dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF SRC-T-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3. 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a software development company. seeks to temporarily employ the Beneficiary as a 
'"senior software system engineer" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 101(a)(15)(1I)(i)(b). 8 U.S.C. 
§ 110l(a)(l5)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director. California Service Center, denied the petition. The Director concluded that the 
Petitioner will not have an employer-employee relationship with the Beneficiary and that the 
proffered position is not a specialty occupation. 
The matter is no\v before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the Petitioner will not be the Beneficiary's employer 
and that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
First. we will consider whether the Petitioner has established an employer-employee relationship 
with the Beneficiary. 
A. Law 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part. as an 
individual: 
[S]ubject to section 212(j )(2). who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214( i )(1 ) .... who 
meets the requirements for the occupation specified in section 214(i )(2) .... and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Matter l~{SRC-T-. LLC 
Homeland Security] that the intending employer has filed with the Secretary f 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. 
(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-18 visa classification. Section 10l(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) ofthe Act. 8 U.S.C. § 1182(n)(l). The intending employer is described as otTering 
full-time or part-time "employment" to the H-18 "employee." Subsections 212(n)(l )(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l )(A)(i). (2)(C)(vii). Further. the regulations 
indicate that ''United States employers" must file a Fonn 1-129. Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-18 temporary "employees." 8 C.F.R. § 214.2(h)(l ). 
(2)(i)(A). Finally. the definition of ··united States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part." i.e .. 
the H-1 8 beneficiary, and that this relationship be evidenced by the employer's ability to "hire. pay. 
tire. 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 8 visa classification, even though the regulation describes Il­
l 8 beneficiaries as being ··employees" who must have an "employer-employee relationship" vvith a 
"United States employer... !d. Therefore, for purposes of the Il-l 8 visa classification. these terms 
are undefined. 
2 
Matter ofSRC-T-, LLC 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term .. employee ... courts should conclude that the term was .. intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine... Nationwide Mut. Ins. 
Co. v. Darden. 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid. 490 
U.S. 730 (1989)). The Supreme Court stated: 
.. In determining whether a hired party is an employee under the general 
common law of agency, we consider the hiring party's right to control the manner and 
means by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools: the 
location of the work; the duration of the relationship between the parties: whether the 
hiring party has the right to assign additional projects to the hired party; the extent of 
the hired party's discretion over when and how long to work; the method of payment: 
the hired party's role in hiring and paying assistants: whether the work is part of the 
regular business of the hiring party; whether the hiring party is in business: the 
provision of employee benefits; and the tax treatment of the hired party ... 
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 XLRB \'. United 
Ins. Co. ofAm .. 390 U.S. 254, 258 (1968)). 
In this matter-. the Act does not exhibit a legislative intent to extend the definition of ··employer·· in 
section 101(a)(l5)(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. Sl7106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. Hl2358 (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. 1 
1 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6). and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA 's use of employer because "the definition of ·employer· 
in ERISA. unlike the definition of ·employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g, Bowers v. Andrew Weir Shipping. Ltd .. 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of ··employer" in section 
IOI(a)(J5)(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. 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). 
3 
Matter (~(SRC-T-. LLC 
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-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term .. United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-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.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond .. the traditional common law definition.. or. more 
importantly. that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf. Darden, 503 U.S. at 318-19.2 
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) ofthe Act, section 212(n) ofthe Act. and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether or not one will be an .. employee" in an .. employer-employee 
relationship" with a .. United States employer" for purposes of H-1 B nonimmigrant petitions. USC IS 
must focus on the common-law touchstone of "control.'' Clackamas. 538 U.S. at 450; see also 
8 C.f.R. § 214.2(h)(4)(ii) (defining a .. United States employer" as one who .. has an employer­
employee relationship with respect to employees under this part. as indicated by the fact that it may 
hire. pay. fire. supervise, or otherwise control the work of any such employee ...... (emphasis 
added)). 
The factors indicating that a worker is or will be an .. employee" of an .. employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden. 503 U.S. at 323-24: ( 'lackamas. 
