dismissed H-1B Case: Software Consulting

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 1 5 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of Jaw nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
�� Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as 
39-employee "Software Consulting" business established in In order to employ the 
beneficiary in what it designates as a full-time "Business Analyst" position at a salary of $53,500 
per year, the petitioner seeks to classify her as a nonimmigrant worker in a specialty occupation 
pursuant to section 10l(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record does not demonstrate that 
the petitioner qualifies as an U.S. employer having an employer-employee relationship with the 
beneficiary. 
On appeal, the petitioner asserts that the director's basis for denial was erroneous and contends that 
the submitted evidence was sufficient. 
The record of proceeding contains the following: (1) the Form I-129 and supporting documentation; 
(2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; 
( 4) the director's letter denying the petition; and (5) the Form I-290B, Notice of Appeal or Motion, 
and supporting documentation. We have reviewed the record in its entirety before issuing our 
decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's ground for denying this petition. Beyond the director's decision, we have identified an 
addition ground for denial, i.e., that the evidence of record does not establish that the proffered position 
qualifies as a specialty occupation. Accordingly, the appeal will be dismissed, and the petition will be 
denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner filed the Form I-129 on April 7, 2014, listing its business address as 
New Jersey. The petitioner indicated that it is a 39-employee 
"Software Consulting" company. Regarding the beneficiary, the petitioner indicated on the Form I-
129 that it seeks to employ the beneficiary as a "Business Analyst" at the address of 
Ohio. No other addresses of employment were listed on the Form I-129. The 
petitioner checked the box on the Form I-129 at Part 5, Question 5 confirming that the beneficiary 
will work off-site. 
The Labor Condition Application (LCA) submitted to support the visa petltton states that the 
proffered position is a Business Analyst, and that it corresponds to Standard Occupational 
Classification (SOC) code and title 15-1121, Computer Systems Analysts, from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I, 
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entry-level, position. The petitioner indicated on the LCA that the beneficiary would be working 
for located at Ohio. No other places of 
employment were listed on the LCA. 
In support of the initial petition, the petitioner submitted a letter, dated April 4, 2014, describing 
itself as an "IT Services company offering a wide range of consulting, development and system 
integration services in different industry segments." The petitioner elaborated that the beneficiary 
will be assigned to work as a Business Analyst for the end-client Ohio 
"through an executed contract with (the petitioner] and 
Specifically, the petitioner stated that it "has an executed a contract with 
which in turn has a contract with the end client for procurement of 
technical personnel for various engagements throughout their facility." The petitioner further stated 
that the beneficiary "will be assigned to this new engagement from April ih 2014 based on a 
succession of executed contracts between vendors." The petitioner described the contractual 
relationship as follows: 
(The petitioner] OH 
The petitioner asserted that it "tried [its] best to get all the contracts between the Vendors and Prime 
Vendors involved in the service agreement ... [but] [m]ost of the time the agreements between 
Vendors and Prime Vendor and/or Prime Vendors and End may not be available due to the 
confidentiality and other individual business practices among the Clients and Prime Vendors." 
With respect to the employer-employee relationship, the petitioner asserted that the beneficiary will 
be its full-time employee and will receive her entire salary and benefits through the petitioning 
company for the duration of the validity period requested. The petitioner asserted that it is "the 
actual employer of the Beneficiary, with all rights of control." The petitioner asserted that it is not 
the mere agent performing the function of an employer or representing multiple employers, but that 
it is the "direct employer of the Beneficiary with the complete authority to hire, promote and 
terminate the Beneficiary ... [with] substantial authority over the day-to-day execution of the 
Beneficiary's job duties." The petitioner asserted that its President "periodically supervises all the 
employees " and provides quarterly performance reviews. 
As to the educational requirement of the proffered position, the petitioner states that the minimum 
requirements for the proffered position are "at least a Bachelor's degree in Business Administration 
Management, Human Resources or its equivalent and relevant work experience." The petitioner 
then states that the beneficiary is qualified to perform the duties of the proffered position by virtue 
of her Master of Business Administration degree from the Ohio, and Bachelor 
of Engineering degree from in India. 
In support of the petition, the petitioner submitted, inter alia, a "Software Subcontract Agreement " 
dated March 27, 2014 between and the petitioner, 
is also referred to as in the record. 
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therein referenced to as the "Subcontractor." This agreement states, in pertinent part, that 
"Subcontractor agrees to provide services at OH" for the start date of 
"04/02 or 04/07/2014- based on client requirement (after background check) and the duration of 
"6-12 months and Possible extension (Depends on the client need)." 
