dismissed H-1B Case: Software Development

MATTER OF C- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 30, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Pytitioner, a software development and consulting firm, seeks to temporarily employ the 
Beneficiary as a "DWT/BI (data warehouse testing/business intelligence) test lead" 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. § 1101(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 had not demonstrated: (1) that the proffered position qualifies as a specialty occupation 
position, (2) that the Beneficiary would work only in areas for which the labor condition application 
(LCA) is certified, or (3) that the Petitioner would exercise an employer-employee relationship with 
the Beneficiary such that the Petitioner could meet the definition of a United States employer as 
defined at 8 C.P.R. § 214.2(h)(4)(ii). 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all requirements. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. The Law 
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 
Matter of C- Inc 
(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: 
(I) 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 equiyalent for the position; or 
(4) The nature of the specific duties [is] so specialized and com~lex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F;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. 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). 
We note that, 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 has! 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. Jd. 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. Proffered Position 
The Petitioner provided the following description of the duties of the proffered position with the 
H-IB petition: 
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Matter ofC- Inc 
Requirements Analysis and Estimation:- 25% 
Objective of Requirement Analysis activity is to establish a common understanding between 
the customer and the software project of the customer's requirements that will be 
addressed by the software project. 
Objective of Estimation activity is to establish agreed upon baselines fof) the 
requirements, Schedule and estimate the effort. 
Tasks: Review and understanding requirements of the project, Planning and 
scheduling the effort to be spent on testing the requirements, Estimation of tests to be 
conducted, Delivering quality product without any defects/bugs. 
Quality Management: - 25% 
Objective of this activity is to ensure the deliverables meet the expectations of the 
customer 
Tasks: Test planning, Test Scenarios and Test case preparation and review with stake 
holders, Test execution, Defect tracking and closure, Documentation and knowledge 
sharing, Co-ordination and mentoring Off-shore team, Configuration management, 
Go-live activities. 
Team Co-ordination and Stakeholder Management: -35% 
Objective of this activity is to co-ordinate and manage the expectations and 
relationships with stake holders and relationships with all the internal and external 
stakeholders of the project. 
Tasks: Reporting status and tracking, Co-ordination with stake holders for review, 
defect closure and status. 
Customer Relationship Management -15% 
Objective of this activity is to manage the expectations and relationships with the 
customer 
Tasks: Co-ordination and support, Completion of scheduled effort on-time, 
Reporting status on daily basis and tracking the same. 
The Petitioner also stated that the proffered position requires a minimum of a bachelor's degree in 
electrical engineering, computer science, or a closely related field. 
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Matter of C- Inc 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. 1 Specifically, the record 
does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 2 
On the LCA submitted in support of the H-1 B petitiOn, the Petitioner designated the proffered 
position under the occupational category · "Computer Systems Analysts" corresponding to the 
Standard Occupational Classification code 15-1121.3 We will analyze the specialty occupation issue 
based on the assumption, made arguendo, that if the visa petition were approved, the Beneficiary 
would work in a position located within the computer systems analyst occupational category for 
as asserted by the Petitioner, performing the duties described above.4 
1. 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 addresses. 5 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 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. · 
3 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: (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://flcdatacenter .com/download/NPWHC _Guidance_ Revised_ I I_ 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. 
4 In fact, as will be developed below, the Petitioner has not established the location at which the Beneficiary would work; 
therefore, it has not established what duties, if any, the Beneficiary would perform if the visa petition were approved; and 
has not established that the proffered position is located within the computer systems analyst occupational category, as 
the Petitioner claims. As such, the Petitioner has not established that the proffered position is a specialty occupation 
position. That is, in itself, sufficient reason to deny the H-1 B petition and dismiss the appeal. We emphasize that we are 
momentarily making the arguendo assumption that the Beneficiary would perform the duties described and that the 
proffered position is located within the computer systems analyst occupational category so as to address the Petitioner's 
assertions regarding such positions. However, in the analysis of the other bases for the decision of denial, below, we will 
not make that same assumption. 
5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
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Matter of C- Inc 
The Handbook states the following about the educational requirements of positions located within 
the "Computer Systems Analysts" occupational category: 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited Aug. 29, 2016). 
The Handbook makes clear that positions located within the computer systems analyst occupational 
category do not, as a category, require a minimum of a bachelor's degree in a specific specialty or its 
equivalent, as it indicates that many· systems analysts have a liberal arts degree and programming 
knowledge, rather than a degree in a specific specialty directly related tci systems analysis. It further 
reports that many analysts have technical degrees. The Handbook does not specify a degree level 
(e.g., associate's, bachelor's, etc.) for those technical degrees. 
/ 
Even if the Handbook did support the claim that a position located within the computer systems 
analyst occupational category is one for which the normal minimum entry requirement is a 
bachelor's degree in a specific specialty, or the equivalent, the record lacks sufficient evidence to 
support a finding that the particular position proffered here - an entry-level position - would 
normally have such a minimum, specialty degree requirement or its equivalent. 
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 
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. 
