dismissed H-1B Case: Software Development

(b)(6)
DATE: MAY 1 2 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. � I 0:\.5. 
Motions must be filed on a Notice of Appeal or Motion (F orm I-290B) within 33 days of the date of this 
decision. The Form I- 290B web page (www.uscis.gov/i- 290b) contains the latest information on fe e, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administ rative Appeals Office (AAO) on appeal. The appeal will be dism issed. 
On the Petition for a Nonimmigrant Worker (Form 1-12 9), the petitioner describes itself as a one­
employee "software development" business established in In order to employ the beneficiary 
in what it designates as a "Programmer Analyst" position, the petitioner seeks to classif y her as a 
nonimmigrant worker in a specialty occupation pursuant to section 10 1(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C . § 1101(a)(15)(H)(i)(b ). 
The Director denied the petition, concluding that the evidence of record did not estab lish that : 
(1) there was specialty occupation work available at the time of filing; and (2) the beneficiary is 
qualified to perform the proffered position. 
The record of proceeding contains: (1) the petitioner's Form 1-12 9 and sup porting docu mentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director's notice of decision; and (5) the petitioner's Notice of Appeal or Motion (Form 1-29 08) and 
supporting documentation. We have reviewed the record in its entirety before issui ng our decision. 
Upon review, we find that the evidence of record is insufficient to overcome the Director's grounds for 
denying this petition. Beyond the Director's decision, we also find that the evidence is insufficient to 
establish that there is an employer-employee relationship between the petitioner and the beneficiary, 
and that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed and the petition will remain denied. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
As noted above, the petitioner stated on the Form I-12 9 that it is a one-employee software 
development company. The petitioner indicated that the beneficiary would be employed in a full­
time programmer analyst position at the petitioner's business premises located at 
, Connecticut, and would not work off-site. The petitioner stat ed that the 
dates of intended employment are from October 1, 20 14 to July 31, 20 17. 
The Labor Condition Application (LCA) submitted in support of the petition indicates that the 
occupational classific ation for the position is "Computer Systems Analysts " SOC (ONET/O ES) 
Code 15-1121, at a Level I (entry level) wage. 
In a letter of support dated March 17, 20 14 submitted with the petition, the petitioner identified 
itself as "a software development, technology and onshoring corporation" whose "key services 
include Application Development, Business Intelligence, Mobile Development, Qual ity Assurance, 
Architecture Services and Maintenance and Support." The petitioner stated that "[c]u rrently [it] 
only has one employee [but] is planning on hiring new staf f. " 
In support of the pe�ition, the petitioner provided, inter alia, evidence of the beneficiary's prior F-l 
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Page 3 
nonimmigrant status to pursue a Master's degree in Biotechnology at the 
and her award of a Master of Science degree from the 
in 201 1. 
The Director issued an RFE requesting addi tional evidence regarding the petitioner's business 
operations and the proffered position, as well as the beneficiary's qualifications for the proffered 
position. 
In response to the Director's RFE, the petit ioner submitted, inter alia, a letter dated July 16, 2014 
explaining that the beneficiary "has been offered a position with the company to work in-house on a 
project for one of the company's clients, 1 The petitioner stated that the beneficiary "was 
selec ted to provide consulting services on the project effective October 1, 2014 . . . in the 
capacity of a Programmer Analyst ." The petitioner stated that the proffered position "is a spec ialty 
occupation as it requires computer programming and analysi s." The petitioner further stated that 
the proffered position requires at a minimum "a bachelor's degree in a specialty field of technology 
or computer science." The petitioner asserted that the beneficiary is qualified for the proffered 
position by virtue of her bachelor's and master's degrees in Biotechnology, stating that "(h]er u nique 
educational background makes her an ideal candidate for the position which requires a lot of 
mathematic al analysis and technology ." 
In the same letter, the petitioner stated that the beneficiary "will report directly to 
COO ... [who] will oversee [the beneficiary's] day-t o-day duties and be the person she reports to." 
