dismissed H-1B Case: Software Development

(b)(6)
DATE: JUN 2 6 2015 
IN RE: Petition er: 
Beneficiary: 
PETITION RECEIPT# : 
U.S. Department. of Homeland Security 
U.S. Ci tizenship and Immi gration Service! 
Administrative Appeals Offic e 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-prec edent decision of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorr ec tly decid ed your case, you may file a motion requ esting us to reconsider our 
decision and/or reopen the proce eding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motion s must be filed on a Notic e of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov /i-290b) contains the latest inform at ion on fee, filing 
location , and other requir ements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rose nberg 
Chief, Admini strative Appeals Offic e 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The Administrative 
Appeals Office dismissed a subsequent appeal and the matter is again before us on a combined 
motion to reopen and motion to reconsider. The combined motion will be granted. The petition 
will be denied. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
15-employee "Software Consulting and Development Services" business established in In 
order to continue the beneficiary's employment in what it designates as a full-time "Programmer 
Analyst" position at a salary of $62,500 per year, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director denied the petition, concluding that the evidence of record does not demonstrate that: 
(1) the petitioner qualifies as a U.S. employer having an employer-employee relationship with the 
beneficiary; and (2) the proffered position qualifies as a specialty occupation. The petitioner filed 
an appeal, which we dismissed as moot. The petitioner filed the instant motion, contending that the 
appeal was not moot. 1 
The record of proceeding contains the following: (1) the Form I -129 and supporting documentation; 
(2) the service center's request for additional evidence (RFE); (3) the petitioner's response to the 
RFE; ( 4) the Director's letter denying the petition; (5) the Notice of Appeal or Motion (Form l-
290B), and documentation submitted in support of the appeal; (6) our decision dismissing the 
appeal; and (7) the instant Form I-290B and documentation in support of the petitioner's combined 
motion. We have reviewed the record in its entirety before issuing our decision. 2 
As noted above, the petitioner's motion will be granted. For the reasons that will be discussed 
below, we agree with the Director's decision that the petitioner has not established eligibility for the 
benefit sought. Accordingly, the Director's decision will not be disturbed. 
II. THE PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the visa petitiOn states that the 
proffered position is a programmer analyst, and that it corresponds to Standard Occupational 
1 
We dismissed the appeal as moot, as the petitioner had filed a new Form 1-129 for the beneficiary 1 
which was approved from February 24, 2014 to February 23, 2017. The petitioner filed the 
combined motion to reopen and reconsider, pointing out that the approval of petition receipt # 
does not cover the time period between October 2, 2013 and February 24, 2014 which are the "[ d]ates 
between when the Beneficiary's initial H-1B status ended and the beginning of the second approved H-lB 
period." 
2 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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Classification (SOC) code and title "15-1121, Computer Systems Analysts" from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I 
position. 
The petitioner listed its address on the Form I -129 as 
New Jersey; however, the petitioner indicated that the beneficiary will work off-site at 
Illinois. The petitioner listed the dates of intended employment as 
October 2, 2013 to February 23, 2014. 
The petitioner submitted a letter, dated August 26, 2103, from certifying that it has 
"contracted the services and products of [the petitioner]." This letter verifies that the beneficiary is 
currently working on the " project at the worksite 
IL." The letter states that _ and "require 
the services of (the beneficiary] on a long term basis." The letter describes the beneficiary's job 
duties, which it characterizes as "Web Development," as follows: 
*Build Framwork Business object for use of the websites*Program in PHP*Program 
javascript objects for use of the front-end*Build queries for MySQL 
databases *Optimize code of web developers *Program website using PHP and 
MsSQL queries utilizing the framework*Build front-end artwork*Convert approved 
artwork to smarty templates(.html, .css&.js)*Program javascript objects for use of the 
front -end templates * Perform other duties as assigned. 
[Verbatim.] 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first discuss whether the petitioner will have and maintain an employer-employee 
relationship with the beneficiary throughout the entire validity period requested. 
A Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the (Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
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United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "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 alien 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) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-lB temporary "employees." 8 C.F.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an 
"employer-employee relationship" with the "employees under this part," i.e., the H-1B beneficiary, and 
that this relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise 
control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States 
employer"). 
Neither the 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. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. 
Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative 
Non- Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
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by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship, must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. ofAmerica, 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. 3 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R.§ 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB employers and employees to have an 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6) , and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee ,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition. " See, e.g., 
Bowers v. Andr ew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
sec tion 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions . Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the iss ue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
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"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 318-319.4 
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) .5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer ; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer 's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision) ; see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services , are the "true employers" of H-1B nurses under 8 C.F.R. § 214.2(h) , 
4 
To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpret ation of these terms should be found to be contr olling unless "'plainly 
erroneou s or incon sistent with the regulation ."' Auer v. Robbins , 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Coun cil, 490 U.S. 332, 359, 109 S.Ct. 1835 , 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
5 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-serv ant relationship. See, e.g. , section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employ ers" supervising and 
contr olling L-1B intracompany transferees having specialized knowledge); section 274A of the Act , 8 U.S.C. 
§ 1324a (referring to the employm ent of unauthorized alien s). 
