dismissed H-1B Case: Software Development

MATTER OF K- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 25,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT consulting firm, seeks to temporarily employ the 
Beneficiary as a "data warehouse analyst" under the H-IB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section IOI(a)(l5)(H)(i)(b), 8 U.S.C. 
§ IIOI(a)(l5)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center denied the petition. The Director concluded that the 
Petitioner (I) had not demonstrated that the proffered position qualifies for treatment as a specialty 
occupation and (2) had not shown that it would have an employer-employee relationship with the 
Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred pertinent to both bases for the denial. 
Upon de novo review, we will dismiss the appeal. 
I. 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. 
(b)(6)
Matter of K- Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(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). U.S. Citizenship and Immigration Services (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 384, 387 (5th Cir. 2000). 
B. The Proffered Position 
In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "data warehouse 
analyst." 1 In a letter submitted in support of the petition, the Petitioner stated that the Beneficiary 
would provide his services to the a client of 
. pursuant to an agreement executed between the Petitioner and According to 
the Petitioner, the proffered position requires a minimum of a bachelor's degree in electrical 
engineering, computer science, electronics engineering, or a closely related field. 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121 _2 The LCA was certified 
1 The Petitioner submitted documentation to support the H-1 8 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. 
2 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
2 
(b)(6)
Matter of K- Inc. 
for employment in and near the Petitioner's North Carolina address and in and near 
m Wisconsin. Evidence in the record indicates that the Wisconsin 
address is a location of 
The Petitioner provided the following duty description in its support letter: 
• Worked on Data Warehouse & BI projects, gathering & documenting 
requirements, designing solutions, developing ETL using 
developing universes and reports using Business· Objects, 
testing, and implementing solutions. (10%) 
• Created both ETL and business intelligence report design, development, 
testing, maintenance, metadata, and implementation of data warehouse 
Illltiatlves. Understand user requirements, and implement solutions that 
ensure requirements can be achieved through high quality deliverables. (10%) 
• Extensively used client tools Source Analyzer, Warehouse 
designer, Mapping Designer, Mapplet Designer, Transformation Developer, 
Manager and ( 
1 0%) 
• Design and Development of ETL routines, using 
within the usage of Lookups, Aggregator, Ranking, 
Mapplets, connected and unconnected stored procedures I functions I 
Lookups, SQL overrides usage in Lookups and unconnected stored procedures 
I functions I Lookups, SQL overrides in usage in lookups and source filter 
usage in Source qualifiers and data flow management into multiple targets 
using Routers were extensively done. 
• Develop ETL mapping specifications for loading information into the data 
warehouse and for ensuring reliability of information loaded. Seek 
continuous improvement in performance & tuning of data warehouse and 
ensure security of data Perform analysis and testing of relational databases 
and investigate any data load failures or data retrieval issues. (1 0%) 
• Implemented various loads like Daily Loads, Weekly Loads, and Quarterly 
Loads using Incremental Loading 
Strategy. (10%) 
• Worked on designing and building complex BO Universes, and created the 
objects and classes for Adhoc reporting purposes. (10%) 
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 of the 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. Immigration Programs (rev. Nov. 2009), available at 
http:/ !flcdatacenter. com/ down load/N P W 
H C _Guidance_ Revised _I I_ 2009. pdf. A pre vail i ng wage de termination 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. /d. 
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(b)(6)
Matter of K- Inc. 
• Developed and published highly formatted accounting and financial reports, 
customer account information, defaulters' reports, claim reports, co-pay 
related reports, healthcare reports, and legal-advocacy reports using Crystal 
Reports and 
Webl. (5%) 
• Created linked sub reports using Open Doc URLs, worked on creating 
complex reports, used cross-tabs to display data in grid form (5%) 
• Worked extensively with Business Objects report functions like Alerts, 
Filters, Sorts, and Drill filters, Crystal Reports IX Design and Development. 
