dismissed H-1B Case: Software

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
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Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 7, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: I-129, PETITON FOR A NONIMMIGRANT WORKER 
On the Form I-129, the Petitioner describes itself as a 23-employee "software" business established 
in and seeks to employ the Beneficiary as a "programmer analyst." The Petitioner seeks to 
classify the Beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The record of proceeding includes: (1) the Form I-129 and supporting documentation; (2) the service 
center's request for evidence (RFE); (3) the Petitioner's response to the RFE; (4) the notice of 
decision; and (5) the Form I-290B, Notice of Appeal or Motion, and supporting materials. We 
reviewed the record in its entirety before issuing our decision. 1 
The Director, California Service Center, denied the petition determining that the record did not 
establish: (1) an employer-employee relationship between the Petitioner and the Beneficiary; and (2) 
that the proffered position is a specialty occupation. The matter is now before us on appeal. Upon 
review of the entire record of proceeding, we find that the Petitioner has not overcome the Director's 
grounds for denying this petition. Accordingly, the appeal will be dismissed. 
I. THE PROFFERED POSITION 
On the Form I-129, the Petitioner identified the proffered position as a "programmer analyst" 
position, and indicated that the Beneficiary will work off-site. In the March 24, 2014, letter 
submitted in support of the petition, the Petitioner provided the following three job duties of the 
proffered position: "Install, maintain and may design internal software operating systems and/or 
business applications"; "Prepare concepts for information system solutions"; and "Be responsible for 
project control, quality and implementation[.]" The Petitioner submitted the required Labor 
1 We conduct appellate review on a de novo basis. See Soltan e v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). We note, iin 
light of the Petitioner's references to the requirement that U.S. Citizenship and Immigration Services (USC IS) apply the 
"preponderance of the evidence" standard , we affirm that , in the exercise of our appellate review in this matter, as in all 
matters that come within our purview, we follow the preponderance of the evidence standard as specified in the 
controlling precedent decision , Matter ofChawath e, 25 l&N Dec. 369, 375-376 (AAO 2010) . 
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Condition Application (LCA) certified for a job prospect within the occupational classification of 
"Computer Systems Analysts"- SOC (ONET/OES Code) 15-1121, at a Level I wage. 
In response to the service center's RFE, the Petitioner stated that although it was calling the 
proffered position a "programmer analyst" position, the Beneficiary would be working as a 
"programmer analyst- sas developer." The Petitioner submitted a photocopy of a July 14, 2014, 
letter authored by the Application Development Manager at " ' to confirm that the Beneficiary 
"is contracted as a Programmer Analyst-.SAS Developer" and is currently working at on a 
SAS development project effective in July 2013 and is expected to continue in this role with a strong 
possibility of extension." The primary duties as listed in the letter are listed below verbatim: 
• Design, develop and implement data analytics using 
large national data sets, managing 
and analyzing large complex data sets to measure quality of content 
• Design, develop and maintain the application code for the complex reporting application 
deliverables - Customer Analytics Package and Collaborative Accountable Care 
• Working with informatics teams to define development requirements, while following 
development protocols and procedures 
• Investigating and implementing new application solutions based on business 
requirements and reporting needs 
• Serving as the SAS development consultant for cross-functional project teams 
• Working across multiple development platforms and programs to achieve results 
• Processing system (MMIS -claims , eligibility and provider etc.) and other division data 
sources using various SAS BI tools 
On appeal, the Petitioner submits a second photocopy of a letter authored by the Application 
Development Manager at ' , dated October 10, 2014. The October 10, 2014, letter substantially 
repeats the above description of duties and adds language that the data sets will involve 
healthcare/medical data and that the complex claims involve medical claims. The author of the letter 
also adds that the revised duties "require at least a bachelor's degree (health care/medical 
background or related) with strong computer 
programming skills or equivalent experience." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first consider whether the Petitioner has established 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). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perfom1 services . .. in a specialty occupation described in section 214(i)(l) . . . , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
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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.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) 
(2) 
. (3) 
Engages a person to work within the United States; 
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 
Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
Although "United States employer" is defined in the regulations at 8 C.P.R.§ 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien 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) of the Act, 
8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "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) (2012). Further, the regulations indicate that "United States 
employers" must file a Form I-129 in order to classify aliens as H-1B temporary "employees." 8 C.P.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.P.R. 
§ 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H -1 B visa 
classification, even though the regulation describes H-1B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." Id. 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 
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master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. 
Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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. 
o.f America, 390 U.S. 254, 258 (1968)). 
In the H -1 B context, 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)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) ofthe 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-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § 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), aff'd, 27 F.3d 800 (2nd Cir.), cert. denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(I5)(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. Instead, in the context of the H-1 8 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 Resources Defense 
Council, Inc., 467 U.S. 837, 844-845 (1984). 
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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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. C.f 
Darden, 503 U.S. at318-319? 
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) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB 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 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) ofAgency § 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 New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332,359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 
U.S. 410,414,65 S.Ct. 1215, 1217,89 L.Ed. 1700 (1945)). 