The petitioner provided the following description of the duties of the proffered position: 
• [The beneficiary's] duties will in clude interacting and coordinating with 
existing client base in US to gather user requirements, desig n and enhance 
exis ting software solutions provided by the company. Additionally, she will 
also be charged with coordinating and conduction [sic] web-based user 
training to help clients understand the solutions offered by company and to 
help client's businesses reap the real business benefits intended by software 
solutions. 
o Time percentage: 40% 
o Level of responsibility: Independent work with some guidance from 
management 
• Responsible for building, testing, and validating new software and technical 
demonstrations of the new web and mobile software solutions. She will use 
her knowledge of Data Analysis and Research to implement enterprise 
software systems. 
is also referred to in the record as ' "and ' 
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o Time percentage: 50% 
o Level of responsibility: Independent work 
• Responsible to create programs for product trainings to other employees or 
clients and creating/updating User Manuals or product offering of software 
solutions 
o Time percentage: 10% 
o Level of responsibility: Independent work with some guidance 
The petitioner submitted a Master Staffing Agreement (MSA) between it ("Employer") and 
entered into and effective on July 10, 20 14. The MSA ident ifies office 
location as 
MSA states: 
New Jersey. In pertinent part, the 
2. SERVICES 
a. In General. may, from time-to-time, contract with 
Employer for services ("the Services") to be performed by Employ er's 
employees (the "Temporary Empl oyee(s) "). To request such Services, 
the shall issue requirement request, which may be modified, 
canceled, or amended in its sole discretion. The requirement request 
will set forth certain requirements for the Services to be performed 
including, but not limited to, the number of Temporary Employ ee(s) 
needed to perform the Services, the types of Services to be performed, 
and whether the Services to be performed constitute exempt or 
nonexempt duties under applicable wage and hour laws. 
* * * 
b. Acceptance of Temporary Employees. 
issued and accepted by Employer and 
Employee can begin providing Services. 
* * * 
A written approval must be 
before any Temporary 
3. STATUS OF EMPLOY ER AND TEMPORARY EMPL OYEES 
* * * 
b. Except as provided in this Agreement and/or required by law, all 
Temporary Employees shall remain subject to the supervision and 
control of Employer. 
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NON-PRECEDENT DECISION 
c. For purposes of applicable Connecticut and other state workers ' 
compensation law, shall be the "Special Empl oyer" and have 
rights of control and supervision over the Temporary Employees and 
rights to determine the manner and means by which the Temporary 
Employees perform their duties for . Employer sha ll be the 
"General Employer" and hereby specifically reserves the right to 
reassign or terminate the employment of any Temporary Employee 
upon written notice to , in the event any such Temporary 
Employee fails to comply with any of his/her obligatiEms to Employer 
or 
4. OBLIGATIONS OF 
agrees to comply with all applicable occupational safety and 
health laws and regulations to the extent application to such Temporary 
Employees. maintains full control of its work sites, includi ng 
direction of the project that Temporary Employees will perform work for. 
The petitioner provided a letter dated July 10, 20 14 from Project Eng agement 
Manager of confirming that the beneficiary has been selected "to provide consulting 
se rvices for _ on the project _ effective October 1, 2014. is targeted to 
help the business track with information, process and any type of internal or ext ernal relationships." 
This letter states that "ha[s] entered into a Consulting Agreement for the services of [the 
beneficiary] with [the petitioner], who will be her principal employer. During her contract 
assignment, she will be working at the location of 
· 
CT. " 
The letter describes the beneficiary's job duties as follows: 
• Requirements gathering and technology assessments. Complex Analysis of 
Business systems science, engineering and other data processing to implement 
and improve software by functional and Integration testing. Supporting the 
business users by troubleshooting and fixing the issues in the software systems. 
Gap analysis and documentation of design efforts . 
• Working with software and tools such as C#, ASP.net, XML, MS SQL Server, 
Microsoft Office Suite 
• Research, evaluate and present alternative methods/ solutions in th e relevant 
technologies to improve computer programs and systems 
• Develop, document and revise system procedures, test procedures, system work 
flows and quality standards 
Of the minimum educational requirement for the position, the letter states that the "du ties require 
theoretical and practical application of highly specialized knowledge, and at least a US Bachelor's 
degree." 