(10%) 
• Provided Production Support. (10%) 
A letter from recites substantially the same duties, and states that the Beneficiary would 
perform those duties "pursuant to a confidential agreement between and 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we detennine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sutiicient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 
We find that the record of proceedings contains inconsistencies that undermine the Petitioner's 
claims regarding the proffered position. As mentioned, stated that the Beneficiary is working 
on a project pursuant to "a confidential agreement" with Notably, at the time of filing, the 
Petitioner indicated the contractual succession as follows: Petitioner 7 However, 
documents submitted in response to the Director's request for evidence (RFE) revealed the actual 
path of contractual succession to be as follows: Petitioner 7 
In other words, it appears that "confidential agreement" between and the 
does not exist, and the Petitioner did not reveal the existence of a second middle-vendor, 
at the time of filing. Therefore, the Petitioner's representation of the path of contractual 
succession, a material fact in this proceeding, was not accurate. 3 Without contracts or agreements 
3 The misrepresentation of a material fact may lead to multiple consequences in immigration proceedings. First, as an 
evidentiary matter, the misrepresentation may impact the review and adjudication of the visa petition or immigration 
application. If USCIS does not believe that a fact stated in the petition is true, USCIS may reject that assertion. See 
section 214(c)(l) of the Act, 8 U.S.C. § 1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); 
Anetekhai v. INS, 876 F.2d I 218, 1220 (5th Cir. 1989). The Petitioner 's submission of false statements may also call 
into question the reliability and sufficiency of the remaining evidence offered in support of the visa petition. See Matter 
of Ho, 19 I&N Dec. 582, 59 I (BIA 1988). Next, a material misrepresentation that is found to be willful under section 
212(a)(6)(C) of the Act may make an individual ineligible to receive a visa and ineligible to be admitted to the United 
States. See, e.g., Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). Finally, a USCIS finding of willful, material 
misrepresentation may lead to criminal penalties. See 18 U.S.C. §§ I 00 I, 1546; see also United States v. 0 'Connor, 158 
F. Supp.2d 697 (E.D. Va. 2001). 
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(b)(6)
Matter of K- Inc. 
between all the parties that outline the terms and conditions of the Beneficiary's employment and 
information regarding specific projects to which the Beneficiary would be assigned, we are not able 
to fully ascertain what the Beneficiary would do, where the Beneficiary would work, as well as how 
this would impact circumstances of his relationship with the Petitioner. 
Further, the record of proceedings in this case is devoid of sufficient information from the end-client, 
regarding the job duties to be performed by the Beneficiary and the requirements for the 
position. As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. ln 
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. 
Specifically , where the work is to be performed for entities other than the Petitioner, evidence of the 
client companies' job requirements is critical. In Defensor, the court held that the former 
Immigration and Naturalization Service had reasonably interpreted the statute and regulations as 
requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
occupation on the basis of the requirements imposed by the entities using a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. 
While the work orders between the Petitioner and are acknowledged, without a contract that 
outlines the substantive nature of the Beneficiary's work for the end-client, we are unable to 
determine that the Beneficiary will be employed in the capacity specified in the petition for the 
duration of the requested employment period. Specifically, the work order does not contain 
sufficient information to illuminate the specific tasks to be performed by the Beneficiary. For 
example , it states that the Beneficiary shall: "be responsible for accepting the assignment and tor the 
performance of the requested services in timely, thorough and professional manner"; "comply with 
all corporate and departmental standards of Client and Company"; "be responsible for effectively 
communicating problems and concerns to Client and Company"; and "perform the requested 
Services at Client's location or some other suitable location that is mutually agreed to by the 
parties." However, the work orders do not provide any particular details regarding the demands, 
level of responsibilities and requirements necessary for the performance of the "assignment" and 
"the requested services." 
We note that the letters from the Petitioner and describing the duties and requirements of the 
proffered position are entitled to little probative weight, since they were not issued directly by the 
end-client. Overall, based upon the limited evidence in the record, we cannot find that the Petitioner 
has established the substantive nature of the work to be performed by the Beneficiary. 
