dismissed H-1B Case: Software Consulting

(b)(6)
DATE: JUL 1 0 2015 
IN RE: Petitioner : 
Beneficiary : 
U.S. D~partment of Homeland Securit y 
U.S. Citi zenship and Immigration Service 
Admini strative Appeals Office 
20 Massachusetts Ave. , N.W .. M S 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT# : 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)(H)( IS)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § 1101(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsid er our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis .gov/i-290b) contains the latest information on fee, filing 
location , and other requirements . Please do not mail any motions directly to the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
46-employee "Software Consulting" company established in In order to employ the 
beneficiary in a position it designates as a programmer analyst, the petitioner seeks to classify him 
as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The Director denied the petition, determining that the evidence of record did not establish that the 
petitioner will have an employer-employee relationship with the beneficiary. On appeal, the petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it has 
satisfied all evidentiary requirements. 
The record of proceeding includes: ( 1) the petitioner's 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 Notice of Appeal or Motion (Form I-290B) and the petitioner's brief. 
We reviewed the record in its entirety before issuing our decision.' 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition on the employer-employee issue. In addition, beyond the decision of the Director, we 
also find that the evidence of record does not establish that the proffered position is a specialty 
occupation. Accordingly, the Director's decision will not be disturbed. The appeal will be 
dismissed, and the petition will be denied. 
II. THE PROFFERED POSITION 
The petitioner identified the proffered position as a "Programmer Analyst" on the Form I -129, and 
attested on the required Labor Condition Application (LCA) that the occupational classification for 
the position is "Computer Systems Analysts," SOC (ONET/OES) Code 15-1121, at a Level I wage. 
The LCA was certified on March 31, 2014, for a validity period from September 24, 2014 to 
September 23, 2017 for the , California geographical area, which 
includes the petitioner's office location. The LCA also included locations in the 
California geographical area and in the 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004 ). 
Also, in light of the petitioner's references to the requirement that U.S. Citizenship and Immigration Services 
(USCIS) 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 of Chawathe, 25 I&N Dec. 369, 
375-376 (AAO 2010). 
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California geographical area. The petitioner stated on the Form 1-129 that the beneficiary would 
work off-site. 2 
In a response to the service center's RFE, dated September 8, 2014, the petitioner stated that the 
beneficiary "will b~ physically working at through with a work location of: 
employment." A letter on the letterhead of 
President, dated August 1, 
duties will include the following: 
for the entire duration of the requested 
signed by Vice-
20 14, states that the beneficiary's job 
• Develop GUI customizations as part of Tridion extensions m .NET on 
Content manager layer and in Java on content delivery layer. 
• Built automation tools to assist development and administration teams to 
enable faster troubleshooting. 
• Migrate SDL Tridion 2011 to 2013 suite 
that included Content manager and 
Content Delivery platform 
• Perform ODA T 
A POC for Financial education pages of the public site which 
is driven by dynamic components 
• Installation of SDL Tridion Modules that included Content Manager 
Explorer, Experience Manager, Workflows, Broker in 2011 and 2013 
versiOns 
• Design and developed a reporting Database module as part of the bank's legal 
and compliance requirements 
• Develop batch jobs to monitor system and application health on a periodic 
basis 
• Extensively develop data extender modules as part of Content manager 
explorer customization 
[Verbatim.] 
A letter on the letterhead of dated August 7, 2014, states that has subcontracted the 
petitioner's services for a project in California. The letter also states that does 
not issue "paper/hard cop[ies]" of the "Statement of Work/PO" ; therefore , the letter "will serve to 
confirm the details of our agreement." This letter also provides the same duties listed in the 
letter. The letter provides the following education requirement: "Bachelor's degree or 
equivalent in Computer Science, Computer Applications, Engineering , Information Technology, 
MIS, or related area of study." That letter also states that the project will begin on "11/01/2014" 
and end on "12/31120 15 with possible annual extensions based on need." 
2 No address was provided on the Form 1-129 for the beneficiary's off-site employment. 
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III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first consider whether the evidence of record establishes that the petitioner meets the 
regulatory definition of a United States employer as that term is defined at 8 C.F.R. 
§ 214.2(h)( 4 )(iir In this context, the evidence of record must establish that the petitioner will have 
"an employer-employee relationship with respect to employees under this part, as indicated by the 
fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." !d. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject 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 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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
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 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)(1) 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-lB temporary 
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"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-lB beneficiary, and that this relationship be evidenced by 
the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor 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." !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) (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 Communityfor 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. of America, 390 U.S. 254, 258 (1968)). 
