dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-S-G-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "systems analyst" under the H-lB 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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred in 
the decision. Upon de nova review, we will dismiss the appeal. 
I. 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: 
Matter of C-S-G-, Inc. 
(]) 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 construe 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. 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). 
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. Id. 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. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position and lacks sufficient evidence of the 
services that the Beneficiary will perform for the end-client. 1 
The Petitioner indicated on the petition and on the certified labor condition application (LCj) 2 thal 
the Beneficiary will work as a "systems analyst" for .__ _______ ____.(end-client) in 
Washington, for the requested period of employment, March 2018 to June 2019. The Petitioner stated 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
2 
Matter of C-S-G-, Inc. 
that the Beneficiary's assignment at the end-client is based on a service agreement it has with D I !(vendor). 
In support of the claimed contractual relationship, the Petitioner submitted an agreement, titled 
"Sub-Vendor Agreement" (SVA) executed with the vendor in March 2016. The SVA states that the 
vendor "shall, at its option and in its sole discretion, contact [the Petitioner] to request Contract 
Workers to perform Services based upon Requirements [the vendor] receives from Customer." The 
SVA farther states that the vendor is "under no obligation to use [the Petitioner] for any particular 
assignment or customer" and that "[t]his is not an exclusive agreement for services." The SVA also 
states that the vendor and its customers are "parties to a Service Agreement ... pursuant to which [the 
vendor] has agreed to provide temporary staffing services to Customer." However, the record does 
not contain the referenced service agreement the vendor has with its customers. Without additional 
documents, the SV A has little probative weight towards establishing the actual work to be performed 
by the Beneficiary for the end-client for any specific period or location. 
The record contains a letter froml dconfirming that the vendor and the 
end-client have entered into a "Supplier Agreement where ~nd [the end-client] are parties to a 
Master Service Agreement pursuant to which D has agreed to provide centralized management 
services to [the end-client] in connection with its use of contract workers." However, the record does 
not contain the referenced Supplier Agreement or the Master Service Agreement. 
The Petitioner submitted a letter from the vendor stating that the Beneficiary will "start his project on 
March 2018," that the assignment is an "ongoing one with a potential of extension for the next 3 
years." However, the letter goes on to say that the end-client "reserves the right to either deny the 
project extension without any notice or cancel the project at any time with at least 2 weeks of notice." 
The letter farther states that the service agreement between the vendor and the end-client is 
"confidential and will not be disclosed to any third-party." 3 Although a petitioner may always refuse 
to submit confidential commercial information if it is deemed too sensitive, the Petitioner must also 
satisfy the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 I&N Dec. 314 
(BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth Amendment 
[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect 
to his application."). Here, the agreement between the vendor and the end-client is critical in 
substantiating the proffered position. Without the necessary contractual agreements and foll disclosure 
of all relevant factors, the record does not sufficiently establish the terms and conditions of the 
Beneficiary's assignment. 
The record contains a statement of work, which identifies the Beneficiary and the end-client by name, 
provides the effective dates of the project, and more. However, the information is limited in scope 
and does not adequately establish the services to be provided by the Beneficiary such as duties or 
educational requirements for the position. 
3 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. See 5 U.S.C. § 552(6)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
3 
Matter of C-S-G-, Inc. 
The Petitioner also submitted a letter from the end-client in which it referenced the statement of work 
number, identified the vendor and the Petitioner by name, and indicated the effective period of the 
statement of work. While the end-client provided a detailed description of the skills and the experience 
it requires for the position, it did not indicate any educational requirements for the position. Further, 
the letter does not provide a sufficiently detailed description of the Beneficiary's duties. Notably, the 
end-client did not provide a detailed information of its project. 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. Without information regarding assignments that the Beneficiary would engage 
in, the description of the duties does not provide sufficient basis to conclude that the position requires 
the theoretical and practical application of a body of highly specialized knowledge, and the attainment 
of a baccalaureate or higher degree in the specific specialty, or its equivalent. For example, the duties 
such as "[m]anages the quality assurance activities for multiple projects," "[r]esponsible for working 
with Automation Management and other SDET Leads," "[ m ]entors and directs other SDETs 
promoting teambuilding," and "[p ]rovides leadership working directly with quality assurance 
management, project management ... " do not meaningfully establish a need for a particular level of 
education, or its equivalency, in a body of highly specialized knowledge in a specific specialty. With 
the broadly described duties, and insufficient evidence regarding work specific to a particular project, 
the record lacks evidence to demonstrate that the proffered position requires a bachelor's degree level 
of knowledge in a specific specialty. That is, the record does not adequately communicate (1) the 
actual day-to-day work that the Beneficiary will perform; (2) the complexity, uniqueness, or 
specialization of the tasks; and (3) the correlation between that work and a need for a particular level 
of education and knowledge. 
Aside from the deficiencies noted above, the record contains varying requirements for the proffered 
position. Notably, the end-client did not state its education requirements and did not indicate that its 
experience requirements must be equivalent to at least a bachelor's degree in a specific specialty. 
Further, in its support letter, the Petitioner initially stated that it requires "a bachelor's degree in the 
field of Engineering, Math, or Computer Science." However, in its response to the Director's request 
for evidence, the Petitioner stated that the minimum requirement for the position is a "Bachelor's 
degree in Engineering, Electronics, Communications or Computer Science in I. T. Industry" but a few 
pages later, the Petitioner stated that "Degree in Computer Science, Engineering, Electronics, 
Information Technology are preferred but degree in Engineering and Math with more than three year 
experience in required technology is also qualify to perform the duties of Systems Analyst." The 
record contains no explanation for the varying degree requirements. The Petitioner must resolve these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate 
the reliability and sufficiency of other evidence submitted in support of the requested immigration 
benefit. Id. 
