dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 4296590 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(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 had 
not established that (1) it would have the requisite employer-employee relationship with the 
Beneficiary; and (2) the Beneficiary would be employed in a specialty occupation position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. SPECIALTY OCCUPATION 
We will first address the issue of whether the Beneficiary will be perfonning services in a 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. 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
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: 
(]) 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. Chertojf, 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. Proffered Position 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve as a "UI developer." Although the Petitioner's address is inl I North Carolina, the 
Petitioner stated that the Beneficiary would work for its end-client at.__ ____ ~ __ _, in I ,I 
Texas through an agreement between the Petitioner and a vendor. The record indicates that the 
contractual path of the Beneficiary's assignment is as follows: 
Petitioner ---+ 
(Vendor) (End-Client) 
On the labor condition application (LCA)2 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. 
2 A petitioner submits the LCA to the U.S. Department of Labor (DOL) 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 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (2) does not establish that the job duties require an educational background, 
or its equivalent, commensurate with a specialty occupation. 3 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. See Defensor, 201 F.3d at 
387-388. 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. at 3 84. 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 Petitioner submitted a copy of its service agreement with the vendor, dated December 11, 2017, 
which indicates that the Petitioner will provide "services necessary to carry out the Scope of Work on 
each of the Scope of Work attachments" executed by the parties pursuant to the agreement. Although 
the agreement identified the Beneficiary as the "consultant," it also indicated that services rendered 
under the agreement would be provided by either the Beneficiary or any other employee pursuant to 
Section 14 of the agreement. 
The original agreement between the Petitioner and the vendor submitted in support of the petition was 
not accompanied by a Scope of Work (SOW). In response to the Director's request for evidence 
(RFE), however, the Petitioner resubmitted the agreement accompanied by an SOW. The SOW 
identified the end-client by name, and indicates that the "engagement" commenced on December 18, 
201 7, and was estimated to end on December 31, 2019. Regarding the work to be performed, the 
document listed the following three tasks: (1) Maintain/ enhance legacy applications and new 
development initiatives; (2) Architect and conceptualize new ideas, as well as provide hands on 
development; and (3) JavaScript, CSS3, HTML5, JSON, AJAX, jQUERY, NodeJS, AngularJS 1.0. 
The name of the project was not provided, nor was there any provision for extension of the agreement 
beyond the December 31, 2019, expiration date. 
The Petitioner also submitted a copy of a master worldwide standard service contract (Contract No. 
I ~ from 2005 between the vendor and the end-client. We note that only a title/cover page and 
page A8, which simply contains sections 9.1.3, 9.1.4, and 9.2 of the agreement and the signatures of 
the parties, was submitted. 4 The Petitioner also submitted a document entitled Master Professional 
Services Agreement, effective as of February 10, 2015. This document states that it seeks to amend 
Article B 12.1 of Contract No.I ~o reflect that the agreement is effective through February 10, 
2025. 
3 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. 
4 A full copy of this agreement was submitted for the first time on appeal. 
3 
The Petitioner also submitted letters from the vendor and the end-client. We note that the end-client's 
letter contains a shorter list of bullet-point duties to be performed by the Beneficiary than those listed 
in the vendor's letter and those stated by the Petitioner throughout the record. Moreover, the duties 
stated by the end-client differ from the brief statement of duties listed in the SOW accompanying the 
201 7 service agreement between the vendor and the Petitioner. Although both letters indicate that the 
Beneficiary's services may be extended through December 2019, neither letter identifies the project 
upon which the Beneficiary will work. 
Moreover, the vendor states in its letter that both it and the end-client require a bachelor's degree in 
information technology, computer science, electrical and electronics engineering, a closely related 
field, or "a combination of education and experience equating to the U.S. equivalent of a Bachelor's 
degree in one of the aforementioned subjects." However, we note that the end-client's letter is silent 
on the issue, and does not provide its minimum educational requirements for the Beneficiary's 
proffered position. Again as recognized by the court in Defensor, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor, 201 F.3d at 387-388. 
This omission, coupled with the lack of contemporaneous documentation establishing a current 
agreement for the Beneficiary's services between the vendor and the end-client, raise farther questions 
regarding the exact nature of the Beneficiary's proposed assignment. The project upon which the 
Beneficiary will allegedly work for the requested validity period (i.e., October 1, 2018, to September 
15, 2021), was never identified. The SOW accompanying the 2017 service agreement between the 
Petitioner and the vendor, which indicates an estimated engagement end date of December 31, 2019, 
expired prior to the expiration of the requested validity period. Moreover, while the record contains a 
"job order" for the Beneficiary's services through December 2019, we farther note that this document 
references a different master contract I I) than that submitted into the record. Finally, the 
absence of an SOW between the vendor and the end-client for the Beneficiary's services raises farther 
questions regarding the existence of the claimed assignment. 
We farther note the submission of photographs, emails, and an affidavit from a co-worker of the 
Beneficiary suggesting she is performing services at the end-client location. However, as discussed 
above, absent documentation establishing the nature and duration of the Beneficiary's assignment and 
his associated duties for the period from October 1, 2018 to September 15, 2021, these documents are 
not persuasive. 
