dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 5454288 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 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 
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 Petitioner 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 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY 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 have consistently interpreted 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 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 beneficiaries 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 insufficient for a specialty occupation determination. See id. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not sufficiently establish that the proffered position reqmres an 
educational background, or its equivalent, commensurate with a specialty occupation. 1 
1 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
2 
The Petitioner, which is located in Illinois, indicated that it will assign the Beneficiary to work for an 
end-client, in Michigan for the duration of the validity period requested. 2 The claimed contractual 
chain is as follows: 
Petitioner ➔ S-I-T- (mid-vendor) ➔ W-C- (prime-vendor) ➔ C-B- (end-client). 
The Petitioner submitted a certified labor condition application (LCA) 3 for the end-client location for 
the "Software Developers, Applications" occupational category corresponding to the Standard 
Occupational Classification (SOC) code 15-1132, with a level II wage. 4 
A. Minimum Requirements 
As a preliminary matter, we observe that the Petitioner has provided inconsistent information 
regarding the minimum requirements for the proffered position. 
Record of Degree Requirement Experience/Skill Requirement Proceeding 
Bachelor's degree in computer 
Petitioner's science/applications, software engineering, [Various information technology 
Mar. 2018 information systems or a related engineering, tools.] 
Letter scientific or analytic discipline or its 
equivalent in education or work-related 
expenence. 
Petitioner's Bachelor's degree in computer science, [Various information technology 
Jan. 2019 information technology, a relevant tools.] 
Letter engineering discipline, or the equivalent. 
Professor Bachelor's degree in computer science, 
T's computer technology, computer/electrical NIA 
Letter engineering or a related subi ect 
Minimum of 3-4 years of related 
Prime- Bachelor's degree in computer science or development and design experience. 
vendor's related or equivalent experience. Experience working in IBM FileNet. 
Letter [Various information technology 
tools.] 
2 The Petitioner employed the Beneficiary through STEM-related post-completion optional practical training and has 
provided copies of wage statement for his employment with the Petitioner. 8 C.F.R. §§ 274.a.12( c )(3)(i)(C). 
214.2(t)(l 0)(ii)(C). 
3 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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. § 655.73 l(a). 
4 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & 
Training Admin .• Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009 .pdf. 
3 
Minimum of 3-4 years of related 
Mid- Bachelor's degree or equivalent in computer development and design experience. 
vendor's science, computer information systems, Experience working in IBM FileNet. 
Letter electrical engineering or a related field. [Various information technology 
tools.] 
Petitioner's Master or Bachelor Degree with/without In lieu of Master degree, we will 
Jan. 2019 accept Bachelor degree with five 
Job Notice experience. years' experience. 
Bachelor's degree in computer science or a 
Professor related field such as information systems, NIA L's Letter engineering, or a related analytic or scientific 
discipline. 
Petitioner's Master degree in any engineering field Working knowledge ofWebSphere 
Mar. 2019 with/without industry experience. Application servers. Working 
Job Notice knowledge of SQL Databases. 
The Petitioner has not consistently stated the minimum educational requirement for this position. For 
instance, it initially specified a variety of bachelor's degrees as required for the position, while also 
allowing for a candidate to simply possess "equivalent experience" without farther definition. In 
response to the Director's request for evidence (RFE) it submitted a letter from the prime-vendor's 
letter which indicated that a bachelor's degree in computer science or an unspecified of "equivalent 
experience" would suffice, but also noted a requirement of at least "3-4 years of related development 
and design experience." On appeal, the Petitioner submitted its March 2019 job notice for the position 
which required a master's degree in any engineering field with or without industry experience. As 
explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. The Petitioner's and 
prime-vendor's stated minimum requirements, for instance - that possession of knowledge of various 
software development and maintenance tools, along with "equivalent experience" - alone indicates 
that the proffered position is not in fact a specialty occupation. The Petitioner must resolve these 
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). 
