dismissed H-1B Case: Software Development

(b)(6)
MATTER OFT- , INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 16, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "Programmer Analyst" under the H-1B nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 10l(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The Director, Vermont Service Center, denied the petition. The matter is now before us on appeal. 
Upon de novo review, we will dismiss the appeal. 
I. ISSUES 
The Director denied the petition, finding that the evidence of record did not establish that the 
Petitioner meets the definition of a United States employer. Beyond the decision of the Director, we 
will also address the issues of whether the proffered position qualifies as a specialty occupation, and 
whether the Beneficiary is qualified to perform services in a specialty occupation. 
II. THE PROFFERED POSITION 
On the Form I-129, the Petitioner described itself as a three-employee software development and 
consulting company located in Virginia. The Petitioner indicated that the Beneficiary will 
work off-site in , Virginia. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and title 15-1132, 
"Software Developers , Applications." The LCA listed the aforementioned addresses in and 
Virginia, as the Beneficiary's two places of employment. 
In its support letter, the Petitioner confirmed its intent to employ the Beneficiary as a Programmer 
Analyst, and listed the following job duties for him (verbatim): 
1. Analyze, design, develop, prototype, implement and enhance software in order to 
meet current and future customer business requirements. 
2. Will work with user areas to analyze and optimize business processes, find and 
solve problems with existing software, data and procedures. 
(b)(6)
Matter ofT-, Inc. 
3. Develop software and study existing procedures and transform them to software 
solutions facilitating office automation. 
4. Write detailed description of user needs and document steps required to develop 
or modify computer applications. 
5. Study existing information processing systems to evaluate effectiveness and 
develop new systems to improve production or work flow as required. 
6. Conduct studies pertaining to development of new information systems to meet 
current and projected needs. 
7. Develop and maintain proficiency in utilizing technical and analytical tools to 
give optimum results to the management and business. 
8. Analysis, conversion of coding, code walkthrough, unit and integration testing. 
In a letter submitted in response to the Director's request for evidence (RFE), the Petitioner clarified 
that the two places of employment listed on the LCA represent the Petitioner's two office locations, 
with the address being the Petitioner's "primary office location" and the address 
being the "secondary location." The Petitioner then asserted that the Beneficiary "has been assigned 
to work on a project with [an] end client" and "will be working at the End Client's location [in] 
_ Virginia." The Petitioner stated that "while this location was not included in the 
submitted LCA, it is within commutable distance of the locations covered." 
The Petitioner 
submitted a letter from the end-client stating that it "has contracted with [the 
Petitioner] in order to use the services of [the Beneficiary] starting from 10/01/2014," and listed the 
Beneficiary's duties as follows (verbatim): 
1. Design and Create Mapping Documents based on Business functional 
requirements. 
2. Maintain existing data warehouse, Staging and ODS tables for Business and CRM 
applications. 
3. Modify and improve performance of existing jobs in Datastage (ETL) for 
migration from Sustain into BIS; 
On appeal, the Petitioner submits a second letter from the end-client stating that it "has contracted 
with [the Petitioner] in order to use the services of [the Beneficiary] starting from 03/24/2014." This 
letter listed the same job duties for the Beneficiary as contained in its earlier letter. 
III. UNITED STATES EMPLOYER 
We will first discuss whether the Petitioner has established that it meets the regulatory definition of a 
United States employer as that term is defined at 8 C.F .R. § 214.2(h)( 4 )(ii). 
2 
Matter ofT-, Inc. 
A. Legal Framework 
Section 101 ( a)(15)(H)(i)(b) of the Act defines an H-1 B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in 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)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations 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), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classifY individuals as H-lB 
temporary "employees." 8 C.F.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-lB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
3 
Matter ofT-, Inc. 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes of the H -1 B visa classification, these terms are undefined. 
The United States Supreme Court has 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 this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H -1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.1 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of I 974 (ERISA), 29 U.S.C. § l 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common Jaw agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
4 
Matter ofT-, Inc. 
Specifically, the regulatory definition of"United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-19? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h)? 
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, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .... " (emphasis added)). 
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). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
101 (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common Jaw definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § ll84(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § l324a (referring to the employment of 
unauthorized individuals). 
5 
Matter ofT-, Inc. 
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 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 v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.F.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). 
