dismissed H-1B Case: Petroleum Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a petroleum services company, seeks to extend the Beneficiary's temporary 
employment as a "vice president, procurement and processing" under the H -1 B nonimmigrant 
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 pQsition 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 
evidence of record does not establish: (1) that the Petitioner will engage the Beneficiary in an 
employer-employee relationship; and (2) that the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
Matter of A-, Inc. 
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)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Bepeficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application (LCA) with the Secretary of 
Labor pursuant to section 212(n)(l) of the 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 I-129, Petition for a 
Nonimmigrant Worker, in order to classify individuals as H-IB 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-1B beneficiary, and that this relationship be evidenced by the employer's ability 
to "hire, pay, fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the legacy Immigration and Naturalization Service nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation 
2 
Matter of A-, Inc. 
for purposes ofthe H-lB 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 Mutual 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (quoting Community 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 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at' 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(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. Sl7106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. Hl2358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context ofthe H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 · 
( 
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). 
3 
Matter of A-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H-lB 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 "empl\oyee." 8 C.P.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only reqliires H-1B 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.P.R. § 214.2(h)(4)(ii) indicates ,that the r~gulations 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 kad to 
absurd results. Cf Darden, 503 U.S. at 318-319? 
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.P.R.§ 214.2(h).3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H -1 B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
the work performed by the worker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 P.3d 384, 388 
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, (I 945)). 
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 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of A-, Inc. 
(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 ofthe 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 323-324. 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, 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 ofthe incidents of the relationship 
... with no one factor being decisive."' ld. at 451 (quoting Darden , 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation confirming and describing the Petitioner 's corporate structure and business 
operations. Therefore, the key element in this matter, which is who exercises control over the 
Beneficiary, has not been substantiated. 
First, the record of proceedings contains incomplete and inconsistent information regarding the 
Petitioner's ownership. In response to the Director's request for evidence (RFE), the Petitioner 
asserted that it is "owned by various corporate shareholders" and that the Beneficiary "holds no 
ownership interest in the company" (emphasis in original). The Petitioner submitted, inter alia : (1) 
its Certificate of Incorporation reflecting that the corporation is authorized to issue a total of 200 
share of comq10n stock; (2) a stock purchase agreement between the Petitioner and 
5 
(b)(6)
Matter of A-, Inc. 
for 49 shares of common stock; (3) a stock purchase agreement 
between the Petitioner and for 48 shares of common 
stock; ( 4) a stock purchase agreement between the Petitioner and 
for the purchase of three shares of common stock; and (5) the Petitioner's 2010-2014 federal 
tax returnS' listing and as 25% foreign shareholders, but also indicating 
that no foreign corporation or entity owns directly 20% or more, or 50% or more directly or 
indirectly, of the company's voting stock. 
The submitted evidence does not depict the Petitioner's complete ownership structure. We note that 
the Petitioner's stock purchase agreement with was not signed or accompanied by other proof 
of execution. In addition, while the Petitioner submitted the above stock purchase agreements - one 
of which was not executed - the Petitioner did not submit the actual stock certificates issued to these 
companies. Nor did the Petitioner submit its corporate stock ledger or another similarly 
comprehensive document )isting all owners of stock, their ownership and voting interests, and any 
outstanding stock (if any). 
Notably, the Petitioner stated in its business plan (submitted in response to the Director's RFE issued 
in January 2016) that "in the mid of 2015, the entire holding in the company was bought by 
But the Petitioner did not submit 
objective evidence of this claimed acquisition by such as a stock purchase 
agreement, stock certificate, or stock ledger. Moreover, the Petitioner did not explain how its 
claimed acquisition by is consistent with the Petitioner':? other claim that it is 
"owned by various corporate shareholders." "[I]t is incumbent UIJOn the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 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. "Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency ofthe remaining evidence offered in sup.R_ort of the visa petition." !d. at 591. 
