dismissed H-1B Case: Software Development

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-S-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 23, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a 16-employee business intelligence software development and consulting company, 
seeks to temporarily employ the Beneficiary as a "web developer" under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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) it has an employer-employee relationship with the Beneficiary; 
(2) the proffered position qualifies as a specialty occupation; and (3) it had a valid labor condition 
application (LCA) for the proffered position as of the date of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
The Petitioner stated that it is an enterprise software 
solutions company that "provides the highest 
quality information technology staffing services to a select client base with a focus on full time m~d 
contact technical placement services." The Petitioner indicated that the Beneficiary would provide 
services at the end-client location in California, pursuant to a 
contract it has in place with a mid-vendor who in turn has a 
contract in place with direct vendor The Petitioner. 
and submitted letters describing the Beneficiary's duties as follows: 
As a Web Developer, [the Beneficiary] will work on the project with 
and he will have the following 
responsibilities working from their 
office for 40 hours per week: 
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Matter ofl-S-S- LLC 
• Developing a single-page/hybrid mobile application based on AngularJS 
which works both on lOS & Android platforms 
• Working closely with stakeholders, offshore team, and QA team to deliver a 
stable build daily while applying agile principles of softvvare development 
• Improvising the functionality and user wait time by using different algorithms 
and data structures on the services 
• Developing complex UI elements as Angular directives for reusability and to 
satisfy the intricate functionalities of the business rules 
• Adhering to standards, developing additional views/directives 
for disclaimers and legal policy 
The Petitioner stated in response to the Director's request for evidence (RFE) that the position 
"requires the 
attainment of at least a Bachelor's degree in Computer Science, Software Engineering, 
or a closely related field or an equivalent combination of education and experience as the minimum 
requirement for entry into the occupation." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, 111 pertinent part, as an 
individual: 
[S]ubject 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: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
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Malter of 1-S-S- LLC 
(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 .fhct that it may hire. pay. fire. 
supervise, or othenvise 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, Ill, 61,121 (Dec. 2, 1991) (to be codified at 8 C. F.R. pt. 214). 
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
lB visa classification. Section 101 (a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perforn1 services in a specialty occupation will have an "intending employer" who will 
tile 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-1 B "employee." Subsections 212(n)(l )(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-IB temporary "employees." 8 C.F.R. §§ 214.2(h)(l), (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-1 B 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) (det1ning the tetm "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the tenns "employee" or "employer-employee relationship" by regulation for 
purposes of the H-IB visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-lB visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the tenn 
"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 
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Matter of 1-S-S- LLC 
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." 
Jd.; see also Clackamas Gastroenterology Assoc.s·., 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 fmmula 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. 
ofAm., 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)(l)(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-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.
1 
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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B 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 impmiantly, that 
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. § 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. 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 
I 0 I (a)( 15)(H)(i)(b) of the Act, "employment'' in section 212(n)( I )(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-I B 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. Del Council, 
Inc., 467 U.S. 837,844-45 (1984). 
4 
Matter of 1-S-S- LLC 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cl 
Darden, 503 U.S. at 318-19? 
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 tem1s "employee" and "employer-employee relationship'' as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 3 
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-1 B nonimmigrant petitions, we 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, tire, 
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 U.S. at 445; 
see also EEOC Compl. Man. at § 2-JJI(A)(1) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defimsor 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 -1 B 
nurses under 8 C.F.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 be met; however, the 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, 
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 Citi:::ens 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-1 B 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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Matter of I-S-S- LLC 
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 detetmining control, we 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 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 
As a preliminary matter, the Petitioner has not established the duration of the Beneficiary's 
employment for the entire requested period. On the Form I -129, the Petitioner requested that the 
Beneficiary be granted H-1 B classification from October 1, 2016, to August 1, 2019. However, the 
Petitioner has not submitted supporting documentation to substantiate that the Beneficiary will be 
engaged at the end-client location during the entire period of the requested visa. In fact, the 
Petitioner has provided conflicting evidence specific to the length of the Beneficiary's proposed 
assignment. For instance, in support of the petition, the Petitioner submitted a work order between 
itself and stating that the employment would begin November 26, 2015, it would be "6 
Months to Long Term," and "at-will for all parties." In a support letter provided with the petition, 
the Petitioner stated that "industry convention is to issue work orders for a short duration and 
continue extending them through project completion." Further, the Petitioner submitted the 
Beneficiary's offer letter dated March 22, 2016, which indicated that "this offer of employment is 
not for any specific period of time," despite the evidence above reflecting that the project would 
proceed for at least 6 months. In addition, a letter from explained that the project would be 
"long term" and continue "until further notice," while a letter from stated that "the duration of 
this project is ongoing and expected to exceed three years.,. 
