dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7268761 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b) , 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The Director of the California Service Center denied the petition, concluding that the Petitione r did 
not sufficiently establish that: (1) the proffered position qualifies as a specialty occupation; and (2) it 
qualifies as a United States employer with an employer-employee relationship with the Beneficiary. 
Upon de nova review, we will dismiss the appeal. 1 
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 
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. 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). 
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 
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). 2 
The Petitioner located in Texas, indicates in the petition and on the certified labor condition application 
(LCA) 3 that it will deploy the Beneficiary to an end-client's location in Illinois to work as a "software 
developer" through three intermediary vendors pursuant to contractual agreements, as follows: 
Petitioner ➔ E- (mid-vendor #1) ➔ I- (mid-vendor #2) ➔ T- (prime-vendor) ➔ U- (end-client). 
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 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). 
2 
The Petitioner provided contractual documentation to illustrate this relationship. Nonetheless, it has not 
established definitive, non-speculative, specialty occupation employment for the Beneficiary. 4 The 
Petitioner indicates that the prime-vendor operates the end-client's managed services program (MSP) 
"to support their procurement of contingent labor from various vendors." It provides an August 2018 
letter from the end-client which discusses the MSP program as follows: 
The MSP Program is structured in such a way that [the prime-vendor] manages the 
relationships with all suppliers on behalf of [the end-client]. In this capacity, [the 
prime-vendor] holds the staffing agreements with all suppliers that are providing 
services to [the end-client] and [the end-client] is a third-party beneficiary to that 
agreement. 
Due to this, [the prime-vendor] manages all [USCIS request for evidence - (RFE)] 
communications on behalf of [ the end-client] for those suppliers who participate in the 
[prime-vendor] MSP program at [the end-client] and will respond to USCIS inquiries 
regarding assignment details on [the end-client's behalf]. 
Below you will find the pertinent pages from the Master Services Agreement ("MSA") 
between [the end-client] and [the prime-vendor]. 
On appeal, the Petitioner asserts that "[t]he [submitted CSA and work order] between the end-client 
and [the prime-vendor] were provided [with redactions]. Although such documents with the 
redactions do not show some details, they clearly indicate the contractual relationship between the 
end-client and [the prime-vendor] and other important information related to the assignment of the 
[B]eneficiary .... " We disagree. The Petitioner provides a partial copy of the end-client's consulting 
service agreement (CSA) with [the prime-vendor], comprised of 3 heavily redacted pages of the CSA 
(pages 1, 13, and 14) ofa 41 page document. The CSA indicates on page 1 under "scope of services," 
that "[t]he [prime-vendor] will perform the services described in Exhibit A. Any subsequent 
consulting services shall be agreed to by the parties and attached to this Agreement as a separate 
Exhibit A." 5 
Page 13 of the CSA contains the signatures of officials from the end-client and the prime-vendor, but 
the preceding text on the page is redacted. The attached Exhibit A on page 14 of the CSA appears to 
be a template for a statement of work (SOW) as the sections of the template for the party to be 
performing consulting services for the end-client are blank, and the effective date of the SOW is 
identified as "MONTH DAY, 2016." The template indicates that the services to be provided by the 
unnamed "consultant" will be "MSP Services - Implementation and management of an MSP Program 
for [the end-client] to support [the end-client's] procurement of contingent labor from staffing 
vendors." 6 Notably, the template bears no indication that it was executed by the end-client and the 
prime-vendor. 
4 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a. l 2( c )(3)(i)(C); 8 C.F.R 214.2(t)(l O)(ii)(C), and has provided copies of wage statements for his 
employment with the Petitioner. 
5 The remaining section headings and 7 paragraphs of text on page 1 are redacted. 
6 The remaining section headings and 7 paragraphs of text on page 14 are redacted. 
3 
We conclude that the Petitioner has not substantiated the relevant terms and conditions of the end­
client's contractual arrangements with the prime-vendor for the administration of the end-client's MSP 
program through the submission of these 3 highly redacted and partially blank pages of a 41 page 
CSA. This is important because the Petitioner asserts that the Beneficiary is to be hired as a contingent 
worker for the end-client pursuant to the MSP program. 