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(b)(6)
Matter of K- Inc. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4.4 
Further, we find that the Petitioner has not established that it has specialty occupation work available 
for the Beneficiary. That is, the Petitioner has not established that it has definite, non-speculative 
work for the Beneficiary for the entire validity period requested. 
Notably, the work orders in the record does not cover the duration of the requested employment 
period. One of the work orders expired prior to the requested start date. Further, the other one was 
executed on September 28, 2015, subsequent to the filing of the instant petition, and had a 
retroactive date of July 1, 2015. On appeal, a letter from stated it is able to execute the work 
4 Even if the proffered position were established as being located within the "Computer Systems Analysts" occupational 
category (the occupational classification certified on the submitted LCA), a review of the U.S. Department of Labor's 
(DOL's) Occupational Outlook Handbook (Handbook) does not indicate that, simply by virtue of its occupational 
classification, such a position qualifies as a specialty occupation. More specifically, the information on the educational 
requirements in the "Computer Systems Analysts" chapter of the 2016-17 edition of the Handbook indicates at most that 
a bachelor's or higher degree in a computer or information science field may be a common preference, but not a standard 
occupational, entry requirement. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 
2016-17 ed., "Computer Systems Analysts," http ://www.bls.gov /ooh/computer-and-information-technology / 
print/computer-systems-analysts.htm (last visited May 19, 20 16). 
This section of the Handbook's narrative begins by stating that a bachelor's degree in a related field is not a 
requirement. The Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
located within this occupational category, including general purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, it does not report that 
such a degree is normally a minimum requirement for entry. 
According to the Handbook, many individuals working in positions within this occupational category have liberal arts 
degrees and have gained programming or technical expertise elsewhere. It further reports that many have technical 
degrees. We observe that the Handbook does not specify a degree level (e.g., associate's degree, baccalaureate) for these 
technical degrees. Moreover, it specifically states that such a degree is not always a requirement. Thus, the Handbook 
does not support the claim that the occupational category of computer systems analyst is one for which normally the 
minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it 
did, the record lacks sufficient evidence to support a finding that the particular position proffered here, an entry-level 
position relative to others within the occupational category, would normally have such a minimum, specialty degree 
requirement or its equivalent. See id. As such, absent evidence that the position would actually be one located within 
the claimed occupational category, and that it would satisfy one of the alternative criteria available under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), the petition could not be approved for this additional reason. 
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Matter of K- Inc. 
orders "in this fashion because the contracts are still valid." However, it is not clear what contracts it 
is referring to, since the record of proceedings does not contain a contract with the end-client. 
"[G]oing on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings." Matter of Soffici, 22 l&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
Further, the work order is valid only until January 25, 2017, which does not cover the duration of the 
requested employment. 
We note that the Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. 
§ 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or the 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg'! Comm'r 1978). As such, eligibility for the benefit sought must be assessed and 
weighed based on the facts as they existed at the time the instant petition was filed and not based on 
what were merely speculative facts not then in existence. 
The agency made clear long ago that speculative employment is not permitted m the H-IB 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1 B classification is not 
intended as a vehicle for an alien to engage in a job search within the United States, 
or for employers to bring in temporary foreign workers to meet possible workforce 
needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an 
H-IB nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the 
attainment of a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has 
the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this 
country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted 
to petition for H-1 B classification on the basis of facts not in existence at the time the instant petition 
was filed, it must nonetheless file a new petition to have these facts considered in any eligibility 
determination requested, as the agency may not consider them in this proceeding pursuant to the law 
and legal precedent cited, supra. 
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Matter of K- Inc. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed for this 
reason. 
II. EMPLOYER-EMPLOYEE 
We will briefly address the issue of whether or not the Petitioner qualifies as an H-lB employer. 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 
730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
Id; see also Clackamas 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)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, 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 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, the Director would be unable to properly assess whether the requisite employer­
employee relationship will exist between the Petitioner and the Beneficiary. Therefore, the 
Director's decision is affirmed, and the appeal is dismissed for this additional reason. 
8 
Matter of K- Inc. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter o{Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o{K- Inc., ID# 17023 (AAO May 25, 2016) 
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