dismissed H-1B Case: Software Development

MATTER OF A-ITS-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 19,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting service, seeks to extend the Beneficiary's 
temporary employment as a "programmer analyst" under the H-1 B nonimmigrant classification for 
specialty occupations. See section IOI(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § IIOI(a)(l5)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily 
employ a qualified foreign worker in a position that requires both (a) the theoretical and practical 
application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or 
higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the 
position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated: (I) that it would employ the Beneficiary in a specialty occupation; 
and (2) that it would engage the Beneficiary in an employer-employee relationship. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence submitted is sufficient to approve the H-I B petition. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPA TlON 
A .. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
(b)(6)
Matter of A-ITS-, Inc. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
" 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Cherto_ff; 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 positiol!"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. 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. 
B. The Proffered Position 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, that the Beneficiary 
would work at in Utah from June 4, 2015, to August 24, 2017. 
Evidence in the record shows that address to be a location of an investment bank 
and the claimed end-client user of the Beneficiary's services. 
2 
(b)(6)
Matter of A-ITS-, Inc. 
On the labor condition application (LCA) submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers," 
corresponding to the Standard Occupational Classification code 15-1131.1 The LCA is certified for 
employment at location and at the Petitioner's own location in 
New Jersey. 
In a letter submitted with the initial filing, the Petitioner stated that it will provide the Beneficiary's 
services to which will in tum provide her services to "who 
is implementing a project for" 2 It further stated, "Our company has several ongoing 
contracts with US based customers and so a genuine need for qualified software professionals. 
Regardless of which client location, or which project the employee may temporarily be based at[,] 
they remain at all times employees of our company." In addition, the Petitioner stated: 
In addition to our client engagements, [the Petitioner] has multiple products being 
marketed to customers. These products may require ongoing development, testing, 
and customization based upon new enhancements and feature additions being made to 
the products and/or any customer specific business requirements. Employees 
working on the development and testing of these products may be working_out of our 
company office locations. 3 
The Petitioner provided the following duty description for the proffered position: 
• Batch processing 
• Closely monitor End of day batch and ensure timely activities. 
• Resolve issues for failing jobs or escalate to appropriate teams and ensure job Succeeds 
• Manually handling jobs to ensure time lines are followed 
• Coordinating with other teams for feeds flow 
• Resolve escalated by other teams 
1 The Petitioner classified the proffered position at a Levell wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _ Guidance_Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. ld 
2 The contractual chain of succession asserted, therefore, is as follows: Petitioner~ 
3 In this letter, the Petitioner indicated multiple client projects at multiple locations to which the Beneficiary could be 
assigned. Further, the Petitioner mentioned multiple locations of its own to which the Beneficiary could be assigned. 
The LCA, however, was certified for employment at only one specific client location and at only one of the Petitioner's 
offices. It is valid for employment in and near those locations, and nowhere else. 
3 
(b)(6)
Matter of A-ITS-, Inc. 
• Develop utilities to reduce manual intervention or for bug fixing 
• Documentation 
[The Beneficiary's]job duties will also include the following: will be responsible for 
analyzing current client business environments and technology solutions in order to 
propose new technology systems. He [sic] will be responsible for coordinating with 
clients and system users to collect and analyze technical requirements. This position 
is also charged with the 
designing of computer programs, system controls, and 
protocols that align with the client defined technical requirements. 
[The Beneficiary] will also ensure that quality standards and procedures are 
maintained, while also obtaining a thorough understanding ofthe project's goals and 
business functionality. She 'will identify problems, study existing systems to evaluate 
effectiveness and develop new systems to improve production and or work flow. 
C. Preliminary Issues 
Before addressing the H-lB regulatory criteria we will first discuss several deficiencies we observe 
with regard to the evidence submitted by the Petitioner. 
1. The Petitioner Has Not Established the Substantive Nature of the Beneficiary's Employment 
As explained above, and as recognized 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. 
Absent such evidence, we cannot determine what duties the end-client, which would presumably 
assign work to the Beneficiary, would request the Beneficiary to perform.4 Even assuming that the 
Beneficiary would work on the project, the assertions of the Petitioner and are 
insufficient to demonstrate the substantive nature of the duties the Beneficiary would actually 
perform ifthe visapetition were approved. 
Further, some of the evidence suggests that the Beneficiary may not work at the 
location throughout the period of requested employment. In a "Continuing Appointment Letter" 
addressed to the Beneficiary, the Petitioner stated, "Upon completion of [the 
project you will be reassigned to another project of our choosing or be based at our own office in 
NJ." 