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The petitioner submitted its Business Plan dated July 14, 20 14. The business plan explains that the 
company was incorporated on September 13, 2012 and has two officers: (1) : 
President, Secretary, and 100% shareholder of the company; and (2) , Chief Operating 
Officer (COO). The business plan states that "Mrs. is in charge of the general 
adminis tration, financial matters, properties, employees and operational strat egic pla nning." 
Regarding Mr. who "joined [the petitioner] in Feb[.] 2014 as its Chief Operating Officer," the 
business plan explains that he "is in charge of strategy execution, general management, business 
development and recruitment" and is also "providing consulting services to the e xisting client which 
is currently bringing in a revenue stream of $15,520 per month." The bus iness pla n states that 
"[t]he Corporation's main customer will be the , a New Jersey based Technology company 
ded icated to the development of new products in the web and mobile platforms." The business plan 
explains that the petitioner's "clients require IT consulting services in the fi eld of design, 
development, test, maintain and continuous support of the IT systems ." 
The Director denied the petition, determining that the petitioner had not esta blished that there was 
specialty -occupation work available at the time the Form l-129 was filed. The Direc tor observed 
tQat the MSA and the end-client letter from were both dated July 10, 2014, af ter the Form 
I-129 was filed. The Director also determined that the evidence did not establish the beneficiary's 
qualifications for the proffered position. 
On appeal, the petitioner asserted that, despite the dates of the formal documentation from 
, work was available for the beneficiary at the time of filing through a previous oral 
agreement with Specifically, the petitioner asserted that July 10, 2014 letter 
"address [ ed] and [the petitioner's] long standing relationship that since February II, 20 14, 
[the petitioner] has been constantly providing consulting services to _ 
' 
The petitioner 
further asserted that, prior to filing, the petitioner has been providing services to "under an 
oral agreement" and that "work has always been available to [the petitioner] under its oral 
agreement with ' The petitioner submitted copies of previously submitt ed evidence in 
support of the appeal. 
With respect to the beneficiary's qualifications, the petitiOner submit ted new evaluations from 
Dr. and Dr. both from the Departme nt of Biotech nical 
and Clinical Laboratory Sciences, 
II. NON-SPECUlATIVE EMPLOYMEN T AT TIME OF FILING 
We will first address the Director's ground for denial, particularly, whether there was specially 
occupation work available at the time the Form I-129 was filed. 
For H-lB approval, the petit ioner must demonstrate a legitimate need for an employee exists and to 
subs tantiate that it has secured H-1B caliber work for the beneficiary for the entire period of 
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employment requested iri the petition.2 In addition, 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 speculat ion of future eligibility 
or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248. 
In this matter, the petitioner asserted that the beneficiary would be assigned to work for the 
end-client on its project. The petitioner also asserted that the beneficiary's work 
would be performed "in-house" at the petitioner's business premises located in 
Connecticut. However, the evidence of record does not contain credible, objective evidence 
corroborating the petitioner's assertions. For instance, the petitioner has not specifically explained 
how the beneficiary would provide her services to . whose office is in New Jersey, while 
physic ally working from the petitioner's business premises in Connecticut. 
In addition, the evidence of record is insufficient to establish that the petitioner and have 
a valid contractual relationship for the beneficiary's services that existed at the time of filing, and 
that will remain valid until July 31, 2017. As the Director duly noted, the MSA and the letter from 
2 The agency made clear long ago that speculative employment is not permitted in the H-lB rrogram. Fm 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B classification is not intended as a vchick 
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 bus in ess 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1B nonimmigrant under the statute, the Service mu st 
first examine the duties of the position to be occupied to ascertain whether the dut ies or th e 
position require the attainment of a specific bachelor's degree. See section 214( i) or th e 
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 emrlo ym ent , 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly perm itted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it mu st 
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). 
