dismissed H-1B Case: Software Development

(b)(6) U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 1 1 2015 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
CfS1;'"� u��ef, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as a software 
developer1 established in In order to employ the beneficiary in what it designates as a 
full-time senior software engineer position at a salary of per year,2 the petitioner seeks to 
classify him as a nonimmigrant worker m a specialty occupation pursuant to section 
101(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 denied the petition, concluding that the evidence of record did not establish: (1) that the 
petitioner will be a "United States employer" having an "employer-employee relationship" with the 
beneficiary; and, (2) that the proffered position qualifies for classification 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. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purv iew, the AAO follows the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law 
specifically provides that a different standard applies. In pertinent part, that decision states the 
1 The petitioner provided a North American Industry Classification System (NAICS) Code of 5416, 
"Management, Scientific, and Technical Consulting Services." U.S. Dep't of Commerce, U.S. Census 
Bureau, North American Industry Classification System, 2012 NAICS Definition, "5416 Management, 
Scientific, and Technical Consulting Services," http://www.census.gov/cgi -bin/sssd/naics/naicsrch?code 
=5416&search=2012NAICS Search (last visited Feb. 6, 2015). 
2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Software Developers, Applications" occupational classification, 
SOC (O*NET/OES) Code 15-1132, and a Level II (qualified) prevailing wage rate. 
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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" 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-Foncesca, 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. 
/d. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOl, 381 
F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard as 
outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter of Chawathe, we find that the director's 
stated grounds for denial were correct. Upon our review of the entire record of proceeding, and 
with close attention and due regard to all of the evidence, separately and in the aggregate, submitted 
in support of this petition, we find that the petitioner has not established that its claims are "more 
likely than not" or "probably" true. As the evidentiary analysis of this decision will reflect, the 
petitioner has not submitted relevant, probative, and credible evidence that leads us to believe that 
its claims are "more likely than not" or "probably" true. 
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III. THE POSITION 
NON-PRECEDENT DECISION 
On the Form 1-129, the petitioner stated that the beneficiary would work off-site at 
and the LCA was certified for employment at that address. 3 
The petitioner's support letter, dated March 25, 2014, which stated that "the services of a qualified 
individual" were required for the position, did not provide the address at which the beneficiary 
would work. In the support letter, the petitioner stated that the beneficiary would perform the 
following duties: 
1. Analyzing and defining end-user requirements for the system and requirements 
definition and analysis; 2. Designing the system using Java platform, Object­
Oriented principles and internet based database applications; 3. Facilitating the 
implementation of the system using JSP, EJB, Servlets, XML, DHTML and Oracle; · 
4. Testing the system using different test procedures/strategies and automation tools; 
5. Investigating root cause analysis of software and system defects; 6. Generating, 
monitoring and maintaining Baseline Audit and Configuration Item Version Control; 
7. Decomposing requirements for testability and providing feedback to the 
requirement gathering process; 8. Documenting the design and implementation 
process; 9. Deploying the development artifacts to a staging area for release to 
production; 10. Interacting with customers/users to support software acceptance 
process and act as a liaison between; and 11. Training end users on the application. 
The May 15, 2014 employment offer letter, which does not indicate the address at which the 
beneficiary would perform his duties, provides for an employment start date of January 3, 2015, 4 
and states that the beneficiary will "design, manage, and execute testing for integration of systems 
in varying states of maturity, " and provides that "[p] rojects may include integration of modules with 
different development methodologies including Agile and waterfall." 
The record contains a " Work for Hire Agreement" (Agreement) signed by the petitioner on October 
4, 2010 and by a representative of on October 5, 2010. 5 The 
Agreement identifies the petitioner as the "Contractor" and states that the contractor will "complete 
the tasks that are outlined in one or more Exhibits A ("Project Specification(s)") attached to this 
Agreement." The record of proceeding, however, contains no such "Pro ject Specifications." It is 
3 The petitioner's office is located in 
4 The January 3, 2015 start date provided in this letter is more than three months after the October 1, 2014 
employment start date specified on the petition and in the LCA. It is not clear what the beneficiary will be 
doing during this time. 
