dismissed H-1B Case: Software Development

(b)(6)
DATE: JUN 0 5 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(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.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 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 fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
----- --------------------------------
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administr ative Appeals Office (AA) on appeal. The appeal will be dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-12 9), the petitioner describes itself as a 
two-employee "Advance software development and consulting" business established in In 
order to employ the beneficiary in what it designates as a full-time "QA Lead " position at a salary of 
$60,000 per year, the petitioner seeks to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section 101( a)(15)( H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 11 01 (a)(15)( H)(i)(b). 
The Director denied the petition, concluding that the evidence of record does not demonstrate that: 
(1) the petitioner qualifies as an U.S. employer having an employer-employee relationship with the 
beneficiary; and (2) the proffered position qualifies for classification as a specialty occupation. 
After granting the petitioner's motion to reopen and reconsider, the Director again denied the 
petition on the same grounds. The petitioner now files this appeal, asserting that the Director's 
bases for denial were erroneous and that the submitted evidence was sufficient. 
The record of proceeding contains the following: (1) the Form I-12 9 and supporting documentation; 
(2) the Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; 
(4) the Director's letter denying the petition; (5) the Notice of Appeal or Motion (Form I-290B) and 
documentation in support of the petitioner's motion to reopen and reconsider; (6) the Director's 
letter dismissing the motion; and (6) the instant Form I-290B and documentation in support of the 
appeal. We have reviewed the record in its entirety before issuing our decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. FACTUAL AND PROCED URAL HISTORY 
As noted above, the petitioner described itself on the Form I-12 9 as a two-employee "Advance 
software development and consulting" business established in . The petitioner indicated on the 
Form I-129 that it seeks to employ the beneficiary as a full-time QA Lead at a salary of $60,000. 
The petitioner listed its address on the Form I-12 9 as 
_ 
, Illinois. The petitioner indicated that the beneficiary will work at an off-site address 
located at Missouri. 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a QA Lead, and that it corresponds to Standard Oc cupational Classification 
(SOC) code and title "1 5- 119 9, Computer Oc cupations, All Other" from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I, 
entry-level position. The petitioner indicated on the LCA that the beneficiary will be working at 
two locations: (1) Illinois; and (2) 
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Missouri. 
In support of the petition, the petitioner submitted, inter alia, a letter, dated March 25, 2014 
affirming its intent to employ the beneficiary in the position of QA Lead. The petitioner listed the 
duties of the proffered position as follows: 
• Responsible for allocating tasks on daily basis, tracking progression of work and 
reporting while at Of fshore as well as Onsite. 
• Responsible in preparing Test Execution Plan, Check lists for Design and Execution, 
Test Summary reports per Iteration wise. 
• Responsible in facilitating testing sessions for associates 
• Experience in handling team with team size of 4-6. 
• Provide assistance to team to ensure they are following testing and defect reporting 
processes. 
• Participate in Walkthrough sessions for understanding Use Cases. 
(Verbatim.) 
In the same letter, the petitioner stated that the proffered position "qualifies as a specialty 
occupation because it requires theoretical and practical application of a body of highly specialized 
knowledge and 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 petitioner also 
stated that, despite the beneficiary's placement off-site, the petitioner "will maintain right to control 
over when, where, and how the Beneficiary performs the job through inbuilt mechanisms such as 
periodic status reports, timesheets, performance evaluation, off-site supervision using phone calls, 
reporting back to main office, or site visit by the Petitioner." 
The Director issued an RFE instructing the petitioner to submit additional documentation. In 
response to the RFE, the petitioner submitted, inter alia, a letter, dated July 30, 2014, explaining 
that "ftlhe beneficiary will be assigned to work on a project with located at 
MO. This assignment is conditional upon H1B approval. " The petitioner further stated 
that "End client . . . has declined to provide any verification letter because the 
beneficiary is currently not assigned to work on this project, and this assignment is conditional upon 
HlB approval." 
