dismissed H-1B Case: Software Development

(b)(6)
MATTER OF S-S-, INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 9, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting, training, and development company, seeks to temporarily 
employ the Beneficiary as a "computer programmer" under the H-1B nonimmigrant Classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 for 
entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
evidence did not sufficiently establish that the Petitioner: (1) would have an employer-employee 
relationship with the Beneficiary; (2) would employ the Beneficiary in a specialty occupation 
position for the requested H-1B validity period; and (3) submitted a Labor Condition Application 
(LCA) that corresponded to the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
! 
Upon de novo review, we will dismiss the appeal. 
'· 
I. PROFFERED POSITION 
In the H-1B petltwn, the Petitioner stated· that the Beneficiary will serve as a "computer 
programmer." In a letter of support, the Petitioner explained that it is developing a new software 
product, and that the 
Beneficiary "will work solely" on this in-house project. The Petitioner stated that it "aims to bring 
this product suite to the market in late 2015 and is currently in the process of engaging with potential 
clients to solidify the systems requirements and conduct prototype building." The Petitioner further 
explained that it "forecasts a consistent need for IT resources including but not limited to Systems 
Analysts, [and] Programmer/ Analysts ... for the duration of this development effort and during the 
support and maintenance beyond 2015." 
Matter of S-S-, Inc 
In the same letter, the Petitioner submitted a lengthy list of duties for the proffered position, 
described as that of a "computer programmer analyst," which include "business process analysis and 
design responsibilities," "development responsibilitie$," "test planning and execution 
responsibilities," and "product support responsibilities." 
The Petitioner submitted a separate "Itinerary of Services" for the Beneficiary which listed the 
following job duties for the position titled "computer programmer analyst" (verbatim): 
• Create a project plan and Implement selected business processes by mapping and 
adapting it in SAP as per the requirement gathered from the client. 
• Configure SD Master Data, Order types, item & schedule line categories[.] 
• Configure SD Delivery types, transfer orders, handling units, shipment types and 
transportation. 
• Knowledge of key integration points with other modules related to MM/PP e.g. 
FI, SD[.] 
• Define the business process in detail to cover all requirements as per blue print 
agreed with client. 
• Develop solutions for Hospitality using SAP SD and CRM modules. 
• Develop CRM Middleware and CRM Base Customizing. 
• Created Middleware objects for transferring the data from CRM to ECC, and 
create new fields in BDOC's and write the logic to transfer the data of those fields 
to other system[.] 
• Configure SAP SD for sales and distribution and SAP CRM for Customer 
Relationship Management. 
• Define Campaign Management, Lead Management, High Volume Segmentation, 
and Opportunity management, and Customer Interaction center. 
• Configure ATP checks for Room availability[.] 
• Integration of Web Dy1;1pro, ECC and Real Estate applications for CRM Customer 
Interaction Center[.J · 
• Integrate Sales and Distribution with Finance and Material management 
modules[.] 
• Configure Sales Volume and Promotions and Rebates as part of SD and CRM 
integration. 
• Create hyperlinks to navigate dynamically on Web UI in the partner type 
dimension Assignment. Block. \ 
• Work with the other members of development team ensuring that consistent 
design standards reflecting sound practices such as reusability, supportability, 
scalability, etc. are applied. 
• Work with project teams and customer service teams as a technical resource and 
contribute to successful implementation. 
• Program and modify stored procedures and functions, create alternate v1ews, 
database administration, in providing product functionality. 
2 
(b)(6)
Matter of S-S-, Inc 
In a letter submitted in response to the Director's request for evidence (RFE), the Petitioner clarified 
that its system is a proprietary software technology targeting the hospitality industry. The 
Petitioner also submitted an affidavit by the Petitioner's CEO, who 
confirmed that this is the project to which the Beneficiary will be assigned. further 
noted that the system is "an ideal solution for hotel chains as well as independent hotels, 
motels, resorts and Inns," and that in promoting its system, it has made "significant efforts to 
continue negotiating services contracts with major hotel chains such as 
etc.," noting specifically that it hoped to reach an agreement with in the coming months. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Law 
Section 101 ( a)(15)(H)(i)(b) of the Act defines an H -1 B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(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 requir~ments for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and cert!fies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] ~m application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) 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 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.P.R. pt. 214). 
Although "United States employer" is defined in the·regulations at 8 C.P.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual 
3 
Matter of S-S-, Inc 
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) ofthe Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering 
full-time or part-time "employment" to the H-IB "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-IB 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 nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation 
for purposes of the H-lB visa classification, even though the regulation describes H-IB beneficiaries 
· as being "employees'' who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-lB 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 coq.sider 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." 