The Petitioner also has not sufficiently explained how its shareholder(s) are involved in the 
management of the Petitioner, e.g., the frequency and extent of interaction with the Petitioner's 
management. Without additional evidence as well as an explanation reconciling the inconsistencies 
regarding the Petitioner's claimed shareholder(s), we cannot accurately assess the Petitioner's 
ownership structure and whether or not it is sufficient to support an employer-employee relationship 
with the Beneficiary. 
The record of proceedings also contains unresolved inconsistencies regarding the Petitioner's 
officers, which further precludes us from accurately assessing the employer-employee relationship. 
Here, the Petitioner acknowledges that the Beneficiary is an officer of the company, but repeatedly 
asserts that he, as the company's vice president, directly reports to the president, 
Contrary to the Petitioner's claims, however, the Petitioner's federal tax returns reflect that the 
6 
--------
(b)(6)
Matter of A-, Inc. 
Beneficiary is the company's sole officer. More specifically, the Beneficiary is the sole officer listed 
in the Petitioner's Form 1125-E, Compensation of Officers.4 According to the Petitioner's tax 
returns, the company paid no employee salary/wages or officer compensation in 2010-2011, and in 
2012-2015, the Petitioner paid no employee salary/wages and its total officer compensation equaled 
the Beneficiary's total earnings for those years.5 The Petitioner has not resolved this critical 
inconsistency and established that is the company's president and the Beneficiary's 
supervisor, as claimed. Again, it is incumbent upon the Petitioner to resolve inconsistencies in the 
record, and doubt cast on any aspect of the Petitioner's proof may lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence. !d. at 591-92. 
Furthermore; the Petitioner has not provided pertinent information about such as where he 
is physically located, what company he works for, the nature of the Petitioner's compensation to 
him, what duties he performs, and how he monitors and supervises the Beneficiary's work. Thus, 
even if were the Petitioner's president in title, the Petitioner still has not sufficiently 
substantiated its assertions regarding his supervision and control over the Beneficiary. 
The Petitioner also claims to have other directors in addition to (whom the Petitioner claims 
is the company's founder and chairman of the board of directors). But similarly, the Petitioner has 
not adequately described what roles and duties the other directors perform, the nature of the 
Petitioner's compensation to them, and whether (and if so, how) they monitor and control the 
Beneficiary's work. Without additional reliable evidence corroborating the Petitioner's assertions 
about and the other directors, we cannot sufficiently assess the nature of the Petitioner's 
employment relationship with the Beneficiary. "[G]oing on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter 
of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)). 
Despite the Petitioner's assertions that it has submitted its employment agreement with the 
Beneficiary, this document has not been submitted for the record. We also point out that, although 
the Petitioner has purportedly employed the Beneficiary in H -1 B status since December 2009, at 
least two of the Beneficiary's past W-2 statements were issued by different companies. In particular, 
issued his 2013 W-2 form, and 
issued his 2011 W-2 forin.6 
4 The current instructions for the Form 1125-E, Compensation of Officers, available at IRS's website at 
https://www.irs.gov /pub/irs-pdf/i 1125e.pdf (last visited Sep. 20, 20 16), instruct filers to complete information for "all 
officers" of the company. 
5 While the Petitioner did not provide its 2015 federal tax return, it provided its 2015 quarterly wage and tax reports as 
well as the Beneficiary 's past W-2 Wage and Tax Statements . All of these document s show that the Beneficiary 's 
earnings equaled the company's total officer compensation paid from 2010-2015. For instance, the Beneficiary's W-2 
showed that he earned $95,199 in 2012,$97,691 in 2013, $101,542 in 2014, and $99,792 in 2015. The Petitioner's tax 
returns and 2015 quarterly reports show that the company paid total officer compensation in the same amounts in those 
years (no employee salaries or wages were paid). 
6 The Petitioner did not submit the Beneficiary ' s W-2 forms for 2010, 2012, and 2014. 
(b)(6)
Matter of A-, Inc. 
