dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF MVPT-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting services company, seeks to employ the 
Beneficiary as a senior software developer and classify him as a nonimmigrant worker in a specialty 
occupation. See section 10l(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition. The 
matter is now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that (1) the 
Petitioner would be a "United States employer" having an "employer-employee relationship" with 
the Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the Director's request for additional evidence (RFE); (3) the Petitioner's 
response to the RFE; ( 4) the Director's letter denying the petition; and (5) the Form I-290B, Notice 
of Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's bases for denying this petition.1 Accordingly, the appeal will be dismissed. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
Section 10l(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an foreign 
national: 
1 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. 
Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 201 0) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989)). 
Matter of MVPT-, LLC 
subject 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)(l) .... 
"United States employer" is defined at 8 C.P.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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991 ). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.P.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)(15)(H)(i)(b) of the Act indicates that a foreign national 
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) (2012). 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) (2012). Further, the regulations 
indicate that "United States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) 
in order to classify foreign nationals as H-1B temporary "employees." 8 C.P.R. §§ 214.2(h)(1), 
(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-1B 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.P.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the legacy 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 -1 B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-1B visa classification, these terms are 
3 
Matter ofMVPT-, LLC 
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 Mutua/Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. at 440 (hereinafter 
"Clackamas"). 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 
America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15)(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 traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
Specifically, the regulatory definition of"United States employer" requires H-lB 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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB 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 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement Income 
Security Act of 1974 ("ERISA"), 29 U.S.C. § I 002(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), affd, 27 F.3d 800 (2nd Cir.), cert. denied, 513 U.S. 1000 (1994). 
4 
Matter of MVPT-, LLC 
"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. Cf 
Darden, 503 U.S. at318-319? 
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 10l(a)(l5)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).4 
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-IB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.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 323-324; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 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 worker is part of the employer's regular business. See Clackamas, 538 U.S. 
at 445; see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H -1 B nurses under 8 C.F .R. § 
214.2(h), even though a medical contract service agency is the actual 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, 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 
U.S.410,414,65 S.Ct. 1215, 1217,89L.Ed.1700(1945)). 
4 
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 
the Act, 8 U.S.C. § 1184( c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized foreign nationals). 
5 
(b)(6)
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Matter of MVPT-, LLC 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual 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 323-324. 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, not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
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 ofthe incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee." 
On the Form I-129, the Petitioner stated that the Beneficiary would provide his services to its offsite 
client, California. The Petitioner provided a single 
work location on the Form I -129: , California, which 
conesponds to claimed business location. 5 The Petitioner also submitted a letter dated 
March 12, 2014, signed by , the president of in which 
listed the duties of the proffered position, and stated that the Beneficiary's "duties will be performed 
only at [its] work site located at CA - (Emphasis 
added.). 
In the RFE letter, the Director informed the Petitioner that the end-client's business address was a 
single-family residence6 and requested, among others, additional evidence demonstrating its 
relationship with the end-client, and how the Beneficiary would perform his duties at the end­
client's residential address. The Petitioner replied by changing the work location. In contrast to the 
claims made on the Form I-129 and in letter, the Petitioner claimed that the Beneficiary 
would now be perfoniling his duties at the Petitioner's California location, and submitted an 
unsigned letter on letterhead, dated March 5, 2014, stating that the Beneficiary will be 
working "only at the work site of [the Petitioner], located at 
CA (Emphasis added.). The Petitioner did not explain the inconsistency, and did 
not explain why it did not submit this letter when it filed the petition. The Petitioner also submitted 
a letter written to the Beneficiary dated March 3, 2014 making a similar assertion. Again, the 
Petitioner did not explain this inconsistency or why it did not submit this letter when it filed the 
5 As noted by the Director, the LCA was certified for work at two locations: (I) the 
address in , California; and (2) the Petitioner's location in . California. 
However , as noted , the Fonn 1- I 29 listed only the California location , and the supporting documentation 
contained the explicit claim that the Beneficiary 's work would "only" be performed at the California worksite. 
6 Publicly-available mapping services on the Internet indicate clearly that the end-client's address is a single-family 
residence, and the Petitioner does not claim otherwise . 