The petitioner submitted its "Letter of Offer" to the beneficiary for the Business Analyst position. 
The letter states, in pertinent part, that the beneficiary's "specific job duties will depend on the end 
client requirement and will be shared with you from time to time on each assignment." Also 
submitted was the "Employment Agreement" dated November 11, 2013 between the petitioner and 
the beneficiary, who is described as "a computer or IT professional, systems engineer or networking 
specialist, who has represented that he or she has certain specialized computer programming, 
systems analysis skills and/or networking/software capabilities." The term of the employment 
agreement is "effective from the date when employee is assigned to a project at client site through 
[the petitioner] and will be valid for a period of eighteen months." 
As to the beneficiary's qualifications, the petitioner submitted copies of the beneficiary's Master of 
Business Administration degree from the her Provisional Certificate for a 
degree in Computer Science and Engineering from Jniversity, and her transcript from 
University. 
The director issued an RFE instructing the petitiOner to submit additional documentation 
establishing that an employer-employee relationship will exist between the petitioner and the 
beneficiary. 
In response to the RFE, the petitioner submitted, inter alia, two letters. In its letter dated June 9, 
2014, the petitioner explained that it has been in the software consulting business since 2005, and 
that "[m]ost of the time, the projects are contracted for six to twelve months and then renewed as 
per the requirement of each projects [sic]." The petitioner then reaffirmed that it will have the right 
of control over the beneficiary, including paying her salary and withholding her taxes. The 
petitioner asserted that all its employees, including the beneficiary, report directly to its President. 
Additionally, the petitioner explained that it attempted to obtain the contract between the prime 
vendor and the end-client but "refused to provide. Copy 
of the email has been included for your reference." No such email was provided. 
In its letter dated June 10, 2014, the petitioner attested that it has employed the beneficiary since 
February 12, 2014 as a Business Analyst. The petitioner submitted a list of job duties for the 
beneficiary, which includes computer-related functions such as performing system and requirements 
analysis, design and writing technical design documents, coding, and unit testing. The petitioner 
attested that the beneficiary will be "principally supervised" by its president, who holds "complete 
control and supervision" over her work. The petitioner further affirmed that it will administer all of 
the beneficiary's salary and benefits. 
The petitioner also submitted a "Subcontractor Agreement" dated March 27, 2014 between 
which is described as "a staffing services company," and ' 
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Technologies Inc/[the beneficiary]," which is therein referenced to as the "Subcontractor." The 
term of this agreement "ends on November 1, 2014 or at such earlier or later date." The rate to be 
paid to the subcontractor is noticeably whited-out from the document. The agreement states in 
pertinent part: 
All of Subcontractor's personnel performing services under this Agreement are 
employees of Subcontractor and are not em loyees of or Customer. 
In negotiating its fees with _ and setting the compensation of its 
personnel, Subcontractor has taken into account that neither it nor its personnel are 
entitled to any benefits from or Customer . . . . As an independent 
contractor, Subcontractor is responsible for: (a) paying or withholding as required, 
federal, state, and local employment taxes (e.g. FICA and FUTA) or other taxes or 
payments (Subcontractor will provide with suitable evidence of 
payment upon request); (b) providing Worker's Compensation coverage to the extent 
required by law; and (c) paying the premium "overtime" rate for overtime hours for 
non-exempt employees. Neither nor Customer shall bear any 
responsibility for paying or withholding any of these taxes or other payments. 
Furthermore, the petitioner submitted a letter from the Lead Recruiter of 
confirming that the beneficiary is providing "temporary contract services to [its] customer, 
[Ohio]." This letter lists the beneficiary's duties 
as including computer-related functions such as providing system testing, supporting users for 
system configuration changes, application enhancements, and bug fixes. This letter confirms that 
"has entered into contract with and [the beneficiary's] employer, [the 
petitioner], for her services." The letter further states that "will not pay [the 
beneficiary's] wages, claim her for tax purposes, have the authority to assign her to another location, 
or have the ability to hire or fire her," as these rights have been retained by "her employer, [the 
petitioner]." 
The petitioner submitted a letter dated June 6, 2014 from the President of confirming the 
beneficiary's assignment at 
_ 
Ohio as a Business Analyst. This letter 
provides a similar list of duties for the beneficiary as those provided by the petitioner and 
This letter further reaffim1s that the beneficiary "will not be an employee of our company 
and thus no employer-employee relationship has been created," and that the petitioner "is directly 
responsible for all conditions of employment" including payment of wages, providing benefits, 
determining work assignments, evaluating job performance, and maintaining the right to terminate 
employment. 