!d.; 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)). 
4 
Matter of S-S-, Inc 
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 
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. 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 
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 
10l(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 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 (1984). 
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, 
71-90 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 
5 
Matter of S-S-, Inc 
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)(1) (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-1B 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 ofthe 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, rega~dless 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 lassess and 
weigh each actual factor itself as it exists or will exi~t 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. 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-18 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
) 
6 
(b)(6)
Matter of S-S-, Inc 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H -1 B temporary "employee." 
We find that the evidence of record is insufficient to demonstrate that the duties of the proffered 
position are in fact associated with a specialty occupation. That is, the Petitioner has not submitted 
sufficient, credible evidence to establish that the project is a bona fide in-house project of 
the Petitioner, and that the Beneficiary will be exclusively assigned to it. Specifically, we find that 
there are discrepancies and concerns in the petition and supporting documents, which do not support 
the Petitioner's credibility with regard to the Beneficiary's claimed in-house assignment. When a 
petition includes numerous discrepancies, those inconsistencies will raise serious concern~ about the 
veracity of the Petitioner's assertions. 
A position may be awarded H..:1B classification only on the basis of evidence establishing that, at the 
time of the filing, definite, non-speculative work would exist for the beneficiary for the period of 
eq1ployment specified in the Form 1-129. 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, 249. (Reg'l Comm'r 1978. We find that the documentary evidence upon 
which the Petitioner depends does not meet this requirement: it does not establish definite work that 
would engage the Beneficiary if the petition were approved. 
The Petitioner asserts that the Beneficiary will be employed as a computer programmer on its 
project, which it claims is specifically tailored to the hospitality industry, and which will 
benefit large hotel chains as well as smaller, independent outlets1 such as motels, inns, and resorts. 
The Petitioner's description of the duties .of the proposed position indicates that the Beneficiary's 
duties will specifically entail "develop reporting models for Hospitality" and will "cover all 
requirements as per blue print agreed with client." In support of these assertions, the Petitioner 
submitted a document entitled "Technical Handbook," which it claims is the "Blue Print" for its 
system. A large portion of this document, however, is not tailored specifically toward the 
hospitality industry as claimed by the Petitioner, but rather appears to pertain to the 
hospital/healthcare industry. 
Notably, section 1.2.6 references a solution entitled ' which public records reveal is a 
proprietary medic,al expense management ser,vice solution that targets the healthcare industry, 
(b)(6)
Matter of S-S-, Inc 
developed by the company 
relationship to in this matter. 
"Technical Handbook" appears to have 
whitepaper 
The Petitioner has not explained or documented its 
Moreover, the entire section 1.2.6 in the Petitioner's 
been copied virtually verbatim from 
available at website. 5 
The Director raised these issues in her decision, specifically noting that much of the Petitioner's 
"Technical Handbook" - including the references to - do not correspond to the 
Petitioner's description of its system and appear to have been plagiarized. Noting that these 
discrepancies undermined the validity of the Petitioner's claims regarding the bona fide nature of the 
intended work for the Beneficiary, the Director concluded that it could not be determined that 
sufficient, in-house H-IB caliber work existed for the Beneficiary for the requested validity period, 
or that such work constituted specialty occupation employment. 
On appeal, the Petitioner. simply states that the discrepancies noted by the Director were simply 
"typographical errors" and were the result of the Petitioner's "rush preparation for client 
presentation." The Petitioner states that it "corrected the errors internally" throughout its 
documentation, and apologized· for the confu~ion. . In support of its appeal, the~ Petitioner submits 
"updated documents of development, including project details." 
However, we find that the Petitioner's explanation regarding the glaring inconsistencies and copied 
content in its technical handbook is not convincing. While a few typographical errors generally will 
not undermine the evidentiary value of a document, the fact that the Petitioner's evidence in this 
matter contains numerous references to an entirely different industry and a proprietary technology 
platform created by another company generated for the benefit of that dissimilar industry raises 
serious doubts regarding the legitimacy of the Petitioner's claims in this matter. Moreover, the fact 
that the document, which the Petitionerclaims is the "blue print" for its platform, contains 
information copied from other sources cannot be dismissed as mere "typographical errors." 