We acknowledge that the Petitioner has also provided a partially redacted copy of an indirect vendor 
services agreement (IVSA) between the prime-vendor and mid-vendor #2. The IVSA describes 
certain relevant attributes of the end-client's MSP program, to include this program description: 
Under the MSP Program, [the end-client] will submit electronic requests for candidate 
submissions from all or select vendors that participate in the MSP Program 
("Requisitions"). The Requisitions will be distributed to the vendor's electronically, 
utilizing a web-based application (the "VMS System") hosted and maintained by the 
[the prime-vendor] or [the-end-client]. Upon receipt of candidate submissions from 
vendors responsive to the Requisitions, [ the prime-vendor] will same on behalf of [ the 
end-client]. [The end-client] may then, at its option, submit orders, which will be 
issued electronically, to a specific vendor for the selected candidate. 
Upon receipt of a Requisition, [mid-vendor #2] may submit one or more candidates 
through the VMS System .... Prior to the submission of a candidate in response to a 
Requisition, [ mid-vendor #2] shall take reasonable steps to independently confirm (i) 
that candidate meets the qualifications as set forth in the Requisition .... 
No selected candidate will commence an assignment for [the end-client] as [mid­
vendor #2' s] personnel under the MSP Program until a purchase order is completed by 
the parties prior to the commencement of any such personnel assignment. Each 
purchase order will specify the type of services or level of effort required, the term -
including anticipated end date, the hourly bill rate, the name of the [personnel provided] 
to perform the services, and the performance locations .... 
The [prime-vendor] will serve as a resource to [the end-client's] personnel and [mid­
vendor #2] by, assisting in the completion and review of Requisitions, posting 
requisitions to vendors, reviewing and evaluating candidate resumes at [the end-client's 
request], forwarding resumes to hiring managers for review, scheduling interviews at 
[the end-client's request], providing feedback and interfacing with [the end-client] and 
vendors throughout the acquisition process. 
[The prime-vendor] will coordinate on behalf of [the end-client] all interactions 
between [mid-vendor #2] and [the end-client's] hiring managers concerning [mid-
4 
vendor #2' s] personnel including but not limited to pay rate issues, time reporting 
issues, performance issues, terminations and job extensions or completion. 
[Mid-vendor #2's] personnel performing services for [the end-client will] report their 
time worked to [the prime-vendor] through the electronic timecard feature of the VMS 
System ( either directly or via another application or system that will import time to the 
VMS System.) These time cards will be electronically routed via the VMS System to 
the appropriate hiring manager or other approving authority of the [end-client]. 
[Redacted text.] [] The [end-client] approved time record will serve as [mid-vendor 
#2's] only invoice to [the prime-vendor] or [end-client] for services provided and 
administered hereunder. 
The context of certain other relevant sections of the agreement bearing headings such as "relationship 
of the parties," and "client contact," are either redacted in their entirety, or are partially redacted to 
such an extent that the context of the un-redacted text does not provide adequate detail regarding the 
terms and conditions of the Beneficiary's employment thereunder. Considering the end-client and 
prime-vendor material, it appears that the prime-vendor is performing certain contractual management 
responsibilities for the end-client that in part form the basis of the Beneficiary's employment at the 
end-client location. However, the record contains no affirmation from the end-client that the IVSA 
reflects the terms and conditions of the actual agreement between the end-client and the prime-vendor. 
For these reasons, the Petitioner has not established that the partially redacted IVSA sufficiently 
reflects the relevant contractual framework through which the prime-vendor will operate the end­
client's managed services program (MSP) "to support their procurement of contingent labor from 
various vendors." 
