dismissed H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software design, development, and consulting firm, seeks to temporarily employ 
the Beneficiary as an "associate consultant" under the H -1 B nonimmigrant classification for 
specialty ocsupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty ( 6r its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied' the petition, concluding that the record did not 
establish that: (I) the Petitioner will engage the Beneficiary in an employer-employee relationship; 
and (2) the proffered position qualifies as a specialty occupation. 
· On appeal, the Petitioner asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. UNITED STATES EMPLOYER 
We have determined that the Petitioner has not demonstrated 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). Specifically, the 
Petitioner has not established that it 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. 
The Act defines an H-lB nonimmigrant, in pertinent part, as an individual: 
[S]ubject to section 212(j)(2), who is corning 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) .... 
Matter of V- Corp. 
Section 101(a)(15)(H)(i)(b) ofthe Act. 
The term "United States employer" is defined 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. 
8 C.F.R. § 214.2(h)(4)(ii) (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-1 B visa classification. Section 101 (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)(l) of the Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering 
full-time or part-time "employment" to the H-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). 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-IB 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 -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-1B visa classification, these terms 
are undefined. 
2 
Matter of V- Corp. 
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 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 Gc:tstroenterology 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-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 
1 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
IOI(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 
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. De.f Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
3 
Matter of V- Corp. 
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-1 B 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. Cf 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 -1 B nonimmigrant petitions, USC IS 
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 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 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 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
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Matter of V- Corp. 
(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. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. 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 indi~idual] 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). 
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 -113 temporary "employee." 
In its letter of support, the Petitioner stated that the Beneficiary will be hired "to work on internal 
projects within our Center of Excellence." The Petitioner explained that all of its new hires "are 
assigned to internal projects within [its] various Centers of Excellence where they are trained and 
assessed for appropriate project roles." The Petitioner further stated that, "[ w ]hile working with [its] 
internal Center of Excellence ... Beneficiary, will undergo on-boarding and assessment in 
preparation for a client assignment .... " The first itinerary submitted by the Petitioner indicated 
that the Beneficiary will spend 10% of his time at the Petitioner's headquarters office "for meetings, 
trainings, and consultation"; 45% of his time at office "engaging in direct project 
activity under the direction of [Petitioner's] Managers"; and 45% of his time at office, 
also "engaging in direct project activity under the direction of [Petitioner's] Managers." The 
Petitioner initially indicated that the Beneficiary would be assigned to two clients, 
and but in response to the Director's request for evidence (RFE), clarified that the 
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Matter of V- Corp. 
Beneficiary will solely be assigned to The second itinerary, submitted in response to 
the RFE, indicated that the Beneficiary will spend 20% of his time at the Petitioner's headquarters 
office "for meetings, trainings, and consultation" and 80% of his time at office 
"engaging in direct project activity under the direction of [Petitioner's] Managers." 
The Petitioner maintains that it will be the Beneficiary's employer as it will have actual control over 
his position, have ultimate discretion as to his terms of employment, be responsible for supervising 
his work performance, payroll, insurance, hiring/termination, etc. The Petitioner stated that the 
Beneficiary's work will be evaluated per 
its established evaluation method, but did not describe how 
it will supervise the Beneficiary's work at the client's office location. 
In response to the RFE, the Petitioner submitted its Professional Services Agreement with 
stating that the Petitioner "will provide development and other professional services to 
from time to time, as mutually agreed to by the Parties in a Statement of Work." The 
Agreement states the following pertaining to contracted employees: 
2.1 Statement of Work. and [Petitioner] may mutually agree, from time to 
time, to have [Petitioner] provide Services for by entering into a SOW in 
each instance .... Each SOW shall include the following information: a description 
of the Services, the fees to be charged for the Services, the term of the SOW 
(including the commencement and completion dates) and any other terms mutually 
agreed to by the Parties .... 
2.3 Personnel. The individuals identified by name in a SOW shall be considered 
critical to the delivery of the Services ... and shall not be removed or replaced at any 
time during the performance of a SOW, except with prior written consent, 
unless any such individual becomes 
unavailable for reasons beyond [Petitioner's] 
reasonable control or the individual's professional relationship with Contractor 
terminates. shall have the right to request that Contractor replace any of its 
Personnel upon prior written notice in the event that is dissatisfied for any 
reason with such personnel and [Petitioner] fails to cure the issue within two business 
weeks of notification thereof .... 
The Petitioner submitted a copy of Exhibit A, Statement of Work to the Professional Services 
Agreement, which is a blank template for the statement of work. The Petitioner did not submit a 
completed statement of work for any project with 
The Petitioner also submitted a letter from Senior Architect, 
Technology for the Petitioner, stating that he "will supervise and control all of [the Beneficiary's] 
activities while on site." The letter stated that will be located on-site at the client's 
office and will be in charge of "Task assignment and tracking," "Management based on objectives 
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Matter of V- Corp. 
by setting goals and measuring the achievements," "Performance review," and "Mentoring and 
manag[ing] Training needs." The letter further stated that has engaged the services of 
the Petitioner for application design, development, maintenance, and quality assurance of their 
He stated that the Petitioner has several teams working on this project, one off-shore and 
one at the client site in order to gather requirements and coordinate and implement 
the project deliverables. The letter described the project as follows: 
-maintenance and enhancement project aims at providing 
application enhancements, bug fixes and quality assurance services for 
which provides an [sic] unified interface for customers to 
manage their application security program. 
According to the Petitioner's organizational chart, the Beneficiary will report to 
its "Architect Offshore." 
