dismissed H-1B Case: Software Consulting

(b)(6)
MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 17,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "Advance Software Development and Consulting" company, seeks to temporarily 
employ the Beneficiary as an "Oracle financial functional consultant" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite fol 
entry into the position. 
The Director, California Service Center, denied the petition, concluding that the Petitioner did not 
sufficiently establish that: (1) the proffered position qualifies as a specialty occupation; (2) the 
Petitioner qualifies as a United States employer with an employer-employee relationship with the 
Beneficiary; and, (3) there is sufficient work for the duration of the requested validity period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of reco,rd establishes eligibility for the benefit sought. 
' ' 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as an Oracle financial 
functional consultant. The Petitioner also submitted an itinerary to indicate that the Beneficiary will 
be providing services to (end-client), located in Wisconsin. The 
Petitioner also listed the succession of contracts as follows: The Petitioner -
(vendor)- (end-client). In response to the Director's request for evidence 
(RFE), the Petitioner provided the following expanded job duties to be performed at the end client 
site: 
• Study, prepare and map the requirements to application process 
(b)(6)
Matter of S-S-, Inc. 
[The Beneficiary] will be responsible for gathering business requirements from 
PTS, STAR, Wuxi, and business users to map the techno-functional process 
to (called as He is responsible for end-to-end 
flow related to Order to Cash, Manufacturing and Procure to 
He is expected to functionally map/setup the Oracle Finance modules, Accounts 
Payables (AP), Accounts Receivable (AR), General Ledger (GL), Costing, Work 
in Progress (WIP), Purchasing and Cash Management as per the business 
requirements. 
To technically 
map the business process, and as part of the conversions, he will 
develop conversion programs using SQL.PLSQL to convert open AR & AP 
invoices, AR Cash Receipts items, purchase orders etc. from PTS, STAR, and 
Wuxi legacy systems to modules, Accounts Receivable 
(AR) and Accounts Payable (AP), Costing , and purchasing modules on Oracle 
Database 9i version. 
He will develop Custom Oracle Forms, Oracle Reports using 6i version of Oracle 
Development Suite and XML reports using XML Publisher to meet reporting 
requirements for business. To run scheduled jobs, he will develop UNIX shell 
scripts for concurrent programs. 
• Work with Banks on implementing Cash Management on Oracle. 
[The Beneficiary] will also be implementing Oracle Cash Management module 
for disbursement accounts and receivable bank accounts on the US 
operating unit · and Canadian Operating unit 
[The Beneficiary] will be responsible for mapping and 
BA12 files/bank statements to Oracle Cash Management module. In this process , 
he will work with and on file transmission , connectivity 
and mapping of the third party bank files as per IT standards and business 
requirements. 
He will also develop custom UNIX shell scripts to pull and archive the files from 
bankFTP sites, load the files through SQL*loader program , and perform 
automatic reconciliation through matching of cash receipts in Oracle Accounts 
Receivable from customers and vendor payments in Accounts Payable with the 
BA 12 bank statements/files. 
He will also conduct conference room pilot sessions with business users and train 
the users throughout the implementation of Oracle Cash Management. 
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(b)(6)
Matter of S-S-, Inc. 
• Liaison with 
Oracle. 
Business Groups and Banks to map requi ,rements to 
[The Beneficiary] will also b~ responsible for implementing Oracle Accounts 
Receivable automated receivable lockbox cash application process, auto 
lockbox invoice matcher process for the business divisions/sales channels that 
will be created as part of the conversion process for STAR: PTS and Wuxi 
businesses. 
He will coordinate with banks and business to implement Oracle 
Accounts Payable module for the new operating units as part of the 
conversion. He will analyze and setup the disbursement options such as wire, 
check, ach payment etc. to Oracle Accounts Payable. 
He is expected to conduct conference room pilot sessions with shard 
service Accounts Payable & Accounts Receivable business users to train them 
throughout the implementation. 
• Document the AS-IS process to TO-BE process. 
[The Beneficiary] will be responsible for documenting the current business 
application process for STAR, PTS and Wuxi Business division of and 
will be documenting the TO-BE Process as per standard operating 
procedures as part of conversions from their source systems. He will also 
present the TO-BE process to business users and obtain sign-off from business 
users on the said TO-BE process. 