The Petitioner also submitted a Fieldglass work order~--------~ for the Beneficiary's 
employment at the end-client location, which identifies the end-client location and the Beneficiary, and 
contains a job posting identifier ____________ , for a period of employment from 
November 2018 through January 2019.7 The work order also includes a listing of previous short-term 
work assignments for time periods ranging from one month to five months in duration. The section of 
the work order entitled "details" is completely redacted, as are other large portions of the document. The 
un-redacted text within the work order does not identify the Petitioner, the mid-vendors or the prime­
vendor, the job title and duties of the proffered position, the requirements of the position, the end-client's 
project to which the Beneficiary will be assigned, or the Petitioner's role, if any, in the Beneficiary's day­
to-day work for the end-client. While this work order reflects that the Beneficiary has been assigned to 
work at the end-client location, it does not substantiate the terms and conditions of the assignment 
sufficient to establish that the end-client will offer the Beneficiary specialty occupation caliber work 
through the contractual relationships described in the petition. 
7 The Petitioner indicates in its response to the Director's RFE that "Fieldglass" is the VMS system that the end-client will use 
to issue "Requisitions" and "Work Orders" for the procurement of contingent workers under the MSP Program. 
5 
The Petitioner also asserts on appeal that the contractual agreements between the end-client and the 
prime-vendor are "confidential and will not be disclosed to any third party," and has provided letters 
from the prime-vendor which state the same. As discussed, the submitted end-client and prime-vendor 
contractual material does not sufficiently describe the specific services to be provided through the 
contractual relationships between and amongst the Petitioner, mid-vendor#l, mid-vendor#2, prime­
vendor, and ultimately the end-client. We determine the Petitioner's submission of these partial, 
heavily redacted documents diminishes their evidentiary value, as it deprives us of the remaining 
portions that may reveal information either advantageous or detrimental to the petitioning 
organization's claims, and therefore, are oflittle probative value. 8 It is the Petitioner's burden to prove 
by a preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N 
Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. The Petitioner has not done so through the submission of these incomplete, 
redacted documents. 
We also conclude that the contractual agreements between the mid-vendor#2 and mid-vendor#l, and 
between the mid-vendor#l and the Petitioner are inadequate to establish the terms and conditions of 
the Beneficiary's assignment with the end-client through these agreements. For instance, the 
Petitioner provided the master subcontracting services agreement (MSSA) between mid-vendor#2 and 
mid-vendor#l, which states that "[mid-vendor#l] shall provide [contingent workers] to perform 
services to [mid-vendor#2's] Customers as requested from time to time ("Temporary Services") .... 
Temporary Services may be amended or revised from time to time by [mid-vendor#2], and shall 
conform in all material respects to any performance specifications as required by [mid-vendor#2's] or 
[its] Customer. The Petitioner has not established the relevancy of this document as it makes no 
mention of the Beneficiary or the specifics of the contingent worker services that he is to provide for 
the end-client. 
The record also contains a mid-vendor#l supplier agreement with the Petitioner which notes that the 
mid-vendor#l is "in the business of locating [personnel] for various clients" who will perform 
"technical services" for the clients "according to the [c]lient's specifications." Mid-vendor#l 's work 
order identifies the Beneficiary, Petitioner, mid-vendor#2 and the end-client, and describes the 
services that he will perform as "IT consulting services" for a period of time commencing in July 2017 
with a [to be determined] "TBD" end date. The work order does not otherwise detail the specifics of 
the Beneficiary's proposed employment. 
8 The claim a document is confidential does not provide a blanket excuse for a petitioner not providing such a document if 
that document is material to the requested benefit. Although a petitioner may always refuse to submit confidential 
commercial information if it is deemed too sensitive, the Petitioner must also satisty the burden of proof and runs the risk 
of a denial. Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his 
claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to cany his burden of persuasion 
with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
6 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is important because, in this case, the existence of the proffered position 
appears dependent entirely upon the willingness of the end-client to provide it.9 Absent folly executed 
contracts and accompanying statements of work ( or similar documentation) between the Petitioner 
and mid-vendor#l, mid-vendor#l and mid-vendor#2, mid-vendor#2 and the prime-vendor, and the 
prime-vendor and the end-client, the record lacks evidence of any legal obligation on the part of the 
end-client to provide the position described by the Petitioner in this petition. 10 Here, the Petitioner 
did not document the contractual terms and conditions of the Beneficiary's employment as imposed 
by the end-client. See 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). 