In this matter, 
the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
(b)(6)
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"United States employer" to be even more restrictive than the common law agency definition. 3 
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-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.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 
constming these terms in this manner would thwart congressional design or lead to absurd results. C'l 
Darden, 503 U.S. at 318-319 .4 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 5 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA") , 29 U.S.C. § I 002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA , unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S .D.N.Y. 1992), qffd, 27 F.3d 800 (2nd Cir.), cerl. 
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 01 (a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1 B visa clas sification , 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, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 844-845 (1984). 
4 
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. Seminol e Rock & Sand Co., 325 U.S. 410 , 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
( 1945)). 
5 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 
(b)(6)
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Page 7 
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) 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 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 
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). 
controlling L-IB intracompany transferees having specialized knowledge); section 274A ofthe Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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B. Analysis 
Applying the Darden and Clackamas tests to this matter, the evidence of record does not establish 
that the petitioner will have the requisite employer-employee relationship with the beneficiary. The 
evidence of record is not sufficiently comprehensive to bring to light all of the relevant circumstances 
that pertain to the parties involved in providing the beneficiary to perform work for m 
California. 6 We have reviewed the letter, signed on behalf of by 
Vice President, . dated August 1, 2014. 
The record does not include any agreements between and detailing the 
deliverables of the project, the specific resources required to complete any specific module of the 
project, and/or the duration of the project. The record of proceeding lacks any agreement, purchase 
order, or statement of work from detailing the terms and conditions of the beneficiary's 
proposed employment. That is, the record does not include probative evidence establishing that the 
- Content Management System development project 
continues to exist and requires the services of the beneficiary to perform services relating to the 
project. There is insufficient information and corroborating documentation, such as work orders, 
statements of work and the specific contractual agreement, to demonstrate that work exists for the 
beneficiary to perform work for at the claimed location of the project -
Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sojfici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) ). Without the contractual agreements 
between and detailing the terms, conditions, and limitations on the parties 
executing the contract, the record is insufficient to identify all the indicia that may pertain to or be 
associated with the right to control the beneficiary and his work for Additionally, the 
record does not include evidence that is authorized to represent 
Similarly, the record does not include probative evidence ofthe contractual relationship between the 
petitioner and We have reviewed the letter, dated August 7, 2014, signed on behalf of 
referencing its contractual arrangement with the petitioner; however, the record does not 
include the contractual agreement and the associated terms and conditions of that contract for our 
review. Thus, it is not possible to ascertain the validity of the relationship, the duration of the 
contractual relationship, or any limitations or restrictions on the petitioner regarding its proposed 
candidates for employment pursuant to the contract. Without the agreement, purchase order, and 
statement of work from . detailing the terms and conditions of the beneficiary's proposed 
employment, the record is insufficient to convey the indicia of the petitioner's right to control the 
beneficiary's work. 
6 The record references and ' intermittently. The record does not include 
evidence indicating whether these are the same entities or whether they are related or affiliated entities. For 
consistency's sake, we will refer to the end-client as" 
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Page 9 
The record does not include evidence establishing that the petitioner will directly supervise the 
beneficiary's proposed work at , at the claimed work location in . Absent 
documents detailing the chain of proposed employment and delineating the contractual terms and 
conditions relevant to the employer-employee common law touchstone of control, we are unable to 
determine that balancing all of the relevant indicia of control would favor the petitioner rather than 
one of the other parties. The record is insufficient to establish, by a preponderance of the evidence, 
that the petitioner will be the beneficiary's employer. 
Further, there is a lack of evidence with respect to the duration of the relationship between the parties 
and the location( s) where the beneficiary will work for the duration of the requested H-1 B employment 
period. Again, the record does not include any contractual agreement between (1) and 
and (2) and the petitioner, detailing the duration of the beneficiary's employment. The 
petitioner in this matter requested that the beneficiary be granted H-1B classification from October 1, 
2014 to September 1, 2017. However, the record does not include probative evidence from or 
that the proposed project is long-term and that work would be available for the beneficiary 
for the duration of the requested employment period. Although claims that work is available 
beginning November 1, 2014 until December 31, 2015 with possible annual extensions, the record 
does not include the underlying agreement(s) that substantiate this claim. 
Next, we note that while social security contributions, worker's compensation contributions, 
unemployment insurance contributions, federal and state income tax withholdings, and other 
benefits are still relevant factors in determining who will control an alien beneficiary, other 
incidents of the relationship, e.g., who will oversee and direct the work of the beneficiary, who will 
provide the instrumentalities and tools, where will the work be located, and who has the right or 
ability to affect the projects to which the alien beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. We here 
reiterate that without the contractual agreements detailing the various parties' responsibilities for 
these essential elements, we have insufficient information to ascertain the restrictions, if any, on the 
petitioner in relation to its right to control the beneficiary. The record is deficient in this regard. 