(b)(6)
Matter of MVPT- , LLC 
petition. It is incumbent upon the petitiOner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 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. ld at 591. Furthermore, as the March 5, 2014letter 
from the end-client was not signed, it carries diminished evidentiary value. 
However, even if these primary evidentiary deficiencies were not present, we would still find that 
the evidence of record does not demonstrate the existence of an employer-employee relationship 
between the Petitioner and the Beneficiary due to the additional inconsistencies we have identified. 
We first note that on the Form 1-129, the Petitioner stated that it is a single-employee company. 
However, in response to the Director's RFE letter, the Petitioner submitted an organizational chart 
indicating that the Petitioner employs at least four individuals (excluding the Beneficiary) as well as 
a team of recruiters. The chart does not indicate how many recruiters are on the recruiting team. 
Again, the Petitioner provides no explanation for the inconsistency. As stated above, it is 
incumbent upon the Petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
Petitioner submits competent objective evidence pointing to where the truth lies. ld at 591-92. 
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. Jd at 
591. Furthermore, on its 2014 Form 1040, Schedule C that it submitted on appeal, the Petitioner 
stated that it paid $64;595 in wages in 2014. This wage amount does not support the Petitioner's 
new claim that it employs four individuals and a team of recruiters. In addition, the evidence of 
record does not contain any pay stubs or Forms W-2 it may have issued to its employees. 
Moreover, if the information indicated on the Petitioner 's organizational chart is correct, then the 
Petitioner has provided inaccurate information on the Form I-129, which could be grounds for 
denial. Ah inaccurate statement anywhere on the Form 1-129 or in the evidence submitted in 
connection with the petition mandates its denial.7 See 8 C.F.R. § 214.2(h)(lO)(ii); see also 8 C.F.R. 
§ 103.2(b)(l). 
If we accept the Petitioner's initial claim to be a single-employee company, we find that it provides 
no insight into how, as such a single-employee company, it would control the Beneficiary's work at 
the end-client's location on a daily basis. Furthermore , as noted above, the end-client's business 
address is a single-family residence, and the Petitioner does not provide a meaningful and detailed 
explanation as to how it would control the Beneficiary's work as her performs his duties at this 
single-family residence located in a residential subdivision. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSo.fjici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
7 
The Petitioner ' s new claim that the Beneficiary would "only " work at the Petitioner's 
also render the off-site employment location indicated on the petition inaccurate . 
California location would 
(b)(6)
Matter of MVPT-, LLC 
The record also contains a February 10, 2014 master services agreement (MSA) executed between 
the Petitioner and . On appeal, the Petitioner further submitted a purchase order and a 
subcontractor services agreement executed pursuant to the MSA between and the 
Petitioner on February 10, 2014. Again, the Petitioner provides no explanation as to why it did not 
submit these documents at the time if filed the petition. Nonetheless, these agreements do not 
establish the requisite control. The agreements do not discuss the scope of the Petitioner's control 
over the Beneficiary's work, other than to note that the Petitioner will be responsible for fees, 
salaries, taxes and other compensations required by law. 8 Without more, the language of the master 
service agreement provides no insight to specifics of the control the Petitioner would have over the 
Beneficiary. 
We acknowledge the Petitioner's repeated claims that it will have control over the Beneficiary. 
However, the evidence of record does not establish that the Petitioner would exercise control over 
the Beneficiary's employment. The generalized assertions regarding control contained in the record 
of proceeding lack any degree of specificity, and they do not specifically discuss, in probative 
detail, the degree of supervision , direction, or control that he would receive from a single-employee 
entity. They are not sufficient to establish that the Petitioner would supervise or otherwise control 
the work of the Beneficiary . Simply going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici , 
22 I&N Dec. at 165. Similarly, without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the Petitioner's burden of proof. The unsupported assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez , 17 I&N Dec. 503, 506 (BIA 
1980). 