In contrast, in response to the Director's RFE, the Petitioner stated that the "project is ongoing and 
expected to exceed three years," while another letter from stated that the Beneficiary is 
required "for a longer period, likely exceeding three years." Now, on appeal, the Petitioner offers 
another letter from stating that the "project in ongoing and [that] there is a strong likelihood of 
contract extensions beyond three years." In short, the Petitioner has provided conflicting evidence 
on the record as to the length of the project. The contractual work order suggests that the project 
will only last 6 months or "long term" and the Petitioner states that is customary for it to execute 
short term work orders, consistent with the aforementioned 6-month work order. Elsewhere, the 
Petitioner, and assert that the assignment is expected, or that there is a strong 
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Matter of 1-S-S- LLC 
likelihood, that the project will continue for the entire requested period of 3 years. However, the 
Petitioner does not explain why the continuation of the assignment is likely to last this entire period, 
and the contractual documentation and the Beneficiary's otTer letter do not support that this is the 
case. The Petitioner submits a letter from the end-client, but this evidence does not 
clarify the time period of the assignment. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. USCIS regulations affirmatively require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. 1 03.2(b)(l ). A visa petition may not be approved based on speculation of future eligibility 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter ol 
Michelin Tire Corp., 17 J&N Dec. 248 (Reg'! Comm'r 1978). Thus, even if it were found that the 
Petitioner would be the Beneficiary's United States employer as that term is defined at 8 C.F.R. 
§ 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would maintain such an employer­
employee relationship for the duration of the period requested. 4 
Furthermore, applying the Darden and Clackamas tests to this matter, we find that the evidence of 
record does not sufficiently establish that the Petitioner will be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-1 B temporary "employee." 
Specifically, we find that the record of proceedings does not contain sut1icient, consistent, and 
credible documentation confirming and describing who exercises control over the Beneficiary. 
4 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the ''Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either pmi of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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(b)(6)
Matter of 1-S-S- LLC 
The Petitioner states that the Beneficiary will work for the end-client, at its work-
site in California. The Petitioner asserts that it \Viii maintain an employer-employ ee 
relationship with the Beneficiary; however, the Petitioner has submitted little supporting 
documentation to corroborate that it does, and that it will have control over the Beneficiary vvhile 
assigned to the end-client location. First , it is noteworthy that the Petitioner has provided no direct 
evidence to substantiate that the Beneficiar y is, or will be, under the supervision and control of the 
Petitioner. For instance , the Petitioner does not articulate specifically who will supervise the 
Beneficiary on a daily basis while assigned to the end-client location . Support letters from the 
Petitioner, the mid-vendors and and the end-client do not specifically 
miiculate the Beneiiciary's supervisor or the nature of his day-to-day oversight. Although the 
Petitioner submits an organizational chart indicating that the Bene ficiary \Vill report to a program 
manager, the nature of this relationship is not explained or documented, including how this 
supervisor maintains supervision and control over the Beneficiary while he is assigned to the end­
client. Indeed, in apparent conflict, the employment agreement between the Beneficiary and the 
Petitioner states in paragraph 10 that his immediate supervisor would be an "Acco unt Manager ." 
The Petitioner must support its assertions with relevant , probative , and credible evidence. See 
Matter o[Chawath e, 25 l&N Dec. 369, 376 (AAO 2010). 
The Petitioner also provides other conflicting evidence leaving question as to whether it actually 
controls the Beneficiary's work on a daily basis. First, it is noteworthy that the Petitioner states that 
it provides "information technology staffing services" and "contact technical placement services," 
sugges6ng that its employees are assigned as work for hire to end-client locations and under the 
direction and control of these clients. Other evidence submitted further supports this conclusion. 
For instance, the Beneficiary employment agreement states in paragraph l 0 " Direction , Supervision, 
and Cooperation" that the Beneficiary would be "at the direction of the Client on whose project 
Employee is working," and further that performance is "subject to the review and Approval of 
Employer and Client [emphasis added]." We further note that in this paragraph in also states that the 
Petitioner retains the "right" to direct the employee as to when, where, and hov,r the employee wi II 
perform the work, not that it will exact this control. In fact, the Petitioner states directly that the 
Beneficiary only checks in weekly and that he submits w·eekly timesheets to the end-client for 
approval, indicatin g that it does not maintain supervisory control over him on a daily basis. In 
addition, paragraph 10 also states that the employee agrees to "cooperate fully with any request by 
[Petitioner] for Employee to provide any information, orally and in writing, to the performance of 
Employee's services," suggesting that the Petitioner is not fully aware of the work and activities of 
its employees when assigned to end-client locations. 
