dismissed H-1B Case: Software Development

MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 23, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company with 42 employees, seeks to 
temporarily employ the Beneficiary as a quality assurance analyst under the H-1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality A~t (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 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 the Petitioner 
did not establish that it will have an employer-employee relationship with the Beneficiary. Further, 
the Director found that the Petitioner did not demonstrate that the proffered position qualifies as a 
specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. 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 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant m pertinent part as an 
individual: 
Matter of S-S-, Inc. 
[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)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re!>pect 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. 
8 C.F.R. § 214.2(h)(4)(ii) (emphasis added); see Temporary Alien Workers Seeking Classification 
Under the Immigration and Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be 
codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), we 
note that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 10l(a)(l5)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application (LCA) with the Secretary of 
Labor pursuant to section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(l). 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) ofthe Act, 8 U.S.C. § 1182(n)(l)(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-lB 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) (defining the term "United States employer"). 
Neither the legacy 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 tho~1gh the regulation describes 
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Matter of S-S-, Inc. 
H-1B beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." !d. Therefore, for purposes ofthe H-lB 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. 3l8, 322-323 ( 1992) (quoting Communityfor Creative Non- Violence v. 
Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quotingNLRB 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)(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-1 B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agt:(ncy 
definition.' 
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). 
3 
Matter of S-S-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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-18 "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-lavv· agency doctrine, it 
imposes additional requirements of h<}ving 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 318-319.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether a beneficiary is an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H -1 B nonimmigrant petitions, US CIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). ' 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
the work performed by the worker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Afeissner, 201 F.3d 384, 388 
; 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. lvfethow Valley Citizens Council, 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, ( 1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S. C. § 1184( c )(2)(F) (referring to "unaffiliated employers'' supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
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Matter of S-S-. Inc. 
(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 mus~ 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, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-324. 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, 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."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
As a preliminary matter , we firid that the Petitioner has not established the Beneficiary's employment 
throughout the duration of the requested period. On the Form I-129, the Petitioner requested that the 
Beneficiary be granted H-IB classification from October I, 2016, to September 5, 2019. The 
petition and supporting documents indicate that the Beneficiary would be working at an end-client 
location, in Utah. The evidence further reflected that 
the Petitioner provides services to a mid-vendor who in tum provides 
services to the end-client's direct vendor 
In an itinerary, the Petitioner sets forth dates of engagement at the end-client location consistent with 
the period of the requested employment specified in the Form I -129. However, none of the other 
supporting evidence suppmis a conclusion .that the Beneficiary will be engaged during this entire 
period at the end-client location. For instance, a submitted employment letter from the Petitioner 
lists a start date of August 24, 2016, but no other period of employment. Another letter from a mid­
vendor, st~tes that the Beneficiary is required at the end-client's location and that his 
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Matter ojS-S-, Inc. 
services could lead to "a possible extension," but otherwise does not set forth the duration of his 
services. Likewise, a letter from the other mid-vendor does not specify the Beneficiary's period 
of engagement. ,Further, an email submitted by the Petitioner from an contact, apparently 
overseeing the Beneficiary at the end-client location in states that the Beneficiary 
will be used on a "long term project," but does not clearly specify the time period of this 
engagement. In addition, the record does not contain written agreements, statements of work, work 
orders, or other such documentation between the Petitioner and the Petitioner and the mid­
vendors, or between the mid-vendors and demonstrating that H-1 B caliber work exists for 
the Beneficiary for the duration of the requested period. A petitioner's unsupported statements are 
of very limited weight and normally will be insufficient to carry its burden of proof, particularly 
when supporting documentary evidence would reasonably be available. See Maller of So.ffici, 22 
l&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craji ~l Cal., 14 I&N Dec, 190 
(Reg'! Comm'r 1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
Petitioner must support its assertions with relevant , probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
As such, rather than establish definitive, non-speculative employment for the Beneficiary for the entire 
period requested, the Petitioner simply claimed in the itinerary that the Beneficiary would be working 
with for the entire period set forth in the Form l-129. However, the Petitioner did not submit 
probative evidence substantiating the Beneficiary's work for the entire duration of the requested 
period. 
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. 103.2(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 Cmp., 17 l&N Dec. 248 (Reg' I 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 
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 busine ss expansions or the 
expectation of potential new customers or contracts . To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute , the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor ' s degree , See section 214(i) of the Immigration and Nationality Act (the "Act "). The 
Service must then determine whether the alien has the appropriate degree for the occupation . In the 
case of speculative employment , the Service is unable to perform either part of this two-prong analysi s 
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(b)(6)
Matter of S-S-, Inc. 