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even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however , that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of thefactors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship . 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor , unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
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 conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship . .. with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we agree with the Director that 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." 
In the instant matter , the petitioner indicated that the beneficiary will work off-site for the end­
client, located at Illinois. 6 However, the record 
of proceeding does not contain reliable documentation establishing in sufficient detail the 
circumstances of the beneficiary's assignment. Notably, the petitioner has not provided any 
documentation directly from the end-client, nor between the end-client and the vendor, 
, despite the beneficiary's claimed assignment at since July 2013. 
While the petitioner submitted a letter from 
beneficiary "will not be a direct employee of 
dated August 26, 2013, stating that the 
nor " 
and that the petitioner 
6 We observe that the Employment Agreement between the petitioner and the beneficiary indicates that he has 
been living in 
in New Jersey. 
Wisconsin since at least September 2008. In contrast, the petitioner's office is located 
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will be his "employer [which) retains full and ultimate control" over his work, this letter does not 
describe in any factual detail the manner in which the petitioner purportedly exercises such "full and 
ultimate control." Similarly , the Subcontractor Agreement between and the 
petitioner/beneficiary characterizes the beneficiary as the petitioner's employee and states that the 
petitioner will be responsible for "determining the manner and means best suited to perform its 
services." However , this agreement does not provide any further clarification, such as what 
"manner and means" the petitioner utilizes to purportedly oversee the beneficiary's assignment at 
Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici , 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
The record of proceeding also does not contain reliable documentation corroborating the petitioner's 
assertions that it supervises and controls all aspects of the beneficiary's off-site work. More 
specifically, the petitioner has repeatedly stated that it exerts control over the beneficiary's 
employment through regular electronic and telecommunications and status reports. However, the 
record of proceeding is devoid of evidence of these claimed communications. Moreover, while the 
petitioner did submit numerous copies of Employee Performance Reviews, we question the 
credibility of these reports. We note that the petitioner asserted that the beneficiary completes these 
reports on a weekly basis, but the performance reviews were completed on a monthly basis. 
In addition, although the petitioner claimed that the beneficiary submits these reports to the "project 
manager" or "HR Manager," as noted above, these reviews were submitted to the Vice President. 
Notably, the petitioner's organizational chart does not depict a "project manager" or "HR Manager" 
position, nor does it depict the Vice President, as overseeing the beneficiary. 7 
Further , the petitioner submitted its Quarterly Contribution Reports for the State of Wisconsin, 
where the beneficiary resides, for the first three quarters of 2013 (ending in September 2013). 
These reports indicate that the petitioner did not report any wages paid in the State of Wisconsin in 
March, May, June, and September of 2013. The petitioner has not explained why the performance 
reviews indicate that the beneficiary was continuously working for the petitioner during these 
months, when the company's Quarterly Contribution Reports indicate otherwise. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. !d. 
Also, there is insufficient indication of how the beneficiary's performance was rated by the 
signatory, the petitioner's Vice President. The evidence of record does not 
establish the manner in which these reviews were conducted, prepared, transmitted , and received , 
7 
We note that Mr. name is spelled 
1 1 
elsewhere in the record . 
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and the source of the information contained therein. We note that these reports were first signed by 
the beneficiary and then signed by the petitioner, at times several days later. Without further 
explanation, we cannot find that these performance reports, through which the beneficiary is 
informing the petitioner about his off-site work, support the petitioner's claim that it exerts control 
over the beneficiary's employment. 
Thus, even if the petitioner were to establish that it provides the beneficiary's salary and other 
employment benefits, these factors, alone, are insufficient to establish that the petitioner qualifies as 
the beneficiary's employer having an employer-employee relationship with him. 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 alien beneficiary is assigned, must also be assessed and weighed in order 
to make a determination as to who will be the beneficiary's employer. Here, there is insufficient 
evidence establishing all the relevant factors of the beneficiary's employment. Without full 
disclosure of all of the relevant factors, we are unable to find that the requisite employer-employee 
relationship has and will continue to exist between the petitioner and the beneficiary. As previously 
mentioned, the "mere existence of a document styled 'employment agreement"' shall not lead 
inexorably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. 
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 and other 
submitted documentation that the petitioner exercises complete control over the beneficiary, without 
competent evidence supporting the claim, does not establish eligibility in this matter. Again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Based on the tests 
outlined above, the petitioner has not established that it qualifies as an "United States employer" 
having an "employer-employee relationship" with the beneficiary as an H-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). For this reason, the petition must be denied. 
IV. SPECIALTY OCCUPATION 
Next, we will address whether the position proffered qualifies for classification as a specialty 
occupation. 
A. Legal Framework 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the 
term "specialty occupation" as one that requires: 
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(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 term "specialty occupation" is further defined at 8 C.P.R.§ 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.P.R. § 214.2(h)( 4)(iii)(A), to qualify as a specialty occupation, the position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together with 
section 214(i)(1) of the Act and 8 C.P.R. § 214 .2(h)(4)(ii). In other words, this regulatory language 
must be construed in harmony with the thrust of the related provisions and with the statute as a 
whole. See K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) (holding that construction of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result 
in particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory 
or regulatory definition. See Defensor v. Meissner, 201 P.3d 384 , 387 (5th Cir. 2000). To avoid 
this result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria 
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that must be met in accord ance with, and not as alternatives to, the statutory and regul atory 
definitions of specialty occup ation. 
