also conclude that the Petitioner has not demonstrated that it qualifies as a United States employer. 
As detailed above, the record lacks sufficient documentation evidencing the entire sub-contracting 
chain at the time of filing the nonimmigrant visa petition. Given this specific lack of evidence, the 
Petitioner has not corroborated who has or will have actual control over the Beneficiary's work or 
duties, or the condition and scope of the Beneficiary's services. In other words, the Petitioner has not 
established that it will have and maintain the requisite employer-employee relationship with the 
Beneficiary for the duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) 
( defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to 
work such that it will have and maintain an employer-employee relationship with respect to the 
sponsored H-lB nonimmigrant worker). Without foll disclosure of all of the relevant factors, we are 
unable to conclude that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
III. CONCLUSION 
The record does not demonstrate that the proffered position qualifies for classification as a specialty 
occupation and that an employer-employee relationship will exist between the Petitioner and 
Beneficiary. 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. The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-T- LLC, ID# 3 789043 (AAO Sept. 26, 2019) 
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