Here, the Petitioner claims that lt corrected its documentation internally, but does not submit a 
corrected technical handbook to support its claims. Nor does the Petitioner submit additional, 
credible evidence to provide an overview of the proposed project for the Beneficiary or outlining his 
role in such a project. Upon review of the "updated documents of development" submitted 
on appeal, we find that this, too, appears to have been copied from another source. More 
specifically, we find that the majority of the Petitioner's "updated" documentation contains 
screenshots and descriptions that are virtually identical to those found in an article posted on the 
Internet explaining how to configure master data management in 
4 For more information, visit which demonstrates that is a proprietary technology 
platform developed nearly two decades ago by another company. 
5 
The whitepaper can be accessed at website, available at 
(last visited Sept. 7, 
2016). 
8 
(b)(6)
Matter of S-S-, Inc 
While the Petitioner has stated that it utilizes to develop its 
product, the Petitioner has not sufficiently distinguished its product from or 
other existing modules. Furthermore, the Petitioner has not explained how its submitted document 
accurately represents its company's effort and progress towards developing We thus find 
that the Petitioner has not submitted sufficient reliable evidence that is a bona fide ongoing 
internal project to which the Beneficiary will be assigned. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. at 591. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
For all of the above reasons, we find that the evidence of record does not sufficiently demonstrate 
that the Beneficiary will be assigned to the in-house project, if such a project exists. 
Therefore, 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." 
8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
The petition must also be denied because the Petitioner has not established that the proffered 
position qualifies for classification as a specialty occupation. 
A. Law 
Section 214(i)(l)of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory ?efinition, 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: 
6 This article, 
available at the 
was authored by 
in 2011, who at that time was working for a company other than the Petitioner. The article is 
(last visited Sept. 7, 20 16). 
9 
(b)(6)
Matter of S-S-, Inc 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). USCIS has 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. Chertoff, 
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 v. Meissner, 
201 F.3d at 387. 
B. Analysis 
As discussed above, the Petitioner submitted- documentation with respect to the project; 
however, the documents do not sufficiently establish that bona fide in-house work is available for the 
duration of the Beneficiary's requested employment period. Specifically, the Petitioner did not 
submit credible, objective documentation corroborating its claims regarding the Beneficiary's 
assignment to the project. We incorporate our previous discussion on the matter. 
In addition, the document 
contains no references to the Beneficiary 
or to the proffered position. In fact, this document contains a table entitled "Phase I Budget" listing 
the resources needed for "Phase I" of the project. However, this table does not include a computer 
programmer or computer programmer analyst position as one of the required resources. 7 The 
document also does not contain schedule, budget, or resource information beyond "Phase 1," which 
is expected to end on February 17, 2016. The absence ofthis information is significant, in that the 
Petitioner requested employment dates from September 12, 2015, until September 11, 2018. 
Without further information regarding specific projects to which the Beneficiary will be assigned 
that covers the duration of the period of employment requested, we are not able to ascertain what the 
7 The Petitioner interchangeably refers to the proffered position as a "computer programmer" and a "computer 
programmer analyst." 
10 
(b)(6)
Matter of S-S-, Inc 
Beneficiary will do and for whom, what level and body of knowledge is needed to perform his 
duties, the location of the Beneficiary's work, and other salient aspects of his employment.8 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). 
Moreover, even if it were established that the Beneficiary will be assigned to the project, the 
evidence still does not sufficiently describe the duties to be performed by the Beneficiary. 
Moreover, even if it were established that the Beneficiary will be assigned to the project, the 
evidence still does not sufficiently describe the duties to be performed by the Beneficiary. That is, 
while the Petitioner submitted a lengthy list of job duties in its initial support letter, the "Itinerary of 
Services" contains only a fraction of those job duties (i.e., only those duties listed as "development 
responsibilities"). The Petitioner has not explained why its support letter and itinerary contain 
different lists of duties. Again, it is incumbent upon the Petitioner to resolve inconsistencies in the 
record. Matter of Ho, 19 I&N Dec. at 591. Of the job duties that appear in both the support letter 
and the itinerary, we observe that some of them do not appear relevant to the project, as 
described by the Petitioner. In particular, the Petitioner has not explained how the proffered job 
duties of ~reating and integrating data modules in "Supply Chain Planning," "Packaging," 
"Manufacturing," "Sales and Distribution," and "Material management" are relevant to the 
hospitality industry. 
Overall, we find that the .evidence of record poes not demonstrate the substantive nature of the 
proffered position and its constituent duties. We are therefore precluded from 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. 