We reviewed the position evaluation authored by I I submitted in support of the 
petition. Regarding the requirements for the proposed position, I J I provided a number of 
different requirements including: (1) conventional industry standards for an H-lB systems analyst 
include a bachelor's degree in science, technology or a closely related field, as well as 0-4 years of 
4 
Matter of C-S-G-, Inc. 
professional work experience, and among other things, engineering, administration and business 
management skills with strong problem solving skills; (2) a systems analyst requires specialized 
knowledge through advanced post-secondary educational programs or through progressively 
responsible work experience in the field of computer information systems, computer engineering, or 
a closely related field; and, (3) the proposed position requires at least a bachelor's level degree in 
computer information systems, computer engineering, or a related field combined with progressive 
hands-on professional work experience and specialized training. I I does not consistently 
identify the educational requirements for a systems analyst and he does not discuss why his 
requirements vary. I ldoes not distinguish or otherwise explain his requirements for the 
proffered position. The evaluation is not probative in establishing that a systems analyst or the 
proffered position is a specialty occupation. We may, in our discretion, use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, where an opinion is not in accord with other information or is in any way 
questionable, we are not required to accept or may give less weight to that evidence. Id. 
Due to insufficient and inconsistent evidence regarding the proffered position, we are unable to determine 
the substantive nature of the Beneficiary's work as it will be performed for the end-client. Therefore, we 
are unable to evaluate whether 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 ofcriterion 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 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(I) Engages a person to work within the United States; 
4 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 
Matter of C-S-G-, Inc. 
(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.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services will apply common law agency principles which focus on the touchstone of 
control. 
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." 
Darden, 503 U.S. 318, 322-23. 5 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor, 201 F.3d at 388 (even though a medical staffing 
agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" 
because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-lB beneficiaries). 
We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
B. Analysis 
Beyond the Director's decision, applying the Darden and Clackamas factors to this matter, we 
conclude that the Petitioner has not established that it will be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-lB temporary "employee." 
5 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists 
or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for by the 
common-law test. See Darden, 503 U.S. at 323-24. 
6 
Matter of C-S-G-, Inc. 
Specifically, we conclude that the Petitioner has not submitted sufficient and consistent documentation 
regarding relevant aspects of the Beneficiary's employment. 
The Petitioner asserts that it will have employer-employee relationship with the Beneficiary while he 
performs his duties at the end-client's location ine=]washington. As discussed above, the record 
does not contain all relevant agreements to substantiate the claimed contractual relationship and to 
outline in detail the nature and scope of the Beneficiary's employment at the end-client's location. 
The Petitioner contends that it will have an employer-employee relationship with the Beneficiary 
because it will perform numerous administrative functions pertaining to the Beneficiary's employment 
such as hiring, firing, and providing benefits. Social security, worker's compensation, and 
unemployment insurance contributions, as well as federal and state income tax withholdings, and 
providing other employment benefits are relevant factors in determining who will control a 
beneficiary. Such factors may appear to satisfy a cursory review that a petitioning entity might be an 
individual's employer; however, these elements are not sufficient to provide a foll appraisal of the 
requisite relationship. We must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we must consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools, where the work will be located, and who has 
the right or ability to affect the projects to which a beneficiary is assigned, among other factors. A 
petitioner must sufficiently address the relevant factors to enable us to evaluate whether the requisite 
employer-employee relationship will exist between a petitioner and a beneficiary. 
Despite the Petitioner's repetitive assertions, it has not provided the specifics regarding the means of 
communication, supervision, assignment of work, and the performance evaluation of the Beneficiary 
while he is at the end-client's location. The Petitioner has not explained and documented in detail 
how it would supervise and otherwise control the Beneficiary's day-to-day activities from a remote 
location while he works for the end-client. The manner of the Petitioner's claimed supervision is largely 
in the form of weekly status reports that the Beneficiary provides to the Petitioner, rather than the 
Petitioner providing him with the necessary information on the project and assigning him daily work. 
The Petitioner states that the "Beneficiary is working under the supervision of Systems Analyst with 
Quality Assurance & Applications technology & skills" and submits an organizational chart depicting the 
Beneficiary as part of the "Other 65 Resources" within "Business Systems Analyst" section. The 
Petitioner does not identify a supervisor by name. However, a document providing the contact 
information for the Beneficiary indicates that he "Reports to" I I' "mgr software quality 
assurance. "6 
Overall, the evidence of record provides insufficient insight into how the Petitioner would direct and 
control the Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. While the 
Petitioner repeatedly asserts that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with the 
Beneficiary while he works at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative detail of the degree of supervision, direction, or control 
that the Beneficiary would receive from the Petitioner. As we noted earlier, the Petitioner did not 
6 According td~---~l's Internet profile, he is a quality assurance manager at._l __ _,l the end-client. 
7 
Matter of C-S-G-, Inc. 
submit all the relevant agreements into the record; therefore, we are unable to evaluate the terms and 
conditions set by the end-client. 
The record contains insufficient evidence to demonstrate that the reqms1te employer-employee 
relationship exists between the Petitioner and the Beneficiary. Therefore, the appeal is dismissed for 
this additional reason. 7 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-S-G-, Inc., ID# 4810849 (AAO Sept. 18, 2019) 
7 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter. we will 
not further address whether the Petitioner has established non-speculative employment for the Beneficiary. 
8