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Matter of C- Inc 
provide persuasive evidence that the proffered position more likely than not satisfie~ this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
cases, it is the petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, authoritative sources) that supports a finding thatthe particular po~ition 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. 
However, the record of proceedings does not contain sufficient persuasive documentary evidence 
from any other relevant authoritative source establishing that the proffered position's inclusion 
within the computer systems analyst occupational category establishes the proffered position as, in 
the words of this criterion, a "particular position" for which "[a] baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry." 
Further, we find that, to the extent that they are described in the record of proceedings, the numerous 
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. 
For the reasons discussed above, the Petitioner did not satisfy 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 
cqntemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
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) 
(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
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Matter ofC- Inc 
/ 
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 th~ 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 is there any other evidence for our consideration under this prong. Thus, the 
Petitioner has not satisfied 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. 
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 descriptions of the proffered position's duties, 
the evidence of record does not establish why a few related courses or industry experience alone 
would be 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 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 therefore lacks sufficiently detailed information to distinguish the proffered 
position as more complex or unique from other 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. 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. The Petitioner's assignment of such a wage level 
for a position which only requires a basic understanding of the occupation, the performance of 
routine tasks requiring limited (if any) exercise of judgment, is closely supervised, monitored, and 
reviewed for accuracy, and in which the worker receives specific instructions on required tasks and 
Matter of C- Inc 
expected results, appears contrary to its assertions regarding the position's claimed complex duties.6 
Instead, such a wage-level designation is only appropriate for a position for an employee who has 
only basic understanding of the occupation. In order to attempt to show that parallel positions 
require a minimum of a bachelor's degree in a specific specialty or its equivalent, the Petitioner 
would be obliged to demonstrate that other wage Level I positions within the computer systems 
analyst occupational category, entry-level positions requiring only a basic understanding of systems 
analysis, require a minimum of a bachelor's degree in a specific specialty or its equivalent, the 
proposition of which is not supported by the Handbook. 
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 not in a specific 
specialty. 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.' As the Petitioner did not 
demonstrate how the proffered position is so complex or unique relative to other positions within the 
same occupational category that do not require at least a baccalaureate degree in a specific specialty 
or its equivalent for entry into the occupation in the United States, it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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. 
On the H -1 B petition, the Petitioner stated that it was established in 20 11 and has 62 employees. 
The Petitioner provided an employee list naming those employees and identifying 12 of them as 
"Analyst[ s ]." 
However, the Petitioner did not state the educational backgrounds of those twelve employees, or of 
any other systems analysts it may have employed, or of any of its employees, let alone provide 
evidence to support any such assertion. The record contains insufficient evidence to demonstrate 
that the Petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent, for 
6 The Petitioner's designation ofthis 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)( I) of the Act. 
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MatterofC- Inc 
the proffered positiOn. The Petitioner has not, therefore, satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
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. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. The duties of the proffered position, such as 
establishing an understanding of a customer's requirements, testing software developed for the 
customer, reporting project status, etc., contain insufficient indication of a nature so specialized and 
complex that they require knowledge usually associated with attainment of a minimum of a 
bachelor's degree in a specific specialty or its equivalent. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, 
and the designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category.7 
For all ofthese reasons, 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). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The appeal will be 
. dismissed for this reason. 
II. CORRESPONDING LCA- LOCATION 
A. TheLaw 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(l) stipulates the following: 
Before filing a petition for H-lB classification in a specialty occupation, the 
petitioner shall obtain a certification from the Department of Labor that it has filed a 
labor condition application in the occupational specialty in which the alien( s) will be 
employed. 
7 Again, 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. 
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Matter of C- Inc 
While the DOL is the agency that certifies LCAs before they are submitted to USCIS, DOL 
regulations note that it is within the discretion of the U.S. Department of Homeland Security (DHS) 
(i.e., its immigration 
benefits branch, USCIS) to determine whether the content of an LCA filed for a 
particular Form I-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in 
pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached In doing so, the DHS determines whether the petition .is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation ... and whether the qualifications of 
the nonimmigrant meet the statutory requirements ofH-1B visa classification .... 
(Emphasis added.) 
B. Analysis 
The period of intended employment extends from September 4, 2015, to September 3, 2018. 
Although the Petitioner is located in North Carolina, it stated in the H-1B petition that the 
Beneficiary would work at m California. Other 
evidence in the record shows this to be a location of The LCA provided is certified 
for employment in California and at the Petitioner's location in North Carolina. It 
is valid for employment in and near and and nowhere else. 
A chart indicates that the Beneficiary's assignment would be arranged through intermediary 
contractors. It states that the Petitioner will provide the Beneficiary to which will 
provide the Beneficiary to 
In support of the assertion that the Beneficiary would work at 
Petitioner provided a letter, dated September 27, 2015, from 
Mississippi. It states: 
location on its project, the 
of 
[The Beneficiary] will be working on this Project at our client located at 
CA. This is for a long term contract, and we anticipate the 
need of her for a long term services. [sic] For emphasis, we note here again, this 
statement is merely an expression of intent and is not a contractually or equitably 
binding document. 