In this respect, the Petitioner explained that "[i]n past year, [the Petitioner's] payroll was performed 
by payroll servicing companies." However, we find that the Petitioner's explanation is not credible. 
The Beneficiary's W-2 forms clearly identify these other companies - which have different 
employer identification numbers than the Petitioner - as the Beneficiary's "employer" and not as 
payroll service providers. And as previously discussed, the Petitioner's tax returns reflect that the 
company has not paid any employee wages/salary, and that the only form of paid compensation has 
been to the Beneficiary as the company's sole officer. Thus, while the record demonstrates that the 
Beneficiary has been 
providing his services to the Petitioner, the record does not demonstrate that he 
has been doing so as an employee. We therefore find that other important elements of the employee­
employer relationship, such as the Petitioner's payment of the Beneficiary's salary, provision of 
employee benefits, and his tax treatment, have not been sufficiently established. 
Finally, we recall the Petitioner's assertion on the Form I-129 that it has eight employees. The 
Petitioner also asserts on appeal that it has "offices in India, and Delaware" and that "it 
leases several offices for its Louisiana-based employees - including [the Beneficiary]." 
Nevertheless, the evidence in the record - including the Petitioner's tax returns reflecting no 
payments of employee salary or wages- does not substantiate the Petitioner's assertions\about either 
its other employees or office space. 7 These inconsistencies regarding the Petitioner's business 
operations raise additional questions regarding the Petitioner's overall credibility. 
Therefore, when we consider all the inconsistencies and deficiencies in the record, and without full 
disclosure of all relevant facts, we cannot find. that the Petitioner has met its burden of establishing 
that it has an employer-employee relationship with the Beneficiary. Again, it is incumbent upon the 
Petitioner to resolve inconsistencies in the record, and doubt cast on any aspect o(the Petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the evidence. Matter of Ho, 1, 9 
I&N Dec. at 591-92. In addition, an inaccurate statement anywhere on the Form I-129 or in the 
evidence submitted in connection with the petition mandates its denial. See 8 C.F.R. 
§ 214.2(h)(lO)(ii); see also id. § 103.2(b)(l). 
Based on the tests outlined above, the Petitioner has not sufficiently established that it has and will 
continue to be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
II. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
7 The Petitioner indicated on the Form 1-129 that its office is located in Louisiana, and submitted a certified LCA only 
for that location. 
8 
Matter of A-, Inc. 
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: 
(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. Chertoff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d at 387. 
B. Proffered Position 
The Petitioner submitted the following duties for the proffered position: 
• Explore, negotiate, and finalize purchases of carbon black feedstock oil (regular 
feedstock) and fuel oil from major U.S. refineries; 
9 
Matter of A-, Inc. 
• Explore and negotiate purchases of alternative feedstock to blend with regular 
feedstock to improve quality and reduce procurement costs; 
• Arrange finances for purchases of both regular and alternative feedstocks and fuel 
oil and act as liaison with banks; 
• Manage commodity hedging mechanism to limit price fluctuation losses in 
purchasing feedstock; 
• Develop sales market for the feedstock with the carbon black manufacturing 
industry in the U.S., with the ultimate goal of expanding the market to India, 
Thailand, Egypt, and Europe; 
• Develop sales market for fuel oil with the bunker and utility consumers both in 
the United States, Singapore and other Far East countries[;] 
• Manage accounting and statutory filings through ·consultants and accounting 
firms; 
• Collect market information on feedstock and fuel oil trades to formulate effective 
purchasing strategies and minimize procurement costs; 
• Manage the logistics for movement of the feedstock to storage facilities and to 
customers in efficient and cost effective manner; 
• Direct the operations of storage facilities to maintain the properties of the stored 
feedstock and fuel oil; 
• Supervise the blending of the different specifications of feedstock and fuel oil that 
are purchased to homogenize that final product; 
• Supervise quality tests at laboratories for the feedstock and fuel oil; 
• Monitor and ensure regulatory compliance throughout the procurement and 
storage processes; 
• Develop export sales market for US petroleum coke in India and China with the 
major cement manufacturers and other industries; 
• Develop export sales market for granular sulfur in China with major metal 
producers and fertilizer manufacturers[.] 
