dismissed H-1B Case: Software Development

(b)(6)
MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 17, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "Advance Software Development and Consulting" company, seeks to temporarily 
employ the Beneficiary as an "Oracle ERP QA analyst" under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section l0l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition, concluding that: (I) the Petitioner did 
not sufficiently establish that it qualifies as a United States employer with an employer-employee 
relationship with the Beneficiary; and, (2) the Petitioner did not sufficiently establish that the 
proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and additional 
evidence, and asserts that the Petitioner qualifies as the Beneficiary's employer and the proffered 
position qualifies as a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-IB petition , the Petitioner stated that the Beneficiary will serve as an Oracle ERP QA 
analyst. The Petitioner also submitted an itinerary to indicate that the Beneficiary will be providing 
services to (end-client), located in Georgia. The Petitioner also listed 
the succession of contracts as follows: The Petitioner - (vendor) -
(second vendor- (end-client). In response to the Director's request 
for evidence (RFE), the Petitioner provided the expanded job duties with percentages of time spent 
on each duty while working at the end-client as follows: 
I. Assist the Test lead with QA effort estimation using Complexity model for the CRs 
for every build release cycle. (I 0%) 
Matter of S-S-, Inc. 
2. Point of Contact (POC) for Order Management Module and involved in the analysis 
and discussions with BA team and Business on the client requirements based on 
RICEWF components. 
3. Creation and Updation of Test plans and Test Strategy using the [end-client] Standard 
Testing template. (10%) 
4. Creating and Tracking requirements in HP Quality Centre/ALM and link with Test 
cases and Defects. (5%) 
5. Analyze and decompose the business requirements to design Test Scenarios, Test 
cases & Test optimization using tools and techniques like Orthogonal Array Testing 
(OATS), Component Based Testing (CBT). (10%) 
6. Create and maintain Test Scenarios and Test Scripts for 02C modules. (5%) 
7. Identifying the Automation Candidates for Test Automation team. (5%) 
8. Perform Smoke testing, Release cycle testing, System Integration testing, End 'to End 
testing using Risk Based Testing (RBT). (20%) 
9. Perform Regression testing and 1 up 1 down testing based on the [end-client] 
business strategy. (1 0%). 
10. Support the UAT testing and UAT team. (5%) 
11. Involving in Change Request (CR) testing. (5%) 
12. Defect identifying, logging, tracking, analysis, mapping and reporting usmg HP 
Quality center/ALM. (5%) 
13. Attending Defect Triage calls and discuss defects with development team, DBA's and 
business team. (5%) 
14. Train team members in 020 Applications and being a SPOC for OM module. 
15. Preparing Daily Test Status Report and Defects Report. (5%) 
16. Train and Mentor the new joiner's to G2G project on the Automobiles domain, G2G 
Applications and Testing process and procedures used by the team. 
The Petitioner stated that the usual minimum requirement for the proffered position is a "bachelor's 
degree, or equivalent, in computers, engineering, or a related field." The Petitioner also stated that 
"[f]or a position at the level offered, it is not uncommon for the incumbent to also possess a master's 
degree and/or a number of years of experience of increasing responsibility in programming analysis 
or engineering." 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B 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)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
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Matter of S-S-, Inc. 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. § 
214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re!Jpect to employees 
under this part, as indicated by the fact that it may hire. pay .. fire, 
supervise, or otherwise control the wo':k 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), 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)(l5)(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)(l) 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-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. .§ 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States 
employers" must file a Form I-p9, Petition for a Nonimmigrant Worker, in order to classif)' individuals 
as H-lB temporary "employees." 8 C.P.R.§ 214.2(h)(l), (2)(i)(A). Finally, the definition of"United 
States employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-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. § 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-1 B 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." Id Therefore, for purposes of the H-IB visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
3 
Matter of S-S-, Inc. 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Natiomvide Mut. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
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 treatll)ent of the hired party." 
Id; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-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 
1 
Although the Darden court considered only the definition of "employee" under the Employee Retirement Income 
Security Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have 
generally refused to extend the common law agency definition to ERISA's use of employer because "the definition of 
'employer' in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition 
beyond the traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 
(S.D.N.Y. 1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
l 01 (a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)( 1 )(A )(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 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. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
4 
Matter of S-S-, Inc. 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.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;'l 
Darden, 503 U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
·Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R.§ 214.2(h)? 