5 The evidence of record indicates that has since been acquired by another company. 
The Agreement between the petitioner and contemplates such a scenario, and it provides for the 
continuing binding effect of the Agreement on both parties. For ease of reading, from this point we will refer 
to and its successors-in-interest as the "end-client." 
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therefore not clear that this Agreement, absent an executed Project Specification, creates any 
binding obligation between the petitioner and the end-client, which calls into question whether there 
is actually any work for the beneficiary to perform and therefore the validity of the petitioner's offer 
of employment. Given this lack of a Project Specification, the probative value of the two letters 
from the end-client discussing the duties of the position, therefore, is not clear. 
IV. LACK OF STANDING TO FILE THE PETITION 
We will now address the first basis of the director's decision: whether the petitioner has the standing 
to file the petition as 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. § 21 4. 2(h)(4)(ii). 
I 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212G)(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) .. .. 
"United States employer" is defined 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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
As noted above, the record is not persuasive in establishing that the petitioner or any of its clients 
will have an employer-employee relationship with the beneficiary. 
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 "employ er-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 an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
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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-1B "employee." Subsections 212(n)(1)(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 
aliens as H-lB temporary "employees." 8 C.F.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.F.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-lB visa classification, even though the regulation describes H-lB 
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 
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 Mutual 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 
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section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(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-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.6 
Specifically, the regulatory definition of "United States employer" requires H-1B 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.P.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.P.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. at 318-319. 7 
Therefore, 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 
6 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), affd, 27 F.3d 800 (2nd 
Cir.), cert. denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(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-1B 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
7 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 (1 997) (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, 89 L.Ed. 1700 
(1945)). 
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in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C. F.R. § 214.2(h). 8 
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-lB 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-lB 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, 
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 
8 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-l B intracompany transferees having specialized knowledge); section 274A of the Act, 
8 U.S.C. § 1324a (referring to the employment of unauthorized aliens). 
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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."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
The claims of counsel and the petitioner the petitioner will have an employer-employee relationship 
with the beneficiary are noted, and we have considered these assertions within the context of the 
record of proceeding. We examined each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence. Matter of 
Chawathe, 25 I&N Dec. 375-376. However, as wiU be discussed, there is insufficient probative 
evidence in the record to support those assertions. 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. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972 )). Applying the Darden and Clackamas 
tests to this matter, 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." 
Again, although the petitioner claims that the beneficiary will work off-site at the end-client's office, 
the record multiple assertions that the petitioner would nonetheless exercise control over the 
beneficiary's employment. For example, the end-client claimed in its May 20 and July 14, 2014 
letters that the beneficiary's work would be "directed, reviewed, and supervised" by his "manager," 
who would be one of the petitioner's employees. Counsel made similar assertions in his June 12, 
2014 letter. On appeal, counsel references both end-client letters, as well as the October 2010 
Agreement between the petitioner and the end-client, as evidence of the requisite employer­
employee relationship. 
However, these claims are not supported by the record. The petitioner does not indicate that anyone 
from its company would be assigned to the beneficiary's worksite to assign his daily tasks (or any of 
his tasks, for that matter) or otherwise supervise his work. Further, we note that the assertions of 
direction, review, and supervision have not been discussed in any meaningful detail, and the 
evidence of record does not otherwise make clear what such direction, review and supervision 
would entail. Furthermore, as noted above, the petitioner has _ _ and the evidence of 
record does not indicate how often this would assign tasks to the beneficiary; how 
often this employee would meet with the beneficiary to discuss his performance; or how often this 
employee would review the beneficiary's work. Nor is it apparent how this would 
be able to attend to his or her other normal employment tasks while executing such control over the 
beneficiary's employment, which further calls into question the credibility of the record's numerous 
claims of control. 