Further, certain evidence submitted in response to the Director's RFE is inconsistent with the 
Petitioner's Level II wage selection in the LCA. The purpose of the LCA wage requirement is "to 
protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary 
foreign workers." 5 It also serves to protect H-lB workers from wage abuses. 6 DOL guidance provides 
5 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
6 A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an H-lB 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. See Section 212(n)(l) of the Act; 
20 C.F.R. § 655.731 (a). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCTS) determines 
whether the LCA's content corresponds with the H-IB petition. Sec 20 C.F.R. § 655.705(6) ("DHS determines whether 
the petition is supported by an LCA which corresponds with the petition .... "). 
4 
a five-step process for determining the proper wage level for the proffered position. 7 Step two of this 
process compares the experience described in the Occupational Information Network (O*NET) Job 
Zone to the requirements for the proffered position. "Software Developers, Applications" are 
classified in Job Zone 4 with a Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." This 
SVP rating means that the occupation requires "over 2 years up to and including 4 years" of specific 
vocational training. 
The mid-vendor's letter provided in the RFE response specified a variety of bachelor's degrees, but in 
addition also required at least "3-4 years of related development and design experience." The 
Petitioner's January 2019 job opening notice required an unspecified "[m]aster or [b]achelor [d]egree 
with/without experience, noting that a bachelor's degree would be acceptable "with five years [ of] 
experience." The mid-vendor's requirements of a bachelor's degree and 3-4 years of experience are. 
This would appear to necessitate raising the wage level at to a Level III wage rate of$86,715. 8 Further, 
as the Petitioner's position requirements of a bachelor's degree and five years of work experience in 
lieu of a master's degree are greater than the experience and SVP range for the occupation, this would 
appear to require raising the wage level to a Level IV wage rate of $101,816. The Petitioner indicated 
it would pay the Beneficiary $71,635 in the petition, a level of compensation equal to the prevailing 
Level II wage certified in the LCA. 9 Here, the varying position requirements presented by the 
Petitioner and the mid-vendor, which each include both a bachelor's degree and a level of work 
experience that exceed the level of vocational training consistent with a Level II wage rate for the 
occupational category designated in the LCA, results in a significant pay discrepancy. 10 This raises 
questions regarding whether the LCA corresponds with the petition. 11 
The Petitioner also submitted opinion letters from Professors T- and L-, who each present differing 
position requirements. However, the Petitioner does not explain why the position requirements in these 
opinion letters differ from some of the position requirements that it put forth, nor does it explain the 
reasons for its own variances in position requirements within the record. Professors T- and L- also do 
not address the differences between the minimum requirements for the position as stipulated by the 
Petitioner, the prime-vendor, and the mid-vendor relative to their own conclusions regarding the 
position requirements. Therefore, we find the professors' opinion letters lends little probative value 
to the matter here. Matter o_fCaron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is "not in accord with other 
information or is in any way questionable."). For the sake of brevity, we will not address other 
deficiencies within the professors' analyses of the proffered position. 
7 See Prevailing Wage Determination Policy Guidance, supra. 
8 Id. 
9 For additional information. see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search 
Wizard available at http://www.flcdatacenter.com/OESWizardStart.aspx. (Last visited Mar. 30, 2020.) 
10 Matter of Ho, Dec. at591-92. 
11 See 20 C.F.R. § 655.705(6). See also Mattero(Simeio Solutions, LLC, 26 T&N Dec. 542, 545-546 (AAO 2015). 
5 
Notably, the end-client does not state the educational requirements for the position within the end-client 
documentation submitted in support of the petition.12 As recognized by the court in Defensor, 201 F.3d 
at 387-88, where, as here, the work is to be performed for entities other than the petitioner, evidence 
of the client company's 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. Without more, the Petitioner 
has not established the end-client's minimum requirements of the proffered position. Id. 
