dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6206444 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 27, 2020 
The Petitioner, a technology and service provider, seeks to temporarily employ the Beneficiary as a 
"software developer" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(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 of the Vermont Service Center denied the petition, concluding that the Petitioner would 
not have an employer-employee relationship with the Beneficiary during the requested period. On 
appeal, the Petitioner submits additional evidence and asserts that the Director erred. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 1 Before we discuss the identified basis for denial, which 
is dispositive of the Petitioner's appeal, we will discuss another ground of ineligibility . Specifically, 
we conclude that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(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 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 sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
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employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
The Petitioner indicated on the petition and on the certified labor condition a lication LCA 3 that 
the Beneficiary will work as a "software developer" for ~------~--------____. 
("end-client" or I ~ inl I Maryland, for the requested period of employment from 
June 2018 to June 2021. The Pet1t1oner describes the relationship with the end-client as follows: 
The Petitioner lllllllt ~--------~ 
(vendor) ( end-client) 
In support of the contractual relationship, the Petitioner submitted a services agreement (SA) the 
vendor and the end-client executed in June 2013. However, the SA does not commit the end-client to 
any contract with the vendor for any particular services during any period or at any location. Rather, 
the agreement's language indicates that the end-client "desires to have VENDOR perform services 
and/or provide various deliverables ... which ... shall be more specifically described and defined in 
exhibits attached hereto." The record does not contain an attachment or a statement of work (SOW) 
that is signed by the vendor and the end-client specifically describing and defining the work to be 
provided for the end-client. The information contained in the SA 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. Without additional documents, the SA 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 Petitioner also submitted a master services agreement (MSA) that it executed with the vendor in 
May 2018. The MSA states that the Petitioner will provide services to the vendor or to the vendor's 
clients as "described in the 'Scope-of-work' and other sections of one or more statements of work 
attached hereto and incorporated herein as Exhibit A ('SOW' or 'SOW(s)'). Henceforth, the work 
contemplated in each SOW shall be referred to as a 'Project'." The Petitioner submitted a SOW 
executed on May 31, 2018, by the Petitioner and the vendor, which states that the Petitioner "will 
provide software programmer(s) and/or tester(s) ('Programmer(s)') on a Time and Material basis for 
the Project. The Programmer(s) will work under the direction of [the vendor's] Project Coordinator 
or [the vendor's] Client's Project Manager." The SOW identifies the Beneficiary and the end-client 
by name, the duration and the location of the project, and more. However, the SOW does not provide 
sufficient information regarding the specific duties that the Beneficiary will perform for the 
end-client's project. 
2 The Petitioner submitted documentation to support the H- IB 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. 
3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-IB 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 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
3 
The two identical letters from the vendor confirm the Beneficiary's assignment at the end-client and 
provide a list of the Beneficiary's duties. 4 However, the record does not contain the Beneficiary's 
duties from the end-client to establish 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. The brief letter from the end-client states that "letters of 
employment, or other types of documents, will not be provided to consultants and consulting firms for 
consulting services provided to [the end-client]." The letter does not provide any information 
regarding the end-client's project or the services to be provided by the Beneficiary. 5 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. We must examine the ultimate 
employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor, 201 F.3d 384. The critical element is not the title of the position 
or an employer's self-imposed standards, but whether the position actually 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 as the minimum for entry into the occupation, as required by 
the Act. 
Also critical is the lack of evidence directly from the end-client regarding whatever academic 
requirement it has for the proffered positon. Although the Petitioner claimed that the position requires 
a bachelor's degree or the equivalent in computer science, computer information systems, electrical 
engineering, or a related field, there is insufficient evidence that the end-client imposes the same 
requirement. 6 A preference for high-caliber employees is not sufficient to establish a position as a 
specialty occupation. As discussed above, because the Beneficiary will be directly working for the 
end-client at the end-client's place of business, the end-client job requirements are critical in 
determining whether the position qualifies as a specialty occupation. See generally Defensor, 201 
F. 3d 384. Here, the end-client did not indicate a degree requirement in a specific specialty for the 
proffered position. 