The petitioner submitted a letter from , dated March 1, 2014, stating 
that the petitioner "is a strategic partner of and supplies their LT. consultants to for project 
assignment needs. " The letter further states that "currently [is] in the process of locating 15+ 
additional I.T. consultants to work on I.T. projects by the end of 20 14." The letter 
explains that "do[es] not issue specific verification letters for consultants who are not currently 
working on project assignments with_ _," and requests that this letter serve as "confirmation that 
contract for IT services with [the petitioner] is ongoing and long-term and _ J will be 
using the services of [the petitioner's] employees as consultants for 1 various projects." It 
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further states: "The projects that will be assigned to these consultants are highly complicated and 
needs [sic] a minimum education of a Bachelor's degree or equivalent to perform the duties. '' 
The petitioner submitted a Master Services Agreement (MSA) between and the petitioner 
("Subcontractor") made on June 22, 2007. Under "Scope of Services,'' it states: "The Subcontractor 
shall use its best endeavors to provide to _ the computer consulting services .. . as described in 
the Statement of Work in the form attached as Appendix A." 
The petitioner submitted its federal Employer's Quarterly Federal Tax Returns (Forms 941) and 
Quarterly Contribution and Wage Reports for the State of Missouri. These forms show that the 
petitioner has had between zero to one paid employee or worker during the last quarter of 2013, and 
the first and second quarters of 2014 . 
The petitioner submitted its Employment Agreement, dated March 11, 20 14, with the beneficiary. 
Under "Employee's Duties," it states: "As a QA Lead, [the beneficiary] will render all duties as are 
communicated to [him] by [the petitioner]. [The beneficiary's] role and responsibilities will be as 
discussed during [his] interview." 
The petitioner submitted information pertaining to the company's claimed performance revtew 
process. 
The petitioner submitted its organizational chart which identifies twelve individuals m vanous 
positions, in addition to several vacant positions. 
The Director denied the petition, concluding that the evidence of record does not demonstrate that 
the petitioner qualifies as an U.S . employer having an employer-employee relationship with the 
beneficiary. The Director also concluded that the evidence of record was insufficient to establish 
that the proffered position qualifies as a specialty occupation. The Director specifically observed 
the lack of a Statement of Work (SOW) from the end-client. 
The petitioner subsequently filed a motion to reopen and reconsider. On motion, the petitioner 
expressed that "a SOW does not yet exist as Beneficiary is not yet working for [the petitioner] . An 
SOW will be available upon H1B approval." 
On motion, the petitioner submitted, inter alia, a new Employment Agreement with the beneficiary, 
also effective March 11, 2014, that lists the following job duties: 
• Design test plans, scenarios, scripts, or procedures. Test system modifications to 
prepare for implementation. 
• Develop testing programs that addresses areas such as database impacts, software 
scenarios, regression testing, negative testing, error or bug retreats, or usability. 
• Document software defects, using a bug tracking system, and report defects to 
software developers. 
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• Identify, analyze, and document problems with program function, output, online 
screen, or content. 
• Monitor bug resolution efforts and track successes. Create or maintain databases of 
known test defects. 
• Plan test schedules or strategies in accordance with project scope of delivery dates. 
• Participate in product design reviews to provide input on functional requirements, 
product designs, schedules, or potential problems. 
• Review software documentation to ensure technical accuracy, compliance, or 
completeness, or to mitigate risks. 
The petitioner submitted a letter from the claimed end-client, dated August 20, 2014, 
certifying that "is one of the primary vendors and implementation partners for 
IT projects" and that has been providing such services "since several years. " 
The petitioner submitted a letter, dated September 2, 2014, ostensibly from advising that 
has "contracted with [the petitioner] to provide the services of [the beneficiary], an employee of [the 
petitioner], as a Test Lead for our customer " The letter lists the same job duties for 
the beneficiary as those listed in the newly submitted Employment Agreement between him and the 
petltwner. The letter elaborates that the beneficiary's services will be performed at _ J 
customer's facility," and that "[t]he project has the potential duration of three years, and the project 
can be extended indefinitely. " In addition, the letter states that "minimum requirement for 
this [proffered] position is a comprehensive understanding of computer systems and programming 
by virtue of a Bachelor's Degree in Engineering or related field." 
The petitioner submitted a new Master Services Agreement (MSA) made with on September 4, 
2014. 1 Identical to the other MSA, the new MSA states under "Scope of Services" that "[t]he 
Subcontractor shall use its best endeavors to provide to the computer consulting services ... 
as described in the Statement of Work in the form attached as Appendix A." 
The petitioner submitted a "sample SOW as well as the SOWs for two other employees." All three 
documents identically explain that "[t]his Statement of Work forms part of the Master Services 
Agreement dated July 51h, 2006 ('MSA') made between and the Subcontractor," 
and that "[t]his Statement of Work is an authorization for providing information technology 
services." The SOW for was signed by both the petitioner and on March 18 , 
2014, authorizing Mr. to provide services for the client from March 3, 2014 
through June 20, 2014. The SOW for was signed by both the petitioner and 
on March 18, 20 14 , authorizing Mr. to provide services for the client 
from March 3, 20 14 through July 3, 20 14. 