4 
That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c )(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized aliens). 
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also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients ofbeneficiaries ' services, are the "true employers" ofH-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual 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, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H -1 B temporary "employee." 
The Petitioner asserts that the Beneficiary will work at the offices of · in . Connecticut, 
but that it retains the authority to assign and reassign the Beneficiary and that it determines the 
assignments or re-assignments of the Beneficiary. The Petitioner, however, has not provided 
sufficient information on how it supervises the Beneficiary's work or how it directly manages the 
Beneficiary in all matters related to his employment. Other than the photocopies of two letters that 
the Petitioner claims were authored by the Application Development Manager at the 
Petitioner has not submitted any contracts, documentation, statements of work, or other evidence 
establishing the duties and responsibilities of the two companies in relation to the Beneficiary. 
There are a number of factors which weigh against a favorable determination of the Petitioner's 
claim that it satisfies the employer-employee requirement. The record shows that the Beneficiary 
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will be assigned to work at location in Connecticut, and not at the Petitioner 's 
location in California. There is no evidence in the record showing that the Petitioner will maintain 
any supervisory presence at the work location. Moreover, the evidence of record reflects that 
would ultimately generate and determine the substantive scope and duration of any work the 
Beneficiary would perform. The record does not include sufficient probative evidence that the 
Petitioner would play any substantial role in determining the particular duties and tasks of any 
worker requisitioned by The record does not include documentary evidence from that 
identifies any specific management authorities and responsibilities that have been reserved for the 
Petitioner to exercise over the Beneficiary, such as designating the Beneficiary's day-to-day tasks, 
evaluating the quality and efficiency of the Beneficiary's work, and providing guidance to the 
Beneficiary as work-related issues arise. Finally, there is no evidence that any work to which the 
Beneficiary might be assigned would require the Petitioner to provide its own proprietary 
information or technology. The totality of the evidence reflects that the Beneficiary's work would 
inherently require access to and use of IT instrumentalities (such as IT systems, computer 
programs, and software applications). 
Based upon our review, the only documents submitted into the record impacting the Petitioner 's 
right to control the Beneficiary are the two letters submitted by which state broadly that 
does not have an employment relationship with the Beneficiary and that the Petitioner "retains the 
right of control over [the Beneficiary's] scope of work, source of instrumentalities and tools." 
However, without the underlying contractual instruments and statements of work, the two letters do 
not provide specific information with regard to the actual supervisory and management framework 
that would determine , direct, and supervise the Beneficiary 's day-to-day work at Based upon 
this fact and upon all of the aspects of the record that bear on the employer-employee issue, we find 
that the evidence of record is inconclusive on the issue of whether it is more likely than not that the 
Petitioner and the Beneficiary would have the requisite employer-employee relationship in the 
context of the work to be performed if this petition were approved. We reach this conclusion based 
upon the application of the above-discussed common law principles to the totality of the evidence of 
record. 
The Petitioner's reliance on claims that it would pay the Beneficiary 's salary, set wages, control 
work locations, and assign the Beneficiary to its clients is misplaced . As we have noted, the record 
of proceeding before us does not document the full panoply of employer-employee related terms and 
conditions that would control the Beneficiary 's day-to-day work; therefore, we do not have before us 
a sufficiently comprehensive record to identify and weigh all of the indicia of control that should be 
assessed to resolve the employer-employee issue under the above-discussed common law touchstone 
of control. As the Petitioner has not met its burden to establish that an employer-employee 
relationship exists, the appeal will be dismissed and the petition will be denied for this reason. 
Without full disclosure of all of the relevant factors relating to the end-client, including evidence 
corroborating the Beneficiary's actual work assignment , we are unable to find that the requisite 
employer-emplo yee relationship will exist between the Petitioner and the Beneficiary. The evidence 
of record, therefore, is also insufficient to establish that the Petitioner qualifies as a "United States 
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employer," as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the 
Beneficiary is the Petitioner's employee does not establish that the Petitioner exercises any 
substantial control over the Beneficiary and the substantive work that he performs. Nor do clauses 
in photocopied letters, such as the letters from carry probative weight in the absence of 
specific contractual documents that bring such agreements into play with regard to work for which it 
is shown that the Beneficiary would be employed. 
For the reasons discussed above, the evidence of record does not establish the requisite 
employer-employee relationship between the Petitioner and the Beneficiary. For this reason the 
petition 
must be denied. 
III. SPECIALTY OCCUPATION 
The next issue in this matter is whether the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. For an H -1 B petition to be 
granted, the Petitioner must provide sufficient evidence to establish that it will employ the 
Beneficiary in a specialty occupation position. 
A. Legal Framework 
To meet its burden of proof in this regard, the Petitioner must establish that the employment it is 
offering to the Beneficiary meets the following statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
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Pursuant to 8 e.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 e.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 e.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 e.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 e.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th eir. 2000). To avoid this 
result, 8 e.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 e.F .R. 