Therefore, the record of proceedings does not contain sufficient documentary evidence from the vendor 
and the end-client that establishes the contractual path under which the Beneficiary's assignment will 
commence. In fact, the documentation in the record does not sufficiently establish for whom the 
Beneficiary will actually render services, because the 201 7 service agreement and SOW executed 
between the parties expired prior to the expiration of the requested validity period, and the agreement 
between the vendor and the Petitioner merely makes a generic reference to clients of the vendor, without 
specifically identifying the end-client by name. This lack of documentation prohibits a determination that 
specialty occupation had been secured for the Beneficiary at the time of filing. Without documentary 
evidence that delineates the contractual terms between the end-client and the vendor, including the 
true duties and the requirements for the position, we are unable determine the substantive nature of 
4 
the proffered position. As discussed above, the assertions in the vendor and end-client letters regarding 
the Beneficiary's assignment are not supported by contemporaneous contractual documentation. 
Absent documentation establishing the contractual path between the parties, and without documentary 
evidence that covers the duration of the period of employment requested, we are not able to ascertain 
what the Beneficiary would do, where the Beneficiary would work, or how this would impact 
circumstances of her relationship with the Petitioner. A petition must be filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 5 The 
Petitioner has not demonstrated the substantive nature of the duties the Beneficiary would perform. 
The Petitioner's failure to 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.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 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. 
The Petitioner has not 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. 
II. EMPLOYER-EMPLOYEE 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. Nevertheless, we concur with the Director's 
determination that the record as constituted does not establish that the Petitioner meets the regulatory 
definition ofa United States employer under 8 C.F.R. § 214.2(h) (4) (ii). 
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- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB classification is not intended as a vehicle for an individual 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 individual is properly classifiable as an H-lB 
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 ofa specific bachelor's degree. See 
section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine 
whether the individual 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 
individual 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). 
5 
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)). 
In the instant case, the record contains insufficient evidence regarding where the Beneficiary will 
work, and who will supervise his work. Although the itinerary provided by the Petitioner indicated 
that the Beneficiary will report directly tol I the Petitioner's human resources manager, 
no documentation to support this claim was submitted. 6 It is unclear in what manner this individual 
would supervise the Beneficiary (i.e., remotely or onsite ). While we acknowledge that remote 
supervision is certainly feasible, the record as constituted is unclear first, with regard to the existence 
of an assignment for the Beneficiary at the claimed end-client location and second, with regard to 
I Is role and level of familiarity in the project. As the actual existence of the claimed 
project has not been established, the claims of the Petitioner regarding the Beneficiary's supervision 
and the manner in which she will complete her duties cannot be verified. 
In addition, we note that the service agreement between the Petitioner and the vendor states that the 
"the number of hours expended in performing work by [the Petitioner] for the Client pursuant to this 
Agreement must be substantiated by a representative of the Client on a [vendor] provided work record 
in order to constitute Approved Hours." However, the copies of the Beneficiary's timesheets are not 
vendor generated but are on the Petitioner's letterhead and approved by I O l not a 
representative of the end-client as required by the service agreement. The manner in which the 
Beneficiary would report her time pursuant to the agreement with the vendor is therefore unclear, as 
6 While the record contains documentation demonstrating that this individual has in fact conducted performance 
evaluations for the Beneficiary, the absence of evidence pertaining to the specific project upon which the Beneficiary will 
work and the particulars of that project, such as who will directly supervise and assign the Beneficiary's work, prohibits 
us from determining the manner in which the Petitioner will supervise and control the Beneficiary. 
6 
the timesheets included in the record are recorded through the Petitioner on the Petitioner's letterhead. 
Doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 7 
Absent documentary evidence such as contracts or SOWs establishing the nature and duration of the 
project, the expectations and responsibilities of the Beneficiary, and the manner in which work is 
assigned and supervised, we cannot satisfactorily determine who would supervise the Beneficiary's 
work and how that supervision would be exercised, given that the Petitioner's offices are in North 
Carolina and the Beneficiary will work in Texas. Therefore, the record as currently constituted does 
not establish that the requisite employer-employee relationship exists. 
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 a 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. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
would exercise complete control over the Beneficiary does not establish eligibility in this matter. 
Therefore, the petition must be denied for this additional reason. 
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. 
7 Finally, we note a further discrepancy. While the record contains documentation from Fall 2018, including the 
above-referenced timesheets and performance reviews, the Beneficiary's timesheets and STEM/OPT employment 
documents indicate she worked no less than 40 hours per week, yet her pay stubs indicate 0.00 for hours worked despite 
her being paid what appears to be a full salary. A few errors or minor discrepancies are not reason to question the credibility 
of a beneficiary or a petitioner seeking immigration benefits. See, e.g., Spencer Ente1prises, Inc. v. United States, 345 
F.3d 683, 694 (9th Cir. 2003). However, anytime a petition includes numerous errors and discrepancies, and a petitioner 
does not resolve those errors and discrepancies after USCIS provides an opportunity to do so, those inconsistencies will 
raise serious concerns about the veracity of a petitioner's assertions. 
7