dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF K- INC. DATE: JAN. 30,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT consulting firm, seeks to temporarily employ the 
Beneficiary as an IVR programmer/analyst under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that: (1) the Petitioner will engage the Beneficiary in an 
employer-employee relationship; and (?) the proffered position qualifies as a specialty occupation. 
I 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-1B petitiOn, the Petitioner stated that the Beneficiary will serve as an "IVR 
programmer/analyst." Throughout the record, the Petitioner described the job duties for the position 
as follows: 
• Perform all aspects of analysis, design, programming and unit testing for the 
Genesys IVR systems and related interfaces - 50% 
• Document technical design specifications necessary to support Genesys IVR 
and perform views with technical team members- 5% 
• Provide day-to-day support and maintenance of Genesys 8.x IVR systems -
20% 
• Provide recommendations to improve performance for related systems- 5% 
• Communicate with Call Centers resources regarding routine maintenance and 
defect reporting- 15% · 
(b)(6)
Matter of K- Inc. 
• Provide IVR Technical monitoring to -5% 
The Petitioner submitted a letter where the end-client, 
acknowledges its agreement with the mid-vendor, and confirms 
the duties and requirements of the proffered position. In the letter, the end-client states that the 
minimum entry requirement for the proffered position is a bachelor's degree or equivalent in 
computer science or a closely related field. 
II. STANDARD OF PROOF 
Throughout the record, the Petitioner indicates that the "preponderance of the evidence" standard is 
relevant to this matter, and that it established through credible and uncontested evidence that it 
maintains an employer-employee relationship with the Beneficiary and that the proffered position is 
a specialty occupation. 
With respect to the preponderance of the evidence standard , Matter of Chm·vathe, 25 I&N Dec. 3 69, 
375-76 (AAO 2010),' states in pertinent part the following: 
) 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of 
evidence that he or she is eligible for the benefit sought. 
The "preponderance of the evidence" standard requires that the evidence 
demonstrate that the applicant's claim is "probably true," where the determination 
of "truth" is made based on the factual circumstances of each individual case . 
. . . Thus, in adjudicating the application pursuant to the preponderance of the 
evidence standard,, the director must examine each piece of evidence for 
relevance, probative value, and credibility , both individually and within the 
context of the totality of the evidence, to determine whether the fact to be proven 
is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits 
relevant, probative, and credible evidence that leads the director to believe that the 
claim is "more likely than not" or "probably" true, the applicant or petitioner has 
satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 
(1987) (discussing "more likely than not" as a greater than 50% chance of an 
occurrence taking place). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt 
leads the director to believe that the claim is probably not true, deny the 
application or petition . 
2 
Matter of K- Inc. 
( 
Applying the preponderance of the evidence standard, we find that the evidence of record is 
insufficient to establish that the Petitioner meets the definition of a United States employer and the 
proffered position qualifies as a specialty occupation for the reasons outlined below. 
III. UNITED STATES EMPLOYER 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it meets the regulatory definition'of a United States employer as 
that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner has not established that 
it will have "an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such 
employee." !d. 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)( 1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4 )(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire. pay, .fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(l5)(H)(i)(b) of the Act indicates that an individual 
3 
Matter of K- Inc. 
coming to the United States to perform services in a specialty occupation will have an "intending 
employer" who will file a Labor Condition Application with the Secretary of Labor pursuant to 
section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering 
full-time or part-time "employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C .. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form 1-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-IB temporary "employees." 8 C.F.R. § 214.2(h)(l), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-lB beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes 
H-IB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." !d. Therefore, for purposes ofthe H-IB visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party' is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
!d.; 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)). 
4 
Matter of K- Inc. 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditfonal common law definitions. 
See generally 136 Cong. Rec. S171 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law .. agency 
definition. 1 
Specifically, the regulatory definition of "United States employer" requires H-1 B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F .R. § 214.2(h)( 4 )(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. C.f Darden, 503 U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
1 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition ,of "employer" in section 
I 0 I (a)( 15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A .. Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation onhese terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945)). 