Nevertheless, we will review the Petitioner's general description of duties and the evidence of record 
to determine whether the proffered position as described would qualify for classification as a 
specialty occupation.9 
8 The Petitioner's inability to demonstrate the substantive nature of the work also precludes us from determining whether 
the LCA submitted corresponds to the petition. Absent a determination of where, and for whom, the Beneficiary will 
render his services, we are unable to determine whether the LCA was certified for all work locations of the Beneficiary. 
9 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. · 
II 
Matter of S-S-, Inc 
1. First Criterion 
To that end and to make our determination as to whether the employment described above qualifies 
as a specialty occupation, we tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which 
requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the particular position. To inform this inquiry, we recognize the 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative 
source on the duties and educational requirements of the wide variety of occupations that it 
addresses. 10 
On the LCA submitted in support of the H-lB petition, the Petitioner designated the proffered 
position under the occupational category "Computer Programmers," corresponding to the Standard 
Occupational Classification code 15-1131 at a Level I wage. 11 The Handbook subchapter entitled 
"How to Become a Computer Programmer" states in pertinent part: "Most computer programmers 
have a bachelor's degree in computer science or a related subject; however, some employers hire 
workers with an associate's degree." 12 The Handbook indicates that a bachelor's degree in computer 
science may be common, but not that it is a requirement for entry into these jobs, indicating that 
associate's degrees are also acceptable prerequisites. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
·not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
10 All of our references are to the 2016-17 edition of the Handbook, which may be accessed at the Internet site 
http:llwww.bls.govloohl. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
11 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four 
assignable wage.Jevels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding ofthe occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Imm\gration Programs (rev. Nov. 2009), available at 
http:l!flcdatacenter.comldownload/NPWHC _Guidance_ Revised _11_ 2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. ld A Level I wage should be considered for research fellows, workers 
in training, or internships. !d. 
12 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Computer 
Programmers," http :I lwww. b Is. gov I oohl computer-and-information -techno I ogy I computer-programmers. htm#tab-4 (last 
visited Sept. 7, 2016). 
12. 
Matter of S-S-, Inc 
2. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (eniphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
As discussed above, the Petitioner has not established that its proffered position is one for which the 
Handbook, or. another .authoritative source, reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty or its equivalent. We incorporate our previous discussion 
on the matter. Also, the Petitioner did not submit evidence from the industry's professional 
association. 
In support of the petition, the Petitioner provided a few job postings and letters from two of the 
posting companies. However, the Petitioner has not adequately demonstrated that these 
advertisements, or the positions referenced in the letters, are for parallel positions. The job titles for 
the positions include "software engineers," "database administrators," "CIS managers," "HR [human 
resources] specialists," "business analysis (technical)," and "analytics solution architect." The job 
descriptions do not focus on the incumbent performing in-house development or programming work; 
rather, many of the advertisements are for positions in which the incumbent will be assigned to 
unspecified clients at their worksites, and will perform job duties beyond those specified for the 
proffered position. Some of the advertisements also state requirements beyond those for the 
proffered position which is designed as an entry-level position (through the Level I wage rate on the 
LCA), such as the posting for a position requiring a minimum of 10 years related work experience, 
various certifications, and a preference for a "licensed healthcare professional." 
Further, the advertisements and letters do not support the conclusion that a bachelor's degree in a 
specific specialty, or its equivalent, is required. Most of the advertisements, and one of the two 
13 
Matter of S-S-, Inc 
letters, indicate that a general bachelor's degree is acceptable. A petitioner must demonstrate that 
the proffered position requires a precise and specific course of study that relates directly and closely 
to the position in question. There must be a close correlation between the required specialized 
studies ~nd the position; thus, the mere requirement of a general degree, without further 
specification, does not establish the position as a specialty occupation. Royal Siam Corp. v. 
Chertoff, 484 F.3d at 147 (a general-purpose bachelor's degree may be a legitimate prerequisite for a 
particular position, but requiring such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation). Cf Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the 
sake of general education, or to obtain what an employer perceives to be a higher caliber employee, 
also does not establish eligibility."). 
Therefore, based upon a complete review of the record, we conclude that the Petitioner has not 
satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 13 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and 
unique. While a few related courses may be beneficial in performing certain duties of the position, 
the Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 
Moreover, the general descriptions of the proffered duties do not identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them. Rather, the 
I 
duties the Petitioner ascribed to the proffered position indicate a need for a range of technical 
knowledge in the computer/IT field, but do not establish any particular level of formal, 
postsecondary education leading to a bachelor's or higher degree in a specific specialty (or its 
equivalent) as minimally necessary to attain such knowledge. 