In summary, we conclude that the inconsistencies in the record erode the Petitioner's ability to 
demonstrate the substantive nature of the proffered position. Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. 13 As the record contains numerous and material inconsistencies 
relative to the Petitioner's minimum requirements for entry into the proffered position, which may 
also impact whether the LCA actually corresponds to the petition, the documentation submitted in this 
regard to establish eligibility for the classification sought lacks probative value and overall 
credibility. 14 For these reasons, the petition may not be approved. 
B. Nature of the Position 
As discussed, the Petitioner located in Illinois seeks to deploy the Beneficiary to an end-client's location 
in Michigan to work as a "software engineer" through two intermediary vendors pursuant to contractual 
agreements. The Petitioner provided contractual documentation to illustrate this relationship. 
Nonetheless, it has not established definitive, non-speculative, specialty occupation employment for 
the Beneficiary. 
The Petitioner provided third-party supplier agreements between the Petitioner and the mid-vendor, 
and the mid-vendor and the prime-vendor, which indicate that the nature of the contractual 
relationships between the parties is one in which the mid-vendor has agreed to provide personnel 
through the prime-vendor to the end-client in order to augment the end-client's staff engaged in 
information technology-related work assignments. Toward that end, the mid-vendor agreement with 
the Petitioner specified, in pertinent part: 
[The mid-vendor's] business is locating and placing resource for its various clients, 
including the [end-client] listed in any purchase order (Appendix A) executed by [the 
mid-vendor] and [the Petitioner] to provide technical services to [the end-client] 
according to the [end-client's] specifications. . . . [The Petitioner] will introduce 
12 We observe that Professor L- indicates in his opinion letter that he interviewed Mr. S-, the end-client's principal project 
manager in March of 2019. While he describes his discussion with Mr. S- regarding the Beneficiary's duties at the end­
client location. he does not indicate whether he asked Mr. S- about the end-client's minimum requirements for entry into 
the proffered position. nor does he otherwise discuss the end-client's requirements within his letter. 
13 Matter of Ho, Dec. at 591-92. 
14 Matter of Chawathe. 25 l&N Dec. 369. 376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 
1989)). 
6 
resource candidates to [the mid-vendor] and [the mid-vendor] may submit said 
resources to provide their services to [the end-client]. 
The [Petitioner] shall perform services for [the mid-vendor] as described in Appendix 
A. [The end-client] shall make the duration, scope, control, and interpretation of any 
systems work to be performed by [the Petitioner]. [The end-client] shall provide the 
facilities and services necessary to the successful completion of this effort. 
[The mid-vendor] or its [end-client] may terminate the contract at any time without any 
notice period .... The [Petitioner's] personnel shall complete [the mid-vendor's/end­
client's] project time sheets at the conclusion of each week and get them approved from 
their manager (assigned to them by the client) at the project site and fax his/her time 
sheet to [the mid-vendor]. ... 
The contractual agreements between and amongst the Petitioner, mid-vendor, and the prime-vendor 
suggest that the end-client will issue documentation such as SOWs to the prime-vendor detailing the 
services to be provided and the fees for such services. The Petitioner will provide candidates for 
potential selection by the end-client through the mid-vendor and prime-vendor for prospective staff 
augmentation assignments. This arrangement between the parties is partially confirmed by the 
submission of pages 1 and 14 of the end-client's 2016 agreement with the prime-vendor, which 
provides on page 1: 
[The prime-vendor] will provide the [end-client] with the services and/or products set 
forth in Exhibits 1 and 2 of this Agreement, in the time frames set forth in Exhibit 2 of 
this Agreement. ... [The prime-vendor] agrees that [the end-client] will have the right 
of initial and continuing approval of[the prime-vendor] and its authorized employees, 
agents, and subcontractors, if any, who are rendering performance under this 
agreement." 