The record contains a Supplier Agreement, dated October 1, 2014, that sets out general terms 
pursuant to which could provide the Petitioner's workers to its clients in accordance with 
purchase orders to be issued subsequently. A purchase order submitted with that agreement 
indicates that the Petitioner and agreed that the Petitioner would provide the Beneficiary's 
4 The subject ofwho would assign the Beneficiary's duties and supervise her performance if she were assigned to a client 
site will be further discussed below. 
4 
(b)(6)
Matter of A-ITS-, Inc. 
services to who would , in tum, provide her services to '· ' at the 
location for one year, beginning October 20, 2014. We observe that this purchase order 
covers less than eight months of the period of employment requested in this case. 
The record also contains what purport to be timesheets regarding work the Beneficiary performed for 
that is, they bear a emblem with the header " 
They indicate that the Beneficiary worked forty hours 
each week in July 2015. However, they contain insufficient indication that has 
agreed to retain the Beneficiary's services throughout the period of requested employment, nor 
during any part of it after July 2015. 
Moreover, the fact that every timesheet was signed on July 31, 2015, rather than on some date closer 
to the end of each pay period, undermines its value. It does not appear as though they were executed 
contemporaneously for billing purposes, which is the normal function of a timesheet, and they 
therefore lack the persuasive value that would have be accorded a timesheet issued 
contemporaneously and in the ordinary course of business. 
Further, a vice president at stated that the Beneficiary has been contracted through his company 
to for a project "that is likely to continue for the foreseeable future." However, he 
did not further specify when the end of that project is anticipated. 
Thus, the Petitioner has indicated that, when the project at is completed, it may 
assign the Beneficiary to one of its other customer locations. Because the work the Beneficiary 
would perform at other locations has not been demonstrated, the visa petition cannot be approved for 
any period during which the Petitioner has not demonstrated that had agreed to 
utilize the Beneficiary's services. 5 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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 rrom potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B 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-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification , 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
5 
(b)(6)
Matter of A-ITS-, Inc. 
The Petitioner has not demonstrated that the Beneficiary would work at the location 
throughout the period of requested employment. Therefore, the duties the Petitioner asserts that the 
Beneficiary would perform on the project have not been shown to be an accurate 
description of the duties the Beneficiary would perform if the visa petition were approved, and the 
Petitioner has not established the substantive nature ofthe duties of the proffered position. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (I) the normal minirimm 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. This is sufficient reason, in 
itself, to deny the petition and dismiss the appeal. · 
2. The Petitioner Does Not Require a Bachelor's Degree in a Specific Specialty 
The Petitioner stated, "the minimum requirements for [the proffered position] are a Bachelor's 
degree in Engineering, Science, Technology or Computer Science and relevant 
work experience." 
The Petitioner asserts that a bachelor 's degree in "science," is a sufficient educational qualification 
for entry into the proffered position. The field of "science " constitutes a wide variety of studies 
including, but not limited to, physics, chemistry, geology, meteorology, astronomy, biology, 
zoology, and botany. That a bachelor's degree in any of that-diverse array of subjects could provide 
a sufficient educational qualification for the proffered position makes clear that the Petitioner does 
not require a minimum of a bachelor's degree in a specific specialty or its equivalent for the 
proffered position, and that the proffered position does not, therefore, qualify as a specialty 
occupation position. This in itself is, again, sufficient reason to deny the visa petition and to dismiss 
the appeal. Nevertheless, we will continue our analysis of whether the proffered position qualifies as 
a specialty occupation for the purpose of performing a comprehensive analysis. 
D. Analysis ofthe Four Supplemental Specialty Occupation Criteria 
We will next discuss the record of proceedings in relation to the four criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A) based on the assumption , made arguendo, that the Petitioner has accurately 
described the duties of the proffered position and has accurately characterized the proffered position 
as a programmer analyst position. 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 2 14.2(h)(2)(i)(E). 
6 
Matter of A-ITS-, Inc. 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation 
pursuant to the criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) 6 The record does not establish that the 
job duties require an educational background, or its equivalent, commensurate with a specialty 
. 7 
occupatwn. 
I. First Criterion 
· We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses8 
Again, on the LCA submitted in support of the H-I B petition, the Petitioner designated the proffered 
position under the occupational category "Computer Programmers" corresponding to the Standard 
Occupational Classification code 15-1131. 
The Handbook states the following about the educational requirements of computer programmer 
positions: 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Programmers," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-programmers.htm#tab-4 (last visited July 14, 2016). 
