dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software· development and consulting company, seeks to temporarily employ the 
Beneficiary as a "Hadoop engineer/tester" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(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 that the record 
does not establish that (1) the Petitioner will have a valid employer-employee relationship with the 
Beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in her 
decision. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in 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)( 1) ... , 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) .... 
Matter of G- LLC 
The term "United States employer" is defined 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: 
( 1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire. pay .. fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), 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 perform services in a specialty occupation will have an "intending employer" who will file a 
labor condition application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-IB "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 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 1-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-1B temporary "employees." 8 C.F.R. §§ 214.2(h)(1 ), (2)(i)(A). Finally, the definition of "United 
States employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-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 former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." ld. Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide 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: 
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"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 ofthe·hired party." 
ld.; see also Clackamas Gastroenterology Assocs .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(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. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB 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-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-1B "employee." 8 C.F.R § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB 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 
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. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA 's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
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-1 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). 
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Matter of G- LLC 
States. The lack of an express expansion of the definition regarding the tem1s "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. C.f 
Darden, 503 U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent t9 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)? 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee ... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; 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 
perfoimed 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. 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 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation.'" Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co.; 325 U.S. 410, 414 ( 1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See. e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-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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(b)(6)
Matter of G- LLC 
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 
323-24. 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 
We agree with the Director that the Petitioner has not submitted sufficient evidence establishing that 
it will have an employer-employee relationship with the Beneficiary. 
The Petitioner, located in Colorado, asserted that the Beneficiary will work for the end-client, 
at the end-client's worksite in California for the duration of the validity period requested 
(October 1, 2016, through August 1, 2019). Regarding the contractual chain, the Petitioner stated 
that it has an agreement with the vendor, (Company 1), which in turn has an agreement 
with another vendor, (Company R), which has an agreement with the end-client. 
In support of the petition, the Petitioner submitted, inter alia, letters from Company I and Company 
R verifying the Beneficiary's assignment to the end-client through a succession of contracts between 
the Petitioner, Company I, Company R, and the end-client. These letters identify the particular end­
client project to which the Beneficiary will be assigned as '' 
evidence (RFE). 
The Petitioner also confirmed that the Beneficiary will be assigned to the 
project in response to the Director's request for 
Also in response to the Director's RFE, however, the Petitioner provided a second letter from 
Company R which identifies the particular project to which the Beneficiary will be assigned to as 
This letter refers to the '' 
project twice, and states that this project "is 
still ongoing and long term." The Petitioner has not sufficiently explained and documented which 
5 
(b)(6)
Matter of G- LLC 
end-client project(s) the Beneficiary will be assigned to, i.e., whether it is the 
or' 
project, or both. In any event, neither the vendor letters, nor the Petitioner, has provided a detailed 
description about the particular project(s) to which the Beneficiary will be assigned. 
Furthermore, the Petitioner submitted its subcontractor agreement with Company 1 for the Petitioner 
to provide services to Company I' s "client" pursuant to an executed work order. The accompanying 
work order names (1) the Beneficiary as the assigned personnel; (2) Company I's "client" to which 
the Beneficiary will be assigned as and (3) the duration of the assignment as 36 months 
starting from November 23, 2015.4 There are several issues presented by this subcontractor 
agreement and work order. 
For instance, these documents identify the end-client, as Company I's client. But the 
Petitioner and the vendor letters all specifically identify the succession of contracts as between the 
Petitioner, Company I, Company R, and the end-client; in other words, this evidence indicates that 
the ultimate end-client, is the client of Company R, not Company I. The Petitioner has 
not explained this inconsistency. It is incumbent upon the Petitioner to resolve inconsistencies in the 
record; attempts to explain such inconsistencies without competent objective evidence will not 
suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, the work order states that the Beneficiary's assignment will last 36 months starting from 
November 23, 2015, until November 22, 2018. But the Petitioner is requesting a validity period 
until August 1, 2019. The Petitioner has not sufficiently explained and documented what the 
Beneficiary will be doing from November 23, 2018, to August 1, 2019.5 The Petitioner has not 
claimed that the Beneficiary will work for any other end-client or worksite other than for 
at its worksite in California. 
The work order that accompanies the subcontractor agreement is problematic in another aspect. 
More specifically, it provides for a contract administrator from each party to "have authority to make 
all decisions regarding the Project on behalf of their respective companies." The work order then 
identifies the contract administrator for Company I, but does not identify the contract administrator 
for the Petitioner. This missing information is critical, in that a key element in this matter, i.e., who 
4 The Beneficiary has been authorized for employment (optional practical training) with the Petitioner since January 26, 
2015. 
5 The Petitioner asserts that "industry convention is for 'work orders to be issued for short durations and extended until 
project completion." But we do not find the Petitioner's explanation particularly credible, as this work order for 3 years 
(starting from November 20 15) does not appear to be for a "short duration." 