The regulation at 8 C. F. R. § 214. 2(h)(9)(i)(B) also contemplates that speculative employment is not 
permitted stating that a "petition may not be filed ... earlier than 6 months before the date of actual need for 
the beneficiary's services or training ... " 
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were both dated July 2014, after the instant petition was filed in April 2014:1 However, 
even if the MSA and the letter were entered into and made effective on or before the date of filing, 
we still could not find these documents to constitute credible evidence of the beneficiary's 
contractual assignment to In particular, the MSA states that " _ may, from time­
to-time, contract with Employer for services ("the Services") to be performed by Employ er's 
employees (emphasis added)." The conditional term "may" does not denote that there is, in fact, an 
actual contractual relationship, and the otherwise unspecified term "from time-to-time" does not 
indicate the exis tence of an ongoing relationship would cover the entire validit y period requested in 
the instant petition. 
Significantly, the MSA states that "[t]o request such Services, the shall iss ue requirement 
request ... [which] will set forth certain requirements for the Services to be performed." The 
letter from likewise states that "we have entered into a Consulting Agreement for the 
services of [the beneficiary] ." However, the petitioner did not submit a requi rement request, 
consulting agreement, or other similar documentation specifically contracting out the beneficiary's 
services and setting forth the requirements and conditions for her services. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 19 98) (citing Matter o/' 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Furthermore, the evidence of record is insufficient to establish that is a bona fide project of 
and consequently, that the beneficiary would be employed to perform serv ices for this 
project. For example, there is no objective documentation corroborating the existence and/or 
development of the claimed project (e.g., invoices, product brochures, and pu rchase 
orders). The record does not contain a detail ed explanation about the project. The letter 
from vaguely states that " is targeted to help the business track with information, 
process and any type of internal or external relationships" and that ' is constantly 
developing new apps, solutions and add-ons ." The letter does not provide any other information 
about the project, such as the nature of the product(s) being developed, the resources 
involved, timelines for development, and the beneficiary's specific role in this project. 
The evidence of record is also unclear as to what the beneficiary's actual tasks and role would be at 
The letter from describes the beneficiary's job duties in broad and undefined 
terms, such as "[s] upporting the business users by troubles hooting and fixing the issues in the 
3 On appeal, the petitioner attempted to explain the lack of a timely, formal written agreement hy asserting 
that it and had a pre-existing, "long standing relationship[] since February 11, 2014" based upon 
an "oral agreement." However, despite the petitioner's assertion that Mr. letter addressed this "lung 
standing relationship," Mr. letter did not contain any such statements. Merely asserting I hat there 
is an "oral agreement," without more, is insufficient to establish the existence and terms of the claimed oral 
agreement. We also cannot see how a contractual relationship that purportedly began in February II, 2014 
can be considered "long standing." 
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software syst ems." The letter does not explain who these "business users" would be, what types of 
"issues" the beneficiary would be responsible for supporting, what "softw are syst ems " would be 
involved, what specific duties the beneficiary would perform, and how these du ties relate to the 
project. The petitioner's descriptions of the proffered job duties are simi larly vague, and at 
times inconsistent with the dut ies as described in the letter. 4 To illust rate, the petitioner 
asserts that 40% the beneficiary's time will include "coordinating and conduction [sic] web-based 
user training to help clients underst and the solut ions offered by company and to help client's 
businesses reap the real business benefits intended by software solut ions." Not only did th e 
petitioner fail to identify who and what these "clients" and "solutions" would be, but 
letter does not list any such training duties for the beneficiary. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsist encies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591- 92 (BIA 19 88). Doubt cas t on any aspect of the petit ioner's p roof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered i n 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 59 1 (BIA 1988). 
Overall, the record of proceeding lacks credible and suf ficient evidence establishing t ha t a 
contractual relationship exist s between the petitioner and for the beneficiary's services. 
The record does not demonst rate that is a bona fide project that exists and is being 
developed by such that the beneficiary would be performing services for this project. 
