dismissed H-1B Case: Software Development

MATTER OF 1-T-T-, LLC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 30,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software design, development, and testing services company, seeks to temporarily 
employ the Beneficiary as a "senior technical architect" under the H -1 B 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-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that it has an employer-employee relationship with the Beneficiary or that the proffered 
position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director's decision was in error. 
Upon de novo review, we will dismiss the appea1.1 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
Upon review of the record in its totalitl and for the reasons set out below, we find that the record 
does not establish that the Petitioner would be a "United States employer" having "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." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
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Matter of I-T-T-, LLC. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... inl a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)( 1) .... 
The term "United States employer" is defined 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 Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)( 4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1B visa 
classification. Therefore, in considering whether or not one will be an "employee" in an "employer­
employee relationship" with a "United States employer" for purposes of H-1B nonimmigrant 
petitions, U.S. Citizenship and Immigration Services (USCIS) will look to common-law agency 
doctrine and focus on the common-law touchstone of "control." See Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318 (1992); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 
(2003). 
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) (defining "servant"). 
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 
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Matter of 1-T-T-, LLC. 
business. See Clackamas, 538 U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a 
materially identical test and indicating that said test was based on the Darden decision); Defensor, 
201 F.3d at 388 (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-IB nurses under 8 C.P.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man.at § 2-III(A)(l). 
B. Analysis 
Applying the Darden and Clackamas tests to this, matter, we find that the record does not establish 
that the Petitioner will be a "United States employer" 
having an "employer-employee relationship" 
with the Beneficiary as an H-IB temporary "employee." 
Preliminarily, we find that the Petitioner has not established that it has secured definitive, 
non-speculative employment for the Beneficiary at the time of filing. The Petitioner, located in 
Idaho, indicated that the Beneficiary will be performing work offsite for another company, 
(end-client).3 
In support ofthe Beneficiary's offsite employment, the Petitioner submitted a letter from the end-client 
with the H-IB petition. However, the letter did not provide sufficient information regarding the 
proffered position. The letter states that the end-client "requests approval of the H-IB visa for [the 
Beneficiary]" and that its "expectation is that [the Petitioner] is committed to a long term project as [the 
end-client] continue[s] to further new requirements to improve the capabilities and experience of the 
existing [end-client's] software products .... " In other words, the letter did not provide details 
regarding an existing project, requirements for the position, location of the project, or the dates of 
requested service to establish non-speculative H-IB caliber employment for the Beneficiary. 
3 Notably, the Petitioner provided its own address as that of the end-client. While the Director raised this issue in 
denying the petition, the Petitioner has not explained why it provided its own address as the end-client's location or why 
they share the same office address. 
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Matter of 1-T-T-, LLC. 
In response to the Director's request for evidence (RFE), the Petitioner submitted additional evidence to 
establish the Beneficiary's employment with the end-client, including: (1) a "Custom Software 
Development Agreement" (agreement); (2) Exhibit A "Payment and Rate Schedule"; and (3) Schedule 
A 
' Development." Notably, none of the documents name the Beneficiary, thus the 
documents do not establish that they are applicable to the Beneficiary or the proffered position. 
However, even if we assume that the documents are for the Beneficiary, they do not sufficiently 
establish valid employment for the Beneficiary at the time of filing this petition. 
For example, Exhibit A signed on February 9, 2016, indicated a "minimum commitment" of "three 
(3) months starting from June 1, 2015."4 This document states that the end-client agrees for services 
from March to May 2016. However, the Petitioner requested an employment period from October 
1, 2016, until August 31, 2019. Therefore, it does not establish employment for the Beneficiary 
starting on October 1, 2016. 
Likewise, the Development" document was not signed until November 1, 2016, and the 
"initial commitment" was "for a minimum three (3) year period from January 1st 2017 to December 
31, 2019." In other words, the Petitioner has not submitted any documents which cover the period 
from October 1, 2016, to December 31, 2016, and has not established that it had an existing project 
for the Beneficiary at the time of filing. While the Director noted these issues in the denial, the 
Petitioner did not address these deficiencies on appeal, but only asserts that three months is the 
"minimum commitment" between the Petitioner and the end-client, and the actual commitment will 
be for three years. The Petitioner did not submit any new evidence to support its assertion, but 
points to the ' Development" document. As discussed, this document was not signed until 
after the filing date and also indicates that the employment will not start until January I, 2017. 
The Petitioner is required to 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'l 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. 5 
4 The document was signed eight months after June I, 2015 , and it is not clear if this was properly executed prior to the 
start date. 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example , a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute , the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
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Matter of 1-T-T-, LLC. 
Here, the Petitioner has not established that it had secured definitive, non-speculative employment 
for the Beneficiary for the duration of the requested validity period at the time of filing. 
However, even if we assume that the Petitioner had secured non-speculative employment for the 
Beneficiary at the time of filing, the key issue of who exercises control over the Beneficiary has not 
been substantiated. 