While relevant, the letters from the end-client are not sufficient to fill this gap, as they do not 
sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, the August 2018 
end-client letter froml I Senior Manager, Corporate Service Procurement does not detail 
its legal obligation to offer employment to the Beneficiary beyond noting that the prime-vendor 
"manages the relationship with all suppliers on behalf of [the end-client]," including managing 
"communications on behalf of [the end-client] for those suppliers who participate in the [end-client's] 
MSP program," and "respond[ing] to users inquiries regarding assignment details on [the end­
client's behalf]." 
The December 2018 end-client letter from I Senior Project Manager, discusses the 
Beneficiary's employment at the end-client location, indicating that the Beneficiary "is an employee 
of [the Petitioner]," and will be providing services to the end-client on an "ongoing and long term 
project." 11 The Director noted in her denial that the Petitioner did not demonstrate that I I 
was authorized by the end-client to provide such a letter. We agree. Here, the Petitioner provided an 
August 2018 end-client letter which states that the prime-vendor will be charged with responding to 
"USCrS inquiries regarding assignment details" for the end-client. I ldoes not acknowledge 
this end-client policy or otherwise explain in his December 2018 letter how he is authorized to issue 
such a letter on the end-client's behalf. We conclude thatl Is letter does not sufficiently 
describe the contractual relationships between the parties, and is farther of little probative value given 
the inconsistent evidence in the record regarding who will respond to users inquiries regarding the 
Beneficiary's work assignments for the end-client. 12 
9 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. ~ 103.2(6)(14). 
10 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
11 The prime-vendor's letters indicate that "[the Beneficiary's] work at [the end-client location] has been arranged through 
a series of contracts between [mid-vendor#2] and [the prime-vendor], but does not discuss the terms and conditions of the 
agreements between all of the parties. 
12 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
7 
Again, the record lacks evidence of any legal obligation on the part of the end-client to provide the 
position to the Beneficiary as described by the Petitioner in this petition, let alone determine its 
substantive nature so as to ascertain whether it is a specialty occupation. If we cannot determine 
whether the proffered position as described will actually exist, then we cannot ascertain its substantive 
nature so as to determine whether it is a specialty occupation. 13 The Petitioner must resolve the 
inconsistencies and ambiguities in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Nonetheless, even ifwe were to 
set these foundational deficiencies aside, we would still be unable to ascertain the substantive nature 
of the proffered position. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. As noted, the record lacks 
sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. 
Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the 
client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. In this case, the 
Beneficiary is to perform services for the end-client at its offices in Illinois. 
Considering the evidence in its entirety, we conclude that the record lacks sufficient documentation 
regarding the end-client's project to which the Beneficiary will be assigned and the actual work that 
the Beneficiary would perform during the intended period of employment. Therefore, the Petitioner 
has not established the substantive nature of the work the Beneficiary will be performing for the end­
client, and the associated applications of specialized knowledge that their actual performance will 
require. 14 
The Petitioner indicated that the proffered position is a "software developer," and submitted an LCA 
for the "Software Developers, Applications" occupational category corresponding to the Standard 
Occupational Classification (SOC) code 15-1132. Again, the initial record indicated that the 
Beneficiary's work assignment at the end-client's location was for the entire period of employment 
requested in the petition. The Petitioner initially indicated that the Beneficiary "will be serving as a 
contractor providing IT services to [the rd-client]- In response to the Director's RFE, it provided a 
copy of the end-client's overview of the project [the project] to which the Beneficiary will 
be assigned, as follows: 
[The project] is an advanced fro,:;::.n..:....t---=-e=n..:....d....:.a.LpLp..:::li:..:.c..:.:.at.:.:i..:..on::.....:fi:..:.o..:....r....:.th=e.::......!:::; ________ ___, 
computer systems. Employees in.__ _______ ~ _ _.have been working with 
[the project] technology development team to ensure that [the project] functionality is 
easy-to-use and a simplified and efficient tool to best serve our customers. [The 
project] technology is already being used for some functions at ourl I In the 
future, the services behind [the project] will be expanded to contact centers, [end-client 
13 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
14 Defensor, 201 F.3d at 387-88. 
8 
website ]I I kiosks and the mobile app, providing you and customers access to the 
same information on the same platform, creating a consistent and efficient customer 
expenence. 