The record is also unclear as to what the beneficiary's actual tasks and job responsibilities would be 
at _ We thus conclude that the record of proceeding provides an inadequate factual basis for 
us to determine that, at the time of the petition's filing, the petitioner had secured for the beneficiary 
definite, non-speculative H-lB caliber work for the beneficiary for the entire period of employment 
requested in the petition. For this reason, the petition will be denied. 
III. EMPL OYER- EM PLOYEE RELATIONSHIP 
Beyond the decision of the Director, we find that the evidence does not establish that the petitio ner 
meets the regulatory definition of a United States employer. 8 C.F.R. § 214. 2(h)(4)(ii). 
Specifically, the evidence does not esta blish that the petitioner will have "an employe r-employee 
relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee." /d. 
4 While the petitioner-provided job duties are generally outside the scope of consideration for eslahlishing 
whether the position qualifies as a specialty occupation, we are nonetheless consider ing the petitioner's 
descriptions of the duties here for the purpose of highlighting the inconsistencies in the record. See 
Defensor v. Meissner, 201 F.3d 384, 387-388 (5th Cir. 2000) (stating that the petitioner-provided joh dutiL:s 
and alleged requirements to perform those duties were irrelevant to a specialty occ upation determination 
where the nurses in that case would provide services to the end-client hospitals and not to the petilillning 
staffing company). 
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A. The Law 
Section 101( a)(1 5)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j )(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 21 4(i )(l ) .. 
. , who meets the requirements for the occupation specified in section 21 4(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 21 2(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 21 4.2 (h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
asso ciation, or organization in the United States which: 
(1) Engages a person to work within the United States ; 
(2) Has an employe r-employee relationship with respect to employees 
under this part, as indicated by the fa ct that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61 111 , 61 121 (Dec. 2, 19 91). 
B. Discussion 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)( 4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(1) (20 12). The intending employer is described as offering full-t ime or part­
time "employment" to the H-1B "employee." Subsections 21 2(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012) . Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form 1-129) in order to classify 
aliens 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-
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employee relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.F.R. § 21 4.2 (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 rela tionship" by 
regulation for purposes of the H-lB visa classification, even though the regulation descri bes H-ll3 
beneficiaries as being "employees" who must have an "employer-employee relationship " with a 
"United States employer." /d. Therefore, for purposes of the H-1B visa classif ication, 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 conventiona l master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (19 89)). 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 t his 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party. " 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Vio lence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 44 0, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "em ployer" 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 
genera lly 136 Cong. Rec. S17106 (daily ed. Oct. 26, 19 90); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
19 90). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
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Page 12 
"United States employer" to be even more restrictive than the common law agency definition:� 
Specifically, the regulatory definition of '1United States employer" requires H-lB em ployers 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 11employee.u 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term uunited States employertt 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 
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 definitio n 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regula tio ns do not intend to 
extend the definition beyond nthe traditional common law definition11 or, more importantly, that 
construing these terms in this manner would thwart congressional design or lea d to absurd results. 