Further, the LCA submitted by the Petitioner indicates that the proffered position is a Level I (entry) 
wage, which, as noted above, is the lowest of four assignable wage levels.14 Without additional 
13 
As the advertisements and letters are deficient for the above-stated reasons, we will not address each of the 
advertisements and letters in detail. 
14 
(b)(6)
Matter of S-S-, Inc 
evidence, the record of proceedings does not indicate that the proffered position is so complex or 
unique, as such a position would likely be classified at a higher-level, which requires a significantly 
higher prevailing wage. For all of the above reasons, the Petitioner has not satisfied the second 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 2f4.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's 'Qegree in a specific specialty, or its equivalent, for the position. 
The Petitioner states that it was established in 2004, and currently employs over 30 IT professionals. 
The Petitioner claims 
that it has "had 26 current and previous employees serving in the same or 
similar position of Computer Programmer Analyst." The Petitioner further claims that "5 employees 
are designated to work on developing and they gained H-1B status since 2014." The 
Petitioner asserts that all of these employees have "at least a Bachelor's degree (or foreign 
equivalent) in relevant fields." 
However, the Petitioner has not submitted sufficient evidence to corroborate its claims regarding 
these individuals' educational credentials. While the Petitioner submitted copies of these 
individuals' diplomas, more than half of them were foreign diplomas without accompanying u.s. 
equivalency evaluations. Without more, the record does not demonstrate that the Petitioner normally 
requires a U.S. bachelor's degree in a specific specialty, 
or its equivalent, for the proffered position. 
"[G]oing 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. at 165. 
We acknowledge the submitted evidence of these individuals' H-1B visa status. However, if the 
respective nonimmigrant petitions were approved without sufficient evidence of the beneficiaries' 
educational qualifications, then the approvals would constitute m[lterial and gross error on the part of 
the Director. We are not required to approve petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to suggest that [USCIS] or any 
agency must treat acknowledged errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 
825 F.2d 1084, 1090 (6th Cir. 1987). Further, prior approvals do not compel the approval of a 
subsequent petition or relieve the Petitioner of its burden to provide sufficient documentation to 
14 The Petitioner's designation of this position as a Level I, entry-level position indicates that it is a comparatively low­
level position compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does 
not preclude a proffyred position from classification as a specialty occupation, just as a Level IV wage-designation does 
not definitively establish such a classification. In certain occup,ations (e.g., doctors or lawyers), a Level I, 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 equi,valent. That is; a position's wage level designation may be a relevant factor but is not itself 
90nclusive evidence that a proffered position m~ets the requirements of section 214(i)(l) of the Act. 
15 
(b)(6)
Matter of S-S-, Inc 
establish current eligibility for the benefit sought. 15 Temporary Alien Workers Seeking 
Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) 
(to be codified at 8 C.F.R. pt. 214). 
The evidence of record, as presently constituted, is insufficient to satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 16 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The Petitioner does not establish how the duties 
of its computer programmer elevate the proffered position to a specialty occupation. We again refer 
to our comments regarding the insufficient evidence of the Beneficiary's job duties and assignment, 
as well as to the implications of the Petitioner's designation of the proffered position at a Level I 
(entry) wage level. The evidence of record does not satisfy the fourth criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). 
Because the Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
established that the pr?,ffered position qualifies as a specialty occupation. 17 
15 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perform any occupation as long as the employer artificially created a 
token degree requirement,,whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific spebalty or its equivalent. See Defensor v. Meissner, 20rF. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "specialty 
occupation"). 
16 As the submitted evidence is deficient for the above-stated reasons, we will not address ~ach employee's duties and 
qualifications in detail. i 
17 The Petitioner noted that USCIS approved other petitions that had·been previously filed on behalf of five other 
employees for its project. The Director's decision doe.s not. indicate whether the prior approvals of the other 
nonimmigrant petitions \\it;re reviewed. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approvals would constitute material 
and gross error on the part of the Director. We are not required to approve petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of Church Scientology Int'l, 
19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to suggest that [USCIS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 1084, I 090 (6th Cir. 1987). 
16 
Matter of S-S-, Inc 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&NDec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, Inc,ID# 18152 (AAO Sept. 9, 2016) 
Again, a prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its burden to 
provide sufficient documentation to establish current eligibility for the benefit sought. Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be 
codified at 8 C.F.R. pt. 214). A prior approval also does not preclude USCIS from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
556 (5th Cir. 200:.). Furthermore, our authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf 
of a beneficiary, we would not be bound to follow the contradictory decision of a service center. See La. Philharmonic 
Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
17