These evidentiary deficiencies are compounded by the wage-level designated by the petitioner on 
the LCA,9 which indicates ' that the beneficiary will perform only "moderately complex tasks that 
9 Again, the petitioner submitted an LCA certified for use with a job prospect located within the "Software 
Developers, Applications," occupational category, SOC (ONET/OES) Code 15-1132, at a Level II wage. 
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require limited judgment." The petitioners has not explained how its will closely 
supervise the beneficiary's work, and provide the requisite supervision to the beneficiary as he 
performs only moderately complex tasks that require only limited judgment, from its off-site 
location. To the contrary, there is no evidence that there will be any interaction between the 
petitioner and the beneficiary, let alone the type of close supervision indicated by the wage-level 
selected by the petitioner on the LCA. 
Nor does the October 2010 Agreement supply any of this missing information, as it does not 
reference the beneficiary or the work he would perform in any way. Even if it did, as indicated 
above the Agreement appears to create no binding agreement between the petitioner and the end­
client absent a "Project Specification" executed pursuant to the agreement, which the record does 
not contain. 
The petitioner's payment of the beneficiary's salary has been noted, and method of payment is 
indeed a factor to be considered. However, in some instances, as appears to be the case here, a 
petitioner's role is limited to invoicing and proper payment for the hours worked by a beneficiary. In 
such cases, with a petitioner's role limited to essentially the functions of a payroll administr ator, a 
beneficiary is even paid, in the end, by the end-client. See Defensor v. Meissner, 201 F.3d at 388. 
Again, 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. 
Nor does the May 15, 2014 "Offer Letter" establish the scope of the petitioner's control over the 
beneficiary's employment, as it does not address the issue of control. 
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, 
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 
of Soffici, 22 I&N Dec. at 165. The evidence of record does not establish that the petitioner would 
be involved in assigning work for this beneficiary, would substantially control the beneficiary in his 
The Prevailing Wage Determination Policy Guidance issued by DOL states the following with regard to 
Level II wage rates: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
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.for eignlaborcert.doleta. 
gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf (last visited Feb. 5, 2015). 
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day-to-day work, would determine the specifications and requirements of that work, and would 
gauge the quality of the beneficiary's performance and hence, ultimately, the beneficiary's 
acceptability for continued assignment. 
Upon review of the record of proceeding, we therefore cannot conclude that the petitioner has 
satisfied its burden and established that it qualifies as a United States employer with standing to file 
the instant petition in this matter. See section 214(c)(1) of the Act (requiring an "Importing 
Employer"); 8 C.F.R. § 214.2(h)(2)(i)(A) (stating that the "United States employer ... must file" the 
petition); 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) (explaining that only "United States employers 
can file an H-1B petition" and adding the definition of that term at 8 C.F.R. § 214. 2(h)(4)(ii) as 
clarification). Ba sed 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). 
V. SPECIALTY OCCUPATION 
We will next address the director's determination that the proffered position is not a specialty 
occupation. Ba sed upon a complete review of the record of proceeding, we agree with the director 
and find that the evidence of record does not establish that the position as described constitutes a 
specialty occupation. 
For an H-1B 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 
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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 also 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; 
(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. 
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.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. 
Meissner, 201 P.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P. 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)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), USCIS consistently interprets 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 proffered position. See Royal Siam Corp. v. Chertoff, 484 
P.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-lB petitions for qualified aliens 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 
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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. 
As recognized by the court in Defensor, supra, where the work is to be performed for entities other 
than the petitioner, evidence of the client companies' job requirements is critical. See Defensor v. 
Meissner, 201 F.3d at 387-388. The court held that the former INS had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. !d. at 384. Such evidence must be sufficiently detailed to demonstrate the 
type and educational level of highly specialized knowledge in a specific discipline that is necessary 
to perform that particular work. 