3 
That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214( c)(2)(F) of 
5 
Matter of K- Inc. 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H -1 B nonimmigrant petitions, USCIS 
must focus on the common-la\v touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) ofAgency § 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
the work performed by the \Vorker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Nfeissner, 201 F.3d 384, 388 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-1B nurses under 8 C.P.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between .the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S. C. § 1324a (referring to the employment of 
unauthorized individuals). · 
6 
(b)(6)
• 
Matter of K- Inc. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' ld. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we find 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." 
Specifically, in support of the petition, the Petitioner submitted its employment agreement with the 
Beneficiary stating that it has the right to control the Beneficiary's work "in situations where the 
employee is working offsite at a client location" and that it has the right to control "any work 
performed by Employee at a client site." The Petitioner submitted its master subcontractor 
services 
agreement with the mid-vendor, stating that the Beneficiary will be the direct employee of 
the Petitioner and that the Petitioner is responsible for compensating the Beneficiary and ensuring 
employee compliance with mid-vendor and client requirements . The Petitioner also submitted a 
letter from the end-client, confirming that the Petitioner is providing the Services of the 
Beneficiary, and stating that the Petitioner is the Beneficiary's employer and responsible for the 
payment of his salary, as well as hiring, firing, and allother employer responsibilities. 
In response to the request for- evidence (RFE), the Petitioner submitted new letters from both 
and reaffirming the existence of a confidential agreement between the parties. No actual 
documentation, such as copies of contracts, agreements, or statements of work, was submitted. 
In its letter of support, the Petitioner stated that it conducts monthly and periodic performance 
reviews of each employee to ensure satisfactory completion of work and that each of its employees 
completes a weekly status sheet. The Petitioner submitted several of the Beneficiary's weekly status 
sheets while on OPT at the client site and copies of the Beneficiary's report of performance 
evaluation from December 2015 and January 2016, listing his position as IVR programmer and 
listing his major responsibilities identical to the duties of the proffered position listed above. 
However, the performance evaluations are signed by an unidentified person whose title is "HR 
Manager." Further, given that the end-client is located in Missouri, a significant 
distance from the Petitioner's offices in North Carolina , it would appear that the 
information used to generate the evaluations was provided by the Beneficiary , not the Petitioner, and 
therefore is not indicative that the, Petitioner exercises actual control over the Beneficiary's work. 
Although the Petitioner submitted evidence, such as individual letters from the end-client, 
and the mid-vendor, the Petitioner did not submit any document which outlined in detail the 
nature of the agreement with these entities, or the nature and scope of the Beneficiary's employment , 
specifically including his direct supervision and review and approval of his work at/for the 
end-client. The Petitioner did not provide an organizational chart or other documentation to identify 
the Beneficiary's actual supervision and whether 
his work will directly by controlled by an employee 
of the end-client, mid-vendor, or the Petitioner. Again, given the distance between the Petitioner's 
7 
Matter of K- Inc. 
offices and the Beneficiary's worksite, and the absence of evidence demonstrating that an employee 
of the Petitioner is stationed at the end-client's location to supervise the Beneficiary, the evidentiary 
value of the performance evaluations is minimal. In other words, absent evidence identifying the 
evaluator and the manner in which such evaluations were conducted, we cannot determine who 
directly supervises the Beneficiary's work and what level of control that party may exercise. 
Therefore, the key element in this matter, which is who exercises actual control over the Beneficiary, 
has not been substantiated. 
On appeal, the Petitioner contends that the Beneficiary is employed by the Petitioner and that the 
Petitioner controls the Beneficiary's salary and conditions of employment. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must alsq be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Without full disclosure of all of the relevant factors, we are 
unable to find that the requisite employer-employee relationship will exist, between the Petitioner 
and the Beneficiary. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibility in this matter. A petitioner's unsupported statements are of very limited weight 
and normally will be insufficient to carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter o.fTreasure Craft o,[Cal., 14 I&N Dec. 190 (Reg'! Comm'r 
1972)); see also Matter o.fChawathe, 25 I&N Dec. at 376. The Petitioner must support its assertions 
with relevant, probative, and credible evidence. See Matter o,[Chm·vathe, 25 I&N Dec. at 376. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
IV. SPECIALTY OCCUPATJON 
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.4 
4 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
8 
(b)(6)
Matter of K- Inc. 