6 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
7 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
8 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
7 
Matter of A-ITS-, Inc. 
According to the Handbook, the occupation accommodates a wide spectrum of educational 
credentials, including less than a bachelor's degree in a specific specialty. The Handbook states that 
some employers hire workers who have an associate's degree. Furthermore, while the Handbook's 
narrative indicates that most computer programmers obtain a degree (either a bachelor's degree or an 
associate's degree) in computer science or a related field, the Handbook does not report that at least 
a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement 
for entry into the occupation. The Handbook also reports that employers value computer 
programmers who possess experience, which can be obtained through internships. 
When reviewing the Handbook, it also must be noted that the Petitioner designated the proffered 
position as a Level I (entry level) position on the LCA9 Given the Handbook's finding that an 
associate's degree would provide adequate preparation for some positions located within the 
occupational category, the Petitioner's characterization of the responsibilities of the proffered 
position by virtue of its Level I wage designation on the LCA serves as additional evidence that the 
particular position proffered here does not require a bachelor's degree in a specific specialty, or the 
equivalent. 
Further, to the extent that they are described in the record of proceedings, the duties that the 
Petitioner ascribes to the proffered position indicate a need for a range of knowledge in the 
computer/IT field, but do not establish any particular level of formal, postsecondary education 
leading to a bachelor's or higher degree in a specific specialty as minimally necessary to attain such 
knowledge. In addition, as discussed, the Petitioner asserts that a bachelor's degree in various fields, 
including "science," is a sufficient educational qualification for entry into the proffered position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
9 The assertion that the proffered position is a wage Level I entry-level position appears to conflict with the Petitioner's 
assertion that it requires, in addition to a bachelor's degree, "relevant work experience." This could lead to a finding that 
the LCA does not correspond to the balance of the visa petition as required by 8 C.F.R. § 214.2(h)(4)(i)(B)(I) and, 
therefore, dismissal pursuant to 20 C.F.R. § 655.705(b). However, given that the Petitioner was no more specific as to 
the experience required for what it asserts is an entry-level position, we will not pursue that basis for dismissal. 
8 
Matter of A-ITS-, Inc. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.l989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." Nor does the record contain any other evidence for our consideration under 
this prong. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion of the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review of the record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. Even when considering the Petitioner's general descriptions of 
the proffered position's duties, the evidence of record does not establish why a few related courses 
or industry experience alone is insufficient preparation for the proffered position. While a few 
related courses may be beneficial, or even required, in performing certain duties of the position, the 
Petitioner has not demonstrated how an established curriculum of such courses leading to a 
9 
Matter of A-ITS-, Inc. 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions within the occupational category that can be performed by persons 
without a minimum of a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant 
petition. As noted above, the Petitioner attested on the submitted LCA that the wage level for the 
proffered position is a Level I (entry-level) wage. Such a wage level is for a position which only 
requires a basic understanding of the occupation; the performance of routine tasks that require 
limited, if any, exercise of judgment; close supervision and work closely monitored and reviewed for 
accuracy; and the receipt of specific instructions on required tasks and expected results, is contrary 
to a position that requires the performance of complex duties.10 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees that are less than a 
bachelor's degree. In other words, the record lacks sufficiently detailed information to distinguish 
the proffered position as unique from or more complex than positions that can be performed by 
persons without at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner has claimed that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 2l4.2(h)(4)(iii)(A)(2). 
10 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its 
claim that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), 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 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. 
10 
Matter of A-ITS-, Inc. 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The Petitioner claims that it requires a minimum of a bachelor's degree in engineering, science, 
technology, or computer science for the proffered position. While the Petitioner claims to have been 
established in 200 I and to have 150 employees, and presumably has employed other programmer 
analysts in the past, it provided no evidence pertinent to their educational qualifications for our 
consideration under this criterion. 
Further, as we observed above, the Petitioner's implication that a bachelor's degree in any branch of 
science would be a sufficient educational qualification for the proffered position indicates that the 
Petitioner does not normally require a minimum of a bachelor's degree in a specific specialty or its 
equivalent for the proffered position. 