For all of these reasons, the evidence of record does not demonstrate the reqms1te employer­
employee relationship between the Petitioner and the Beneficiary. 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 a foreign national 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 foreign 
national Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to Who will be the Beneficiary's employer. Without full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
The evidence of record, therefore, is insufficient to establish that the Petitioner qualifies as a United 
States employer, as defined by 8 C.P.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, 
8 The Petitioner's claims that it would pay the beneficiary's salary are noted , and the method of payment is a factor to be 
considered . However, in some instances , a petitioner's role is limited to invoicing and proper payment for the hours 
worked by a beneficiary . ln such cases, with a petitioner's role limited to essentially the functions of a payroll 
administrator, a beneficiary is even paid, in the end , by the end-client. See Defensor v. Meissner, 201 F.3d at 388. It is 
necessary to weigh and compare on all of the circumstances in the relationship between the parties in analyzing the facts 
of each individual case. 
Matter of MVPT-, LLC 
does not establish eligibility in this matter. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
o[Soffici, 22 I&N Dec. at 165. · 
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-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). Thus, we agree with the director's decision that the 
Petitioner has not demonstrated that it will have an employer-employee relationship with the 
Beneficiary. 
II. SPECIALTY OCCUPATION 
The second issue is whether the evidence of record has demonstrated by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that 
it will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
9 
Matter of MVPT-, LLC 
(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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 387. To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.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 proffered 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified foreign 
nationals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which Petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a 
baccalaureate or higher degree in a specific specialty or its equivalent directly related to the duties 
and responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is 
10 
Matter of MVPT-, LLC 
not the title of the position nor an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
B. The Proffered Position 
In the Form I-129, the Petitioner indicated that it wishes to employ the Beneficiary as a senior 
software developer on a full-time basis. In the support letter, the Petitioner provided the following 
information regarding the duties of the proffered position: 
[The Beneficiary] will develop and program software systems using various 
hardware and operating systems. This will include converting symbolic statements of 
scientific, engineering other technical problem formulations and administrative data 
to detailed logical flow charts for coding into computer language. He will develop 
and write computer programs to store, locate, and retrieve specific documents, data, 
and information, in addition to developing or modifying restart procedures and 
writing macros and sub-routines to be used by other programming personnel. 
Using his knowledge of software development, program construction, distributed 
processing and familiarity of debugging tools, [the Beneficiary] will assist in 
analyzing business procedures and problems to redefine data and convert them into 
programmable forms of EDP, along with planning and preparing technical reports, 
memoranda, and instructional manuals to document program development. 
The Petitioner further stated that the Beneficiary "may also be called upon" to perform the 
following duties: 9 
>- Developing and programming computer software applications using various software 
and interface with the technical staff in the complex programming needs and 
document modification concerning the systems software;- 30% 
>- Responsible for improvements in software computer utilization and determine 
necessity for modifications; -10% 
>- Reviewing software programs for compliance with company standards and 
requirements and assisting in identifying deficiencies of computer runs and perform 
specialized programming assignments; -5% 
>- Developing and enhancing the software systems for wider applications and 
customize it for specific requirements; -5% 
>- Using RDBMS to log system change orders and analyze, develop and implement 
new applications with GUI and analyze software requirements to determine 
feasibility of design within time and cost constraints; -15% 
9 The Petitioner did not indicate the likelihood with which the Beneficiary "could" be "called upon" to perform these 
duties. The Petitioner therefore has not established the probative value of this list of possible duties and tasks, and we 
consequently decline to assign it any significant evidentiary weight. 
1 1 
(b)(6)
Matter of MVPT-, LLC 
~ Identifying deficiencies , troubleshooting problems and supporting user needs with 
professional knowledge for test planning, defect tracing and provide assistance in sue 
ofRDBMS; -10% 
~ Analysis and design of system which includes Preparation of Process Flow 
Diagrams , Entity Relationship Diagrams, File design, Program Specification and 
Design Document; -1 0% 
~ Database and application analysis/ design logical and physical database; -5% 
~ Interacting with other technical staff in researching and interpreting technical data; -
5% 
~ Assisting as part of the team to resolve technical problems requiring good judgment 
and creativity in developing solutions . -5% 
In support of the petition, the Petitioner also submitted a letter from its end-client in which 
the claimed end-client stated the Beneficiary will be responsible for the following duties: 
• Providing Enterprise Application Integration Architecture and detailed design of the 
systems. 