On appeal, the Petitioner states that in a supplemental response to the RFE, it submitted a copy of the 
statement of work with and copies of the three most recent invoices issued to 
for the project in question. However, these documents are not contained in the record and 
therefore cannot be considered in these proceedings. 
Although the Petitioner stated that it is the Beneficiary's employer, there is inconsistent evidence in 
the record as to the Beneficiary's actual employment, i.e., (at the Petitioner's in-house Center of 
Excellence or at a client's office, and the Beneficiary's supervision. While the Petitioner stated that 
the Beneficiary would be supervised by its organizational chart has the 
Beneficiary reporting a different individual and lists among the other 
employees working on a project. Further, the Petitioner did not identify how the 
Beneficiary would be supervised or how it would keep track of his work product. 
The Petitioner contends that the Beneficiary is employed by the Petitioner and that the Petitioner 
controls the Beneficiary's salary and conditions of employment. 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 
the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
Moreover, we cannot conclude that the claimed work for the Beneficiary will continue to exist for 
the duration of the requested H-lB status period.4 Here, the Petitioner has not provided a consistent 
I 
4 
On the Form I-129, the Petitioner requested that the Beneficiary be granted H-1 B classification from October I, 2016, 
7 
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Matter of V- Corp. 
account of the Beneficiary's actual employment or the proffered position. The Petitioner initially 
indicated that the Beneficiary was coming to the United States to work in-house at its Center of 
Excellence, but did not describe that position or provide job duties associated with it. Then, the 
Petitioner stated that the Beneficiary would only spend 10% of his time at its Center of Excellence, 
45% of his time at and 45% of his time at In response to the RPE, the 
Petitioner dropped and stated that the Beneficiary would spend 20% of his time at its 
Center of Excellence and 80% of his time at However, the Petitioner did not provide 
any information pertaining to the Beneficiary's work at its Center of Excellence and did not provide 
evidence of a project or actual statement of work with 
Thus, even if it were found that the Petitioner would be the Beneficiary's United States employer as 
that term is defined at 8 'C.P.R. § 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would 
maintain such an employer-employee relationship for the duration of the period requested. 5 Merely 
claiming that the Petitioner exercises complete control over the Beneficiary, without evidence 
supporting the claim, does not establish eligibility in this matter. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
Based on the tests outlined above, the Petitioner has not ~stablished that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H -1 B temporary 
"employee." 8 C.P.R.§ 214.2(h)(4)(ii). 
to August 28, 2019. 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, 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-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible wo,rkforce 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) ofthe 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. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30~419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 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 material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
8 
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Matter of V- Corp. 
II. SPECIALTY OCCUP A TION1 
We have also determined that the proffered position does not qualify as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 
Throughout the record, the Petitioner described the job duties of the proffered position as follows: 
• Conduct systems/requirement analysis in conjunction with Project Manager and 
Architect 
• Conduct component level work estimation and assists in project plan 
development, execution and change control 
• Conduct component level systems design and development 
• Develop prototypes and frameworks to contribute to overall technical solution 
• Lead onshore and/or offshore team to provide technical expertise to project 
• Conduct unit and integration testing, including development oftest models 
• Assist with project estimation, reviews and configuration 
management 
• Provide manual or automated testing of software before delivery to QA 
• Fix bugs reported by QA for the software 
The Petitioner stated that the minimum entry requirement for the proffered position is a bachelor's 
degree in computer science or a related field. 
We find that the record ofproceedings lacks sufficient information regarding the proffered position. 
For H-lB approval, the Petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
As previously discussed, the Petitioner did not provide a consistent account of the Beneficiary's 
actual employment or the proffered position. The Petitioner initially indicated that the Beneficiary 
was coming to the United States to work in-house at its Center of Excellence, but did not describe 
that position or provide job duties associated with it. Then, the Petitioner stated that the Beneficiary 
would only spend 10% ofhis time at its Center ofExcellence, 45% ofhis time at and 
45% of his time at In response to the RFE, the Petitioner dropped and 
stated that the Beneficiary would spend 20% of his time at its Center of Excellence and 80% of his 
time at However, the Petitioner did not provide any information pertaining to the 
Beneficiary's work at its Center of Excellence and did not provide evidence of a project or actual 
statement of work with The Petitioner did not provide documents to demonstrate that 
the Beneficiary will perform work in-house directly for the Petitioner or substantiate that it has an 
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Matter of V- Corp. 
ongoing project for the H-1B validity period. The Petitioner must support its assertions with 
relevant, probative, and credible evidence. Matter ofChawathe, 25 I&N Dec. at 376. 
Further, the duties presented by the Petitioner for the proffered position are vague and do not present 
a clear picture of what the Beneficiary will actually do in the proffered position. Without detailed 
work orders, statement of works, or similar documentation describing the specific duties the 
Petitioner requires the Beneficiary to perform, as those duties relate to specific projects for its in­
house Center of Excellence or for we are unable to discern the nature of the 
proffered position and whether the position indeed requires the theoretical and practical application 
of a body of highly specialized knowledge attained through a baccalaureate program. 
Moreover, the record does not include a position description or educational requirements for the 
proffered work from 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 proceedings in this case is similarly devoid of sufficient information from 
the end client, regarding the job duties to be performed by the Beneficiary for that 
company. 
There is insufficient evidence to 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.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. 
As the Petitioner has not established that it satisfies 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 and the appeal must also be dismissed on this basis. 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner did not establish that: (1) it will engage the 
Beneficiary in an employer-employee relationship; and (2) the proffered position qualifies as a 
specialty occupation. 
10 
Matter of V- Corp. 
ORDER: The appeal is dismissed. 
Cite as Matter of V- Corp., ID# 402092 (AAO Apr. 26, 20 17) 
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