Cf Darden, 503 U.S. at 318-319. 6 
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 11employee11 and "employer-employee rela tionship " as used 
5 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,11 courts have generally refused to extend the common law agency definitio n to ERISA's usc 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. 199 2), affd, 27 F.3d 800 (2nd Cir.), cerl. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(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) (Z)(C)(vii) of the Act beyond the traditional common law defini tions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to he even 
more restrictive than the common law agency definition. A federal agency's interpre ta tion 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
6 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the,agencis 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (l9R9) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
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in section 101(a)(15)(H)(i)(b) of the Act, section 21 2(n) of the Act, and 8 C.P.R. § 21 4.2 (h).7 
Therefore, in considering whether or not one will be an "employee" in an "employe r-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; set' also K 
C.P.R. § 21 4.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer -e mployee 
relationship with respect to employees under this part, as indicated by the fact that it may hire , pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323- 324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (19 58). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-lll(A)( I) 
(adopting a materially identical test and indicating that said test was based on the Darden decis ion); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hosp itals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.P.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospita ls 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, 
regardless of whether the parties refer to it as an employee or as an independent contrac tor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 32 3-32 4. 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 
7 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-IB intracompany transferees having specialized knowledge); section 274A of the Act, H U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
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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."' Jd. at 45 1 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we find that the pettt toner has not 
established that it will be a "United States employer" having an "employer-employee relations hip" 
with the beneficiary as an H-lB temporary "employee." As discussed above, the pet i ti oner did not 
submit the requirement request, consulting agreement, or other similar document ation wh ich ou tlin e 
in detail the terms and conditions of the beneficiary 's assig nment to 
It is important to note the MSA's provision which states: "For purposes of applicable Conne cti cut 
and other state workers' compensation law, shall be the 'Special Employer' and have 
rights of control and supervision over the Temporary Employees and rights to de term i ne the manner 
and means by which the Temporary Employees perform their duties for " The MSA 
further states that ' _ maintains full control of its work sit es, including direction of the 
project that Temporary Employees will perform work for." Thus, the language in the MSA 
indicates that the key element in this matter, which is who exercises control and supervi s ion ove r 
the beneficiary 's work, would be exercised by rather than the petitioner. 
Although the petitioner asserts that the beneficiary would be directly supervised by Mr. 
the petit ioner has not reconciled this assertion with the language in the MSA indicating that 
would have "full control" and superv ision of the beneficiary. Moreover, the petitioner 
has not sufficiently explained and documented the manner in which Mr . would dir ectly 
supervise the beneficiary's "day-to-day duties ." We observe that Mr. is "prov i di ng cons ulting 
services to the existing client which is currently bringing in a revenue stream of $15, 520 per 
month," in addition to being "in charge of [the petit ioner's] strategy execution, genera l mana gement, 
bus iness development and recruitment. " The petitioner has not explained and do cum en ted how 
Mr. would perform all these duties, and that his current "consulting services" allow for th e 
additional duty of supervising the beneficiary. 
Thus, even if the petitioner were to establish that it provides the beneficiary's sal ary and other 
employment benefits, and that it has the right to hire and fire the benef ici ary, other in cident s of the 
relationship, i.e., who will control and direct the work of the beneficiary, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. On the 
balance, we cannot find that the petitioner qualifies as a "United States employer" having an 
"employer-employee relationship" with the beneficiary as an H-lB temporary "employee," as 
defined by 8 C.F. R. § 214.2 (h)(4)(ii). For this addi tional reason, the petition must be denied. 
IV. SPECIALTY OCCUPATION 
Also beyond the Director's decision, we find that the evidence does not esta blis h that the pr offered 
position qualifies for classification as a specialty occupation. 
(b)(6)
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A. The Law 
Section 214 (i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 11 84(i )(l) defines 
the term "s pecialty occupation" as one 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 . 
The term "specialty occupation" is further defined at 8 C.P .R. § 214.2 (h)(4)(ii) as : 
An occupation which requires [(1)) theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited . 
to, architecture, engineering, mathematics, physical sciences, social scie nces, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.P.R. § 214 .2(h)(4)(ii i)(A), to qualify as a specialty occupation, the position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positiOns 
among similar organizations or, in the alternative, an employer may show 
that its particular position is so complex or unique that it can be performed 
only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the posit ion; or 
(4) The nature of the specific dut ies [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214. 2(h)(4) (iii)(A) must logically be read together with 
section 214 (i)(1) of the Act and 8 C.F.R. § 214.2 (h)(4)(ii). In other words, this regul atory la nguage 
must be construed in harmony with the thrust of the related provisions and with the s ta tute as a 
whole. See K Mart Corp. v. Cartier Inc., 486 U.S. 281, 29 1 (1988) (holdin g that constru ct ion of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
(b)(6)
NON-PRECEDENT DECISION 
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Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (19 89); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F.R. § 214 .2 (h)(4) (iii)(A) 
should logically be read as being necessary but not necessari ly sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as statin g the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result 
in particular positions meeting a condition under 8 C.F.R .. § 214. 2(h)( 4)(i ii)(A) but not the stat utory 
or regulatory definition. See Defensor v. Meissner, 201 F.3d at 387. To avoid this result, S C.F .R. 