We fully considered the submissions from the entities involved, including the letters on the 
letterhead of and Based upon our review, we emphasize that there is 
insufficient documentary evidence providing specific information with regard to the actual 
supervisory and management framework that would determine, direct, and supervise the 
beneficiary's proposed day-to-day work at 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-employee relationship will exist 
between the petitioner and the beneficiary. 
The evidence of record, therefore, is insufficient to establish that the petitiOner qualifies as a 
"United States employer," as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters 
that the 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 broad, 
unsupported statements in letters carry probative weight in the absence, as here, of specific 
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contractual documents that govern the terms and conditions of the beneficiary's proposed 
employment at the end-client. 
As discussed above, the evidence of record does not establish the requisite employer-employee 
relationship between the petitioner and the beneficiary. For this reason, the appeal will be 
dismissed and the petition must be denied. 
IV. SPECIALTY OCCUPATION 
Beyond the decision of the Director, the evidence of record does not establish that the proffered 
position is a specialty occupation. 7 
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) 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. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to quality as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
7 
As noted above, we conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004). 
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NON-PRECEDENT DECISION 
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 ofthe 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 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.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 C.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 C.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 Cir. 2000). To avoid this result, 8 C.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 C.F.R. 
§ 214.2(h)(4)(ii), USCIS consistently interprets 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 proffered position. See Royal Siam Corp. v. Cherto_ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"). Applying this 
standard, USCIS regularly approves H-1B 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 
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-1 B 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
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. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, 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 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. !d. at 384. 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 
As a preliminary matter, we find that the evidence of record lacks substantive information and 
supportive documentation sufficient to establish that, in fact, the beneficiary would be performing 
services for the type of position for which the petition was filed (here, a computer systems analyst). 
Another such fundamental preliminary consideration is whether the evidence of record establishes 
that, at the time of the petition's filing, the petitioner had secured non-speculative work for the 
beneficiary that corresponds with the petitioner's claims about the nature of the work that the 
beneficiary would perform in the proffered position. We find that the evidence of record fails in 
each of these regards. 
While the petitioner provided a letter from and another letter from with each 
providing the same description of the beneficiary's duties, the duties as described do not provide the 
detail necessary to ascertain the level and complexity of the beneficiary's day-to-day duties. 
Additionally, states broadly that it "has engaged is [sic] for the 
- Content Management System development project" and that ' 
has engaged is [sic] to provide services requiring resources possessing appropriate 
education, experience and skills in Web Content Management Technologies including SDL Tridion, 
JQUERY, .NET, HTML5, CSS3 and Javascript." does not identify any academic 
degree it requires to perform the duties it described. 8 
8 
We note that the mid-vendor, states that its requirement to perform the same duties described by 
both entities is a "Bachelor's degree or equivalent in Computer Science, Computer Applications, 
Engineering, Information Technology, MIS, or related area of study." However, does not discuss why 
a degree in any of these fields is necessary to perform the duties it describes. In any event, it is evidence of 
job requirements that is critical. Since the beneficiary would provide services to the end­
client, and not to . the provided job duties and alleged requirements to perform 
those duties are irrelevant to a specialty occupation determination. See Defensor v. Meissner, 201 F.3d at 
387-388. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 13 
Upon review of the record, there is insufficient information regarding the beneficiary's duties, the 
project to which he would be assigned, the necessary educational requirements to perform the 
position, and why those requirements are necessary and relate directly to the duties of the position. 
Again, 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(s), as well as any 
hiring requirements that it may have specified, in order to properly ascertain the minimum 
educational requirements necessary to perform those duties. See Defensor v. Meissner, 201 F.3d at 
387-388. 
The evidence of record also does not contain sufficient evidence to provide a factual basis that 
conveys the substantive matters that would engage the beneficiary in the performance of the proffered 
position for the entire period requested. The duties as generally described do not establish that they 
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. Moreover, as 
discussed above, the record does not include statements of work or purchase orders identifying the 
particular work the beneficiary will be expected to perform. In the descriptions of the proposed 
duties, some of the duties appear to be duties that have been performed in the past. The record in 
this matter does not include sufficient information detailing at what stage the project is 
in or whether the services described must still be performed. 
Thus, upon review of the totality of the record, the evidence of record does not contain substantive 
information and supportive documentation sufficient to establish that, in fact, the beneficiary would 
be performing services primarily as a programmer analyst. The evidence of record also does not 
establish that, at the time the petition was filed, the petitioner had secured non-speculative work for 
the beneficiary that corresponds to specific projects corroborated by substantive documentation. As 
the evidence of record does not contain sufficient documentary evidence substantiating the 
beneficiary's actual work, we cannot conclude that the petitioner has established that it would 
employ the beneficiary in a specialty occupation. 
The evidence of record does not establish the substantive nature of the work to be performed by the 
beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
8 C.P.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 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.P.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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
V. CONCLUSION 
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), aff'd, 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 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.