For both reasons, the Petitioner has not demonstrated that it normally requires at least a bachelor's 
degree in a specific specialty or its equivalent for the position, and it has not has satisfied the third 
criterionof8 C.F.R. § 214.2(h)(4)(iii)(A). 11 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We find that relative specialization and complexity have not been sufficiently developed by the 
Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the implication of the Petitioner's designation of the proffered position in the 
LCA as a Level I (the lowest of four assignable levels) wage. That is, the Level l wage designation 
is indicative of a low, entry-level position relative to others within the occupational category, and 
hence one not likely distinguishable by relatively sp$'cialized and complex duties. Upon review of 
11 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, 
that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USC IS 
limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's 
degree could be brought to the United States to perforrn any occupation as long as the employer artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher 
degree in the specific specialty or its equivalent. See Defensor v. Meissner, 20 I F. 3d at 387. In other words, if a 
petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty 
degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a 
specialty occupation. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation"). 
1 1 
Matter of A-ITS-, Inc. 
the totality of the record, we find that the Petitioner has not established that the nature of the specific 
duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed for this 
reason. 
II. EMPLOYER-EMPLOYEE 
A. Legal Framework 
The remaining issue is whether the Petitioner has demonstrated that it would qualify as an H-1B 
employer. The United States Supreme Court determined that where federal Jaw fails to clearly 
define the term "employee," courts should conclude that the term was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common Jaw 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440,445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
12 
(b)(6)
Matter of A-ITS-, Inc. 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. 
B. Analysis 
The Petitioner has asserted that it will provide the services of the Beneficiary, through and 
to so that she may work on projects. The Petitioner has 
asserted numerous times that it would control the Beneficiary's work and otherwise supervise her 
performance. 
However, the Petitioner is located in New Jersey and the project is being developed 
in Utah. There is no indication that the Petitioner has taken charge of the development of this 
project, and there is no indication that it has provided a supervisor to work on-site with the 
Beneficiary. We find it likely that during any period during which the Beneficiary would work in 
Utah on the project, the entity developing the project would be the entity assigning 
the Beneficiary's duties and supervising his performance. Here, that entity appears to be 
Assigning duties and superv1smg performance is a critical piec~ of the employer-employee 
relationship. Supervision would be an even more important, and perhaps indispensable, aspect of 
that relationship here because, as a wage Level I position, the proffered position's duties would by 
definition be performed under close supervision. 
The record contains insufficient evidence that anyone other than is developing its 
project or that, if the Beneficiary were to work at the location, anyone other than 
would assign the Beneficiary's duties and supervise his performance.
12 
Further, 
there is insufficient evidence pertinent to the other third party projects that the Petitioner asserted 
that it may assign the Beneficiary to when the project ends, as pertinent to who 
would supervise the Beneficiary at those other projects. 
Based on the tests outlined above, we find 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). 
III. PRIOR APPROVALS 
We recognize that this is an extension petition. The Director's decision does not indicate whether 
she reviewed the prior approvals of the previous nonimmigrant petitions filed on behalf of the 
12 If the Petitioner were able to demonstrate that or were developing the project, rather than 
that would be insufficient, of course, to demonstrate that the Petitioner would supervise the Beneficiary. 
13 
Matter of A-ITS-, Inc, 
Beneficiary, If the previous nonimmigrant petltwns were approved despite the evidentiary 
deficiencies contained in the current record, those approvals would constitute material and gross 
error on the part of the Director, We are not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous, See, e,g Matter of Church Scientology International, 19 I&N Dee, 593, 597 (Comm, 
1988), It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors 
as binding precedent" Sussex Engg Ltd v, Montgomery, 825 F,2d I 084, I 090 (6th Cir, 1987), cert, 
denied, 485 U,S, I 008 (1988), A prior approval does not compel the approval of a subsequent 
petition or relieve the petitioner of its burden to provide sufficient documentation to establish current 
eligibility for the benefit sought 55 Fed, Reg, 2606, 2612 (Jan, 26, 1990), A prior approval also 
does not preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought See Texas A&M Univ, v, Upchurch, 99 Fed, Appx, 
556, 2004 WL 1240482 (5th Cir, 2004), Furthermore, our authority over the service centers is 
comparable to the relationship between a court of appeals and a district court, Even if a service 
center director had approved nonimmigrant petitions on behalf of a beneficiary, we would not be 
bound to follow the contradictory decision of a service center, Louisiana Philharmonic Orchestra v, 
INS, 2000 WL 282785 (ED, La,), aff'd, 248 F3d 1139 (5th Cir, 2001), cert, denied, 122 S,Ct, 51 
(200!), 
IV, CONCLUSION 
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 ofOtiende, 26 I&N Dec, 127, 128 
(BIA 2013), Here, that burden has not been met 
ORDER: The appeal is dismissed, 
Cite as Matter of A-ITS-, Inc,, ID# 17181 (AAO July 19, 2016) 
14