dismissed H-1B Case: Software Development

MATIER OF K-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 20, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT consulting firm, seeks to temporarily employ the 
Beneficiary as a test analyst under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that: (1) the Petitioner will engage the Beneficiary in an employer­
employee relationship; and (2) the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "test analyst." 
Throughout the record, the Petitioner described the job duties for the position as follows: 
• Analyze business requirements and specifications; Test Genesys 
• Perform IVRICTI pathways using CC Pulse, Genesys Framework, Routing and 
CC Analyser. 
• Perform systems integration, conversions I upgrades for Contact I Call centers, 
ACD, PBX, CRM, WFM, VoiP, call logging, monitoring, reporting, telephony 
application platforms and enabling technologies. 
' • Work on automating scripts using QTP and Quality Center. 
• Develop Hyperion and Microstrategy reports. 
• Implement security changes to Gnesys UNIX servers which were the first to 
become compliant with new security requirements. 
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Matter of K-, Inc. 
• Compile complex testing strategies for a Genesys system conversion. 
• Organize test plans and coo~dinate testing efforts with the Call Center Project 
Manager. 
• Participate in Smoke, Regression and User Acceptance Tests. 
• Understand the CTI architecture, and review functional documents and business 
routing rule documents. 
• Review the GYP and URS interactions and follow all the events such as Event 
Ringing, Event Established, · Call Status Established, Event Route Request, 
Route Request, and Route DN. 
• Responsible for daily status meetings showing progress and future testing 
efforts. 
• Validate skills using USP Soft phone to test general functionality such as ready, 
not ready, after call work, busy, transfer and conference be tested. 
• Coordinate Integration and System testing of all aspects of the CTI application. 
• Test call routing, Call is transferred to the agents and correct skill as 
documented. 
• Pull API server Logs for CTI calls and IVR Nuance Logs through UNIX and 
send to developers for issues. 
• Identify Dropped calls in the IVR system while making the calls and report back 
to the Development and Telecom team for further investigation. 
The Petitioner submitted a letter where the end-client, 
confirms to the mid-vendor, the duties and requirements of the proffered position. In 
the letter, the end-client states that the minimum entry requirement for the proffered position is a 
bachelor's degree or work experience equivalent in computer science, computer information 
systems, or a related field and experience. 
II. UNITED STATES EMPLOYER 
Upon review of the record in its totality and for the reasonsset out below, we determine that the 
Petitioner has not demonstrated that it meets the regulatory definition of a United States employer as 
that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner has not established that 
it will have "an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such 
employee." !d. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
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Matter of K-, Inc. 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, supervise, 
or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.P.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.P.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual 
coming to the United States to perform services in a specialty occupation will have an "intending , 
employer" who will file a Labor Condition Application with the Secretary of Labor pursuant to 
section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). 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)(1)(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1B temporary "employees." 8 C.P.R. § 214.2(h)(1), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-lB beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.P.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H-1B visa classification, even though the regulation describes 
H-1B 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. 
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Matter of K-, Inc. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)} The Supreme Court stated: 
"In determining whether a hired party is an employee under the general 
common law of agency, we consider the hiring party's right to control the manner 
and means by which the product is accomplished. Among the other factors relevant 
to this inquiry are the skill required; the source of the instrumentalities and tools; 
the location of the work; the duration of the relationship between the parties; 
whether the hiring party has the right to assign additional projects to the hired party; 
the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether 
the work is part of the regular business of the hiring party; whether the hiring party 
is in business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Id.; 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)). 
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. 
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.
1 
1 
While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
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)(l)(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-lB visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
4 
Matter of K-, Inc. 
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.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf. Darden, 503 U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h)? 
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-1B 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 323-24; 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 
Inc., 467 U.S. 837, 844-45 (1984). 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-lB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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(b)(6)
Matter of K-, Inc. 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. 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.P.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the benefiCiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need he met; however, th( fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusio~ 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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
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-lB temporary "employee." 