·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-l B temporary "employee." 
Specifically, we find that the record of proceedings does not contain sufficient, consistent, and 
credible documentation confirming and describing who exercises control over the Beneficiary. 
As noted, the Petitioner asserted that the Beneficiary will work for the end-client at its work­
site in UT through two contracts with mid-vendors. The Petitioner states that it has 
submitted sufficient evidene;e to demonstrate by a preponderance of the evidence that the 
Beneficiary will be controlled by the Petitioner while assigned to the end-client's location. The 
Petitioner emphasizes a professional services agreement bet\veen itself and the mid-vendor 
which states that the Petitioner's employees assigned to end-client locations will remain its 
employees and indicating that it will administer all pay, leave, vacation , and benefits for these 
assigned employees. The Petitioner contends that it will "retain all supervisory control over the 
Beneficiary" and "be responsible for directing the manner in which the Beneficiary's work will be 
accomplished. " The Petitioner points to submitted timesheets from April through July 2016, which 
it asserts reflect that the Petitioner paid the Beneficiary for the services provided at the 
location. In addition, the Petitioner references a submitted organizational chart showing that the 
Beneficiary will act as a quality assurance analyst, but which otherwise does not clearly indicate the 
name or title of his supervisor or who oversees him at the end-client location. 
The Petitioner provided other copflicting evidence leaving question as to whether it actually controls 
the Beneficiary's work on a daily basis or that it has the power to assign additional work to the 
Beneficiary. As noted, the Petitioner provides an organizational chart that does not clearly 
reflect 
the Beneficiary's supervisor or who will be responsible for controlling him at the end-client location. 
The Petitioner does not explain in detail how the Beneficiary is supervised by the Petitioner on a 
daily basis and how it controls his work. In fact, the Petitioner provides several emails indicating 
that the Beneficiary is supervised and controlled by the end-client. The submitted emails reflect that 
the Beneficiary is referred to as a member of the greater "team" and they indicate that he is 
regularly receiving assignments from the end-client. For instance, one email shows a project 
manager with writing to the Beneficiary "can you· please facilitate serum 
tomorrow?," while another reflects an quality assurance engineer requesting that the 
Beneficiary "kindly do a round ofregression testing." Indeed , the Beneficiary's emails show that he 
is using contact information and utilizing an end-client email address. Otherwis e, the 
Petitioner submits little documentary evidence indicating that it directs or regularly supervises the 
Beneficiary. In fact, this evidence strongly suggests that the end-client is solely responsible for the 
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 nonethele ss 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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) Matter ofS-S- , Inc. 
Beneficiary's work assignments. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing tb where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
As mentioned, the Petitioner also refers to the Beneficiary's timesheets and payroll documentation, 
and to a professional services agreement between itself and the mid-vendor as evidence of an 
employer-employee relationship between itself and the Beneficiary. Although payroll, tax 
\vithholdings, and other employment benefits are 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. 
Here, as we have discussed , the submitted evidence indicates that the Beneficiary is primarily 
overseen and directed by the end-client. This suggests that the instrumentalities and tools for the 
work are provided by the end-client, the work is being performed at the end-client's location, and 
that the end-client decides the projects assigned to the Beneficiary. The Beneficiary's timesheets 
and payroll documentation does little to overcome this evidence. For instance, the provided emails 
also reflect that the Beneficiary requests ,-approval of his timesheets from the end-client and 
documentation of these timesheets indicates ' their approval by an unidentified individual not listed in 
the Petitioner's provided organizational chart . Further, the submitted organizational chart does not 
show who supervises the Beneficiary, despite the Petitioner citing this as evidence of its control over 
the Beneficiary. In addition , although the referenced professional services agreement between the 
Petitioner and states that the Petitioner's assigned employees will remain employees of the 
Petitioner and that the pay, benefits, leave and other such aspects for these employees will remain 
the responsibility of the Petitioner, this does little to overcome the direct evidence from the end­
client reflecting his daily supervision and control. The Petitioner does not provide evidence to 
overcome these apparent discrepancies. 
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 affirmed and the petition 
denied on this basis . · 
II. SPECIALTY OCCUPATION 
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 Frame\vork 
A "specialty occupation" is an occupation that requires: 
8 
Matter of S-S-, Inc. 
(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. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). 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 c;ommon to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its · 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). 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, 201 F.3d at 
387. 