Therefore, in considering whether or not one wilJ be an "employee" in an "employer-employee. 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, we must 
focus on the common-law touchstone of "control." Clackamas, 538 U.S: at 450; see also 8 C.P.R. § 
214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... "(emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
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. 41 0, 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 8 intracompany 
transferees having specialized knowledge); section 274A ofthe Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
5 
(b)(6)
Matter of S-S-, Inc. 
because the hospitals ultimfltely 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 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, we must assess and weigh 
each actual factor itself as it exists or will exist and not the claimed employer's right to influence or 
change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, although 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."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Upon review of the record of proceedings, the Petitioner has not established that it will be a "United 
States employer" having an "employer-employee relationship" with the Beneficiary as an H-1B 
temporary "employee." 
1. Offer of Employment Letter 
For H-IB classification, the Petitioner is required to submit written contracts between the Petitioner 
and the Beneficiary, or if there is no written agreement, a summary of the terms of the oral 
agreement under which the Beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A)-(B). 
The Petitioner submitted an offer letter to the Beneficiary for the position of Oracle ERP QA analyst 
to commence employment on July 13, 2015. The letter 
stated that will supervise 
the Beneficiary's work. 
While an employment agreement may provide some insights into the relationship of a Petitioner and 
a Beneficiary, it must be noted again that 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 
6 
(b)(6)
Matter of S-S- , Inc. 
of the incidents of the relationship ... with no one factor being decisive." ' I d. at 451 (quoting 
Darden, 503 U.S. at 324). 
The Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, 
detailing the manner in which the Beneficiary's supervisor actually oversees, directs, and otherwise 
controls the off-site work of the Beneficiary. The Petitioner did not submit sufficient documentation 
regarding how the Petitioner will control the Beneficiary' s work and will administer the work 
assignments when the Beneficiary is working off-site. Moreover, the offer letter stated that the 
Petitioner's CEO will review the Beneficiary's work; however, it is not clear how the CEO can 
supervise the Beneficiary on a weekly basis regarding his work at the end-client and run the 
company. In addition, in response to the RFE, the Petitioner submitted an organizational chart for 
the end-client that indicated the Invoicing QA Lead and the GL QA Lead will supervise the 
Beneficiary. However, the Petitioner did not submit any additional information regarding how these 
individuals will supervise the Beneficiary and if they will be guiding the Beneficiary with work 
assignments for the end-client. 
The Petitioner stated that the CEO would supervise the Beneficiary' s work but did not indicate any 
specific employee(s) that would supervise the Beneficiary while on the client's site. Instead, the 
Petitioner stated that the Beneficiary will email the Petitioner weekly status reports that outline his 
work activities for that week. On appeal, the Petitioner explained that these "employer-employee 
communications inform . [the Petitioner] of the work the employee has performed, the major 
accomplishments or milestones, and any problems or issues arising in the work." If the Beneficiary 
is reporting work completed to the Petitioner, it indicates that the Petitioner will have general 
oversight, but will not be managing the Beneficiary' s day-to-day duties at the c1ient site. For these 
reasons, it cannot be determined that the Petitioner will assign and contiol the Beneficiary' s work at 
the client site. 
2. Master Services Agreements 
The Petitioner explained that it has a contract with 
contracts with [second vendor] who in tum has a contract with 
Petitioner submitted the agreement with and the 
vendors and the end-client. 
[vendor] who in turn 
[end-client]. The 
agreements between the 
The agreement between the Petitioner and was entered into on June 8, 2015, 
and states the purpose of the contract as follows: ' [the vendor] shall attempt to locate a client 
who required temporary staffing of a specific project and to identify the specific training, skills, 
abilities, and experience required to perform the project." Section B of the contract also stated that 
the "relationship between the parties is that of independent contractor." 
In addition, a paragraph on the first page is completely blacked out. On appeal, the Petitioner 
explains that "corporations routinely redact confidential information from internal documents that 
they are sharing with outside counsel." However, without the full document, it is difficult to 
(b)(6)
Matter of S-S-, Inc. 
understand the true nature of the relationship between the end-client and the vendor company . The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The agreement between the second vendor and the end-client states that the end-client "desires to 
engage Vendor to provide temporary staffing services to [the end-client] on a non-exclusive basis 
and Vendor desires to be engaged by Client , all on the terms and conditions of this Agreement." 
We find that the agreements between (the vendor) and the Petitioner , and the 
agreement between the second vendor and the end-client, are contracts {or staff augmentation. The 
Beneficiary will be assigned to the end-client ,solely to support its staff, a role which is indicative of 
day-to-day control by the end-client, whose staff is normally subject to the end-client's direction. 
3. Statement of Work and Project Plan 
The Petitioner also submitted a statement of work (SOW) between the Petitioner and 
(vendor). The SOW stated that the Beneficiary will provi9e services for the end-client 
commencing on July 15, 2015. The estimated term of assignment is ''perpetuat until terminated by 
Customer or subject to the termination provisions of Section 14 of the 
Agreement." The SOW also provided a brief job description of the duties performed by the 
Beneficiary. The SOW provided very little detail of the type of work the Beneficiary will perform , 
and lacked a detailed explanation of how the Petitioner will control the work performed by the 
Beneficiary. 