1 This new MSA bears an original signature by the petitioner's president, and a photocopied signature by 
, president . Both signatures are dated September 4, 2014. 
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Finally, the petitioner submitted a new organizational chart, which identifies the beneficiary in the 
position of "Test Lead." 
The Director granted the combined motion, and denied the petition on the same grounds, i.e., that 
the evidence does not demonstrate that the petitioner qualifies as an U. S. employer having an 
employer-employee relationship with the beneficiary, and that the proffered position qualifies as a 
specialty occupation. 
The petitioner now files the instant appeal. On appeal, the petitioner avers that the previously 
submitted evidence was sufficient. With respect to the lack of documentation between the end-
client and the petitioner asserts that "the contracts between the vendor, 
, and the vendor, are confidential and therefore cannot be obtained. " 
II. EMPLOYER-EMPLOYEE RELATI ON SHIP 
The first issue to be discussed is whether the petitioner will have an employer-employee 
relationship with the beneficiary. 
A. The Law 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) .. . , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)( l) .. .. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214. 2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(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. 
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(Emphasis added); see also 56 Fed. Reg. 611 11 , 61 121 (Dec. 2, 19 91). 
B. Analysis 
In this matter, the Director determined that the evidence of record is insufficient to establish that the 
petitioner is a "United States employer" who will have "an employer-employee relationship" with 
the beneficiary. 8 C.F.R . § 214. 2(h)( 4 )(ii); Section 101( a)(15)( H)(i)(b) of the Act. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 21 4.2(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 21 2(n)( 1) of the 
Act, 8 U. S.C. § 11 82(n)(1) (2012) . The intending employer is described as offering full-time or 
part-time "employment'' to the H-1 B "employee. " Subsections 21 2(n)(1 )(A)(i) and 21 2(n)(2)(C)(vii) of 
the Act, 8 U.S .C. § 11 82 (n)(1)( A)(i), (2) (C)(vii) (2 012). Further, the regulations indicate that ''United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-12 9) in order to classify 
aliens 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-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 -1B 
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 classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. 
Co. v. Darden, 503 U.S . 318 , 322-323 (1 992) (hereinafter "Darden") (quoting Community for Creative 
Non-Violence v. Reid, 490 U.S. 730 (1 989)). 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 
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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-Violence v. Reid, 490 U.S. at 751-
752) ; see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U. S. 440, 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 "employer" in 
section 101 (a)(15)( H)(i)(b) of the Act, "employment " in section 21 2(n )(1)( A)(i) of the Act, or 
"employee" in section 212( n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S171 06 (daily ed. Oct. 26, 19 90); 136 Cong. Rec. H12 358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 2 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1 B "employee. " 8 C. P.R. § 214. 2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B 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 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), aff'd, 27 F.3d 800 (2nd Cir.), cert. 
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 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-lB visa classification, the term "United States employer" was defined in the regulat ions 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
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of United States employer in 8 C.F.R. § 214. 2(b)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318 -319. 3 
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 10l (a)(15)( H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214 .2( h).4 
Therefore, in considering whethe r 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 thi.s 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 co ntin uity 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 tl1e 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-III(A )(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "tme employers" of H-1B nurses under 8 C.F.R . § 214. 2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire', pay, fire, supervise, Or Otherwise controlthe work of the 'beneficiaries). 
It is im po rtant to note, however , that the factors listed in Darden and Clackamas are not exhaustive and 
> ."'' ,• _ ' ,r •• 
3 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bmvles v. Seminole-Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
4 That said, th(!re are)nstances in the Act where c 'ongress may have intended a broader application of the 
term "en1ployer" th�m 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-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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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 448-449; New Compliance Manual at§ 2-III(A) (1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the nmere 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.n' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests, we agree with the Director that 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." 
In the instant matter, the petitioner asserts that the beneficiary will work off-site for the end-client, 
, located at _ Missouri. However, the record 
of proceeding does not contain sufficient, credible documentation confirming and describing the 
circumstances of the beneficiary's claimed assignment there. Therefore, the key element in this 
matter, which is who exercises control over the beneficiary, has not been substantiated. 