§ 214.2(h)( 4 )(ii), users consistently interprets the term "degree" in the criteria at 8 e.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 proffered position. See Royal Siam Corp. v. Chertoff, 
484 F.3d 139, 147 (1st eir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"). Applying this 
. standard, USe IS regularly approves H -1 B petitions for qualified aliens who are to be employed as 
engineers, computer scientists, certified public accountants, college professors, and other such 
occupations. These professions, for which petitioners have regularly been able to establish a 
minimum entry requirement in the United States of a baccalaureate or higher degree in a specific 
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specialty or its equivalent directly related to the duties and responsibilities of the particular position, 
fairly represent the types of specialty occupations that Congress contemplated when it created the 
H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation , USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations , are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
As recognized by the court in Defensor, supra, where the work is to be performed for entities other 
than the petitioning entity, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service (INS) had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. Jd. at 384. Again, 
such evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
Here, the record of proceeding does not provide sufficient probative documentary evidence from the 
end-client, regarding the job duties of the Beneficiary's work. We note that 
descriptions of the Beneficiary's proposed duties in the two letters submitted by the Petitioner 
significantly expand upon the Petitioner's three-sentence general description of the proposed duties. 
However, even upon review of descriptions of the Beneficiary's duties, the duties are stated 
generally and in the abstract. That is, does not identify any of its particular projects or 
products for which it requires the Beneficiary 's services. Ultimately , the record does not have a 
probative description of duties the Beneficiary will perform while working at location as 
those duties might relate to one or more specific projects. Instead, the descriptions are overly broad 
and lack substantive detail of the actual tasks that will engage the Beneficiary as those tasks relate to 
particular projects. Thus, we cannot ascertain the scope or nature of the Beneficiary's actual duties 
while working on any of projects. 5 
5 Again , the Petitioner has not submitted evidence such as contractual agreements or statements of work demonstrating 
that has specific projects that require the duties it describes as the Beneficiary's propo sed duties. 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. 158, 165 (Comm 'r 1998) (citing Matter o.fTreasure Crqft ofCalifornia, 14 
I&N Dec. 190 (Reg '! Comm ' r 1972)). 
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As the Petitioner here has not provided information regarding the proposed project(s) that will 
engage the Beneficiary, it is not possible to discern what stage the project(s) is in, what modules 
require work, if any, whether, the Beneficiary will be primarily designing, developing and 
implementing data analytics or maintaining application code or working with informatics teams, 
gathering client requirements, or being responsible for project control, quality and implementation. 
The Petitioner has not submitted evidence of the role this specific Beneficiary will play in the 
project(s), and how the Beneficiary will contribute to the execution of the project(s) deliverables. 
Thus, it is not possible to ascertain whether the Beneficiary will be required to perform duties that 
fall within the parameters of a specialty occupation position. That is, to the extent that they are 
described, the proposed duties do not provide a sufficient factual basis for conveying the substantive 
matters that would engage the Beneficiary in the performance of the proffered position for the entire 
period requested. 
The job descriptions do not persuasively support the claim that the position's day-to-day job 
responsibilities and duties would require the theoretical and practical application of a particular 
educational level of highly specialized knowledge in a specific specialty directly related to those duties 
and responsibilities. Also, as recognized in Defensor v. Meissner, it is necessary for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location and 
its requirements to perform those duties in order to properly ascertain the minimum educational 
requirements necessary to perform those duties. See Defensor v. Meissner, 201 F.3d at 387-388. As 
noted earlier, 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. In the 
letter submitted on appeal, the letter-writer states that requires a bachelor's degree (health 
care/medical background or related) with strong computer programming skills or equivalent 
experience to perform the duties it generally described. However, the Petitioner has not 
demonstrated how or why the performance of the duties of the proffered position, as generally 
described by it or as broadly described by would require the attainment of a bachelor's or 
higher degree in a specific specialty, or its equivalent. 
Here, the record of proceeding lacks sufficient probative evidence from the end-client, 
regarding the specific job duties to be performed by the Beneficiary for that company and the 
requirements for the position. The requirement of a bachelor 's degree with a health care/medical 
background does not describe a degree in a specific specialty. There is no infotmation in the record 
detailing which specific degree, of the numerous degrees that may include a health care/medical 
component, are acceptable. Moreover, it appears that any general bachelor's degree with a few 
medical and health care classes would suffice to perform the duties as described by As the 
Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, 
a finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), is 
precluded. It is the substantive nature of that work that determines (1) the nonnal minimum educational 
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MatterofM-
requirement for the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the proffered position and thus appropriate for review for a common degree requirement, 
under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a 
petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) 
the degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. For this additional reason, the appeal will be dismissed and the petition denied. 
IV. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. We also find that the 
evidence of record is insufficient to establish that the Petitioner will have the requisite employer­
employee relationship with the Beneticiary. Accordingly, the appeal will be dismissed and the 
petition denied. 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
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 ofthe 
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 Afatter o.fM-, ID# 13823 (AAO Oct. 7, 2015) 
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