The petitioner submitted copies of its Employee Performance Review dated June 2, 2014 ostensibly 
signed by the beneficiary and her manager, and two "Semi-Monthly Report from Third-Party Work 
Site" reports ostensibly signed by the beneficiary. The petitioner also submitted copies of its 
paychecks made to the beneficiary on May 15, 2014 and June 14, 2014. 
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The director denied the petition, concluding that the evidence of record does not demonstrate that 
the petitioner qualifies as an U.S. employer having an employer-employee relationship with the 
beneficiary. 
The petitioner subsequently filed an appeal. On appeal, the petitioner asserts that the submitted 
evidence is sufficient to show the petitioner's employer-employee relationship with the beneficiary. 
In support of the appeal, the petitioner submits an email from verifying the 
beneficiary's start date as April 2014, not April 2013 as mistakenly stated m 
previous letter. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
The first issue to be discussed is whether the petitioner will have and maintain an employer­
employee relationship with the beneficiary throughout the entire validity period requested. 
A. The Law 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services .. . in a specialty occupation described in section 214(i)(1) ... , 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)(1) .. .. 
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). 
B. Analysis 
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In this matter, the director determined that the evidence of record does not establish that the 
petitioner is a "United States employer" who will have "an employer-employee relationship" with 
the beneficiary. 8 C.F.R. § 214.2(h)(4)(ii); Section 101(a)(15)(H)(i)(b) of the Act. 
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)(1) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(1), (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." Id. 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 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." 
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Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. 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 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.2 
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.P.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.P.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 318-319? 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), aff'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(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-1Bvisa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
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Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.R. § 214. 2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; 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 P.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.P.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). 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
4 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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Furthermore, when examining the factors relevant to determining control, US CIS 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). 
Applying the Darden and Clackamas tests to this matter, we agree with the director that the 
petitioner has not established that it will be a "United States employer" having an "employer­
employee relationship" with the beneficiary as an H- 1B temporary "employee." 
In the instant matter, the petitioner asserts that the beneficiary will work off-site for the end -client, 
. located at 
_ 
Ohio. The petitioner does not identify 
any other end-client or work location on the Form I-12 9, LCA, and supporting documentation. 
Despite the director's specific request for evidence such as letters or contractual agreements between 
tl�etitioner and the end client, the petitioner failed to submit any documentation from 
Moreover, the petitioner failed to submit a credible explanation for why it did not 
submit documentation from The petitioner asserted that it "tried [its] best to get all the 
contracts ... [but] [m]ost of the time the agreements . . . may not be available due to the 
confidentiality and other individual business practices among the Clients and Prime Vendors. " 
However, this generalized statement does not address whether documentation from 
was specifically requested in this particular instance, and if so, why such documentation was not 
made available. The petitioner also stated that it attempted to obtain the contract between 
"refused to provide [it]" and that a "[c]opy of 
the email has been included" for the record. The petitioner did not include a copy of said email, as 
claimed. We note that the letter from did not contain any reference to the petitioner's 
declined request for a copy of the contract. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 19 98 ) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 19 0 (Reg. Comm'r 1972)). The non­
existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F. R. § 103 .2(b )( 2)(i). 
There are other discrepancies and deficiencies with respect to the petitioner's claims and submitted 
evidence of the contractual relationship between the petitioner and For instance, in its 
initial letter of support, the petitioner described the contractual relationship as between the 
petitioner, . The petitioner did not explain why it did not initially identify 
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as being a part of the contractual relationship. 5 Furthermore, the petitioner initially 
stated that "has a contract with the end client _ for procurement of technical 
personnel for various engagements throughout their facility." This is inconsistent with the 
petitioner's subsequent assertion that rather than contracted with 
In addition, the letter from Insight Global specifically states that it "entered into 
contract with and [the petitioner] (emphasis added)." However, the petitioner does 
not claim to have a direct contractual relationship with _ nor has the petitioner 
submitted any contracts, work orders, service agreements, or other similar documentation between 
itself and although the letter from indicates that such documentation 
exists. 
