dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7871984 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
The Petitioner 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 101(a)(15)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b). The H-lB program allows a 
U.S. employer to temporarily employ a qualified foreign worker in a position that requires both: (a) 
the theoretical and practical application of a body of highly specialized knowledge; and (b) the 
attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum 
prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that: (I) the Petitioner will have an employer -employee relationship with 
the Beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
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; Matter ofSkirball Cultural Ctr., 25 I&N Dec . 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the evidence of record establishes that the proffered position qualifies 
as 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 . 
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 and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
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will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner, which is located in Texas, stated that the Beneficiary would work at the end-client's 
location in Georgia, pursuant to contracts executed between the Petitioner and the vendor, and between 
the vendor and the end-client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ End-Client 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client in Georgia. In support of this assertion, the Petitioner submitted a Consulting 
Services Agreement (CSA) executed between the Petitioner and the vendor. The Petitioner has not 
established this document's relevance to the Beneficiary's assignment as it does not reference the 
Beneficiary; the job title of the proffered position; the job duties and tasks to be performed by a 
software developer, the proffered position; or the end-client. Nor does the document reference the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end-client, or the 
expected duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a statement of work (SOW) executed between the Petitioner and the 
vendor. Although the SOW mentions the Beneficiary and the end-client, it does not reference the job 
title of the proffered position; or the job duties and tasks to be performed by a software developer, the 
proffered position. Moreover, the SOW states that the Beneficiary's services will begin in December 
2018 and end in December 2019. Thus, it appears that the Beneficiary's services will end 
approximately one year after the requested H-1 B start date. 
In addition, the Petitioner submitted a Client Agreement (CA) executed between the vendor and the 
end-client. The CA states: 
For any technical personnel who will be performing services for Client pursuant to this 
Agreement, FIRM will issue and Client will execute an Engagement Schedule in the 
form attached as Appendix A hereto referencing its incorporation of the terms and 
conditions of this Agreement and stating the name( s) and the payment rate( s) of the 
personnel, duration of services, brief description of project, authorization of additional 
costs beyond the payment rate(s) (such as travel, parking, drug testing), and any other 
terms to which FIRM and Client may choose to agree. 
However, the record does not contain an engagement schedule as referenced at item 1 of the CA. 2 
Absent an executed engagement schedule (or similar agreement such as an SOW or work order), the 
1 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 Though acknowledged, the engagement schedule submitted on appeal describing a project extending through 2020 does 
not demonstrate the Petitioner's eligibility at the time of filing because it was executed in September 2019, approximately 
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CA alone creates no obligation on the part of the vendor - let alone the end-client - to provide the 
position described in the petition. The CA alone is a general agreement for the vendor to provide 
personnel to the end-client. The CA does not specify services for the Petitioner to provide; a job title 
to perform the services; the duties of a position with such a job title; academic requirements to perform 
such duties; or identify the Beneficiary or any other individual assigned to perform the duties. 
Therefore, the referenced documents are not sufficient to substantiate what type of work the 
Beneficiary would perform for the end-client for the duration of the requested validity period. 
These documents - the CSA, CA and SOW - are the only legal documents that purport to create 
any obligation to provide work for the Beneficiary to perform. They create no obligation on the part 
of the end-client. 3 They do not establish the existence of a specialty occupation position at the end­
client's worksite. In other words, there is no evidence of any obligation on the part of end-client to 
provide the position the Petitioner describes in this petition for the Beneficiary. There is little 
indication that this petition was filed for non-speculative employment. If we cannot determine whether 
the position as described by the Petitioner actually exists, then we cannot ascertain its substantive 
nature, let alone determine whether it is a specialty occupation. 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted letters from the vendor and the end-client. 
Upon review, we observe that the vendor's and the end-client's job duty descriptions contain verbatim 
language. The verbatim language found in the duty descriptions in the letters from the end-client and 
the vendor raise questions regarding whether the end-client's signatory actually wrote the descriptions 
and, therefore, whether it reflects the end-client's actual requirements. Where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. Defensor, 201 F.3d at 387-88. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
description does not provide sufficient information about the duties to determine their complexity. 