Specifically, in support of the petition, the Petitioner submitted its employment agreement with the 
Beneficiary stating that it has the right to control the Beneficiary 's work "in situations where the 
employee is working offsite at a client location" and that it has the right to control "any work 
performed by Employee at a client site." The Petitioner submitted its Consulting Services 
Agreement with the mid-vendor, stating that the contracted employees (which 
include the Beneficiary) are solely the employees of the Petitioner and that the Petitioner is 
responsible for compensating its employees, ensuring employee compliance with mid'-vendor and 
client requirements, and outfitting employees with the required equipment to perform their duties at 
the client site. The Petitioner also submitted a letter from 
the end-client, confirming that is providing the Services of the Beneficiary, and 
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Matter of K-, Inc. 
stating that the Petitioner is the Beneficiary's employer and responsible for the payment of his 
salary, as well as hiring, firing, and all other employer responsibilities. 
In response to the RFE, the Petitioner submitted a brief excerpt of the mid-vendor's, 
Master Services Agreement and Master Contingent Workforce Agreement with the end-client, 
However, neither of the excerpts provides any information 
relating to employees and their actual supervision and duties. 
In its letter of support, the Petitioner stated that it conducts monthly and periodic performance 
reviews of each employee to ensure satisfactory completion of work and that each of its employees 
completes a weekly status sheet. The Petitioner submitted several of the Beneficiary's weekly status 
sheets while on OPT at the client site and, in response to the RFE, a Report of Performance 
Evaluation from January 1, 2016 to January 29, 2016, listing his position as test analyst and listing 
his major responsibilities identical to the duties of the proffered position listed above. However, the 
performance evaluation is signed by an unidentified person whose title is "HR Manager." 
Although the Petitioner submitted evidence, such as the letter from the end-client, 
to the mid-vendor, outlined above, the Petitioner did 
not submit any document which outlined in detail the nature and scope of the Beneficiary's 
employment, specifically including his direct supervision and review and approval of his work at/for 
the end-client. The Petitioner did not provide an organizational chart or other documentation to 
identify the Beneficiary's actual supervision and whether his work will directly by controlled by an 
employee of the end-client, mid-vendor, or the Petitioner. Therefore, the key element in this matter, 
which is who exercises actual control over the Beneficiary, has not been substantiated. 
On appeal, the Petitioner contends that the Beneficiary is employed by the Petitioner and that the 
Petitioner controls the Beneficiary's 
salary and conditions of employment. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Without full disclosure of all of the relevant factors, we are 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibility in this matter. A petitioner's unsupported statements are of very limited weight 
and normally will be insufficient to carry its burden of proof. See Matter of SoffiCi, 22 I&N Dec. 
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Matter of K-, Inc. 
158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. at 376. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.4 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.5 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
4 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 
The Petitioner submitted documentation to support the H-lB 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. 
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Matter of K-, Inc. 
( 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.P.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. 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 v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
A. First Criterion 
We turn first to the criterion at 8 C.P.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 addresses.6 
On the labor condition application (LCAf submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121.8 
6 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USeiS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
7 The Petitioner is required to submit a certified LeA to USeiS to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
8 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) 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://flcdatacenter.com/download/NPWHe _Guidance_ Revised _11_ 2009.pdf. A prevailing wage determination starts 
with an entry-level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
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Matter of K-, Inc. 
The Handbook states the following with regard to the educational qualifications necessary for 
entrance into positions located within this occupational category: 
A bachelor's degree in a computer or information science field is common, although 
not always a requirement. Some firms hjre analysts with business or liberal arts 
degrees who have skills in information technology or computer programming. 
Education 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
Many systems analysts continue to take classes throughout their careers so they can 
learn about new and innovative technologies. Technological advances come so 
rapidly in the computer field that continual study is necessary to remain competitive. 
Systems analysts must understand the business field they are working in. For 
example, a hospital may want an analyst with a thorough understanding of health 
plans and programs such as Medicare and Medicaid, and an analyst working for a 
bank may need to understand finance. Having knowledge of their industry helps 
systems analysts communicate with managers to determine the role of the information 
technology (IT) systems in an organization. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Systems Analysts, available at http://www.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm#tab-4 (last visited Dec. 7, 2016). 