The Petitioner also submitted a letter from mid-vendor#l which asserts: 
[Mid-vendor#l] is implementing [the end-client's] project. The implementation of this 
project is done in such a way that the [end-client] defines the requirement, the 
specifications and the final project result. [Mid-vendor#l] exclusively executes the 
assignment, planning, day-to-day task, road map and all related project 
implementation. [The end-client] is solely limited to defining the end result of the 
project. 
In contrast, mid-vendor#l 's service agreement with the Petitioner states that the mid-vendor#l is "in 
the business oflocating [personnel] for various clients" who will perform "technical services" for the 
clients "according to the [ c ]lient' s specifications," and does not discuss mid-vendor#l 's asserted 
project management assignment by the end-client. The Petitioner has not presented evidence that 
substantiates the mid-vendor#l 's claim that it is implementing [the project] for the end-client. 15 
Further, though requested by the Director in her RFE, the Petitioner did not provide sufficient evidence 
detailing how the Beneficiary's specific job duties relate to the end-client's products and services. 16 
The Petitioner provided a copy of the end-client's overview of the project and additional 
documentation about the end-client's '~------- ...... ' project, but did not delineate the 
Beneficiary's role and responsibilities as a member of the end-client's technology team(s) for these 
projects. 
On appeal, the Petitioner references the mid-vendor#l 's November 2018 letter which asserts "[the 
end-client] does not issue [a] statement of work or purchase order," and indicates the letters provided 
in the petition "confirm the details of the Beneficiary's assignment." Nevertheless, the contingent 
worker requisitioning and placement process described both by the prime-vendor and the Petitioner 
suggests that the end-client does in fact issue requisitions and work orders through Fieldglass. The 
Petitioner states that the Beneficiary will be placed at the end-location through an electronic contingent 
worker procurement process whereby the end-client will issue a requisition through Fieldglass with 
its job requirements for a contingent worker; the prime-vendor will vet candidates submitted by 
vendors who respond to the requisition to identify the candidates that meet the end-client's 
requirements; and, will submit the qualifying candidates to the end-client's hiring managers for 
15 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, Dec. at 591-92. Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of 
other evidence submitted in support of the requested immigration benefit. Id. 
16 We must review the actual duties the Beneficiary will be expected to perform to asce1iain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
9 
consideration. The end-client's hiring managers may then elect to submit a work order to a "specific 
vendor for the selected candidate." The Petitioner has not provided an explanation for these 
inconsistent assertions in the record. 17 
The record also does not communicate the actual work that the Beneficiary will perform on a day-to­
day basis within the context of the end-client's project, and the correlation between that work and a 
need for a particular education level of highly specialized knowledge in a specific specialty. The 
heavily redacted Fieldglass work order for the Beneficiary's work at the end-client location provided 
by the Petitioner does not identify the job title and duties of the proffered position, the end-client's 
requirements for the position, or the end-client's project to which the Beneficiary will be assigned. 
Further, the letter from mid-vendor#2 states that the Beneficiary will be "providing contract services 
on an on-going basis to [the end-client]," but does not discuss the provision of the Beneficiary's 
services within the context of end-client's project. Similarly, the prime-vendor's letter states that the 
Beneficiary "has been contracted to provide IT consulting services to [the end-client]." Lastly, □ 
I Is December 2018 end-client letter indicates that the Beneficiary "will be providing services to 
our Company as a Software Developer," but does not identify or discuss its project and the 
Beneficiary's specific role relative to others within the project technology development team. 18 
Additionally, considering the listed duties provided by the Petitioner, we observe that many of these 
items are not job functions, but instead resemble general knowledge and skill requirements for an 
information technology position. To illustrate, listings within the job duties such as "[m]aintain a 
balanced environment while working on multiple projects," "setting realistic project goals, handling 
project complexity and good development procedures," and "[m]aintain good communication with 
different stakeholders in the organization," seem to reflect knowledge and skills that a person might 
need to perform work, not the actual job duties to be performed. 