Furthermore, the evidence of record does not sufficiently describe the terms of the beneficiary's 
assignment at in order to establish that the petitioner will maintain control over her 
employment there. For instance, the letters from do not outline in detail 
the nature and scope of the beneficiary's employment at The letter from states 
that the petitioner "is directly responsible for all conditions of employment," but does not explain 
what factual basis it relied upon to make this assertion. Likewise, the letter from Insight Global 
concludes that the petitioner is the beneficiary's "employer" that retains rights such as paying her 
wages and claiming her for tax purposes, but does not provide any further explanation. As such, 
these are conclusory statements that are not entitled to evidentiary weight. 
Significantly, the "Subcontractor Agreement" between identifies the 
beneficiary as one of 'employees." Furthermore, this agreement specifies that IS 
responsible for setting and paying the beneficiary's compensation and other employment benefits. 
The "Subcontractor Agreement" undermines the petitioner's claimed relationship to the beneficiary 
as her employer. 
On appeal, the petitioner attempts to overcome the negative inferences of the aforementioned 
"Subcontractor Agreement" by referring to its "Software Subcontract Agreement" with . In 
particular, the petitioner points to language in the agreement identifying the beneficiary as an 
" Employee of [the petitioner] , " and stating that "will have no right to control or direct the 
details, manner or means by which [the beneficiary] accomplishes the results of the services 
performed." However, we cannot find that the "Software Subcontract Agreement" bears greater 
evidentiary weight than the "Subcontractor Agreement" between and These 
two documents contain conflicting language with respect to the terms of the beneficiary's 
employment. The petitioner has not submitted independent, objective evidence reconciling this 
conflicting evidence and pointing to where the truth lies. Again, we highlight the absence of 
documentation directly from and other reliable documentation discussing in detail the 
terms of the beneficiary's employment there. 
5 We observe that the Software Subcontractor Agreement between and the petitioner, and the 
Subcontractor Agreement between were both executed on March 27, 2014. 
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Page 12 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. !d. 
The petitioner submitted an Employee Performance Review ostensibly signed by the beneficiary 
and her manager, and two "Semi-Monthly Report from Third-Party Work Site" reports ostensibly 
signed by the beneficiary. However, the beneficiary's ostensible signatures on the Employee 
Performance Review and the "Semi-Monthly Report from Third-Party Work Site" reports differ 
from each other as well as from her signatures found elsewhere in the record. Furthermore, the 
petitioner has not provided a sufficient explanation establishing the manner in which these 
evaluations were conducted, prepared, transmitted, and received. Without such information, we 
cannot assess the reliability and credibility of these documents. Moreover, while the petitioner 
repeatedly asserts that its president directly supervises the beneficiary, the petitioner has not 
explained how this supervision is conducted considering that the beneficiary is physically working 
off-site at the business premises of an unrelated company not in close proximity to the petitioner. 
Thus, even if the petitioner were to establish that it provides the beneficiary's salary and other 
employment benefits, these factors, alone, are insufficient to establish that the petitioner qualifies as 
the beneficiary's employer having an employer-employee relationship with her. 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. 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. 
The evidence, 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 and other 
submitted documentation that the petitioner exercises complete control over the beneficiary, without 
competent evidence supporting the claim, does not establish eligibility in this matter. Again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Based on the tests 
outlined above, the petitioner has not established that it qualifies as an "United States employer" 
having an "employer-employee relationship" with the beneficiary as an H-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Finally, the petitioner has failed to establish that it will have and maintain an employer-employee 
relationship with the beneficiary throughout the entire validity period requested, from October 1, 
2014 through September 30, 2017. The petitioner's Employment Agreement states that the 
beneficiary's employment is "effective from the date when employee is assigned to a project at 
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Page 13 
client site through [the petitioner] and will be valid for a period of eighteen months." 6 Eighteen 
months from the date of the beneficiary's assignment at in April 2014 would be 
October 2015, which falls significantly short of the September 30, 2017 end date requested in the 
instant petition. 
We also note that the Subcontractor Agreement betwee _ ends on 
"November 1, 2014 or at such earlier or later date." In addition, the Software Subcontract 
Agreement between and the petitioner states that the beneficiary will provide services for "6-
12 months," which would end sometime in October 2014 through April 2015, with the possibility of 
extension depending on client needs. The petitioner submitted no evidence that the above 
contractual agreements have been or will be extended. The petitioner has not identified any 
assignments, end-clients, and work locations for the beneficiary other than at Overall, 
the evidence of record is insufficient to establish that the petitioner will have and maintain an 
employer-employee relationship with the beneficiary during the entire validity period requested. 