Specifically, the record does not establish that the job duties require an educational background , or 
its equivalent, commensurate with a specialty occupation. 5 
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: 
(1) 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). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.f(, 
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, 201 F.3d at 
387. 
The record of proceedings in this case is devoid of sufficient information from the end-client, 
regarding the job duties to be performed by the Beneficiary and the requirements for the 
position. As recognized in Defensor, 20 I F.3d at 387-88, it is necessary for the end-client to provide 
5 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its busine ss operations . While we may not discuss every document submitted, we have reviewed and 
considered each one. 
9 
(b)(6)
Matter of K- Inc. 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. In 
other words, as the nurses in that case would provide services to the end-client hospitals and not to 
the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to 
perform those duties were irrelevant to a specialty occupation determination. See id. 
Specifically, where the work is to be performed for entities other than the Petitioner, evidence of the 
client companies ' job requirements is critical. In Defensor, 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 a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. 
Here, while the letters from the Petitioner, and are acknowledged, without a 
contract that outlines the substantive nature of the Beneficiary's work for the end-client, we are 
unable to determine that the Beneficiary will be employed in the capacity specified in the petition for 
the duration ofthe requested employment period . Specifically, all letters submitted contain identical 
statements of duties to be performed by the Beneficiary. However, the letters do not provide any 
particular details regarding the demands, level of responsibilities and requirements necessary for the 
performance of these duties , and the record of proceedings does not contain a contract with the 
end-client. A petitioner's unsupported statements are of very limited weight and normally will be 
insufficient to carry its burden of proof. See Matter of Soffici , 22 I&N Dec. at 165; see also Matter 
of Chawathe, 25 I&N Dec. at 376. The Petitioner must support its assertions with relevant , 
probative, and credible evidence. See Matter o.fChawathe, 25 I&N Dec. at 376. 
Taken as a whole, the record of proceedings does not contain sufficient, reliable evidence 
demonstrating the substantive nature of the proffered position and its constituent duties. 
Nevertheless, we will review the Petitioner's general description of duties and the evidence of record 
to determine whether the proffered position as described would qualify for classification as a 
specialty occupation. To that end and to make our determination as to whether the employment 
described above qualifies as a specialt y occupation , we tum to the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
10 
Matter of K- Inc. 
(DOL) Occupational Outlook Handbook (Handbook) as ah authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.6 
On the labor condition application (LCA)7 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.8 
The Handbook states the following with regard to the educational qualifications necessary for 
entrance into positions located within this occupational category: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hire analysts with business or liberal arts 
degrees who have skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have· a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
6 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews· the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfY the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
7 
The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same 
services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
8 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he , 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive ' 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _ll_ 2009.pdf 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. /d. 
II 
Matter of K- Inc. 
technically complex jobs, a master's degree m computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such· a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so they can 
learn about new and innovative technologies. Technological advances come so 
rapidly in the computer field that continual study is necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a thorough understanding of health 
plans and programs such as Medicare and Medicaid, and an analyst working for a 
bank may need to understand finance. Having knowledge of their industry helps 
systems analysts communicate with managers to determine thelole of the information 
technology (IT) systems in an organization. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Systems Analysts, available at http:/IW\'Yw.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited Jan. 25, 2017). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. This section of the 
narrative begins by stating that a bachelor's degree in a related field is not a requirement. The 
Handbook continues by stating that there is a wide-range of degrees that are acceptable for positions 
in this occupation, including general purpose degrees such as business and liberal arts. While the 
Handbook indicates that a bachelor's degree in a computer or information science field is common, it 
does not report that such a degree in normally a minimum requirement for entry. 