Other items within the job duty listings describe general information technology job functions, which 
lend little insight into the relative complexity and specialization of the Beneficiary's day-to-day 
duties. 19 For instance, job duties such as "[a]nalyzing and developing new features to an existing 
application by getting an in-depth knowledge of the entire flow of the application," "create SQL stored 
procedures, queries to fetch the data from database," "[u]se GIT as a version control to maintain the 
applications' source code," and "[m]onitoring overall health of the application by constantly checking 
its processing speed, peak performance capacity, server health, UI flow," do not provide sufficient 
detail regarding the work these duties with the end-client will entail, and how these tasks merit 
recognition of the proffered position as a specialty occupation. 
Notably, though requested by the Director in her RFE, the Petitioner also did not provide sufficient 
information with regard to the order of importance or frequency of occurrence ( e.g., regularly, 
periodically, or at irregular intervals) with which the Beneficiary will perform the duties. Thus, the 
11 Id. 
18 We note again that the record does not establish that I.__ __ _.I was authorized by the end-client to issue a letter on its 
behalf Id. 
19 The end-client's, mid-vendors', and prime-vendor's verbatim repetition of the Petitioner's generally-stated duties within their 
letters adds little to our understanding of the Beneficiary's actual duties. 
10 
record does not specify which tasks are major functions of the proffered position. 20 Therefore, the 
duties as described by the Petitioner outside of the context of the end-client's information technology 
projects which require the Beneficiary's services, do not communicate (1) the actual work that the 
Beneficiary would perform, (2) the complexity, uniqueness, or specialization of the tasks, and (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 21 
The evidence in the record is also insufficient to establish the mm1mum requirements for the 
Beneficiary's position at the end-client location. As discussed, the Petitioner has presented material 
indicating that the end-client uses a contingent worker procurement process whereby the end-client 
electronically issues requisitions and work orders in order to specify the actual work to be performed, 
and the requirements to perform such work, and will issue a work order to a "specific vendor for the 
selected candidate" through the MSP program hiring program. However, the record does not contain 
requisitions, work orders or other contractual documentation specific to the Beneficiary's assignment 
under the MSP program which includes the end-client's requirements for the position. The prime­
vendor specified that a degree in computer science/engineering or a related discipline was required; 
mid-vendor#2 indicated that a bachelor's degree in computer science, computer information systems, 
or information technology was required; and, the Petitioner required a bachelor's degree in computer 
science or engineering for the proffered position. However, without more, the Petitioner has not 
established the end-client's minimum requirements of the proffered position. Id. 
Because the Petitioner has not established the substantive nature of definite, non-speculative 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. We therefore conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 22 
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 
20 8 C.F.R. § 103.2(6)(14). 
21 Matter ofChawathe, 25 T&N Dec. at 376. 
22 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
11 
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: 
(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.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" 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)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services 
(USCIS) 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. 23 See Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) 
( 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. 
23 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. 
12 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we also 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." The Petitioner has not submitted sufficient, 
consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. 
Therefore, as we will further explain, the Petitioner has not substantiated key elements in this matter, 
including who exercises control over the Beneficiary. 
The Director denied the petition, in part, concluding that there was insufficient evidence in the record 
to establish that the Petitioner would exercise control over the Beneficiary's day-to-day employment. 
We agree. The Petitioner maintains on appeal that "one or more letters were issued from every relevant 
party in the contractual path of the [B]eneficiary' s assignment supporting the employer-employee 
relationship between the [P]etitioner and the [B]eneficiary, and the [P]etitioner's right to control." 
However, we conclude that the submitted contractual documentation does not sufficiently demonstrate 
how the Petitioner exercises control over the Beneficiary's off-site employment. The documents 
stipulate that the Beneficiary will perform services as a contingent worker at the end-client location. 
We note that the partially redacted prime-vendor's IVSA provides that the prime-vendor will 
coordinate on behalf of the end-client interactions between subcontractors and the end-client's hiring 
managers concerning matters related to contingent workers "including but not limited to pay rate 
issues, time reporting issues, performance issues, terminations and job extensions or completion." 