§ 214. 2(h)(4) (iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
As such and consonant with section 214 (i)(1) of the Act and the regulation at 
8 C.F.R. § 214.2 (h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.F .R. 
§ 214 .2(h)( 4) (iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Cher tujf, 4S4 
F.3d 13 9, 147 (1s t Cir. 2007) (describing "a degree requirement in a specific special ty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Apply ing this st andard, 
USCIS regularly approves H-lB petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such occupations. 
These professions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a spec ific specialty or its 
equivalent directly related to the duties and responsibiliti�s of the particular posit ion, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H- 1 B 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered posit ion's title. The specific duti es of the positio n, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. USCIS must 
examine the ultimate employment of the beneficiary, and determine whether the positio n qualifies 
as a specialty occupation. See genera lly Def ensor v. Meissner, 20 1 F. 3d at 384. The critical 
element is not the title of the position nor an employer's self-imposed standards, but whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
B. Discussion 
A crucial aspect of this matter is whether the duties of the proffered position have been adequately 
described, such that USCIS may discern the nature of the position and whether the position indeed 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. As recognized in Defensor v. 
Meissner, it is necessary for the end-client to provide sufficient information regarding the proposed 
job duties to be performed. See id., 201 F.3d at 387-388. 
(b)(6)
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Here, the record of proceeding in this case is devoid of sufficient information from the end-client 
regarding the job duties to be performed by the beneficiary for that company. As discussed 
previously, the petitioner did not submit the requirement request, consulting agreement, or other 
similar documentation which outline in detail the terms and conditions of the beneficiary's 
employment. Also as previously discussed, the letter from describes the beneficiary's 
duties in overly broad and generalized terms that do not convey the actual day -to-day tasks she 
would perform. Nor does the letter from _ describe how the proffered dut ies require the 
theoretical and practical application of a body of highly specialized knowledge. The letter from 
simply states that "[t]hese duties require theoretical and practical application of highly 
specialized knowledge, and at least a US Bachelor's degree." The letter does not further speci fy 
what bodies of highly specialized knowledge and the type of bachelor's degree required, and why. 
We also note that the petitioner's descriptions of the beneficiarts job duties are sim ilarly broad and 
at times inconsistent with the duties listed in 
_ 
letter. The petitioner has not provided an 
explanation, corroborated by objective evidence, reconciling the inconsistencies. Again, doubt cast 
on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and su fficiency of 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 l&N Dec. at 59 1. 
Overall, the evidence of record does not adequately convey the substantive nature of the work to he 
performed by the beneficiary. The failure to establish the substantive nature of the work to be 
performed by the beneficiary therefore precludes a finding that the proffered position satisf ies any 
criterion at 8 C.F.R. § 214 .2(h)( 4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; 
(3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or 
its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, as the evidence does 
not satis fy any of the criteria at 8 C.F.R. § 214. 2(h)(4)( iii)(A), it cannot be found that the proffered 
position qualifies as a specialty occupation. 
We note that even if the petitioner were able to establish the subst antive nature of the work to be 
performed by the beneficiary, we still could not find that the proffered position qualifies as a 
specialty occupation. That is because the letter from _ does not specify the type of 
bachelor's degree required, i.e., whether the required bachelor's degree must be from a spec ific 
discipline.9 The claim that a bachelor's degree is a sufficient minimum requirement for entry into 
8 See footnote 5 explaining that we are considering the petitioner's descriptions of the pro ffered duties for the 
purpose of highlighting the inconsistencies in the record. 