III. SPECIALTY OCCUPATION 
The material deficiencies in the record regarding the employer-employee relationship between the 
petitioner and the beneficiary preclude the approval of the petition. Nevertheless, we will address, 
beyond the decision of the director, whether the position proffered here qualifies as a specialty 
occupation. For an H-1B petition to be granted, the petitioner must provide sufficient evidence to 
establish that it will employ the beneficiary in a specialty occupation position. We find here that the 
evidence of record fails to establish that the proffered position is a specialty occupation. 
A. The Law 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1) defines the 
term "specialty occupation" as one that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
6 The start date of the beneficiary's employment with the petitioner is unclear. As previously noted, the 
petitioner's Employment Agreement, dated November 11, 2013, states that the beneficiary's employment is 
"effective from the date when employee is assigned to a project at client site." This would indicate that the 
beneficiary's employment began in April 2014, when the petitioner asserts the beneficiary was first assigned 
to However, in the petitioner's letter dated June 10, 2014, the petitioner stated that it has 
employed the beneficiary since February 12, 2014. The petitioner's "Letter of Offer" to the beneficiary is 
undated. We observe that the beneficiary obtained an extension of her OPT status from May 6, 2014 to 
October 6, 2015 to work for another employer, ______ _, located in California. 
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NON-PRECEDENT DECISION 
(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 term "specialty occupation" is further defined at 8 C.P.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] 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 requires [(2)] 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.P.R. § 214.2(h)( 4 )(iii)( A), to qualify as a specialty occupation, the position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together with 
section 214(i)(1) of the Act and 8 C.P.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.P.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.P.R. § 214.2(h)( 4)(iii)(A) but not the statutory 
or regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid 
this result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria 
(b)(6)
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Page 15 
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.P.R. § 214.2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.P.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. Chertojj; 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-lB 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-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the 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 beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 384. The critical 
element is not the title of the position nor an employer's self-imposed standards, but whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
B. Analysis 
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) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d at 387-388. 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 in this case is similarly devoid of information from _ or 
any other end-client(s) regarding the specific job duties to be performed by the beneficiary for their 
company. The petitioner's failure to establish the substantive nature of the work to be performed by 
the beneficiary, 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 
(b)(6)
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Page 16 
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. 
We highlight the Petitioner's "Letter of Offer" to the beneficiary, which specifically states that her 
"specific job duties will depend on the end client requirement and will be shared with [her] from 
time to time on each assignment." We also highlight the evidence establishing the limited duration 
of the beneficiary's assignment at Thus, it is even more critical that the petitioner 
submit documentation of the beneficiary's duties directly from the end-client(s) involved, as the 
petitioner admits that the beneficiary's job duties will change with each assignment. The petitioner 
has failed to do so here. 
According! y, 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. 
Even if the petitioner were able to establish the substantive nature of the work to be performed by 
the beneficiary, the petitioner's statement that the minimum requirements for the proffered position 
are "at least a Bachelor's degree in Business Administration Management, Human Resources or its 
equivalent and relevant work experience" is tantamount to an admission that the proffered position 
is not in fact a specialty occupation. 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
positiOn. Although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. See Royal Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007).7 
7 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of 
Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
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Finally, the petitioner's claimed acceptance of bachelor's degrees in Business Administration 
Management and Human Resources, without more, also does not denote a requirement in a specific 
specialty. Again, there must be a close correlation between the required body of highly specialized 
knowledge and the position. The petitioner has not explained how a degree in either field, 
especially Human Resources, is directly and closely related to the duties and responsibilities of the 
particular position - which was certified as falling under the Computer Systems Analyst 
occupational classification - such that the required "body of highly specialized knowledge" is 
essentially an amalgamation of these different specialties.8 Section 214(i)(1)(B) of the Act. The 
instant petition could not be approved for these additional reasons. 
IV. CONCLUSION AND ORDER 
As set forth above, we agree with the director's finding that the evidence of record does not 
establish an employer-employee relationship between the petitioner and the beneficiary. We also 
find, beyond the decision of the director, 'that the evidence of record does not establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the petition 
will be denied. 
An application or petition that fails to 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. DOl, 381 F.3d at 145 (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 1043, aff'd. 345 F.3d 
683. 
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
/d. 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
8 While there is no documentation from the end-client(s) confirming the beneficiary's duties, the letters from 
the petitioner and the mid-vendors indicate that the beneficiary will perform several computer-related duties 
such as system testing, coding, and bug fixes. 
(b)(6)