That is, neither the Petitioner nor the end-client have sufficiently explained how some of the tasks 
require a bachelor's degree in a specific specialty, or its equivalent, such as: 
• Organizing meetings with the Business and consolidating the requirements. 
• Going through the Business requirement document and understanding. 
eight months after the petition was filed and approximately six months after the Director issued her request for additional 
evidence (RFE). We therefore question whether the engagement schedule was created for purposes of bolstering this 
H-IB petition. 
U.S. Citizenship and Immigration Services (USCTS) regulations affirmatively require a petitioner 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 T&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 USCTS requirements. Sec Matter of lzummi, 22 
T&N Dec. 169, 176 (Assoc. Comm'r 1998). The engagement schedule executed between the vendor and the end-client 
therefore carries little evidentiary weight. 
3 Though acknowledged, the letters from the Petitioner, the vendor, and the end-client do not serve to fill this gap. as they 
are not evidence of an obligation on the part of the end-client to provide the position the Petitioner describes. 
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• Conducting the Gap review meeting up. 
• Participate in project planning, sprint planning, and user story grooming sessions, sprint 
retrospectives, demoes, reviews, and scrum meetings. 
• Prepare details level design documents as per software. 
• Exploring optimal technical solutions. 
• Application support activities including installing and maintain the application. 
• Helping customers troubleshoot issues they encounter while using the Application. 
• Interacting with customers timely and provide actionable tips to resolve the problem. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of the work that the Beneficiary will 
perform for the stated end-client, we are unable to evaluate whether the proffered position satisfies 
any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether the Petitioner qualifies as an H-lB employer. 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 C,nty. 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." 
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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)). 
As such, 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 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. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Even if the parties contracted for sufficient work, the record 
does not sufficiently establish how the Petitioner, located in Texas, would supervise the work 
performed by the Beneficiary at the end-client's location in Georgia. In fact, the record shows that 
the Petitioner has provided inconsistent information regarding the Beneficiary's supervisor. In its RFE 
res onse and organizational chart, the Petitioner states that the Beneficiary will be supervised by 
______ ..,. However, the Beneficiary's weekly status reports and performance reviews indicate 
.,.... _____ ____. as the supervisor. In addition, the Beneficiary's time sheets are approved byl I 
There is no explanation in the record for these inconsistencies. 
In its RFE response, the Petitioner asserted that it "will supervise the beneficiary on a daily basis and 
maintain regular, constant communication and contact with the beneficiary through electronic mail, 
conference calls, and messaging." The Petitioner further stated that the Beneficiary's supervisor "will 
review the beneficiary's work time sheets to ensure the accuracy of work as well as the performance 
level." 
In support of its assertion, the Petitioner submitted copies of the Beneficiary's weekly status reports 
and weekly time sheets. However, the Petitioner does not explain how such weekly status reports and 
weekly time sheets would translate to performance standards, how they are used for assessing and 
evaluating the Beneficiary's work, and/or the criteria for determining bonuses and salary adjustments. 
The record does not contain any further specific information from the Petitioner regarding if and when 
the reports are reviewed or analyzed; the methods used for assessing the reports; any instructions 
provided to the Beneficiary regarding the reports; the consequences, if any, of failing to prepare the 
reports; etc. Thus, the Petitioner has not demonstrated the probative value and relevance of its claim 
regarding the reports to the question presented here, i.e., whether the Petitioner will have the requisite 
employer-employee relationship with the Beneficiary. It appears that if the Petitioner were controlling 
the work of the Beneficiary, then the Petitioner would be directing the work to be completed, not 
requesting a report from the Beneficiary regarding his own duties or the end-client's plans for the work 
to be performed. Nor do any of the materials from the vendor reflect a meaningful and ongoing role 
for the Petitioner in directing the Beneficiary's day-to-day activities. In fact, an employee performance 
review present in the record completed by the Petitioner for the Beneficiary consists of a mere two 
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pages reflecting seven generic job elements on a rating scale of Exceptional, Meets, Marginal, or 
Unsatisfactory, with minimal and vague narrative descriptions of the Beneficiary's job performance. 
After weighing all of these factors, we determine that based upon the information provided, we are 
unable to properly assess whether the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. For this additional reason, the petition is not approvable. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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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