Furthermore, when examining the factors relevant to determining control, USCIS 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. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents ofthe relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
We agree with the Director that the Petitioner has not submitted sufficient evidence establishing that, 
at the time of filing the visa petition, it had work available for the Beneficiary to perform and will 
engage the Beneficiary to work within the United States.4 
4 Specifically, the Director determined that the Petitioner satisfied the second and third prongs of the definition of United 
States employer at 8 C.F.R. § 214.2(h)(4)(ii). However, we will withdraw the Director's determination that the 
Petitioner has satisfied the second prong, i.e., that the Petitioner will have "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." As discussed in this decision, we find the evidence of record insufficient to establish that 
the Petitioner will have an employer-employee relationship with the Beneficiary. 
(b)(6)
Matter ofT-, Inc. 
The Petitioner asserted that the Beneficiary will work for the end-client at the end-client's work-site 
in Virginia. However, the record of proceeding does not contain consistent, reliable 
evidence establishing that the Petitioner had secured this claimed assignment for the Beneficiary as 
of the date the instant petition was filed on April4, 2014. The Purchase Order, Professional Services 
Attachment, and Master Agreement between the Petitioner and the end-client were not entered into 
until September 2014. Similarly, the end-client's first letter, dated September 17, 2014, indicated 
that it had not contracted with the Petitioner for the Beneficiary's services until October 1, 2014. 
These documents are therefore insufficient to establish that the Petitioner had work available for the 
Beneficiary at the time of filing. 
USCIS regulations affirmatively require a pet1t10ner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be 
approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 
Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See In re Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
On appeal, the Petitioner indicates that the contractual agreement between itself and the end-client 
for the Beneficiary's services was orally entered into on March 24, 2014, but not "deduced into 
writing" until a later time. The Petitioner thus asserts that "the project with the end client ... did 
exist at the time the petition was filed and that, therefore, the Petitioner can establish eligibility at the 
time of filing that work is available." The Petitioner's assertions, however, are not persuasive and 
corroborated by objective, reliable evidence. 
To support its assertion that the Petitioner had entered into a contractual agreement with the end­
client prior to the date of filing, the Petitioner submitted the second letter from the end-client stating 
that it "has contracted with [the Petitioner] in order to use the services of [the Beneficiary] starting 
from 03/24/2014." This letter is inconsistent with the first end-client letter, which stated that the 
end-client contracted with the Petitioner for the Beneficiary's services "starting from 10/012014." 
Merely submitting another letter from 
the end-client with a revised start date, without further 
explanation from the end-client explaining the inconsistencies and/or additional objective evidence, 
is insufficient to establish the truth of the matter. "[I]t is incumbent upon the petitioner to resolve 
the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
Notably, the regulations require "a summary of the terms of the oral agreement under which the 
beneficiary will be employed, ifthere is no written contract." See 8 C.F.R. § 214.2(h)(4)(iv)(A), (B). 
However, the Petitioner did not submit a summary of the actual terms of the oral agreement, such as 
what the Beneficiary's position title, duties, and length of service will be for the end-client, with the 
initial supporting evidence. In fact, the Petitioner did not claim the Beneficiary as working for this 
particular end-client or at the end-client's premises in on the Form I-129 or LCA. 
(b)(6)
Matter ofT-, Inc. 
Instead, the Petitioner vaguely stated that the Beneficiary will provide services for "current and 
future customer[ s]. "5 Considering these factors, the Petitioner has not established that it, more likely 
than not, had secured the Beneficiary's work assignment for this particular end-client prior to the 
date of the filing. "Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition." Matter of Ho, 19 I&N Dec. at 591. 
We have also determined that the Petitioner has not established that it will have "an 
employer-employee relationship" with the Beneficiary, as indicated by the fact that it may hire, pay, 
fire, supervise, or otherwise control his work. See id. 
The end-client letters, Purchase Order, Professional Services Attachment, and Master Agreement do 
not discuss in sufficient detail the nature and manner in which the Petitioner will supervise or 
otherwise control the Beneficiary's work performed off-site at the end-client's premises. For 
instance, the end-client letters state that the Petitioner "manages and implements this project" while 
the end-client "defines the requirements and specifications of the project." These letters also state 
that the Beneficiary will be "reporting to [the Vice President] at [the end-client], and he shall be 
internally supervised by [the Petitioner's President]." However, the letters did not provide additional 
details or clarification, such as what was meant by the statement that the Beneficiary will be 
"reporting to" the end-client's Vice President. Furthermore, there is no additional explanation 
regarding the nature of the relationship between the end-client's Vice President and the Petitioner's 
President with respect to the Beneficiary's day-to-day work. Therefore, the key elements in this 
matter, i.e., who exercises supervision or control over the Beneficiary's work, have not been 
substantiated. 