• Identify the gaps, customize, discuss and resolve issues. 
[The Beneficiary] will identify key gaps in the TO-BE process (i.e., if any 
requirements cannot be mapped to Oracle ERP). He will conduct fit gap 
analysis, discuss with user groups and technical teams on possible solutions 
and alternatives. · 
If gaps cannot be addressed with Standard Oracle Development Tools, he will 
research on implementing any new technologies to close the gaps. 
• Techno Functional Project Management 
[The Beneficiary] will be driving a proposed project time line to meet each 
phase ofthe project 's implementation life cycle 
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Matter of S-S-, Inc. 
He will be responsible for providing detailed functional and technical input to 
IT and business stakeholders and ensure development of efficient ERP system 
utilizing standard operating procedures and proven industry methodologies 
Whenever required, he will research and evaluate alternative 
technological 
solutions to develop a cost effective ERP system without compromising on 
operational standards. The researched technological solutions and 
functionalities should integrate with the system plan and improve the bottle 
neck business process. 
He will be responsible to make sure that there are no outliers in the functional 
and technical design that would negatively affect the conversions, 
development and production support to internal customers of the company. 
He will also be responsible to ensure the implementation and rollout of the 
simple, sustainable and reusable development solutions in Oracle ERP based 
environment. 
• Prepare the UAT environment, test and resQlve issues. 
[The Beneficiary] will prepare the User Acceptance Test Environment to 
conduct conference room pilots and user acceptance testing session among 
various user groups of STAR, PTS and Wuxi business divisions after each 
phase of development and conversion to Oracle. 
Finance 
modules, Accounts Payables (AP), Accounts Receivable (AR), 
General Ledger (GL), Costing, Work in Progress (WIP) and Purchasing etc. 
As part of the sessions, he is expected to perform IT testing, user acceptance 
testing, document test results and resolve any test cases that fail or do not 
meet the expected user results. 
• Assist users in UAT environment and prepare manuals. 
[The Beneficiary] will assist users in executing tests cases that are prepared 
for them on test instances as part of User Acceptance Testing 
sesswns. 
He will also [be] responsible for providing Standard Operating Procedure 
manuals to users on accessing Oracle Finance modules, Accounts Payables 
(AP), Accounts Receivable (AR), General Ledge (GL), Costing, Work in 
Profess (WIP), Cash Management and their features based on user level 
responsibilities. 
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(b)(6)
Matter of S-S-, Inc. 
• Coordinate with Technical consultants/DBAs, Developers and Oracle 
Support. 
As part of the conversions from PTS, STAR and WUXI legacy systems to 
source system, he will coordinate with technical consultants in the 
legacy environment to obtain data extracts for Oracle Finance modules, 
Account Payables (AP), Accounts Receivable (AR), General Ledger (GL), 
Costing, Work in Progress (WIP), Purchasing and Cash Management. He will 
also obtain validation reports for each module. He is expected to work with 
the DBA team on the legacy and sources system side to set up test 
environments for development and deployment/migration process from lower 
level instances to higher level instances. 
He is responsible to work with cross functional business and IT teams for 
standard conversion audits and SOX compliance. As part of the conversion 
and implementation projects, he is also expected to work with Oracle 
Supporton patches required for localization, and to obtain necessary 
enhancements and data-fixes . 
The Petitioner stated that the usual minimum requirement for the proffered position .is a bachelor's 
degree in "Computer Science, Management Information Systems, Engineering (any) information 
technology , any Analytical Science or related degree." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(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: 
5 
Matter of S-S-, Inc. 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with r.espect to employees under 
this part, as indicated by the fact that it may hire, pay. fire. supervise, or 
otherwise control the work ofany such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section l01(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(1). 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)(1 )(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-1B 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 former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B 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-1B 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 Mut. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
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 
6 
Matter of S-S-, Inc. 
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)(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) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the tem1 
"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of"United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-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 
construing these terms in this manner would thwart congressional design or lead to absurd results. C~f 
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. § 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. 
I992). . 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l )(A)(i) of the Act, or "employee" in section 
2I2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (I984). 
7 
Matter of S-S-, Inc. 