• Install and Configure TIBCO product suite including TRA, Business Works, 
Administrator , ADB Adapter, File Adapter and build Frameworks to seamlessly 
integrate applications in the Enterprise Service Bus. 
• Mentor the team by providing required knowledge and skills to build integration 
applications. 
• Install and configure adapters to build 
communication mechanism between legacy 
applications. 
• Use TIBCO Business Events to build complex 
event processing applications based 
on business critical rules. 
• Design and development of middleware applications using SOA and Rendezvous in 
TIBCO Business Works. 
• Generate XML, XSD, and WSDL and SOAP messages for use in the SOA based 
applications for interfacing between trading partner applications. 
• Work with various applications like SAP R/3 Interfaces, data base applications , 
webservices [sic], integration using various transport protocols, etc. 
• Utilizing various protocols like SSL, AS2, PGP, Rosettanet, EDI, etc[.] in 
transmitting data to partner applications. 
• Deploying [TIBCO] applications to UAT and QA Enviromnents using [TIBCO] 
Administrator and Appmanage tools. 
• Writing [TIBCO] Hawk rule bases to manage for event processing, alerting and 
monitoring purposes. 
• Build RCV and EMS Scripts for use with development and troubleshooting. To use 
TIL Harness, SOAP Ul, [incomplete in original]. 
• Performance tuning and Bench Marking for all the RV and SOA and Enterprise 
message Service based Applications . 
• Server scaling and sizing recommendations and managing the Configurations across 
enviromnents. 
12 
(b)(6)
Matter of MVPT-, LLC 
The end-client also stated that it requires a "[b ]achelors m engmeenng in any major" for the 
position. 
In the RFE response letter, the Petitioner provided duties similar to the ones provided by the end­
client. 
C. Analysis 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of record 
does not establish the depth, complexity, or level of specialization, or substantive aspects of the matters 
upon which the Petitioner claims that the Beneficiary will engage. Rather, the duties of the proffered 
position, and the position itself, are described in relatively generalized and abstract terms that do not 
relate substantial details about either the position or its constituent duties. For example, in its support 
letter, the Petitioner states that the Beneficiary will be "responsible for improvements," or that he will 
"[assist] in identifying deficiencies." However, these statements provide no insight into the 
Beneficiary's actual tasks. The abstract nature of the proposed duties is further illustrated by the 
Petitioner's statement that the Beneficiary will be "interacting with other technical staff in researching 
and interpreting technical data" and "assisting as part of the team to resolve technical problems." The 
Petitioner does not explain the Beneficiary's actual tasks in "interacting " and "assisting." Similarly, 
the end-client also describes the duties in generalized and abstract terms. For example the 
claimed end-client, states that the Beneficiary will "[m]entor the team by providing required 
knowledge and skills." The end-client does not provide details regarding what mentoring activities 
involve, how often these mentoring activities would take place, and how the Beneficiary would 
implement the mentoring activities. Furthermore, as we will discuss later, these mentoring duties 
contradict the Petitioner's Level I, entry-level, designation of the proffered position. Again, the 
generalized nature of the duties is exemplified by the end-client's statement that the Beneficiary 's 
duties include "[ w ]ork[ing] with various applications," "[ u ]tilizing various protocols ," 
"(p]erformance tuning," "[s]erver scaling and sizing recommendations," and "managing the 
Configuration across environments." These generalized statements fail to provide any insight into 
the nature of proffered position and the actual tasks the Beneficiary would perform on a day-to-day 
basis. Notably, the Petitioner does not explain how the performance of the proffered duties, as 
described in the record, would require the attainment of a bachelor's or higher degree in a specific 
specialty, or its equivalent. 