On appeal, the Petitioner states that the initial support letter, agreement, and the letters from the end­
client demonstrate the employer-employee relationship. The support letter indicates that the 
Beneficiary "will work on projects that are assigned" and that they "retain the right to terminate the 
prospective employee's employment." The support letter also explains that the Beneficiary will be 
eligible for the same benefits as its other employees and that they will pay "the prospective 
employee in accordance with our regular payroll schedule." The agreement states that the Petitioner 
and its staff are not "deemed" to be the end-client's employees and that the Petitioner "has the sole 
right to control and direct the means, manner and method by which the services required by this 
Agreement will be performed." The end-client's letter submitted in response to the RFE contends 
that the Petitioner "will be responsible for overseeing the work performed including HR 
responsibilities and payroll." The record does not, however, contain any further explanation or 
document in any detail how the Petitioner would supervise and otherwise control the Beneficiary's 
day-to-day activities at the end-client location or even who would supervise the Beneficiary. Merely 
claiming that the Petitioner exercises complete control over the Beneficiary, without evidence 
supporting the claim, does not establish eligibility in this matter. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
We further note that while items such as wages, social security contributions, worker's 
compensation contributions, unemployment insurance contributions, federal and state income tax 
withholdings, and other benefits are relevant factors in determining who will control the Beneficiary, 
other incidents of the relationship, e.g., where the work will be located, who will provide the 
instrumentalities and tools, who will oversee and direct the work of the Beneficiary, and who has the 
right or ability to affect the projects to which the Beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the Beneficiary's employer. Without 
full disclosure of all of the relevant factors, we are unable to find that the requisite employer­
employee relationship will exist between the Petitioner and the Beneficiary. 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
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Matter of I-T-T-, LLC. 
l 
In light of the above, the evidence 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) and we are, therefore, unable to find that 
the requisite employer-employee relationship would exist between the Petitioner and the 
Beneficiary. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. ,Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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Matter of I-T-T-, LLC. 
B. Analysis 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary and therefore, has not established that the proffered position qualifies as a specialty 
occupation. Specifically, the Petitioner has not provided documents from the end-client that 
describe the duties and requirements for the proffered position. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88 , where the work is to be 
performed for entities other than the petitioner , evidence of the client companies' job requirements is 
critical. 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 the beneficiary's services. ld. Such evidence must be sufficiently detailed to demonstrate the 
type and educational level of highly specialized knowledge in a specific discipline that is necessary 
to perform that particular work. 
The Director noted that the Petitioner did not submit sufficient documents from the end-client to 
establish the duties and requirements of the position offered here. On appeal , rather ,than address the 
Director's findings, the Petitioner relies on a letter from a printout from 
the Occupational Outlook Handbook, and printouts of job postings for similar positions to the 
proffered position. While we acknowledge this evidence, it does not relieve the Petitioner from 
providing the necessary information from the end-client. As mentioned , the record does contain 
letters from the end client, but as discussed, the letters do not state minimum education requirements 
or more specific details · rega~ding the proffered position . We also note that the Petitioner has not 
established the authority of a lead enterprise support engineer to provide such letters. 
Without reliable, official documentation directly from the end-client that provides information 
regarding the project itself, including a description of the Beneficiary's specific duties and 
responsibilities in relation to the project on which he will be working , the position's educational 
requirements, and other pertinent aspects of the proposed employment , we cannot determine the 
substantive nature of the proffered position. 
We are therefore precluded from finding that the proffered position satisfies any of the 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 
6 We note that the purpose of letter is to "offer an opinion on the qualification of [the Beneficiary) as 
to the equivalency of a Bachelor 's degree in Computer Information Systems based on his education and progressive 
employment experience ." In other words, the purpose of the evaluation was not to determine whether the proffered 
position qualifies as a specialty occupation . 
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Matter of 1-T-T-, LLC. 
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 specQic duties, which is the focus of criterion 4. 
In light of.the above, we cannot find that the proffered position qualifies for classification as a 
specialty occupation. 
III. LABOR CONDITION APPLICATION 
Although we need not fully address other issues evident in the record, we wish to identify an 
additional concern to inform the Petitioner that this matter should be addressed in any future 
proceedings. 
The Petitioner is required to submit a certified labor condition application (LCA) in order to 
demonstrate that it will pay an H-1B worker the higher of either the prevailing wage for the 
occupational classification in the "area of employment" or the actual wage paid by the employer to 
other employees with similar experience and qualifications who are performing the same services. 
See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage 
levels). The "Prevailing Wage Determination Policy Qui dance" issued by the Department of Labor 
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: (1) 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/download/ 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 requirement~ of the Petitioner's job opportunity. Jd. 
According to the employment offer letter, the proffered position's title is "Senior Technical 
Architect" and requires a "[ m ]inimum 10 years of experience in software development and design." 
It, therefore, appears that the position is not entry-level, and, thus, the Petitioner did not select the 
appropriate wage level. 
While the Department of Labor (DOL) is the agency that certifies LCA applications before they are 
submitted to USCIS, DOL regulations note that the Department of Homeland Security (DHS) (i.e., 
its immigration benefits branch, USCIS) is the department responsible for determining whether the 
content of an LCA, filed for a particular Form I-129 actually supports that petition. See 20 C.F.R. 
§ 655.705(b), which states, in pertinent part (emphasis added): 
Matter of I-T-T-, LLC. 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In cfoing so. the DHS determines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1B petition filed on behalf of the Beneficiary. Here, it appears that the Petitioner has not 
submitted a valid LCA that corresponds to the proffered position. 
IV. CONCLUSION 
The Petitioner has not established that: (1) the proffered position qualifies as a specialty occupation; 
and (2) the requisite employer-employee relationship would exist between the Petitioner and the 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-T-T-, LLC., ID# 488214 (AAO June 30, 20 17) 
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