On appeal , the Petitioner submits a project plan that does not list any company names or the 
Beneficiary. It is not clear if the Beneficiary will be working on this project. The project plan does 
not provide sufficient detail or explanation of what the Beneficiary will be doing for the end-client. 
4. Letter from End-Client 
The Petitioner submitted a letter from the senior manager-technology of the end-client. The letter 
confirms that the Beneficiary is currently working as a contractor as an Oracle ERP QA Analyst 
through (second vendor) and (vendor) . The end-client letter 
does not discuss in sufficient detail the nature and manner in which the Petitioner will supervise or 
otherwise control the Beneficiary's work performed off-site at the end-client ' s premises. The 
Petitioner provided a brief job description of the duties performed by the Beneficiary, but the letter 
does not explain in detail the project that the Beneficiary will work on and the duties he will perform 
until the end of his H -1 B requested period of employment. 
The letter also stated that the Beneficiary's "involv ement in the project is open-ended and expected 
to be long term with possible extensions. " The letter from the end-client does not state specific dates 
to indicate that it will continue to use the Beneficiary ' sservices up to September 1, 2019. Thus, the 
Petitioner does not 
establish that the petition was filed for non-speculative work for the Beneficiary that 
8 
Matter ofS-S-, Inc. 
existed as of the time of the petition's filing for the entire period requested. USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Even if the 
Petitioner established that it would be the Beneficiary's United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii), which it has not, the Petitioner has not demonstrated that it 
would maintain such an employer-employee relationship for the duration of the period requested. 4 
In conclusion, the evidence does not establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming that the Beneficiary is the 
Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the beneficiary as an H -1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). The petition must be denied and the appeal dismissed for 
this reason. 
III. 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: 
4 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. A 1998 proposed 
rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties ofthe 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree tor the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 304 I 9, 30419- 30420 (June 4, I 998). Although a petitioner is certainly permitted to change its intent with 
regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a 
material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
9 
Matter of S-S-, Inc. 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
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 o!le of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so 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 forthe 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"); Defensor, 201 P.3d at 
387. 
B. Analysis 
The petition must also be denied because the Petitioner has not established that the proffered 
position qualifies for classification as a specialty occupation. As recognized in Defensor, 201 P.3d 
at 387-88, it is necessary for the end-client to provide sufficient information regarding the proposed 
job duties to be performed at its location in order to properly ascertain the minimum educational 
requireme~ts necessary to perform those duties. In other words, as the nurses in that case would 
provide services to the end-client hospitals and not to the petitioning staffing company, the 
petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a 
specialty occupation determination. See id. 
Here, the record of proceedings does not provide sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The 
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Matter of S-S-, Inc. 
Petitioner submitted a letter from the end-client confirming that the Beneficiary is a contractor that 
will be working for the end-client in the position of Oracle ERP QA analyst. The end-client letter 
describes the Beneficiary's job duties in brief, generalized terms that fail to convey the substantive 
nature of the proffered position and its constituent duties. For example, the end-client letter lists 
duties such as "review functional setups and business requirement documents"; "supporting the 
Functional Team"; and, "overall managing the scope of testing for entire order management 
RICEWF components of project. " The record of proceedings does not contain a more 
detailed description explaining what particular duties the Beneficiary will perform on a day-to-day 
basis. Nor is there a detailed explanation regarding the demarids , level of responsibilities, 
complexity, or requirements necessary for the performance of these duties (e.g., explain what 
specific systems and applications are involved, and what body of knowledge is required to perform 
the duties). 5 In addition, the end-client states that the Beneficiary will work on a project but does not 
specifically explain the specific role of the Beneficiary for this project. 
Accordingly, upon review of the totality of the record , the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as an Oracle ERP QA analyst for the duration of the requested 
employment period. As the Petitioner has not established the substantive nature of the work to be 
performed by the Beneficiary, which therefore precludes a 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 ofthat 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. The petition 
must be denied and the appeal dismissed for this additional reason. 
IV. CONCLUSION 
In visa petition proceedings , it is the Petitioner ' s burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
5 While the end-client letters state the educational requirements for this position (i.e., a bachelor 's degree or master's 
degree in computer science , engineering (any) , technology or equivalent experience , this general state~ent regarding the 
minimum educational requirement is insufficient to explain what body of knowledge is required to perform each of the 
listed job duties. 
II 
Matter of S-S-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, Inc., ID# 152192 (AAO Feb. 17, 2017) 
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