According to the Handbook, many systems analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. It further reports that many analysts have technical 
degrees. We observe that the Handbook does not specify a degree level (e.g., associate's degree, 
baccalaureate) for these technical degrees. Moreover, it specifically states that such a degree is not 
always a requirement. Thus, the Handbook does not support the claim that the occupational 
category of computer systems analyst is one for which normally the minimum requirement for entry 
is a baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did, the 
record lacks sufficient evidence to support a finding that the particular position proffered here, an 
entry-level computer systems analyst position, would normally have such a minimum, specialty 
degree requirement or its equivalent. 
In the instant case, the duties and re.quirements of the posttlon as described in the record of 
proceeding do not indicate that this particular position proffered by the Petitioner is one for which a 
12 
(b)(6)
Matter of K- Inc. 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of the 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position qualifies 
as a specialty occupation. 
Here, although the record contains letters from the end-client, stating that the minimum 
requirement for the proffered position is a bachelor's degree or equivalent in computer science or a 
related field, it is not clear that the end-client requires that the person in this position have a 
bachelor's degree in a specific specialty. The lack of a contract or other agreement demonstrating 
the existence of a relationship between and the mid-vendor, coupled with the fact 
that the letters from are virtually identical in content to the letters submitted by 
raises questions regarding the veracity of the claims set therein. "Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition." r.A1atter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
For these reasons, we find that the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to 'the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
13 
,\fatter of K- Inc. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird!Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. In addition, the Petitioner did not submit any letters or 
affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms 
"routinely employ and recruit only degreed individuals." Nor is there any other evidence for our 
consideration under this prong. 
The Petitioner does not submit probative evidence that demonstrates the degree requirement is 
common to the industry in parallel positions among similar organizations. Therefore, the Petitioner 
has not satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(~ii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The record here does not credibly demonstrate relative complexity or uniqueness as aspects of the 
proffered position. The evidence of record does not distinguish the proffered position as unique from 
or more complex than other computer systems analyst positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
Again, the LCA indicates that, relative to other positions located within the "Computer Systems 
Analysts" occupational category, the Beneficiary would perform only routine tasks that require 
limited exercise of judgment and that he will be closely supervised, monitored, and reviewed for 
accuracy. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). Without further evidence, the 
evidence does not demonstrate. that the proffered position is complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a Level 
III (experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing 
14 
J'!Jatter of K- Inc. 
wage.9 For example, a Level IV (fully competent) position is designated by DOL for employees 
who "use advanced skills and diversified knowledge to solve unusual and complex problems." The 
evidence of record does not establish that this position is significantly different from other positions 
in the occupational category such that it refutes the Handbook's indication that a bachelor's degree 
in a specific specialty, or its equivalent, is not required for the proffered position. 
Therefore, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 
C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
Here, the Petitioner does not submit any evidence of previous or current employees in the same 
position as the Beneficiary's proffered position. As such, the Petitioner does not submit probative 
evidence that demonstrates the academic qualifications of individuals previously or currently 
employed in a similar computer systems analyst position. Therefore, the Petitioner has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Upon review of the totality of the record, we find that the record does not establish that the duties 
require more than technical proficiency in the information technology field. We refer to our earlier 
comments with regard to the Petitioner's designation of the proffered position in the LCA as a Level I 
wage, and hence one not likely distinguishable by relatively specialized and complex duties. We have 
also reviewed the Petitioner's and end-client's description of duties for the proffered position which, 
again, is identical to the Petitioner's description. While we understand that the Beneficiary must have 
technical knowledge in order to perform these duties, the Petitioner has not sufficiently explained how 
9 
The issue here is that the Petitioner's designation of this position as a Level 1 position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a relevant factor but is not itself conclusive evidence that 
a proffered position meets the requirements of section 2l4(i)( 1) of the Act. 
15 
Matter of K- Inc. 
these duties require the theoretical and practical application of a body of highly specialized knowledge, 
and the 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 Petitioner has not demonstrated in the 
record that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 
C.F.R. § 214.2(h)(4)(iii)(A)(4). 
V. CONCLUSION 
The evidence of record is insufficient to establish that: (1) the Petitioner meets the definition of a 
United States employer; and (2) the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K- Inc., ID# 70995 (AAO Jan. 30, 2017) 
16