Thus, asserts that while it intends to assign the Beneficiary to work on a project 
for an unspecified period of time, has not agreed to such an assignment, for any period of 
time. 
The Petitioner provided a Task Order, dated September 8, 2015, whichpurports to have been signed 
by representatives of the Petitioner and However, because the information in the 
signature field for the representative has been redacted, is unclear whether 
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Matter of C- Inc 
ratified it. In any event, it indicates that the Beneficiary was to be assigned to work at the 
location of from September 21, 2015, to October 25, 2015, which covers less than two months 
of the three-year period of requested employment. 
The Petitioner also provided a Purchase Order dated October 9, 2015, signed by representatives of 
and the Petitioner. It states that they had agreed that the· Beneficiary would work for 
for an expected duration of six months beginning on October 14, 2015. Thus, this 
purchase order covers only six months of the three-year period of intended employment, some of 
_ which was covered by the previous Purchase Order. 
In response to a request for evidence issued in this matter, the Petitioner provided a letter, dated 
November 12, 20 15, from It states, "The duration [of the Beneficiary's a1signment to 
the project} is ongoing and it's for a very long term duration with a possibilities [sic] 
of extensions." It provides no other estimate of the duration of the Beneficiary's assignment to that 
project. 
The Petitioner provided a series of emails in which asserted _that will not 
confirm the Beneficiary's assignment to the project as evidence that and have 
agreed that the Beneficiary will be assigned to that project. 
The evidence described is insufficient to demonstrate, by a preponderance of the evidence, that 
or even has agreed that the Beneficiary would be assigned to the project. It is 
insufficient, therefore, to show that the Beneficiary would be assigned to work in or near 
the only area for which the LCA submitted is certified. The evidence does not demonstrate that the 
Beneficiary would work exclusively, or at all, in the area for which the LCA is certified, and the 
appeal will be dismissed for this additional reason. 8 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. The Law 
The United States Supreme Court 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 
8 We also note that even if the Task Order and Purchase Order provided were taken as sufficient to show that and 
had agreed to the Beneficiary 's assignment to the project or projects , the H-1 B petition would still not 
demonstrate the existence of any work for the Beneficiary to perform beyond November 12, 2015. 
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Matter of C- Inc 
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)). 
B. Analysis 
As noted above, the evidence is insufficient to show that the Beneficiary would work at the 
location throughout the period of intended employment, or at all. As such, where the Beneficiary 
would work if the H -1 B petition were approved, and the terms and conditions of that employment, 
have not been establishFd. The Petitioner provided "Status S,heets" showing that the Petitioner 
claims to have performed a review of the Beneficiary's performance in th~ past. However, given 
that the location to which the Petitioner would assign the Beneficiary has not been established, who 
would assign the Beneficiary's duties and supervise her performance of them, for instance, is 
unclear. ' 
In fact, even if the Petitioner had established that it would assign the Beneficiary, through 
and to 
to work on project or projects, the evidence submitted would be 
insufficient to demonstrate who would supervise the Beneficiary at that location. We observe that 
the Petitioner is located in North Carolina; the project is ostensibly being developed 
in California; and the evidence in the record is insufficient to indicate whether the 
Petitioner is in charge of developing that project, plays a meaningful role in charting its 
development, or even that it is assigning one of its employees to that project to supervise the 
Beneficiary. As such, the location at which the evaluator works is unclear, as is the basis of his or 
her asserted knowledge of the quality of the Beneficiary's performance. 
Although social security contributions, worker's compensation contributions, unemployment 
1 insurance contributions, federal and state income tax 'Yithholdings, 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 
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Matter of C- Inc 
relevant factors, the Director would be unable to properly assess whether the requisite employer­
employee relationship will exist between the Petitioner and the Beneficiary. Therefore, the appeal 
will be dismissed for this additional reason. 
IV. BENEFICIARY QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, that the 
' Beneficiary would work in a location for which the LCA is certified, or that Petitioner would 
exercise an employer-employee relationship with the Beneficiary as required by the salient statutes 
and regulations, we need not fully address other issues evident in the record. That said, we wish to 
identify an additional issue to inform the Petitioner that this matter should be addressed in any future 
proceedings. 9 
Specifically, the record does not currently demonstrate that the Beneficiary's combined education 
and work experience is the equivalent of a U.S. bachelor's degree in a specific specialty. While the 
claimed equivalency is based in part on experience, the record does not establish (1) that the 
evaluator has authority to grant college-level credit for training and/or experience in the specialty at 
an accredited college or university with a program for granting such credit, 10 or (2) that the 
Beneficiary's expertise in the specialty is recognized through progressively responsible positions 
directly related to the specialty. See 8 C.F.R. §§ 214.2(h)(4)(iii)(C)(4) and (D)(l). 
V. CONCLUSION 
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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC- Inc, ID# 17683 (AAO Aug. 30, 2016) 
9 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's 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) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
10 Although the evaluator claims to possess that authority, the record contains no evidence to corroborate the claim. 
13