The Petitioner stated that it will "maintain right to control over when, where, and how the 
Beneficiary performs the j~b through inbuilt mechanisms such as periodic status reports, timesheets, 
performance evaluation, off-site supervision using phone calls, reporting back to main office, or site 
visit by Petitioner." The Petitioner further stated that it "continues to provide the tools or 
instrumentalities needed for the Beneficiary to perform the duties of employment to the extent 
permitted by the client." However, the Petitioner did not provide further details and corroborating 
evidence from the end-client to support these assertions. The Petitioner 's assertions that it will 
5 The Petitioner acknowledges in its RFE response that the end-client's work location "was not included 
in the submitted LCA." Nevertheless, the Petitioner asserts that the end-client's location "is within the commutable 
distance of the locations covered ," and thus, the Petitioner is "fully in compliance with the conditions of the previously 
submitted LCA." The Petitioner's explanation is not persuasive and relevant to the matter at hand. Whether or not the 
Petitioner remains in compliance with the LCA, the Petitioner still has not explained why it did not initially disclose the 
end-client's work location on the LCA (and other initial documentation). The fact that 
the Petitioner did 
not initially disclose the end-client or the end-client's work location in any of the initial documentation indicates that the 
Petitioner had not secured the Beneficiary 's assignment to the end-client at the time of filing. While the Petitioner 
subsequently disclosed the end-client and end-client location in response to the Director 's RFE, we again note that the 
Petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See In re !zummi, 22 I&N Dec. at 176. 
Matter ofT-, Inc. 
exercise control over the Beneficiary are insufficient to establish eligibility in this matter. "[G]oing 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings." In re So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
While payroll, tax withholdings, and other employment benefits are relevant factors in determining 
who will control the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct 
the work of the Beneficiary, who will provide the instrumentalities and tools, where will the work be 
located, and who has the right or ability to affect the projects to which the Beneficiary is assigned, 
must also be assessed and weighed in order to make a determination as to who will be the 
Beneficiary's employer. Without full disclosure of all of the relevant factors, we are unable to find 
that the requisite employer-employee relationship will exist between the Petitioner and the 
Beneficiary. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). The Director's decision must be affirmed and the petition 
denied on this basis. 
IV. SPECIALTY OCCUPATION 
Beyond the Director's decision, we also find the evidence of record insufficient to establish that the 
proffered position qualifies as a specialty occupation. We will withdraw the Director's comment 
that "the job duties described appear to be specialty occupation in nature." 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
9 
Matter ofT-, Inc. 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.P.R. § 214.2(h)( 4 )(iii)( A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 P.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"). Applying this standard, USC IS regularly approves H -1 B petitions for qualified 
10 
Matter ofT-, Inc. 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 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. 
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. See Defensor v. Meissner, 201 F.3d at 387-88. 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 
We also find the evidence insufficient to establish that the proffered pos1t10n qualifies for 
classification as a specialty occupation. 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. In other words, as the nurses in that case would provide services 
to the end-client hospitals and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 
Here, the record of proceeding is similarly devoid of sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The end­
client letters describe the Beneficiary's job duties in brief, generalized terms that fail to convey the 
substantive nature of the proffered position and its constituent duties. For example, the end-client 
letters list duties such as "[m]aintain existing data warehouse, Staging and ODS tables for Business 
and CRM applications" and "[ m ]odify and improve performance of existing jobs in Datastage (ETL) 
11 
Matter ofT-, Inc. 
for migration from Sustain into BIS." The record of proceeding does not contain a more detailed 
description explaining what particular duties the Beneficiary will perform on a day-to-day basis 
(e.g., what is meant by "maintain existing data warehouse" and "[ m ]odify and improve 
performance"). Nor is there a detailed explanation regarding the demands, level of responsibilities, 
complexity, or requirements necessary for the performance of these duties (e.g., what "Sustain" and 
"BIS" refer to, what specific systems and applications are involved, and what body of knowledge is 
required to perform the duties).6 In fact, the evidence of record does not specifically identify what 
particular project the Beneficiary will be assigned to at the end-client's premises. While the end­
client letters make vague references to "this project" or "the project," these letters do not further 
identify the name, nature, and other pertinent aspects of the "project." 
In addition, the Beneficiary's job duties as listed by the end-client appear different from those job 
duties listed by the Petitioner. 7 For example, the end-client letter listed the duty of "[m]aintain 
existing data warehouse, Staging and ODS tables for Business and CRM applications." However, 
this particular job description is not found in the Petitioner's job descriptions, and the Petitioner's 
job descriptions do not appear to include any similar job duties involving the maintenance of an 
existing data warehouse. 8 The Petitioner has not explained how its stated job duties are consistent 
with those listed by the end-client. Again, it is incumbent upon the Petitioner to resolve 
inconsistencies in the record. See Matter of Ho, 19 I&N Dec. at 591. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from finding that the proffered position 
satisfies any criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that 
work that determines (1) the normal minimum educational requirement for 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 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. 