Darden, 503 U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions we must 
focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. § 
214.2(h)(4)(ii) (defining a "United States employer" as one who ''has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; 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 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H-1 B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
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. 
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 regula!ion."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
8 
Matter of S-S-, Inc. 
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, we 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 speci·fically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Jd at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Upon review of the record of proceedings, 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." 
1. Offer of Employment and Supervision 
For H-lB classification, the Petitioner is required to submit written contracts between the Petitioner 
and the Beneficiary; or if there is no written agreement, a summary of the terms of the oral 
agreement under which the Beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and 
(B). The Petitioner submitted a letter confirming the offer of employment to the Beneficiary for the 
position of Oracle financial functional consultant. 
While an employment agreement may provide some insights into the relationship of a Petitioner and 
a Beneficiary, it must be noted again that 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.'" ld at 451 (quoting 
Darden, 503 U.S. at 324). 
The Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, 
detailing the manner in which the Beneficiary's supervisor actually oversees, directs, and otherwise 
controls the off-site work of the Beneficiary. The Petitioner stated that the CEO will review the 
Beneficiary's work; however, it is not clear how the CEO can supervise the Beneficiary on a weekly 
basis regarding his work at the end-client and run the company. 
The Petitioner also submitted copies of status weekly reports prepared by the Beneficiary and sent to 
the Petitioner. The reports outline the work activities of the Beneficiary, including the function and 
9 
(b)(6)
Matter of S-S-, Inc. 
purpose of each activity. If the Beneficiary is only providing weekly status reports to the Petitioner , 
it indicates that the Petitioner will have general oversight but will not be managing the Beneficiary ' s 
day-to-day duti~s at the client site. Furthermore , the record indicates that the off-site work location 
would be located around 123 miles from the Petitioner' s office. The Petitioner stated it will supervise 
the Beneficiary; however, the Petitioner submitted an LCA ce11ified at a Level I wage, which is 
appropriate for entry-level employees. A Level I wage indicates that the Beneficiary would perform 
routine tasks under close supervision which require limited, if any, exercise of judgment ; however, it 
does not appear that the Petitioner will be in a position to provide the close supervision and monitoring 
of the Beneficiary's work. For these reasons , it cannot be determined that the Petitioner will assign 
and control the Beneficiary's work at the client site. 
2. Master Services Agreement and Statement of Work 
The Petitioner 
explained that it has a contract with (vendor) who in turn has a 
contract with (end-client). The Petitioner submitted the agreement with 
the end-client , and the statement of work between the vendor and the end client. 
The agreement between the Petitioner and (vendor) was entered into on 
January 11, 2016, and states the Petitioner will "provide temporary consulting services" to the 
vendor. Section 13 of the agreement states that the Petitioner "represents that its Consultant 
possesses the training, skills and expertise necessary to perform the consulting services required by 
this Agreement in a competent and professional manner." Section 4 also states that the relationship 
between the parties is that of independent contractor. 
The statement of work (SOW) between the vendor and the end-client states that the end client "needs 
assistance with Oracle E Business Suite ('EBS ' ) Financial Functional Consultant, " and "the vendor 
will "provide one onsite resource to assist with this requirement. " The SOW also stated that the 
"project and support tasks for the Vendor resources will be directed by Company's [(end-client)] 
project manager." The SOW lacked a detailed explanation of how the end-client will control the 
work performed by the Beneficiary, and did not discuss at all how the Petitioner will control the 
Beneficiary's work. 
We find that the entire tenor of the agreements between (the vendor) and the 
Petitioner , and the agreement between the second 
vendor with the end-client , is a contract for staff 
augmentation. The Beneficiary will be assigned to the end-client solely to support its staff, a role 
which is indicative of day-to-day control by the end-client, whose staff is normally subject to the 
end-client's direction . 
3. Duration of project 
The SOW stated that the Beneficiary will provide services for the end-client commencing on January 
25, 2016. The approximate completion date of the assignment is August 31 , 2016. The Petitioner 
also submitted an itinerary 
that stated the project with the end client will be completed on September 
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(b)(6)
Matter of S-S-, Inc. 
30, 2019. However, this completion date differs from the SOW. "[I]t is incumbent upon 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. Jd. at 
591-92. 
In addition, the Petitioner submitted a letter from the human resources specialist of the end-client. 