The Petitioner stated that "[t]his is a highly complex position which requires an understanding of 
operational and financial management that only comes with someone who has studied either 
business management, business administration, financial management, economics, or accounting." 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.8 
8 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 revie'Yed and 
considered each one. 
10 
Matter of A-, Inc. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.9 
1. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department ofLabor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.1 0 
On the LCA submitted to support the petition, the Petitioner designated the proffered position under 
the occupational category "General and Operations Managers" corresponding to Standard 
Occupational Classification code 11-1 021, at a Level I wage. 11 • 
This occupational classification is addressed in the Handbook chapter on "Top Executives," which 
states the following about the educational requirements of such positions: "Although education and 
training requirements vary widely by position and industry, many top executives have at least a 
bachelor's degree and a considerable amount of work experience." 12 The Handbook further 
emphasizes the importance of work experience for top executives, stating, for instance, that "in 
industries such as retail trade or transportation, workers without a college degree may work their 
way up to higher levels within the company." 13 
9 Although some aspects ofthe regulatory criteria mayoverlap, we will address each of the criteria individually. 
10 All of our references are to the 2016-17 edition ofthe Handbook, available at http://www.bls.gov/ooh/. We do not, 
however, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfY the first criterion, however, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty 
degree requirement, or its equivalent, for entry. 
11 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four 
assignable wage levels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. A Level I wage should be considered for research fellows, workers 
in training, or internships. !d. 
12 For additional information regarding the occupational category "Top Executives," see U.S. Dep't of Labor, Bureau of 
Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Top Executives," available at http://www.bls.gov/ 
ooh/management/print/top-executives.htm (last visited Sep. 20, 20 16). 
13 !d. 
1 1 
Matter of A-, Inc. 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirerpent for entry into a general and operations 
manager position. Rather, the Handbook reports that education and training requirements vary 
widely by position and industry, and although many top executives have at least a bachelor's degree, 
the Handbook does not report that the degree must be in any specific specialty. The Handbook 
further emphasizes the importance of work experience, and does not specify the amount of work 
experience needed. The Handbook does not conclude that normally the minimum requirement for 
entry into these positions is at l~ast a bachelor's degree in a specific specialty, or its equivalent; 
instead, it indicates that there are a number of viable paths, in addition to a general bachelor's 
degree, to becoming a general and operations manager. 
Moreover, the Handbook states that "[m]any top executives have a bachelor's or master's degree in 
business administration." 14 The Petitioner also accepts a business administration degree for entry 
into its proffered position. Although a requirement of a general-purpose bachelor's degree in 
business administration may be a legitimate prerequisite for a particular position, requiring such a 
degree, without more, will not justify a finding that a particular position qualifies for classification as 
a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at147 (recognizing a business 
administration degree as a "general-purpose" degree). To prove that a job requires the theoretical 
and practical application of a body of highly specialized knowledge as required by section 214(i)( 1) 
of the Act, a petitioner must establish that the position requires the attainment of a bachelor's or 
higher degree in a specialized field of study, or its equivalent. USCIS interprets the degree 
requirement at 8 C.P.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly 
related to the proposed position. Therefore, the Handbook's recognition that a general, non-specialty 
degree in business administration is sufficient for entry into the occupation strongly suggests that a 
bachelor's degree in a specific specialty, or its equivalent, is not normally the minimum requirement 
for entry into this occupation. 
We acknowledge the Petitioner's assertion that the proffered position "is so specialized that it could 
not be pigeonholed into one specific LCA category." The Petitioner further states on appeal that a 
"Finance Manager" or "Account Manager" occupational classification "would not have been totally 
accurate." But, the Petitioner has not offered further analysis of which occupational categories relate 
to the proffered position and why, under those categories, the proffered position qualifies under the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) (or any other criteria). We again note that "going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings." Matter ofSoffici, 22 I&N Dec. at 165. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)( A)( 1). 