The second letter from Company I states that the company "expect[s] the project to be extended for another 3 years and 
that we normally issue work orders close to current expiration dates." This letter does not identify which "project" it is 
referring to, particularly since the second letter from Company R refers to a different project, as discussed above. 
Moreover, as will be discussed in more detail, the end-client is not a client of Company I, but of Company R. Without 
more, documentation from Company I regarding the anticipated project duration is not reliable. 
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Matter of G- LLC 
exercises supervision and control over the Beneficiary's work on behalf of the Petitioner, has not 
been provided. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
The record also contains copies of the Beneficiary's identification badge, organization profile page, 
and system access page issued by the end-client, all of which verify the Beneficiary's current 
assignment to the end-client as a contractor of Company R. On appeal, the Petitioner further 
supplements the record with the end-client's recent purchase order to Company R as the "Supplier" 
of the Beneficiary's services. All of these documents demonstrate that the Beneficiary is providing 
services to the end-client, but as a contractor of Company R. These documents do not contain any 
reference to the Petitioner, and thus, do not convey any type of employment relationship between the 
Petitioner and the Beneficiary. The Petitioner's assertion that "[t]he documents examined in totality 
can lead to no other conclusion than [the Petitioner] and the [B]eneficiary sharing an employer­
employee relationship in the provision of these services" is not corroborated by the record. 
And despite the above evidence reflecting that the Beneficiary is a contractor of Company R, the 
Petitioner has not 
adequately explained and documented the nature of its relationship with Company 
R. The Petitioner has not explained, for example, the manner and frequency with which it 
communicates with Company R regarding the Beneficiary's work. Nor has the Petitioner submitted 
evidence that the end-client recognizes the Beneficiary as an employee of the Petitioner, as opposed 
to Company R. In fact, in emails between the Beneficiary and the end-client in which the 
Beneficiary requested an employment verification letter, the end-client states that it could not 
provide the Beneficiary with such evidence but that he should "check with [his] vendor company, 
[Company R] in this case to help [him] with such verification letters." Again, there is no 
acknowledgement in any of the evidence from the end-client that the Beneficiary is employed by the 
Petitioner. 
Notably, the purchase order between the end-client and Company R states: "Services provided by 
[Company R] under this Purchase Order, shall be assigned by and under the direction of 
The purchase order then identifies as the end-client's contact for 
this purchase order. Similarly, the Beneficiary's system access page identifies as 
the Beneficiary's "manager." That the Beneficiary reports to an employee of the end-client as his 
"manager" undermines the Petitioner's assertion that it will supervise and control the Beneficiary's 
work. The Petitioner has not adequately explained and documented the nature of its relationship 
with the end-client, such as the manner and frequency with which it communicates with the end­
client's responsible party regarding the Beneficiary's work. 
The Petitioner and the vendor letters state that the Petitioner "will supervise [the Beneficiary] as he 
works on this project and will remain apprised to his day-to-day activities," and that "[the 
Beneficiary] reports to and is managed by [the Petitioner]." The Petitioner identifies the 
Beneficiary's manager as the Petitioner's managing partner. Aside from these 
statements, however, there is no additional detailed explanation of how the Petitioner will maintain 
such supervision and control from Colorado, while the Beneficiary works at the end-client's 
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worksite in California. As previously stated, the Petitioner has not articulated the nature of its 
relationship with any of the vendors or the end-client, such as the manner and frequency of 
communications, if any, regarding the Beneficiary's daily assignments. There is no explanation of 
the relationship between and/or any other parties involved in the 
Beneficiary's work. Again, therefore , the key element of who exercises supervision and control over 
the Beneficiary 's work has not been substantiated . 
Moreover, the Petitioner ' s federal tax return presents additional concerns regarding the employer­
employee relationship. In particular, the Petitioner ' s 2014 tax return listed no salaries or wages paid 
to the Petitioner's employees (line 8). On the other hand, the Petitioner claimed $250,302 in 
deductions in the form of "contract labor. "6 The Petitioner, which claimed 10 employees on the 
Form 1-129, has not explained why it did not pay any employee salaries or wages, but instead, paid 
compensation in the form of contract labor. Therefore, another element of the employer-employee 
relationship, i.e., the Petitioner's tax treatment individuals it claims as its employees, has not been 
established. 
Thus, while payroll 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 has the right or ability to atTect the projects to which the Beneficiary is 
assigned, and who will provide the instrumentalities and tools, must also be assessed and weighed in 
order to make a determination as to who will be the Beneficiary's employer. Without full disclosure 
of all of the relevant factors, we are unable to find that the requisite employer-employee relationship 
will exist between the Petitioner and the Beneficiary. 
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). 
II. SPECIALTY OCCUPATION 
We also find the evidence of record insufficient to establish that the proffered position qualifies as a 
specialty occupation . 
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 
6 The Petitioner provided this information in its Statement I, "Other Deductions ." 
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Matter of G- LLC 
(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.P.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 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.P.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 
484 P.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"); Meissner, 201 P.3d at 
387. 