538 U.S. at 445: see also Restatement (S'econd) (?lAgency § 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 \\hether 
the work performed by the worker is part of the employer's regular business. 5)ee 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 
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. Rohhins, 519 U.S. 452. 461 (1997) (citing Robertson v. Atethmr /'alley Citi::.ens Council. 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co .. 325 U.S. 410, 414 (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"'employer" than what is encompassed in the conventional master-servant relationship. See. e.g. section 214(c)(2)(F) of 
the Act, 8 U .S.C. § 1184( c )(2)(F) (referring to "'unaffiliated employers'' supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter ~(SRC-T- . LLC 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, arc the .. true 
employers'' of H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met: however. the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l ). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly. the ''mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. ..Rather. ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive.'" !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Proffered Position 
The Petitioner is a two-employee software development company located in Iowa. The 
Petitioner seeks to employ the Beneficiary as a full-time .. senior software system engineer .. for a 
three-year period from October 1, 2015, to September 13,2018, at an annual salary of$72.000. The 
Petitioner stated that the Beneficiary will be employed off-site. In the Form 1-129, Supplement II. 
the Petitioner described the Beneficiary's proposed duties as follows: ''[w]rite Software high level 
and low level requirements, Analyze the system level requirements for proper design. implement 
software on the hardware, test procedures[.]" 
The labor condition application (LCA) submitted to support the visa petition stated that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 15-
1131, ·'Computer Programmers," from the Occupational Information Network (O*NET). The LCA 
further stated that the proffered position is a Level III position. 
5 
(b)(6)
Matter ofSRC-T-, LLC 
The Petitioner initially submitted an offer letter for the Beneficiary to work as a senior software 
engineer at office in Iowa starting April 14, 2014. I Iowever. the 
Petitioner explained in its response to a request for additional evidence (RFE) that this offer letter 
was for a position offered to the Beneficiary under optional practical training (OPT). not the 
proffered position in this petition. The Petitioner indicated that the Beneficiary will be ··placed as a 
contractor at an off-site location, location at 
Iowa, . which is within the same metropolitan statistical areas as l the Petitioner's J office.·· 
In response to the RFE, the Petitioner also submitted a letter dated July 18, 2015. from 
Human Resources Manager of which stated that the Beneficiary was 
working as a contract software engineer at in Iowa, '·providing services 
using her specialized skills for embedded applications/low level drivers for various hardware 
platforms and is expected to do so at least through December 2018, subject to continuing business 
necessity. successful performance evaluations, and continuation of the Agreement between 
and [the Petitioner].'' also provided the following job description for the 
Beneficiary: 4 
• Low level requirements validating the system design. 
• Low level requirements verifying the software development. 
• Implements source code for the low level design. 
• Develop and automate the test scripts to verify the functionality of the module 
under test. 
• Generate Problems Reports by adhering to stringent software management 
configuration process. 
• Verify problem reports by adhering to stringent software management 
configuration process. 
• Review release artifacts. 
• Review Low level design software items. 
stated that the job requires a "'minimum of Bachelor of Science (BS) degree in computer 
science/Electronics engineering or 
related field with applicable experience.'' 
4 Although the Petitioner claims in its appeal brief that the Beneficiary will perform a number of additional job duties as 
provided in a job description from elnfochips in response to the RFE, the letter from only included the job 
duties we describe in this decision. Therefore, these additional duties that the Petitioner claims provided 
carry little weight as they are not supported by the evidence. '"[Gloing on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Afatter rl Sr!ffici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter r?f'Treasure Craft o.fCal., 14 I&N Dec. 190 (Reg') Comm'r 1972)). 
(b)(6)
Matter ofSRC-T-. LLC 
C. Analysis 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an .. employer-employee relationship" with the 
Beneficiary as an I 
I -1 B temporary .. employee." 
For H-1B classification. the Petitioner is required to submit written contracts between itself 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). S'ee 8 C.F.R. § 214.2(h)(4)(iv)(A) and (B). 
In the instant case. the record contains an offer letter from the Petitioner regarding the Beneficiary's 
OPT position. but the Petitioner did not provide an offer letter for the proffered position at the new 
client site. In addition, the Petitioner did not indicate who will be the Beneficiary's direct supervisor 
at the petitioning company or explain how it will 
oversee, direct, and otherwise control the 
Beneficiary's work at an offsite location when it only has two employees. 
While the Petitioner submitted two job performance evaluation forms for previous work perfom1ed 
by the Beneficiary, these documents do not identify the source of the information for completing 
these forms. The Petitioner does not explain in detail how it evaluates the Beneficiary's technical 
and job knowledge, and other aspects of her performance that do not occur at the Petitioner's 
worksite. 