B. Proffered Position 
The LCA submitted to support the visa petition states that the proffered position corresponds to 
Standard Occupational Classification (SOC) code and title 15-1121, "Computer Systems Analysts." 
As previously stated, the LCA listed the client location in Utah as the Beneficiary's place of 
employment. 
In response to the Director's RFE, the Petitioner explained the Beneficiary's job duties and 
responsibilities as follows: 
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Matter C?fS-S-, Inc. 
1. Analyzing the complete requirements ±rom the client. 
Understanding the high level functional spec which 1s provided by client and · 
analyze impacts and required feature changes. 
Review low level functional document and get clarify if any gaps in functionality. 
2. Participating in preparing Test Plans. 
Based on high level functional spec will split each test feature and prepare 
estimations and will decide if any new tools need to implement and mention what 
type of testing need to be done for particular release and resource plan and also 
test environment details. 
3. Preparing Test Scenarios, Test cases and Defect Tracking. 
Based on how level functional spec prepare test scenarios for each feature and test 
cases for respective test scenario and defect 
tracking through rally. 
4. Participating in Manual Test Case and writing Automation Scripts and also 
performing Automation Execution. 
Will write manual test cases for each user story based on task assigned in rally 
and execute particular test once development completed and raise a bugs and will 
do re testing for fixed bugs and at the same time and make sure that existing 
functionality working fine (Regression testing)[.] 
After manual test done, design automation script of each scenario using selenium 
web driver and cucumber framework . 
5. Preparing suggestion documents to improve the application quality. 
Participating in preparing different types of documents to improve the application 
quality like check list documents, Requirement traceably matrix, CAR Analysis 
document. · 
6. Communication with Test Lead/Test Manager and conducting review meetings \ . 
regularly with team . 
Attending 'every status call to discuss status of work with team and weekly twice 
with manager and lead to discuss risks and mitigations to active milestones. 
In addition, the Petitioner provided letters from mid-vendors and setting forth the same 
fundamental duties for the Beneficiary. The Petitioner stated that the position required a "minimum 
[of] a bachelor's degree in computers, technology , engineering, or a related field." 
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Matter ofS-S- , Inc. 
C. 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 qualifies for classification as a 
specialty occupation. As recognized in Defensor, 201 F.3d at 387-88 , it is 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. 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 iiTelevant to a specialty occupation determination. 
See id. · 
Here, the record of proceeding is simil:;1rly absent of sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The 
Petitioner provides no evidence from the end-client , such as a statement of work, a work order, a 
letter, or other such documentation clearly setting forth the duties of the Beneficiary . _Although we 
acknowledge the Petitioner's assertion that the end-client refuses to provide a letter stating the 
Beneficiary's duties, this does not explain the lack of other substantiating documentation, such as 
contracts, statements of work, work orders, or similar documents, including letters from the mid­
vendors to the client which explain the services in detail. 
This lack of evidence from the end-client is particularly noteworthy since the duties submitted by the 
Petitioner, and the mid-vendors, are vague and do not convey the specific ~· ork and assignments to 
be completed by the Beneficiary. For example , the letters from the Petitioner and mid-vendors list 
vague duties such as "analyzing complete . requirements from the client," "understanding the high 
level functional spec," setting testing for a particular release, "preparing test scenarios," completing 
"defect tracking through rally," "performing Automation execution," "writ[ing] manual test cases," 
"design[ing] automation script using [the] selenium web driver and cucumber framework," and 
communicating with the "Test Lead/Test Manager." However, the Petitioner and mid-vendors do 
not explain the nature of the applications with which the Beneficiary will work or the specific work 
he will perform. The record of proceedings 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 "rally," "the selenium web driver," or the "cucumber 
framework" are and what body of knowledge is required to perform the duties). 5 In fact, the 
evidence of record, including two mid-vendor letters, does not specifically identify the particular 
project to which the Beneficiary will be assigned and makes no reference to the specifics of his 
assigned project. Indeed, the provided emails reflect that the Beneficiary is titled ' 
5 While the Petitioner and mid-vendor letters state the educational requirements for this position (i.e., a minimum [of] a 
bachelor's degree in computers, technology, engineering, or a related field), this general statement regarding the 
minimum educational requirement is insufficient to explain what body of knowledge is required to perform each of the 
I isted job duties. 
II 
(b)(6)
Matter of S-S-, Inc. 
an apparent project at the end-client location which IS lett 
unexplained and undocumented by the Petitioner. 
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. 
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 cannot be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons. In visa petition 
proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-S-, Inc., ID# 163560 (AAO Jan. 23, 2017) 
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