As a preliminary matter and as recognized in Defensor v. Meissner, it is necessary for the end-client 
to provide sufficient information regarding the proposed job duties to be performed at its location(s) 
in order to properly ascertain the minimum educational requirements necessary to perform those 
duties. See Defensor v. Meissner, 201 F.3d at 387-388. 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. 
Although the record contains letters from both the petitioner and the end-client regarding the 
claimed job duties, those letters are virtually identical to one another in that they list the exact same 
eleven job duties, and we find that these identical eleven job duties do not provide any information 
with regard to the order of importance and/or frequency of occurrence with which the beneficiary 
will perform the functions and tasks. Consequently, the record does not establish which tasks are 
major functions of the proffered position and the frequency with which each of the duties will be 
performed (e.g., regularly, periodically or at irregular intervals). As a result, we cannot discern the 
primary and essential functions of the proffered position. 
Moreover, the duties of the proffered position were stated in generic terms that fail to convey the 
actual tasks the beneficiary will perform on a day-to-day basis in that they do not adequately convey 
the specific tasks the beneficiary is expected to perform to establish eligibility for H -1B 
classification. These statements, as so generally described, do not illuminate the substantive 
application of knowledge involved or any particular educational attainment associated with such 
application. They fail to provide any particular details regarding the demands, level of 
responsibilities, and requirements necessary for the performance of monitoring processes and 
identifying problems. 
Also, as discussed above, given the record's lack of an executed "Project Specification" executed 
pursuant to the Agreement, it is not even clear that a position, regardless of duties, actually exists. 
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The failure to establish the substantive nature of the work to be performed by the beneficiary 
precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
VI. SECURING OF WORK FOR THE BENEFICIARY TO PERFORM 
AT THE TIME OF FILING 
Next, we will discuss our supplemental finding regarding the failure of the evidence of record to 
establish that at the time of this petition's filing, the petitioner had secured any work for the 
beneficiary to perform.10 
Again, the evidence of record contains no "Pro ject Specifications" executed pursuant to the 
Agreement between the petitioner and the end-client. Absent such a document, it is not clear that 
the petitioner had secured any work for the beneficiary to perform pursuant to that Agreement at the 
time it filed the petition. With respect to the letters from the end-client, we note that they both were 
10 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. A 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1B nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (Jun. 4, 1998). 
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issued after the petition was filed. Thus, even if they did constitute credible evidence regarding any 
work that the petitioner may have secured for the beneficiary to perform for the end-client during 
the requested period of employment, they would not constitute evidence that, by the time of the 
petition's filing, the petitioner had secured definite, non-speculative employment for the 
beneficiary. 
users regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.P.R. 103.2(b )(12). A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, this 
aspect of the petition also precludes its approval. Thus, even if it were determined that the 
petitioner had overcome the director's grounds for denying this petition (which it has not), the 
petition could still not be approved. 
VII. CONCLUSION AND ORDER 
As set forth above, we agree with the director's findings that the evidence of record does not: 
(1) demonstrate the existence of an employer-employee relationship between the petitioner and the 
beneficiary; and (2) demonstrate that the proffered position is a specialty occupation. Beyond the 
decision of the director, we find additionally that the evidence of record does not demonstrate that 
the petitioner secured work for the beneficiary to perform when it filed the petition. 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 this H-1B petition. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff'd. 345 F.3d 
683. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision.11 In visa petition proceedings, it is the petitioner's burden to 
11 
As each of these issues independently precludes approval of the petition, we will not discuss in detail the 
additional deficiency we have observed in our de novo review of the petition, except to note that, given the 
conflicting nature between the petitioner's stated job duties and the wage-level for which the LCA was 
certified, it does not appear as though the LCA submitted in support of this petition actually corresponds to 
it. Consequently, even if the issues discussed above were fully addressed and resolved in the petitioner's 
favor, this additional issue would still need to be explored fully before the petition could be approved. 
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establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.