While page 14 of the end-client agreement contains the signatures of officials for the end-client and 
the prime-vendor, without the omitted pages of the agreement (pages 2-13), the Petitioner has not 
established what the parties actually agreed to. We determine the Petitioner's submission of these 
partial 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 of little probative value. 15 
The Petitioner has also provided purchase orders and SOWs to substantiate the nature of the 
Beneficiary's employment at the end-client location. For example, it initially provided a November 
2017 end-client SOW which identified the Beneficiary and the prime-vendor and stated that the 
Beneficiary would be employed as an "Application Developer/FileNet by the end-client from 
15 Matter of Chawathe, 25 l&N Dec. at 376. 
7 
November 2017 through May 2018, a work assignment period that elapsed prior to the requested 
period of employment in the petition. The November 2017 mid-vendor purchase order for the 
Beneficiary's employment as a "FileNet Administrator - Engineer" by the end-client reflects that he 
will be employed for a time period that elapsed one month after the petition's employment start date. 
The prime-vendor's November 2017 SOW reflects the same period of proposed employment for the 
Beneficiary as the mid-vendor as a "FileNet Engineer." 
In response to the Director's RFE it submitted a November 2018 mid-vendor SOW for the 
Beneficiary's employment starting in November 2018 for a "long term" project duration. However, 
the Petitioner did not substantiate the mid-vendor's SOW through the submission of comparable 
contractual documentation from the prime-vendor and end-client. Further, the submitted purchase 
orders and SOWs do not identify the job 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 material reflects that the Beneficiary has 
been assigned to work at the end-client location for certain periods of time, 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. 
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. Absent fully executed 
contracts and accompanying statements of work ( or similar documentation) between the Petitioner 
and the mid-vendor; mid-vendor and 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. 16 The Petitioner did not sufficiently 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 and the prime-vendor 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 end-client's letter does not detail its legal obligation to offer employment to the Beneficiary beyond 
confirming that the prime-vendor "provides services and resources in connection with [the end­
client's] FileNet Enablement project." Likewise, the prime-vendor's letter indicates that "[the prime­
vendor] has entered into a contractual agreement with [the end-client] for the provision of Software 
Engineer/IBM FileNet and Records Manager Administrator services by means of [the Petitioner's 
employee, the Beneficiary] through [the mid-vendor]. ... this is an on-going long-term assignment 
with possibility of extensions." 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 to ascertain whether it is a specialty occupation. 
16 CJ Galaxy Software Solutions, Inc. v. USC1S, 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"). 
8 
On appeal, the Petitioner provides a March 2019 prime-vendor contractual agreement that the prime 
vendor executed directly with the Petitioner, (that omits mention of the prime-vendor's contractual 
agreement with the mid-vendor), and a prime-vendor SOW executed directly with the Petitioner as 
evidence of a different contractual relationship between the parties. 17 The Petitioner's attempt to 
amend the petition by presenting alternative contractual relationships between the parties on appeal is 
ineffective. A petitioner must establish eligibility at the time of filing a nonimmigrant visa petition. 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., l 7 I&N 
Dec. 248 (Reg'l Comm'r 1978). 
In summary, 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. 18 
Nonetheless, even if we 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 Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. 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. 
On a fundamental level, the Petitioner has not provided sufficient material about the specific end-client 
information technology project that the Beneficiary will be assigned to during the course of his 
proposed H-lB employment. Again, the Petitioner seeks to assign the Beneficiary to the end-client 
through staff augmentation agreements. The Petitioner initially provided a copy of the end-client's 
2017 FILENET P8, ILM Records Management, Control Issue Remediation plan [the project], and 
described the project as follows: 
The project is used to enforce the Information Lifecycle Management policies for the 
retaining and management of content identified as records for the appropriate 
designated life cycles. The project includes all Corporate Record Classifications 
(Codes) and provides for the records lifecycle management of FileNet P8 content and 
content from other systems that IBM Enterprise Records (IER) can record enable. The 
[IER] solution not only secures the content to protect it from deletion and 
modifications, but also destroys the content upon completion of its lifecycle. Holds 
can be place[ d] on content to maintain it beyond the designated retention period where 
applicable. 
