dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8396986 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 2, 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 10l(a)(l5)(H)(i)(b) , 8 U.S.C . § 110l(a)(l5)(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: (1) the Petitioner did not establish that it would 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&NDec . 799,806 (AAO 
2012). Upon de nova review , we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We will first determine whether the record of proceedings establishes that the proffered position 
qualifies as a 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. 
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. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude 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). 1 
The Petitioner, located in Texas, stated that the Beneficiary would work at the end-client's location in 
Tennessee, 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 the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
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. 
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existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner filed this petition in April 2019 and claimed that the Beneficiary would work as a 
software developer at the end-client's Tennessee location from October 2019 to September 2022. To 
support that claim, the Petitioner submitted a Sub-Vendor Agreement (SA) executed between itself 
and the vendor and an SAP Fieldglass work order. Upon review of the SA, we observe that 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. While the SAP Fieldglass 
work order references the Beneficiary, it states that the Beneficiary will be providing services as a 
"Database Administrator" in Tennessee. It does not indicate that the Beneficiary will serve as a 
software developer (as stated in the H-lB petition) but rather as a "Database Administrator." The 
work order does not describe the duties of the "Database Administrator" in order to determine whether 
they are sufficiently similar to those of the proffered position. Moreover, the SAP Fieldglass work 
order does not state the duration of the Beneficiary's services at the end-client's location in Tennessee. 
In addition, the Petitioner provides a work order executed between the vendor and the end-client on 
appeal. 2 The work order states that the Beneficiary will be providing services as a "Sharepoint 
Consultant." Notably, the work order references a Master Services Agreement (MSA); however, the 
record does not contain a copy of the referenced MSA. Moreover, it does not indicate that the 
Beneficiary will serve as a software developer (as stated in the H-lB petition) but rather as a 
"Sharepoint Consultant." Although the work order includes a brief description of the Beneficiary's 
responsibilities, it is insufficient to determine whether the duties are sufficiently similar to those of the 
proffered position. Further, we observe that the Beneficiary's contract dates are from January 2019 to 
June 2019. It appears that the services will end prior to the requested H-1 B start date. Thus, the work 
order does not indicate that the Beneficiary will serve as a software developer in Tennessee for the 
duration of the requested H-lB period. 3 If we cannot determine whether the proffered position will 
actually exist, then we cannot ascertain its substantive nature so as to determine whether it is a specialty 
occupation. 4 
2 Tt must be noted that the Petitioner provided the same work order in response to the Director's request for evidence (RFE); 
however, a large section of the work order was redacted. The Petitioner does not provide an explanation for submitting 
this work order instead of the non-redacted one. 
3 Though acknowledged. the second work order extending the Beneficiary's services through December 2019 does not 
demonstrate the Petitioner's eligibility at the time of filing because it was executed in July 2019, approximately three 
months after the petition was filed and approximately two months after the Director issued her request for additional 
evidence. We therefore question whether the second work order was created for purposes of bolstering this H- lB petition. 
U.S. Citizenship and Immigration Services tUSCTS) 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. § I 03.2(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 Izummi, 22 
T&N Dec. 169. 176 (Assoc. Comm'r 1998). The second work order executed between the vendor and the end-client 
therefore carries little evidentiary weight. 
4 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998) (to be codified at 8 C.F.R. pt. 214). 
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Even if we were to set the speculative nature of the Petitioner's offer of employment aside, we would 
still be unable to ascertain the substantive nature of the proffered position. First, we observe that the 
record lacks sufficient detail and concrete explanation regarding the project for which the Beneficiary 
will be assigned, to establish 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. 
Moreover, 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 employees in that case would provide services to the end-client and not to the petitioning 
staffing company, the job duties and alleged requirements to perform the duties that the Petitioner 
provided were irrelevant to a specialty occupation determination. See id. 
As previously discussed, the Petitioner provided a work order executed between the vendor and the 
end-client, which included a brief description of the Beneficiary's duties. Specifically, the end-client 
states that the Beneficiary will be responsible for the following: 
Serves as the primary onsite ITS events representative in charge of set up, maintenance, 
support, and tear down of all application and hardware technologies. Responsible for 
the overall event technology success which includes but is not limited to evaluating the 
event scope to acquire and coordinate all technology needs, set up of equipment, testing 
software functionality, network, and telephone connectivity. Providing technical 
leadership at events handling any concerns with the urgency and ability needed to 
deliver resolutions in an efficient, calm and professional manner. 
The generally-stated duties provided by the end-client without the context of a specific project and the 
Beneficiary's actual role in the project adds little to our understanding of the Beneficiary's duties. The 
job description lacks sufficient detail and concrete explanation to establish 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. 
Furthermore, we observe that the end-client does not state the educational requirements for this 
position. 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. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. 5 As previously noted, the work order indicates that the 
services will end prior to the requested H-1 B start date. Without valid work orders or statements of 
5 The Petitioner repeatedly refers to a letter from the end-client in response to the RFE and on appeal; however; upon 
review of the record. no letter from the end-client was included. Moreover, the Petitioner refers to a company that is not 
part of the contractual chain in its appeal brief. The record provides no explanation for this discrepancy. Thus. we must 
question the accuracy of the appeal brief and whether the infcnmation provided is conectly attributed to this particular 
position and this Beneficimy. 
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work, we are not able to folly 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 
description 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. Therefore, we cannot conclude 
that the proffered position qualifies for classification as a specialty occupation. 
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 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)). 
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 
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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 Tennessee. In fact, the record shows that 
an end-client manager supervises the Beneficiary's day-to-day activities. According to the work order 
executed between the vendor and the end-client, the Beneficiary will report tol I, a software 
development manager for the end-client. Thus, the Petitioner does not establish that it will have an 
employer-employee relationship with the Beneficiary. 
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. 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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