9 While the petitioner asserts that the proffered position requires at a minimum "a bachelor's de gre e in a 
specialty field of technology or computer science," the petitioner has not claimed nor submitted evidence to 
(b)(6)
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Page 18 
the proffered position is inadequate to establish that the proposed position qualifies as a spec ialty 
occupation. The evidence must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in quest ion. There must be a 
close correlation between the required specialized studies and the position; thus, the mere 
requirement of a degree, without further spec ification, does not establish the position as a spec ia lty 
occupation. Cf. Matter of Michael Hertz Associates, 19 I&N Dec. 558 ("The mere requirement of a 
college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee, also does not establish eligibility ."). 
V. BENEFIC IARY QUALIFICATIONS 
Finally, we turn to the Director's finding that the beneficiary would not be qualified to perform the 
duties of the proffered position. 
However, a beneficiary's credentials to perform a particular job are relevant only when the job is 
found to be a specialty occupation. As discussed in this decision, the evidence does not est ablish 
that the proffered position requires a baccalaureate or higher degree in a specific specialty, or its 
equivalent, so as to qualify for classif ication as a specialty occupation. Therefore, we need not and 
will not address the beneficiary's qualifications further, except to note that the petitioner has not 
adequately explained and documented how the beneficiary's Biotechnology degrees are related to 
the proffered position, which the petitioner characterizes as "a specialty occupation as it require s 
computer programming and analysis ." 10 The petitioner's explanation that biotechnology and the 
proffered position both involve "a lot of mathematic al analysis and technology ," without more, is 
insufficient. Furthermore, the evaluations the petitioner submitted on appeal are not entitled to 
probative weight, as the petitioner has not established that Drs. and can 
reasonably be considered "experts " or are otherwise qualified to render advisory opinions about the 
proffered position. 
We may, in our discr etion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 19 88). However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. /d. 
establish that shares the same requirement for the proffered position. Again, we note that the 
petitioner-provided job duties are generally outside the scope of consideration for establishing whether th e 
position qualifies as a specialty occupation. See Defensor v. Meissner, 201 F.3d at 387-388. Further more, if 
the proffered position could be satisfied by a degree with a generalized title, such as "technology," with out 
further specification, the proffered position would not qualify as a specialty occupation. Cf Matter of 
Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
10 
The petitioner's business plan also states that its "clients require IT consulting services in the field of 
design, development, test, maintain and continuous support of the IT systems." 
(b)(6)
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Page 19 
VI. CONCL US ION 
An app li cation or petition that does not com pl y with the technical req uir eme nts of the law may be 
denied by us even if the service center does not iden tif y all of the grounds for denial in the in itial 
dec ision. See Spencer Enterprises, Inc. v. United States, 229 F. Su pp. 2d I 025, I 043 (E. D. Cal. 
200 1 ), aff'd, 345 F.3d 683 (9th Cir . 20 03); see also Soltane v. DOJ, 381 F.3d 14 3. 14 5 (3d Cir. 
2004) (noting that the AAO conducts appe lla te review on a de novo basis). 
Moreover, when we deny a petition on multi ple alterna tiv e gro unds, a pla i nti f f can succeed on a 
chall enge only if it shows that we abused our di scretion with respect to al l of the enum erated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 10 37 , aff'd. 345 F.Jd 
683; see also BDPCS, Inc. v. Fed. Commun ications Comm 'n, 35 1 F.3d 117 7, 11 83 (D.C. Ci r. 2003 ) 
(" When an agency offers multiple grounds for a dec is ion, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstr ated that the agency would not have acted on that 
bas is if the alternative grounds were unavai !abl e."). 
The petition will be denie d and the appeal dismi ssed for the above stated reasons, with each 
consid ered as an independent and alterna tiv e basis for the de cision. 11 In vi sa petition proce edi ngs, it 
is the petitione r's burden to esta bl is h el igibil ity for the imm igration benefit sought. Section 29 1 of 
the Act, 8 U.S.C. § 13 61; Matter of Otiende, 26 I&N Dec. 12 7, 12 8 (BIA 20 1 3) . Here, that burden 
has not been met. 
ORDE R: The appeal is dism issed. The petition is denied. 
11 As the identified grounds of ineligibility are dispositive of the petitioner's appeal, we need not address any 
additional issues in the record of proceeding.