In the instant case, neither the Petitioner nor the end-client has described the proffered position with 
sufficient detail to determine that the minimum requirements are a bachelor's degree in a 
specialized field of study. It is incumbent on the Petitioner to provide sufficient evidence to 
establish that the particular position that it proffers would necessitate services at a level requiring 
both the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of at least a bachelor's degree in a specific specialty, or its equivalent. When "any 
person makes an application for a visa or any other document required for entry, or makes an 
application for admission , [ . .. ] the burden of proof shall be upon such person to establish that he is 
eligible" for such benefit. Section 291 of the Act; see also Matter of Treasure Craft of Cal(fornia, 
14 I&N Dec. 190 (Reg'l Comm'r 1972). 
13 
Matter of MVPT-, LLC 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. The Petitioner's assertion with regard to the 
educational requirement for the position is conclusory and unpersuasive, as it is not supported by 
the job description or probative evidence. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSo.ffici, 22 I&N Dec. at 165. 
Furthermore, it is reasonable to assume that the size of an employer's business has or could have an 
impact on the duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican Wholesale 
Grocery v Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). Thus, the 
size of a Petitioner may be considered as a component of the nature of the Petitioner's business, as 
the size impacts upon the duties of a particular position. In matters where a Petitioner's business is 
relatively small, we review the record for evidence that its operations, are, nevertheless, of 
sufficient complexity to indicate that it would employ the Beneficiary in position requiring the 
theoretical and practical application of a body of highly specialized knowledge that may be obtained 
only through a baccalaureate degree or higher in a specific specialty, or its equivalent. 
Additionally, when a petitioner employs relatively few people, it may be necessary for the petitioner 
to establish how the Beneficiary will be relieved from performing non-qualifying duties. Here, the 
Petitioner claims to have a single employee, and the record of proceeding does not contain credible 
documentation as to how the Beneficiary will be relieved from performing non-qualifying duties. 
Furthermore, any claims about the high-level duties of the proffered position are inherently 
contradictory to the level of responsibility conveyed by the Level I wage level specified in the LCA 
submitted in support of the petition. The LCA designated the wage level for the proffered position 
as a Level I (entry-level) position, which corresponds to "job offers for beginning level employees 
who have only a basic understanding of the occupation . . . [and who] perform routine tasks that 
require limited, if any, exercise of judgment." 1° Considering that the LCA is certified for a Level I 
entry-level position, we must further question the veracity of the Petitioner's assertion that the 
proffered position is a "senior" software developer. 
11 
10 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ 
Guidance_Revised_11_2009.pdf. 
11 As stated above, the petitioner has designated the proffered position as a Level I position on the submitted Labor 
Condition Application (LCA), indicating that it is an entry-level position, which requires employees to perform routine 
tasks that require limited, if any, exercise of judgment. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance _Revised_ll_2009.pdf. Therefore, it does not appear 
that the position is one with specialized and complex duties, as such a higher-level position would be classified as a 
Level III or Level IV position, requiring a significantly higher prevailing wage. The issue here is that the Petitioner's 
designation of this position as a Level I, entry-level position undermines any 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), an entry-level 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 
14 
Matter of MVPT-, LLC 
Finally, the nature and scope of the end-client's business operations are unclear. As noted above, 
the end-client's business address is a single-family home located in a residential subdivision. The 
end-client's website provides limited information regarding its operations and customers. Although 
the Petitioner stated on the Form I-129 that the Beneficiary would work off-site at the end-client's 
location, when asked by the Director to explain how the Beneficiary would provide services at such 
a residential address, the Petitioner changed the work location instead of providing the requested 
explanation. These discrepancies undermine the Petitioner's credibility. Again, it is incumbent 
upon the Petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
at 592. We find the Petitioner's response insufficient to demonstrate that it has a specialty 
occupation employment for the Beneficiary. 
Overall, the above deficiencies and discrepancies in the record preclude a finding that the proffered 
position qualifies as a specialty occupation. 
III. CONCLUSION AND ORDER 
The petition will be denied and the appeal dismissed for the above stated reasons. 12 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofMVPT-, LLC, ID# 13797 (AAO Oct. 8, 2015) 
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 consideration but is not a substitute for a determination of whether a 
proffered position meets the requirements of section 214(i)(l) of the Act. 
12 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H-1 B petition. 
15