17 The Petitioner provides no explanation for this change in the contractual relationships between the parties on appeal, 
other than to note "[the Petitioner] had written a Direct Master Service agreement and PO with the [prime-vendor]." Matter 
of Ho, Dec. at 591-92. 
18 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). 
9 
Within this project, the Petitioner indicates that as a software engineer, the Beneficiary will 
"implement [IER] with FileNet P8 5.1 and make sure all features with respect to [ e]nterprise [r]ecords 
are functioning as expected. Troubleshoot and fix the issues with respect to [s]weep Li]obs, [r]eports 
and searches in IER." While the end-client's project plan describes the high-level objectives for this 
initiative, it does not discuss the project's staffing hierarchy and the relative roles and responsibilities 
of the information technology staff that will be devoted to the project, nor does it describe the project's 
completion timeline. 
Notably, the Director requested evidence in her RFE, to include additional information about the 
project, and an explanation of how the Beneficiary's specific job duties relate to the end-client's 
products and services. In its RFE response, the Petitioner provided emails and affidavits from 
individuals who indicate that they are the Beneficiary's work colleagues at the end-client location, 
who confirm that his assignment there. The Petitioner has also provided various listings of job duties 
that Beneficiary will perform in furtherance of the project including the following job task listing 
which notes the relative percentage of time that the Beneficiary will devote to each task: 19 
• Install and configure FileNet Content Engine 5.1, FileNet Process Engine 5.1, [IER] 
5.1, IBM Content Navigator 2.0.3 and IBM Workplace 1.1.5.0. (5%) 
• Configure IBM WebSphere 7.0.0.43 Administration Tasks. (5%) 
• Develop and Administer [previous software tools identified]. (10%) 
• Develop and maintain Search Templates, Entry Templates. Develop, Administer, 
and troubleshoot Record Declare Workflows and Custom Components to sync 
Document Properties to Record Properties. (25%) 
• Create Hold Sweep Profile, run and troubleshoot Hold Sweeps in [IER] application. 
(10%) 
• Develop and execute Java tool to declare Records. Develop Java tool to distribute 
33m Records across 100k in each volume. (25%) 
• Develop and execute custom report SQL Queries to product Reports from Database 
for Active Holds Reports on Hold Report, Records Ready for Delete Report and 
Deleted Records Report. ( 10%) 
However, this material did not provide evidence sufficient to illustrate (1) the Beneficiary's relative 
placement within the end-client's information technology team, e.g. the actual division, teams, or 
working groups to which he will be assigned; or (2) the nature of the end-client's project currently 
underway sufficient to establish the scope and nature of the Beneficiary's role as a software engineer 
within the context of the end-client's business. The Director denied the petition, in part, concluding 
19 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. For instance, the Petitioner discussed the Beneficiary's academic coursework and the degrees that he has 
attained for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the position. 
However, we are required to follow long-standing legal standards and determine first, whether the proffered position 
qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at 
the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 
1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
10 
that the Petitioner had not established that the pos1t10n involves duties so unique, complex, or 
specialized that only an individual with a bachelor's degree in a specific specialty could perform 
them. 20 We agree. 
On appeal, the Petitioner provides copies of the Beneficiary's work emails at the end-client location 
on appeal which reflect that the end-client's personnel assigned tasks to the Beneficiary and other team 
members for the resolution of project issues. While this material shows that the Beneficiary's 
involvement in the end-client's project, the documentation does not illustrate the scope and complexity 
of the Beneficiary's work assignments therein. Further, though the Petitioner provided narrative about 
the job duties of the position, the evidence does not show the operational structure within the end­
client's business operations in a manner that would establish the Beneficiary's substantive role. 