14 !d. 
12 
Matter of A-, Inc. 
2. Second Criterion 
The second criterion presents two, alternative 'prongs: "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[.]" 8 C.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In~ determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry, requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava,, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. Also, there are no submissions from the industry's professional association, or letters or 
affidavits from similar firms or individuals in the Petitioner's industry. The Petitioner has not 
satisfied the first alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
We reviewed the Petitioner's statements regarding the proffered position; however, despite its 
repetitive claims that the position is "complex," the Petitioner has not sufficiently developed relative 
complexity or _uniqueness as an aspect of the proffered position. That is, the Petitioner has not ( 
demonstrated how the proffered duties require the theoretical and practical application of a body of 
highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
13 
Matter of A-, Inc. 
curriculum is necessary to perform the duties it claims are so complex and unique. While the 
Petitioner has stated that the position requires "an understanding of operational and financial 
management" and' "a sound understanding of both the petrochemical industry, economics, and 
business management," the Petitioner has not sufficiently explained this required knowledge within 
the context of an established curriculum of courses leading to a baccalaureate or higher degree in a 
specific specialty, or its equivalent. Thus, the Petitioner has not adequately satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner does not assert eligibility under this criterion. Further, the record of proceedings does 
not demonstrate that the Petitioner normally hires individuals with a bachelor's degree in a specific 
specialty for the proffered position. We again highlight the Petitioner's tax returns demonstrating 
that the Beneficiary is, and has been, the Petitioner's only compensated individual within the 
company. Without more, the Petitioner has not provided sufficient evidence to satisfy the third 
criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
4. Fourth Criterion 
'The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In support of this criterion, the Petitioner provided a description of the duties of the proffered 
position and information regarding its business operations. The Petitioner claims that the position is 
14 
' Matter of A-, Inc. 
"a highly complex position in a very specialized market." The Petitioner continues to state that the 
skills required for the proffered position are attained through university-level education. 
The evidence does not, however, sufficiently support the Petitioner's assertion. Contrary to the 
Petitioner's assertion that the duties of this position are "highly complex" as opposed to an entry­
level position, the Petitioner designated the proffered position on the LCA as a Level I wage level. 
As discussed earlier, this designation indicates that the proffered position is a low-level, entry 
position relative to others within this occupational category. 15 
While the Petitioner may believe that the proffered position meets this criterion of the regulations, it 
has not sufficiently demonstrated how the position as described requires the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. Again, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the tasks. The evidence in the record does not refute the 
Handbook's information to the effect that a general degree is sufficient for entry into the occupation. 
Without more, the record lacks sufficiently detailed information to distinguish the level of 
knowledge and judgment necessary to perform t~e duties as specialized and complex. 
In addition, the Petitioner claims that the Beneficiary is well qualified for the positiOn, and 
references his qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. 16 The Petitioner has not demonstrated 
in the record that its proffered position is one with duties sufficiently specialized and complex to 
satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). · 
15 Compare, for example, with a Level IV (fully competent) position, which is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly 
higher wage. For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://www.fcireignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_!!_ 2009.pdf. 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex compared to other positions within the same occupation. Nevertheless, a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation 
does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry­
level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
16 The Petitioner asserts that the Beneficiary possess "a Bachelor's degree in accounting verified in his U.S. Credentials 
Evaluation." However, the Petitioner did not submit a copy of the Beneficiary's degree or credentials evaluation, as 
claimed. Nevertheless, as the Petitioner has not demonstrated that the proffered position constitutes a specialty 
occupation, we will not further discuss the Beneficiary's qualifications. 
15 
Matter of A-, Inc. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., ID# 8632 (AAO Sept. 21, 2016) 
16