Notably, the IVSA's section relating to "client contact" was completely redacted. Here, the record 
does not adequately detail how the Petitioning entity, through its asserted contractual relationships 
with three intermediary vendors will impact and oversee the Beneficiary's work assignment at the end­
client location. 
As previously discussed, we conclude that the Petitioner has provided insufficient and inconsistent 
evidence of the contractual relationships regarding the Beneficiary's proposed off-site employment, 
and the scope and nature of his role within the end-client projects to which he potentially will be 
assigned. As a result, we are not able to fully ascertain how these contractual agreements impact the 
Petitioner's ability to control and direct the Beneficiary's day-to-day work. 
We acknowledge that the Petitioner references various means by which it monitors and supervises 
employees at end-client locations such as communication with employees through "daily phone calls; 
email updates on instant messaging throughout the day, as needed; weekly status reports, weekly 
timesheets; one on one training sessions via phone/video conference weekly meetings, monthly 
performance reviews." While the record contains material such as monthly performance reviews for 
the Beneficiary, the Petitioner has not sufficiently substantiated its ongoing communications with the 
Beneficiary about his work. Importantly, the Petitioner has also not established how it gains 
knowledge of the day-to-day services the Beneficiary performs for the end-client, if not from the 
Beneficiary himself, which erodes the Petitioner's claim that it actively monitors and supervises the 
Beneficiary's day-to-day work at the end-client location. Therefore, the Petitioner has not offered 
persuasive evidence to illustrate how it will supervise and guide the Beneficiary's work assignments 
for the end-client. 
13 
Additionally, since the contractual material in the record suggests that the end-client must approve the 
Beneficiary's timesheet in order for the intermediary vendors, the Petitioner, and ultimately the 
Beneficiary to be paid, there appears to be some level of shared supervision and control between the 
end-client, prime-vendor, the mid-vendors, and the Petitioner over the Beneficiary's employment at 
the end-client location. For instance, the prime-vendor's IVSA provides that "personnel performing 
services for [the end-client will] report their time worked to [the prime-vendor] through the electronic 
timecard feature of the VMS System .... These time cards will be electronically routed via the VMS 
System to the appropriate hiring manager or other approving authority of the [end-client]." The 
Petitioner further informed the Beneficiary within its February 2018 employment agreement: 24 
Employee's salary will be paid only after receipt of properly signed time sheets by the 
appropriate client official. If Company does not receive the properly signed time sheet 
from employee will not be given any salary because we will assume you that have not 
worked for the period if you did not present proper time sheet timely for the subject 
period. 
Based on the Petitioner's employment agreement, it appears that the Petitioner will not be aware that 
the Beneficiary is working at the end-client location absent the submission of a signed time sheet from 
the end-client. Therefore, for these reasons we must also question the Petitioner's claimed supervision 
and control over the Beneficiary's employment. 
The Petitioner has not demonstrated that it exercises actual control over the Beneficiary's day-to-day 
work. It appears that the Petitioner's role and responsibilities are essentially limited to the 
administration of the Beneficiary's payroll and other related benefits, including the filing of 
immigration benefits. 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 the work will be located, and who has the 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 conclude that the requisite 
employer-employee relationship will exist between the Petitioner and the Beneficiary. The Petitioner 
has not corroborated who has or will have actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary's services. In other words, the Petitioner has not established it 
will have and maintain the requisite employer-employee relationship with the Beneficiary. See 8 
C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring the Petitioner to 
engage the Beneficiary to work such that it will have and maintain an employer-employee relationship 
with respect to the sponsored H-lB nonimmigrant worker). 
24 Since the issues discussed are dispositive of the Petitioner's appeal, we will not address whether the Petitioner's employment 
agreement with the Beneficiary imposes conditions that violate statutory and regulatory provisions related to the Petitioner's 
payment of the required wage, fees and costs. See generally 20 C.F.R. § 655.73l(a), (b), (c). 
14 
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 here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
15