As such and consonant with section 214(i)(l) of the Act and the regul ation at 
8 C.F.R. § 214.2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
speci alty that is directly related to the proffered position. See Royal Siam Corp . v. Chertojf ; 484 
F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USCIS regularly approves H-lB petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such 
occupations. These professions, for which petitioners have regularly been able to establish a 
minimum entry requirement in the United States of a baccalaureate or higher degree in a specific 
specialty or its equivalent directly related to the duties and responsibilities of the particular position, 
fairly represent the types of specialty occupations that Congress contemplated when it created the 
H-lB visa category . 
To determine whether a particular job qualifies as a specialty occupation , USCIS does not rely 
simply upon a proffered position's title. The specific duties of the position, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. USCIS must 
examine the ultimate employment of the beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 384. The critical 
element is not the title of the position nor an employer's self-imposed standards, but whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation , as required by the Act. 
B. Analysis 
As recognized in Defensor v. Meissner, 1t 1s necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide services to 
the end-client hospitals and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient, credible information 
from or by the end-client, regarding the specific job duties to be performed by the 
beneficiary. Again , going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. 
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The letter from Insight Global does not provide a sufficient, reliable description of the work the 
beneficiary is purportedly providing to The letter simply states that the beneficiary is 
working on "the project," without additional explanation of this 
particular project. Furthermore , this letter describes the nature of the proffered position as "Web 
Development," and lists several duties related to web development including "[b ]uild Framwork 
Business object for use of the websites," "[o]ptimize code of web developers," and "[p]rogram 
website." The petitioner did not, however, expressly list any web development duties for the 
proffered position. 8 As previously noted, the petitioner submitted a certified LCA for the proffered 
position corresponding to the occupational code and category "15-1121 , Computer Systems 
Analysts," which does not expressly include any web development duties. See O*NET OnLine , 
Details Report for: 15-1121.00 Computer Systems Analysts, 
http://www.onetonline.org/link/details/15-1121.00 (last visited June 17, 2015). Again , doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N 
Dec. at 591-92 . 
Overall , the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the beneficiary . The failure to establish the substantive nature of the work, therefore, 
precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)( 4)(iii)(A) , it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. For this additional reason, the petition must be denied. 
V. BENEFICIARY'S QUALIFICATIONS 
A beneficiary's credentials to perform a particular job are relevant only when the job is found to be 
a specialty occupation. As discussed in this decision , the proffered position does not require a 
8 While the petitioner-provided job duties are generally outside the scope of consideration for establishing 
whether the position qualifies as a specialty occupation, we are considering the petitioner's descriptions here 
for the purpose of highlighting the inconsistencies in the evidence of record. See Defensor v. Meissner, 201 
F.3d 384, 387-388 (5th Cir. 2000) (stating that the petitioner-provided job duties and alleged requirements to 
perform those duties were irrelevant to a specialty occupation determination where the nurses in that case 
would provide services to the end-client hospitals and not to the petitioning staffing company). 
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baccalaureate or higher degree in a specific specialty, or its equivalent. Therefor e, we need not and 
will not address the beneficiary's qualifications further, except to note deficienci es and 
discrepancies we have identifi ed in the evidence of record. 
More s pecifically , we note that the evaluation of the beneficiary's foreign education states that the 
beneficiary was "awarded a M aster of Computer Applications Degree from 
_ in 2003 ." However, the evidence of record does not contain sufficient 
evidence establi shing that the beneficiary was actually awarded a Master of Computer Applic ations 
Degree in 2003 , as claimed. The record of proceeding contains only a copy of the beneficiary's 
"Provisional Degree Certific ate." Notably, this "Provisional Degree Certific ate" was issued in 
2007 , and states vaguely that the beneficiary's degree certificate would be awarded at the "next" 
Annual Convocation or at some unspecified time "thereafter." We also note that the evalu ation of 
the beneficiary's foreign educ ation does not explain how the beneficiary satisfied all degree 
requirements, when the beneficiary's transcripts indicate that he failed his first , second, fourth , and 
fifth semesters of his master's program. 
We may, in our discretion , use an evaluation of a person's foreign education as an advisory opinion . 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. !d. 
VI. CONCLUSION AND ORDER 
As set forth above, we find that the evidence of record does not establish an employer-employee 
relationship between the petitioner and the beneficiary . We also find that the evidence of record 
does not establish that the proffered position qualifies for classification as a specialty occup ation. 
Accordingly, the petition will be denied. 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the servic e center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001) , aff'd, 345 F.3d 683 (9th Cir. 2003) ; see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid , unless it is demonstrated that the agency would not have acted on that 
basis if the altern ative grounds were unav ailable."). 
The petition will be denied for the above stated reasons, with each considered as an independ ent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burd en to 
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establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The motion is granted and the underlying petition remains denied.