The record does not contain documentation issued by the end-client specifically regarding the 
beneficia ry. The only document from the end-client is a letter dated August 20, 2014 certifying that 
has been one of primary vendors for IT services; this letter does not mention 
the beneficiary, the petitioner, or the proffered position. Notably, the petitioner states that the end­
client "has declined to provide any verification letter because the beneficiary is currently not 
assigned to work on this project. " The petitioner also asserts that nthe contracts between the vendor, 
_ 
and the vendor, are confidential and therefore 
cannot be obtained." 5 The lack of documentation from the end-client about the beneficiary, 
The claim that documentation is "confidential" does not provide a blanket excuse for the lack of 
documentation that is material to the requested benefit. Although a petitioner may always refuse to submit 
information it deems to be confidentia l, the petitioner must also satisfy the burden of proof and runs the risk 
of a denial. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 1977). 
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however, raises doubts as to whether the beneficiary would actually work at 
claimed. 
In addition, the record does not contain sufficient, credible documentation from the vendor, 
confirming and describing the beneficiary's claimed assignment at client, 
as 
While the petitioner submitted the MSA between its company and entered into on June 22, 
2007, and a new MSA entered into on September 4, 2014, these agreements are inadequate to 
establish what work, if any, will be assigned to the beneficiary. These agreements contain no 
references to the beneficiary individually, nor do they contain detailed descriptions of the work to 
be performed. They identically state that the petitioner "shall use its best endeavors to provide to 
the computer consulting services . . . as described in the Statement of Work in the form 
attached as Appendix A. " However, the petitioner has not submitted a SOW for the beneficiary. 
Without the actual Statement of Work, which, according to the MSA, describes the services to be 
performed, the evidence is insufficient to establish the beneficiary's assignment to 
and the circumstances of his assignment, if any. 
The petitioner claims that na SOW does not yet exist [for the] Beneficiary as [the] Beneficiary is not 
yet working for [the petitioner]." The petitioner relies upon the SOWs for two of its other 
"employees, n ' to establish the likelihood that " [a] SOW 
will be available [for the beneficiary] upon HlB approval.n However, we must question the 
credibility of the SO Ws for· and hence, the credibility 
of the petitioner's claims. First, we note that neither individual appears on the petitioner's recent 
federal and state quarterly tax returns. As such, it is not evident that they are actually employed by 
the petitioner pursuant to these SOWs. Moreover, the petitioner has not explained how it could 
have entered into these contracts for work to start on March 3, 20 14, when the petitioner and 
did not sign the SOW until March 18, 2014.6 Additionally, the SOWs both reference a MSA dated 
July 5, 2006, whereas the petitioner has not submitted an MSA dated July 5, 2006. The lack of a 
SOW for the beneficiary, as well as the concerns surrounding the SOWs for the petitioner's other 
claimed employees, further raises questions regarding the beneficiary's claimed assignment to 
Furthermore, the petitioner submitted a letter, dated September 2, 20 14 , ostensibly from stating 
that has "contracted with [the petitioner] to provide the services of [the beneficiary], an 
employee of [the petitioner], as a Test Lead for our customer " However, the 
authenticity and credibility of this letter is also in question. This letter was not written on company 
letterhead. Moreover, while this letter specifically states that and the petitioner have 
contracted for the beneficiary's services, the previously submitted letter from (which was 
prepared on company letterhead) states, to the contrary, that "do[es] not issue specific 
verification letters for consultants who are not currently working on project assignments with 
" The petitioner has not submitted an explanation, corroborated by competent objective 
6 Even if these documents were credible, we observe that the contracted services are to be completed within a 
few months, whereas the petitioner is now requesting a validity period of approximately three years. 
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evidence, resolving this inconsistency . It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies 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 1988). 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. !d. 
Nor has the petitioner adequately described and documented the circumstances of beneficiary's 
claimed assignment at That is, the petitioner has not explained and documented in 
detail how the company would supervise and otherwise control the beneficiary's day-to-day work 
performed at the client's worksite, which is located in a different state. 7 Making conclusory 
statements such as the petitioner "will maintain right to control over when, where, and how the 
Beneficiary performs the job, " without more, is insufficient. 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 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Likewise, the "mere existence of a 
document styled 'employment agreement'" shall not lead inexorably to the conclusion that the 
beneficiary is an employee. Clackamas, 538 U.S. at 450. 