Upon review of the educational requirements for a computer systems analyst as reported in the 
Handbook, the Handbook indicates at most that a bachelor's or higher degree in a computer or 
· information science field may be a common preference, but not a standard occupational, entry 
requirement. In fact, this chapter notes that many computer systems analysts only have liberal arts 
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Matter of K-, Inc. 
degrees and programming or technical experience. See id. Thus, the Handbook's report is insufficient 
to conclude that simply by virtue of its occupational classification the position qualifies as a specialty 
occupation. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of the 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position qualifies 
as a specialty occupation. 
Here, the letter from the end-client, specifically states that 
the minimum entry requirement for the proffered position is a bachelor's degree or work experience 
equivalent in computer science, computer information systems, or a related field and experience. 
The letter does not explain what "work experience" would be considered equivalent to a bachelor's 
degree in computer science, computer information systems, or a related field. As recognized in 
Defensor, 201 F.3d at 387-S8, it is necessary for the end-client to provide the minimum educational 
requirements necessary to perform those duties. 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. Here, it is not clear that the end-client requires that the person in this position 
have a bachelor's degree in a specific specialty. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
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Matter of K-, Inc. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quotingHird!Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. In addition, the Petitioner did not submit any letters or 
affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms 
"routinely employ and recruit only degreed individuals." 
The Petitioner does not submit probative evidence that demonstrates the degree requirement is 
common to the industry in parallel positions among similar organizations. Therefore, the Petitioner 
has not satisfied the criterion of the first alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The record here does not credibly demonstrate relative complexity or uniqueness as aspects of the 
proffered position. The evidence of record does not distinguish the proffered position as unique from 
or more complex than other computer systems analyst positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
Again, the LCA indicates that, relative to other positions located within the "Computer Systems 
Analysts" occupational category, the Beneficiary would perform only routine tasks that require 
limited exercise of judgment and that he will be closely supervised, monitored, and reviewed for 
accuracy. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). Without further evidence, the 
evidence does not demonstrate that the proffered position is complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a Level 
III (experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing 
wage.9 For example, a Level IV (fully competent) position is designated by DOL for employees 
9 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
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Matter of K-, Inc. 
who "use advanced skills and diversified knowledge to solve unusual and complex problems." The 
evidence of record does not establish that this position is significantly different from other positions 
in the occupational category such that it refutes the Handbook's information that a bachelor's degree 
in a specific specialty, or its equivalent, is not required for the proffered position. 
Therefore, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 
C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
Here, the Petitioner does not submit any evidence of previous or current employees in the same 
position as the Beneficiary's proffered position. As such, the Petitioner does not submit probative 
evidence that demonstrates the academic qualifications of individuals previously or currently 
employed in a similar computer systems analyst position. Therefore, the Petitioner has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalenJ. 
Again, in this matter, the Petitioner does not specifically discuss the proffered position's duties or 
claim that the duties are so complex that a bachelor's degree is required. We refer to our earlier 
comments with regard to the Petitioner's designation of the proffered position in the LCA as a Level I 
wage, and hence one not likely distinguishable by relatively specialized and complex duties. We have 
also reviewed the Petitioner's and end-client's description of duties for the proffered position. While 
we understand that the Beneficiary must have technical knowledge in order to perform these duties, the 
Petitioner has not sufficiently explained how these duties require the theoretical and practical 
application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher 
degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the 
United States. Upon review of the totality of the record, the record does not include probative evidence 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a 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. 
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Matter of K-, Inc. 
that the duties require more than technical proficiency in the information technology field. The 
Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
~ IV. CONCLUSION 
The evidence of record is insufficient to establish that: (1) the Petitioner meets the definition of a 
United States employer; and (2) the proffered position qualifies as a specialty occupation. The 
petition will be denied and the appeal dismissed for the above stated reasons, with each considered 
as an independent and alternative basis for the decision. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-, Inc., ID# 163632 (AAO Dec. 20, 2016) 
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