Further, it is notewotihy that emails submitted by the Petitioner ref1ect that the Beneficiary is acting 
as a member of a greater team, including other employees, but no Petitioner 
contacts. More specifically, the emails demonstrate that the Beneficiary's work is being assessed by 
and contacts and that he is taking direction from these supervisors, including an 
email in which a member of the team states that team members of the team should 
"take time to test thoroughly " and other emails commenting on the good v,rork of the team which 
includes the Beneficiary. In contrast, the Petitioner provides no supporting documentation reflecting 
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(b)(6)
Matter ofl-S-S- LLC 
the Beneficiary taking direction from a Petitioner supervisor and his asserted supervisor in the 
submitted organizational chart is not included in any of the submitted emai Is. The emails reflect that 
the Beneficiary is using an end-client email address, indicating that the client is likely providing the 
instrumentalities and tools for the project and the Petitioner does not otherwise provide probative 
and objective evidence to overcome this suggestion. fndeed, the Beneficiary's provided badge 
reflects that he is an agent of and makes no mention of his employment with the 
Petitioner, only vaguely referring to him as a "vendor. " In sum , the evidence strongly suggests that 
the Beneficiary acts largely autonomous from the Petitioner , reacting to client requests as they arise , 
and in essence, under the direction of the end-client. 
Although it appears that the Beneficiary will be paid and that his benefits will be administered by the 
Petitioner, the preponderance of the evidence appears to indicate that the Beneficiary will primarily 
be under the direction of the end-client and that he will only occasionally check in with the 
Petitioner as to his progress. While payroll , tax withholdings, and other employment benefits are 
relevant factors in determining who will control the Beneficiary, other aspects 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. Here, we find that the preponderance of 
the evidence demonstrates that the Beneficiary will be primarily under the control of the end-client 
and not the Petitioner. 
Based on the above , the Petitioner has not established that it qualifies as a "United States employer " 
as defined at 8 C.F.R . § 214.2(h)(4)(ii). The Director's decision must be atlirmed and the petition 
denied on this basis . 
Ill. SPECIALTY OCCUPA TfON 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l) , defines the term "specialty occupation " as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
9 
Matter of I-S-S- LLC 
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 com'plex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position: or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have 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. Chertojj; 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position''); Defensor, 201 F.3d at 
387. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
evidence is insufficient to establish that the proffered position qualities for classification as a 
specialty occupation. 
Here, the record of proceeding is absent sufficient information from the end-client regarding the 
specific job duties to be performed by the Beneficiary for that company. The end-client letter makes 
no mention of the Beneficiary's job duties and does not convey the substantive nature of the 
proffered position and its duties. As recognized in Defensor, it is necessary for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location(s), as 
well as any hiring requirements that it may have specified, in order to properly ascertain the 
minimum educational requirements necessary to perform those duties. Defensor, 201 F.3d at 387-
88. 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 is insufficient to establish that, in fact, the Beneficiary would be performing services for the 
type of position for which the petition was filed, in this matter, a web developer position. 
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Matter ofl-S-S- LLC 
Accordingly, we concur with the Director's determination that the record is insufTicient to establish 
that the duties of the proffered position comprise the duties of a specialty occupation. 
The Petitioner did submit a letter explaining the position's duties and letters from its mid-vendors, 
and describing its duties, but these duties are vague and do not sufficiently explain its 
daily assignments. For example, the letters state that the Beneficiary will be assigned to the 
project, but these letters do not explain the specific nature of this project. Further, the letters 
indicate that the Beneficiary will be tasked with "developing a single page/hybrid mobile application 
based on AngluarJS," "applying agile principles of software development," "using different 
algorithms and data structures," and "developing complex UI elements as Angular directives,'' but 
the specifics of these tasks and the nature of the work is not communicated. The record of 
proceeding does not contain a more detailed description explaining what particular duties the 
Beneficiary will perform on a day-to-day basis, nor is there a detailed explanation regarding the 
demands, level of responsibilities, complexity, or requirements necessary for the performance of 
these duties (e.g., what ' "AngularJS," or "complex UI elements" are, what algorithms, 
principles of software development, and data structures are utilized, and what body of knowledge is 
required to perform the duties). In fact, the end-client letter makes no reference to the specifics of 
the project, only vaguely indicating that the Beneficiary will be working on "Sustainment Service 
Support." Again, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Chmvathe, 25 I&N Dec. at 376. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 entry into 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. 
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. The Director's decision must be aftirmed and the petition denied on this 
additional basis. 
TV. LABOR CONDITION APPLICATION 
Lastly, the Director also concluded that she was unable to validate the Petitioner's asse1iions in the 
LCA with respect to the Beneficiary's proposed employment. For the reasons previously discussed, 
we agree with the Director that the claims made on the submitted LCA cannot be validated; 
therefore, the Director's decision is anirmed and the petition denied on this additional basis. 
Matter ofl-S-S- LLC 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benetit sought. Section 291 of 
the Act, 8 U.S. C. § 13 61. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-S-S- LLC, 10# 188262 (AAO Feb. 23, 20 17) 
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