The letter confirms that the Beneficiary will be assigned as a contractor to perform the duties as an 
oracle financial functional consultant through [vendor]. The end-client letter 
does not discuss in sufficient detail the nature and manner in which the Petitioner will supervise or 
otherwise control the Beneficiary's work performed off-site at the end-client's premises. The 
Petitioner provided a brief job description of the duties performed by the Beneficiary but the letter 
does not explain in detail the project that the Beneficiary will work on and the duties he will perform 
until the end of his H -1 B requested period of employment. 
The letter also stated that the Beneficiary's project is an "ongoing project of currently undetermined 
duration." The letter from the end-client does not state specific dates to indicate that it will continue 
to use the Beneficiary's services up to September I, 2019. Thus, the Petitioner does not establish 
that the petition was filed for non-speculative work for the Beneficiary that existed as of the time of the 
petition's filing for the entire period requested. USCIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
103 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility or after 
the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Even if the Petitioner established that it would be 
the Beneficiary's United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), \Vhich 
it has not, the Petitioner has not demonstrated that it would maintain such an employer-employee 
relationship for the duration of the period requested.4 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. A 1998 proposed 
rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-18 classification is not intended as a vehicle for an 
alien to engage in a job search withinthe United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts . To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419 , 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its intent with 
, regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a 
II 
Matter ofS-S-, Inc. 
In conclusion, the evidence does not establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming that the Beneficiary is the 
Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
Based on the tests outlineq above, the Petitioner has not established that it \vill 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). The petition must be denied and the appeal dismissed for 
this reason. 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.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: 
(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 
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. 
material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of S-S-, Inc. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 8 
C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
' specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor, 201 F.3d at 
387-88. 
B. Analysis 
The petition must also be denied because the Petitioner has not established that the proffered 
position qualifies for classification as a specialty occupation. As recognized in Defensor, 201 F.3d 
at 387-88, it is necessary for the end-client to provide sufficient information regarding the proposed 
job duties to be performed at its location in order to properly ascertain the minimum educational 
requirements necessary to perform those duties. In other words, as the nurses in that case would 
provide services to the end-client hospitals and not to the petitioning staffing company, the 
Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a 
specialty occupation determination. See id. 
Here, the record of proceeding does not provide sufficient information from the end-client regarding 
the specific job duties to be performed by the Beneficiary for that company. The Petitioner 
submitted a letter from the end-client confirming that the Beneficiary is a contractor that will be 
working for the end-client in the position of Oracle financial functional consultant. The record of 
proceedings does not contain a more detailed explanation regarding the demands, level of 
responsibilities, complexity, or requirements necessary for the performance of these duties (e.g., 
explain what specific systems and applications are involved, and what body of knowledge is 
required to perform the duties).5 
In the RFE response, the Petitioner stated that the proffered position requires a "considerable amount 
ofwork-relatedr skill, knowledge, or experience." However, the Petitioner attested on the submitted 
LCA that the wage level for the proffered position is a Level I (entry-level) wage. Such a wage level 
is for a position which only requires a basic understanding of the occupation; the performance of 
routine tasks that require limited, if any, exercise of judgment; close supervision and work closely 
monitored and reviewed for accuracy; and the receipt of specific instructions on required tasks and 
expected results. The Petitioner's designation on the LCA is contrary to a claim that the proffered 
position requires the performance of complex duties. 6 It is, instead, a position for an employee who 
has only a basic understanding of the occupation. 
5 While the end-client letters state the educational requirements for this position (i.e., a bachelor's degree in computer 
science, management information systems, information technology or related for this position) this general statement 
regarding the minimum educational requirement is insufficient to explain what body of knowledge is required to perform 
each of the listed job duties. 
6 The issue here is that the Petitioner's designation of this position as a Levell, entry-level position undermines its claim 
that the position is par:ticularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
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Matter of S-S-, Inc. 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in tact, the Beneficiary would 
be performing services primarily as an Oracle financial functional consultant for the duration of the 
requested employment period. As the Petitioner has not established 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.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines (1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the 
focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 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 for classification as a 
specialty occupation. The petition must be denied and the appeal dismissed for this additional 
reason. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, Inc., ID# 152294 (AAO Feb. 17, 2017) 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
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