Moreover, the submitted job duties do not demonstrate the claimed complexity, uniqueness, or 
specialization of the work performed by the Beneficiary. 21 For instance, 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. 22 The Petitioner's jargon-heavy job descriptions 
identify information technology functions and tasks, such as "Configure IER plugin for IBM Content 
Navigator to generate the reports," "Create File Plan and Record Object Store to existing FileNet P8 
5.1 environment," and "Create Holds based on the condition given by Business," but they do not 
provide sufficient detail to illustrate how these tasks merit recognition of the proffered position as a 
specialty occupation. Therefore, the duties as described by the Petitioner 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. 
Upon review of the totality of the record, we determine it is insufficient to establish the substantive 
nature of the work to be performed by the Beneficiary, which therefore precludes a conclusion that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive 
nature of that work that determines (1) the normal minimum educational requirement for 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 
20 We observe again that the Petitioner initially specified that that a candidate's possession of knowledge of various 
software development and maintenance tools, along with "equivalent experience" alone would suffice for entry into the 
proffered position. We interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific 
specialty that is directly related to the proposed position. 
21 We must review the actual duties the Beneficiary will be expected to perform to ascertain 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) or 
initiatives 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. 
22 The mid-vendors' and prime-vendor's verbatim repetition of the Petitioner's stated duties for the position in its letters adds 
little to our understanding of the Beneficiary's actual duties. 
11 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 23 The 
Petitioner has not presented evidence or argument sufficient to establish that, more likely than not, the 
proffered position is a specialty occupation as defined by the regulations and the statute. 24 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(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-1B 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 
23 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. 
24 Matter of Chawathe, 25 T&N Dec. at 376. 
12 
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. 25 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. 
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. 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. 
The Petitioner maintains on appeal that it"[ c ]learly has the right to control, when, where, and how the 
[B]eneficiary performs the job." 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 mid-vendor's agreement with the Petitioner 
provides that the "[end-client] shall make the duration, scope, control, and interpretation of any 
systems work to be performed by [the Petitioner]." Here, the record does not adequately detail how 
the Petitioning entity, through its asserted contractual relationships with two intermediary vendors will 
impact and oversee the Beneficiary's work assignment at the end-client location. 
The Petitioner has provided copies of the Beneficiary's weekly "project status reports" in which he 
provided status summaries of his work at the end-client location to his Petitioner supervisor, who is 
identified on the Petitioner's organization chart as its "HR Acquisition Manager." The Petitioner also 
25 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. 
13 
submitted copies of the Beneficiary's monthly performance reviews. 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: e.g., through the Beneficiary's submission of 
project progress reports, which erodes the Petitioner's claim that it actively monitors and supervises 
the Beneficiary's day-to-day work at the end-client location. 26 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. 
Moreover, 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, mid-vendor, and the Petitioner over the Beneficiary's employment at the 
end-client location. For instance, the mid-vendor's agreement with the Petitioner provides "[t]he 
[Petitioner's] personnel shall complete [the mid-vendor's/end-client's] project time sheets at the 
conclusion of each week and get them approved from their manager (assigned to them by the client) 
at the project site and fax his/her time sheet to [the mid-vendor]." Therefore, for these reasons we 
must also question the Petitioner's claimed supervision and control over the Beneficiary's 
employment. 
Considering the evidence in its totality, we conclude that 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 the relevant factors, we are unable to conclude that the reqms1te 
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 at the end­
client location. 27 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). 
26 We observe again that Professor L- asserts in his letter that he interviewed Mr. S-, the end-client's principal project 
manager in March of 2019. The professor states that he learned during the interview that the Beneficiary "is monitored 
and regularly reviewed, including during approximately daily one-on-one communications with [Mr. S-], who also 
regularly provides feedback to the [Beneficiary's] HR manager at [the Petitioner]." The Petitioner has not provided 
evidence to substantiate the professor's assertions regarding Mr. S-'s daily monitoring of the Beneficiary's work, and on­
going communications with the Petitioner regarding the Beneficiary's work performance at the end-client location. Matter 
of Chawathe, 25 I&N Dec. at 376. 
21 Id. 
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