As recognized by the court in Defensor, 201 P.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. The 
court held that the former INS had 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. !d. 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. Analysis 
As detailed above, the record of proceedings lacks sufficient documentation evidencing what exactly 
the Beneficiary will do for the entire period of time requested. The record lacks, for example, 
consistent, detailed information about the end-client project to which the Beneficiary will be 
assigned. The record also does not document what the Beneficiary will be doing beyond the 
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Matter of G- LLC 
expiration of the work order in November 2018 through the end of the validity period in August 
2019. 
We observe the brieflist of job duties provided by the Petitioner as well as in the vendor letters. The 
listed job duties include (verbatim): "[a]nalysis, development, testing, developed Big Data Solutions 
that enabled the business and technology teams to make data-driven decisions on the best ways to 
acquire customers and provide them business solutions"; "[i]nstalling, configuring and managing 
Hadoop Ecosystem components like Hive, Pig, Sqoop and Flume"; and "[ m ]igrate existing data to 
Hadoop from RDBMS (SQL Server and Oracle) using Sqoop for processing the data." However, 
the duties, as described, do not contain sufficient information about their level of difficulty, 
complexity, uniqueness, and/or specialization. Given this lack of evidence, we cannot determine the 
substantive nature ofthe 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.
7 
We are also precluded from finding that the proffered position qualifies as a specialty occupation, as 
that term is defined in section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii), because the record 
does not establish the correlation between the proffered job duties and a need for a particular level 
education of highly specialized knowledge in a specific specialty. For example, none of the vendor 
letters or the end-client emails state a degree requirement for the proffered position to corroborate 
the Petitioner's assertion that the position requires at least a bachelor's degree in computer science, 
electrical engineering, or a related field, or its equivalent. In his email to the end-client, the 
Beneficiary requested confirmation that "this project requires in depth knowledge of the Hadoop, 
Big Data systems and education required is bachelor's degree or above.'' The end-client responded: 
"Yes, the Contract position that [the Beneficiary is] working on requires "in depth knowledge of 
7 Even if the proffered position were established as being that of a programmer analyst, a review of the U.S. Department 
of Labor's (DOL's) Occupational Outlook Handbook (Handbook) does not indicate that, simply by virtue of its 
occupational classification, such a position qualifies as a specialty occupation in that the Handbook does not state a 
normal minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or its equivalent, for entry 
into the occupation of programmer analyst. See 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/print/computer-systems-analysts.htm (last visited Feb. 22, 20 17). 
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Matter of G- LLC 
Hadoop and Big Data systems." The email remams silent as to the degree requirement for the 
proffered position. 8 
Finally, we will briefly address the position evaluation by a professor at the 
School of Management at opines that the proffered position 
"qualifies as a specialty occupation." But opinion is not based on sufficient 
information about the actual position proposed here. For example , does not relate any 
knowledge about the end-client or the end-client project(s) to which the Beneficiary will be 
assigned. Nor does he relate any personal observations of the work or work products the Beneficiary 
has produced for the end-client. 9 Nor does indicate whether he knew or considered the 
Petitioner's designation of the proffered position on the labor condition application as a position 
within the "Computer Systems Analysts" occupational classification at a Level I (entry) wage rate, 
which is indicative of a comparatively low, entry-level position relative to others within the 
occupation. 10 In short, opinion does not correlate his conclusions to specific, 
concrete aspects of the position , the end-client's operations, and its r>roject(s) to demonstrate a sound 
factual basis for his conclusions about the duties of the proffered position and its educational 
requirements. 
Accordingly, we conclude that opmwn Jetter is not sufficient to establish the 
proffered position as a specialty occupation. We may, in our discretion, use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int 'I, Inc., 19 I&N Dec. 791, 795 (Comm 'r 
1988). However, where an opinion is not in accord with other information or is m any way 
questionable, we are not required to accept or may give less weight to that evidence. !d. 
8 Even if the email had confirmed the claimed degree requirement, the record would still need to demonstrate why the 
duties of the proffered position require such a degree . A blanket statement that a certain degree is necessary, without 
more , is insufficient to establish a position as a specialty occupation . Again, the Petitioner must support its assertion s 
with relevant, probative , and credible evidence. See Chawathe, 25 I&N Dec. at 376 . 
9 As previously noted , the work order reflects that the Beneficiary 's start date with the end-client was November 13, 
2015. 
10 The DOL's "Prevailing Wage Determination Policy Guidance" describes 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. More 
specifically, 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 he will be closely supervised and his work closely monitored and reviewed 
for accuracy; and (3) that he 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://tlcdatacenter.com /download/NPWHC _Guidance _Revised_11_2009 .pdf A 
prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the 
experience , education , and skill requirements of the Petitioner 's job opportunity . ld 
II 
Matter of G- LLC 
III. CONCLUSION 
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 ofG- LLC, ID# 152656 (AAO Feb. 27, 2017) 
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