We reviewed the letter submitted byl I a professor at the University oti._ ____ ___. 
and find his opinion of the proffered position conclusory without sufficient analysis of the position at 
the end-client. According tol _ I the "position of Software Developer with [the Petitioner] 
undoubtedly qualifies as a specialty position, and ... the position requires a candidate with no less 
than the equivalent of a Bachelor's degree in Computer Science, Electronics Engineering, or a related 
field."I lstated that to form his opinion, he reviewed the Petitioner's "support letter and the 
detailed job description provided by [the Petitioner]." However,! ldid not discuss the 
proffered position at the end-client. The absence of any substantive discussion of the duties specific to 
the end-client's project raises doubts about his level of familiarity with the proffered position and also 
undermines his conclusion regarding the degree requirement of the position. We may, in our discretion, 
4 For the sake of brevity, we will not quote the duties listed by the vendor; however, we have closely reviewed and 
considered them. 
5 The record contains a document that provides information about the end-client's project; however, the document is 
unsigned and the source of this information is unknown. 
6 Notably, while the vendor states that the job duties require a bachelor's degree or the equivalent, it does not identify a 
specific specialty. 
4 
use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, 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. 
Given the insufficient evidence from the end-client regarding the position and its requirements, we 
conclude that the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for 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. 
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-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(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: 
(]) 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.) 
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 
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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. 7 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 
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." Specifically, we conclude that the Petitioner 
has not submitted sufficient 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 in Maryland. As discussed above, the record does not 
contain sufficient information from the end-client 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 him with benefits. Similarly, the vendor states that the Petitioner 
will be responsible for any "[p ]ayroll, [h ]iring, firing, controlling his work; necessary insurance and 
any additional employee benefit and immigration related matters." 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 
7 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 
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 full 
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. 
The MSA and SOW signed by the Petitioner and the vendor contain provisions that undermine the 
Petitioner's assertion that it will have an employer-employee relationship with the Beneficiary. For 
example, according to the MSA, the vendor or the end-client provides the instrumentalities needed for 
the work rather than the Petitioner. The MSA states that "[the vendor] (or [the vendor's] Client) will 
provide Subcontractor with the work space, computer equipment and other resources." Notably, the 
MSA also states that the vendor and its clients ''will have the right to approve or disapprove of [ the 
Petitioner's] proposed Deployed Personnel in its sole discretion" and that the Petitioner "will not reassign 
Deployed Personnel ... to any of its other clients without first informing [the vendor] and getting a written 
approval of [ the vendor]," raising additional questions regarding the Petitioner's autonomy over assigning 
its staff to projects. Furthermore, according to the SOW, the Beneficiary "will work under the direction 
of [the vendor's] Project Coordinator or [the vendor's] Client's Project Manager," which contradicts 
the Petitioner's assertion that it will supervise the Beneficiary's work during his assignment at the 
end-client. 
Despite the Petitioner's assertion, it has not provided sufficiently detailed information regarding the 
means of supervision and assignment of work 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, assign 
Beneficiary's work, and otherwise control the Beneficiary's day-to-day activities from a remote 
location while he works for the end-client. The Petitioner submitted the 2018 performance review 
along with several quarterly and monthly performance reviews of the Beneficiary. However, these 
documents were not signed by the Petitioner or the Beneficiary. Furthermore, the manner of the 
Petitioner's claimed supervision appears to be largely in the form of "weekly status reports" of the tasks 
accomplished that the Beneficiary provides to the Petitioner, rather than the Petitioner providing him 
with the necessary information on the project and assigning his daily work. 
Overall, the evidence 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. 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. 
The record contains insufficient evidence to demonstrate that the requisite employer-employee 
relationship exists between the Petitioner and the Beneficiary. 
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. 
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