dismissed H-1B Case: Software Development

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U.S. Citizenship · 
and Immigration 
Services 
MATTER OF D-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 28, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software developer and consulting company, seeks to extend the Beneficiary's 
temporary employment as a "programmer analyst" under the H -1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and·practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center revoked approval of the petition. The Petitioner 
appealed the denial, which we dismissed on the basis that the Petitioner had not established an 
employer-employee relationship with the Beneficiary. We also noted that the Petitioner had not 
established that the proffered position qualifies as a specialty occupation. 
The matter is before us on a combined motion to reopen and motion to reconsider. In its combined 
motion, the Petitioner submits a new document and asserts that our decision was erroneous. We will 
deny the motions. 
I. MOTION REQUIREMENTS. 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.KR. § 
1 03.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
The only new evidence the Petitioner presents on motion is a new letter from the 
one of the end-clients to which the Beneficiary was assigned. This letter 
confirms that the Beneficiary "had been contracted from through 
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Matter of D-, Inc. 
Master Vendor) and he is not an employee of The 
consultant's employerwas responsible for his salary, benefits etc." This letter then briefly lists the 
Beneficiary's job duties. 
This letter is insufficient to demonstrate that the Petitioner had and maintained an employer­
employee relationship with the Beneficiary while he was assigned to work for that end-client. We 
specifically stated in our prior decision that information from the 
(or any other end-client) merely claiming that the Beneficiary is not its employee does not establish 
eligibility in this matter. That is, the record does not contain evidence detailing the nature, scope, 
and direction of the Beneficiary's assignment at the The record 
also does not contain evidence detailing who provided the instrumentalities and tools the Beneficiary 
utilized while at the end-client worksite. The newly submitted end-client letter still does not address 
any of these or other factors relevant to demonstrating an employer-employee relationship. In fact, 
this letter does not even identify the Beneficiary's "employer." 
Also according to the new letter from the the Beneficiary ·was 
contracted from via But the previously submitted letter from the 
stated that the Beneficiary "was contracted from 
via The Petitioner has not reconciled this inconsistency and identified all of 
the parties involved in the Beneficiary's assignment. 
The new letter from the does not establish that the Beneficiary 
performed duties of a specialty occupation, either. It only briefly lists his job duties; it does not 
describe the position's duties with sufficient detail. Further, it does not state whether the job duties 
required the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a bachelor's or higher degree in a specific specialty (or its equivalent), as required. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l); 8 C.F.R. § 214.2(h)(4)(ii). See Defensor v. 
Meissner, 201 F.3d 384, 387 (5th Cir. 2000) (where the work is to be performed for entities other 
than the petitioner, evidence of the client companies' job requirements is critical). ~ 
The rest of the Petitioner's motion consists of copies of previously submitted and considered 
evidence. We find that the Petitioner has not met the requirements of a motion to reopen. 
B. Motion to Reconsider 
With its motion to reconsider, the Petitioner re-submits copies of the following previously provided 
evidence: (1) documents pertaining to the Beneficiary's foreign education; (2) a legacy Immigration 
and Naturalization Service memorandum from the Nebraska Service Center Director, Terry Way; 
and (3) a U.S. Citizenship and Immigration Services (USCIS) question-and-answer guidance 
document on establishing employer-employee relationships. 
The Petitioner re-submits the documents pertaining to the Beneficiary's foreign education in 
response to our determination that the proffered position does not qualify as a specialty occupation. 
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Matter of D-, 'lnc. 
But the test to establish a position as a specialty occupation is not the skill set or education of a 
proposed beneficiary, but whether the position itself qualifies as a specialty occupation. The 
Beneficiary's particular degree does not overcome the Petitioner's acceptance of degrees in a 
number of fields, including the general field of business administration, as a sufficient minimum 
requirement for entry into the proffered position. 
By virtue of the types of degrees the Petitioner accepts, the record strongly suggests that the 
proffered position is not a specialty occupation requiring a degree in a specific specialty (or the 
equivalent). As we stated in our prior decision, we have consistently interpreted the term "degree" 
to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly 
related to the proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 
2007) (describing "a degree requirement in a specific specialty" as "one that relates directly to the 
duties and responsibilities of a particular position"); Defensor, 201 F.3d at 387; cf Matter ofMichael 
Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
The Petitioner also re-submits the Terry Way memorandum, written in December 2000, as evidence 
of this position's qualification as a specialty occupation. Notably, this memorandum has been 
rescinded as providing outdated, inaccurate information about computer related positions for H -1 B 
purposes. See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 
"Guidance memo on HI B computer related positions" (Mar. 31, 20 17), https://www.uscis.gov/sites/ 
default/files/files/nativedocuments/PM -6002-0142-H -1 BComputerRelatedPositionsRecission. pdf. 
Accordingly, we do not find this memorandum helpful to demonstrating the proffered position as a 
specialty occupation. 
Finally, the Petitioner's references to the USCIS question-and-answer guidance document are 
insufficient to establish that the Petitioner had and maintained an employer-employee relationship 
with the Beneficiary while he was assigned to the end-clients, and 
As indicated earlier in this decision as well as in our prior decision, the evidence 
of record does not disclose all relevant factors to establishing who controlled the Beneficiary's work 
and other incidents of the relationship, e.g., who oversaw and directed his work and provided the 
instrumentalities and tools. The Petitioner's motion still does not provide additional, relevant 
information. Without full disclosure of all relevant factors, we are unable to determine that the 
requisite employer-employee relationships existed and will continue to exist between the Petitioner 
and the Beneficiary. 
Indeed, we pointed out in our prior decision that the Petitioner's contract with 
stated that the Beneficiary "shall work under the direction of the management of Client 
' Based on this provision we concluded that the Petitioner relinquished control of the 
Beneficiary for at least 90 days when he worked at The Petitioner's motion does 
not specifically address this concern. 
For all of the above reasons, we find that the Petitioner has not met the requirements of a motion to 
reconsider by demonstrating that our prior decision to dismiss the appeal was incorrect. 
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Matter of D-, Inc. 
III. CONCLUSION 
The Petitioner has not met the requirements for a motion to reopen or a motion to reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of D-, Inc., ID# 427869 (AAO July 28, 20 17) 
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