Here, it is important to note significant' discrepancies regarding the petitioner's overall staffing and 
structure. According to the Form I-129, the petitioner has two employees. However, according to 
the petitioner's federal and state quarterly tax returns, the petitioner has had, at most, one paid 
employee or worker as of the date of filing.8 The petitioner has not submitted an explanation, 
corroborated by competent objective evidence, resolving this inconsistency and establishing how the 
petitioner would exercise control over the beneficiary with such minimal staffing. Again, it is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. at 591-92 Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. !d. 
To confuse matters further, the petitioner's organizational charts identify at least twelve individuals 
(not including the beneficiary). The petitioner has not clarified the employment status of these 
7 While the petitioner indicated on the LCA that the beneficiary would also be working at the petitioner's 
business premises at Illinois, the petitioner has not 
explained what work the beneficiary would be performing at its own premises. The petitioner has only stated 
that the beneficiary "will be assigned to work on a project with 
8 The petiti oner's federal return reported zero employees in April 2014. However, the petitioner's state return 
reported one employee in April 2014. 
(b)(6)
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twelve individuals, nor explained why none of them appear on the petitioner's federal and state 
quarterly tax returns. 9 More importantly, the petitioner's organizational charts both depict the 
beneficiary as being directly supervised by a senior manager ' Assuming arguendo that 
is the same individual as " ' as identified in the petitioner's SOW , we again 
observe that Mr. is not listed on the petitioner's recent federal and state quarterly tax returns. 
As such, it is not evident that Mr. is in fact employed by the petitioner and will supervise the 
beneficiary as depicted in the organizational charts. Furthermore, the SOW describes Mr. 
position and services to be provided as "programming and analysis." There is no indication that Mr. 
is authorized to perform any supervisory or managerial duties consistent with his title and 
role as depicted in the petitioner's organizational charts. 10 Additionally, the SO W lists Mr. 
anticipated end date at as June 20, 2014, and there is no evidence in the record 
establishing that this SOW has been extended or renewed. Overall, the evidence of record is unclear 
as to the petitioner's actual staffing, structure, and the manner in which the petitioner will 
purportedly exercise control over the beneficiary's work. 
The evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.P.R. § 214 .2(h) (4)(ii). Based on the tests outlined above, the petitioner 
has not established that it qualifies as an "United States employer " having an "employer-employee 
relationship" with the beneficiary as an H-lB temporary "employee. " 8 C. P.R. § 21 4.2(h)(4)(ii) . 
For this reason, the petition must be denied. 
III. SPECIALTY OC CUPATION 
We will now address whether the position proffered here qualifies for classification as a specialty 
occupation. For an H-lB petition to be granted, the petitioner must provide sufficient evidence to 
establish that it will employ the beneficiary in a specialty occupation position. We find here that the 
evidence of record fails to establish that the proffered position qualifies for classification as a 
specialty occupation. 
A. The Law 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
9 The single paid employee or worker reported on the petitioner's recent quarterly tax returns is 
' who does not appear on either organizational chart. 
10 According to the petitioner's organizational charts, Mr. is also the direct supervisor for 
However, their SOWs are identical with respect to their positions, services to be 
provided, and hourly rates. 
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Page 14 
Section 214( i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 11 84(i)(l) defines the 
term "specialty 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.F.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 sciences, 
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. F.R. § 214. 2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 
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 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. 
As a threshold issue, it is noted that 8 C . F.R . § 21 4.2( h)(4)(iii)(A) must logically be read together with 
section 214( i)(l) of the Act and 8 C . F.R . § 214. 2(h)(4)(ii). In other words, this regulatory language 
must be construed in harmony with the thrust of the related provisions and with the statute as a 
whole. SeeK Mart Corp. v. Cartier Inc., 486 U. S. 281, 291(1988) (holding that construction of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1 989); Matter of 
W-F-, 21 I&N Dec. 50 3 (BIA 1996). 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 necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
(b)(6)
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Page 15 
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)(iii )(A) but not the statutory 
or regulatory definition. See Defensor v. Meissner, 201 F.3d 38 4, 38 7 (5th Cir. 2000). To avoid 
this result, 8 C.F .R. § 21 4. 2(h)(4)(ii i)(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 21 4(i)(l) 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. Chertoff, 484 
F.3d 139, 147 (1s t Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
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 specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the position, 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 position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 20 1 F. 3d at 38 4. 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. Analysis 
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 at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 20 1 F.3d at 387-388. 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 jo b 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient information from the 
claimed end-client, regarding the specific job duties to be performed by the 
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beneficiary for that company. The sole letter from does not address the beneficiary, 
the petitioner, or the proffered position. Without sufficient information from the end-client 
regarding the proposed duties, we cannot find that the petitioner has satisfied its burden of proof in 
establishing the substantive nature of the proffered position. 