6 While the end-client letters state the educational requirements for this position (i.e., a bachelor's degree or equivalent in 
computer science, computer applications, engineering, IT, management information systems, or related fields), this 
general statement regarding the minimum educational requirement is insufficient to explain what body of knowledge is 
required to perform each ofthe three listed job duties. 
7 To clarify, we are not relying upon the Petitioner's descriptions as evidence of the Beneficiary's actual job duties for 
the end-client. In general, petitioner-provided job duties are not relevant to determining a beneficiary's specific duties 
for an end-client. Rather, we are considering the Petitioner's job descriptions here for the more limited purpose of 
highlighting the differences between the job descriptions. 
8 The Petitioner's descriptions of the job duties are also vaguely worded, and thus, we cannot determine the specific 
duties involved as compared to the end-client-provided duties. 
12 
Matter ofT-, Inc. 
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. For this additional reason, the petition cannot be approved. 
V. BENEFICIARY QUALIFICATIONS 
Also beyond the Director's decision, we find the evidence of record insufficient to establish that the 
Beneficiary is qualified to perform the services of a specialty occupation. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for 
classification as an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, 
and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states 
that a beneficiary must also meet one of the following criteria in order to qualify to perform services 
in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
13 
Matter ofT-, Inc. 
the specialty through progressively responsible positions directly related to the 
specialty. 
Therefore, to qualify the Beneficiary for classification as an H-lB nonimmigrant worker under the 
Act, in this matter, the Petitioner must establish that the Beneficiary has completed a degree in the 
specialty that the occupation requires. If the Beneficiary does not possess the required U.S. degree 
or its foreign degree equivalent, the Petitioner must show that the Beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more ofthe following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 9 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
9 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
14 
Matter ofT-, Inc. 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks . . . . It must be clearly 
demonstrated that the alien's training and/or work experience included the theoretical 
and practical application of specialized knowledge required by the specialty 
occupation; that the alien's experience was gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation; and that the alien has recognition of expertise in the specialty evidenced 
by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 10 
(ii) Membership in a recognized foreign or United States association or society in 
the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation m a foreign 
country; or 
( v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the sp~cialty occupation. 
It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly 
for users application and determination, and that, also by the clear terms of the rule, experience 
will merit a positive determination only to the extent that the record of proceeding establishes all of 
the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, but not limited to, a type of 
recognition of expertise in the specialty occupation. 
B. Analysis 
As evidence of the Beneficiary's qualifications, the Petitioner submitted evidence of the 
Beneficiary's educational credentials earned in India. The Petitioner did not, however, submit an 
evaluation indicating what the Beneficiary's foreign educational credentials equate to in terms of a 
U.S. degree. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(l), (3). 
10 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in 
that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)( 4)(ii). A recognized authority's 
opinion must state: (I) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, citing 
specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions were 
reached; and ( 4) the basis for the conclusions supported by copies or citations of any research material used. !d. 
15 
Matter ofT-, Inc. 
The Petitioner also submitted letters from the Beneficiary's previous employers verifying the titles 
and dates of his employment. However, these letters are insufficient for the Service to make a 
determination that the Beneficiary possesses a U.S. bachelor's or higher degree through a 
combination of his education, specialized training, and/or work experience pursuant to 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(D)(5). Aside from the Beneficiary's dates of employment and position titles, these 
letters do not provide additional, relevant information describing the actual job duties that the 
Beneficiary performed. Without additional information and evidence describing the Beneficiary's 
prior work experience and training, it cannot be found that the Beneficiary possesses the requisite 
training, work experience, and recognition of expertise in a specialty occupation as specified in 8 
C.P.R.§ 214.2(h)(4)(iii)(D)(5). 
For these reasons, the Petitioner has not established that the Beneficiary is qualified to perform 
services in a specialty occupation. 
VI. CONCLUSION 
The evidence of record is insufficient to establish that: (1) the Petitioner meets the definition of a 
United States employer; (2) the proffered position qualifies as a specialty occupation; and (3) the 
Beneficiary is qualified to perform services in a specialty occupation. The petition will be denied 
and the appeal dismissed for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). Moreover, 
when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it shows that we abused our discretion with respect to all of the enumerated grounds. See id. at 
1037; see also BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers 
multiple grounds for a decision, we will affirm the agency so long as any one of the grounds is valid, 
unless it is demonstrated that the agency would not have acted on that basis if the alternative grounds 
were unavailable."). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-, Inc., ID# 14435 (AAO Feb. 16, 2016) 
16