While petitioner-provided job duties and requirements are often outside the scope of consideration 
for establishing whether the position qualifies as a specialty occupation in cases such as this, we are 
considering the petitioner's descriptions of the duties here for the purpose of highlighting the 
inconsistencies in the evidence of record. More specifically, the petitioner initially listed the 
beneficiary's jo b duties as "QA Lead" to include leadership-type duties such as "allocating tasks," 
"handling team with team size of 4-6," and "[providing] assistance to team to ensure they are 
following testing and defect reporting process es." However, the petitioner also designated the 
proffered position as a Level I (entry level) position on the LCA. ll In designating the proffered 
position at a Level I wage, the petitioner has indicated that the proffered position is a comparatively 
low, entry-level position relative to others within the occupation that requires the beneficiary to only 
have a basic understanding of the occupation and perform routine tasks that require limited, if any, 
exercise of judgment. The designation of the proffered position as a Level I (entry) position is 
inconsistent with the petitioner's initial description of the proffered jo b duties. In addition, the jo b 
duties as initially listed by the petitioner are not included in the petitioner's subsequent list of job 
duties for the proffered position. These unresolved inconsistencies raise additional questions 
regarding the substantive nature of the proffered position. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591- 92. 
11 
DOL's "P revailing Wage Determination Policy Guidance" defines a Level I wage rate is described as 
follows: 
Level I (entry) wage rates are assigned to jo b offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familia rization with the employ er's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an int ernship are indicators that a 
Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prev ailing Wage Deter min ation Policy Guidance, 
Nonagric. Immi gration Programs (rev. Nov. 2009), available at http:/ /www.fore ignlaborcert.dole ta. gov/ 
pdf/NPWHC _Guidan ce_ Revised _1 1_ 2009. pdf. 
(b)(6)
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As such, the evidence of record is insufficient to establish 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 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 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 as a specialty occupation. 
Finally, we note that even if the petitioner were able to establish the substantive nature of the work 
to be performed by the beneficiary, we still could not find that the proffered the proffered position 
qualifies for classification as a specialty occupation. As stated above, the sole letter from the end­
client does not address the proffered position, and thus, does not establish what the end-client1S 
minimum educational requirement is for the proffered position. 
Moreover, the petitioner states, as does the letter from dated March 1, 2014, that the proffered 
position requires na minimum education of a Bachelor1s degree or equivalent to perform the duties, n 
without further specifying whether the degree must be in any particular field(s). The other letter 
ostensibly from states that the 11minimum requirement for this [proffered] position is a 
comprehensive understanding of computer systems and programming by virtue of a Bachelor's 
Degree in Engineering or related field.n It is not clear which of these statements, if any, IS 
representativ e of the end-client's minimum educati onal requirement for the proffered position. 
If the proffered position can be satisfied by a general-purpose Bachelor's degree, then this further 
supports the conclusion that the proffered position does not qualify as a specialty occupation. A 
petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position. Thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Associates, 19 I&N Dec. 558 (Comm1r 1988 ) ('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. 11 ). While a general-purpose bachelor's degree 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, 
will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147 (1s t Cir. 2007). 
For all of the above reasons, the evidence of record is insufficient to establish that the proffered 
position qualifies as a specialty occupation. The petition must be denied on this additional ground. 
(b)(6)
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IV. CONCL USION AND OR DER 
As set forth above, we find that the evidence of record does not establish an employer-employee 
relationship between the petitioner and the beneficiary. We also find insufficient evidence to 
establish that the proffered position qualifies for classification as a specialty occupation. 
Accordingly, the petition will be denied. 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025 , 1043 (E.D. Cal. 
200 1), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 14 3, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 10 37 , affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 35 1 F.3d 117 7, 11 83 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 12 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; Matter of Otiende, 26 I&N Dec. 127, 12 8 (BIA 20 13). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
12 
As these issues are dispositive of the petitioner's appeal, we will not addr ess any of the additional 
deficiencies we have ident ified on appeal.