Further, the Petitioner has not explained and documented the nature of the relationship 
between the Beneficiary's contact person at the client site and the Beneficiary's supervisor at the 
Petitioning company ... [G]oing on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings." Matter ofS(dlici. 22 I&N Dec. at 
165. 
The Petitioner submitted the most recent independent contractor services agreement between the 
Petitioner and the client, This agreement stated an effective date of April 9. 2015. 
but it was not signed until August 5, 2015. Both of these dates occurred after the present petition 
was tiled on April L 2015, indicating that the Beneficiary's assignment had not been confirmed at 
the time this petition was filed. Further, the agreement does not reference either the Beneficiary or 
the project to which the Petitioner intends to assign the Beneficiary. even though the contract 
mentions project assignments are to be agreed upon by both parties. Without sufficient information 
regarding the Beneficiary's duties and duration of the project, this document does not establish 
availability of continued. non-speculative employment for the Beneficiary for the entire H-1 B 
validity period that was available at the time of the petition's filing.
5 
USCIS regulations 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example. a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-18 classification on the basis of speculative, or 
undetermined, prospective employment. The H-18 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 
Matter ofSRC-T-, LLC 
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 offacts. See Matter of Michelin Tire Corp .. 17 I&N Dec. 248 (Reg"! Comm"r 1978). 
The evidence. therefore. is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
exercises control over the Beneficiary, without sufficient evidence supporting this claim. does not 
establish eligibility in this matter. While the Petitioner repeatedly asserts that it has an employer­
employee relationship with the Beneficiary because the Petitioner is directly responsible f()r paying 
her salary, employee benefits, and employment related taxes. these factors. even if true. are not 
determinative in assessing who will control the Beneficiary. Other incidents of the relationship. 
e.g .. who will oversee and direct the work of the Beneficiary. where will the work be located. and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. must also be 
assessed and weighed in order to make a determination as to who will be the Beneficiary's 
employer. Without full disclosure of all of the relevant factors, we arc unable to tind that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
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). Further.even if it were found that the Petitioner would be 
the Beneficiary's United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4 )(ii). the 
Petitioner has not demonstrated that it would maintain such an employer-employee relationship tor 
the duration ofthe three-year period requested from October 1, 2015. to September 13.2018. 
II. SPECIALTY OCCUPATION 
Next we will analyze whether the Petitioner has demonstrated that the proffered position is a 
specialty occupation. We find that the record of proceeding does not contain sufficient information 
regarding the substantive nature of the proffered position. 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-18 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 for 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 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30.419-20 (proposed June 4, 
1998) (to be codified at 8 C. F. R. pt. 214 ). 
8 
Matter ofSRC-T-, LLC 
A. Law 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "'specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(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 .F.R. § 214.2(h)( 4 )(ii) largely restates this statutory definition. but adds a non­
exhaustive list of fields of endeavor. In addition. the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(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 sho\V 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 
( ../) The nature of the specific duties lis] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the tenn '"degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree. but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chert<dt: 484 F.3d 139, 147 (1st Cir. 2007) (describing .. a degree 
requirement in a specific specialty" as "'one that relates directly to the duties and responsibilities of a 
particular position"): Defensor v. Meissner. 201 F.3d 384. 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below. we determine that the 
Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. 
Specifically. the record (1) does not describe the position's duties with sufficient detail: and (2) docs 
9 
(b)(6)
Matter ofSRC-T-, LLC 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 6 
As recognized in Defensor v. Meissner, 201 F.3d at 387-8, 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 requirements necessary to perform those duties. 
In other words, as the nurses in that case would provide services to the end-client hospitals and not 
to the petitioning staffing company. the Petitioner-provided job duties and alleged requirements to 
perform those duties were irrelevant to a specialty occupation determination. See id. 
Here. the record of proceeding in this case is similarly devoid of sufficient information from the 
purported end-client, regarding the job duties to be performed by the Beneficiary. As 
discussed previously, the agreement was dated after the petition was filed. Further. even if the 
agreement was effective prior to the petition being filed, the Petitioner did not submit a project 
assignment regarding the work the Beneficiary would provide to the client. as would have been 
required under this contract. In addition, the letter from provided a vague and general job 
description that was overly broad and insutlicient to illuminate the specific tasks to be performed by 
the Beneficiary. For example, the Beneficiary's duties include ''[l]ow level requirements validating 
the system design," [l]ow level requirements verifying the software development," and .. implements 
source code for the low level design." These statements do not include information regarding the 
day-to-day tasks of the position, and do not delineate the actual work that the Beneficiary will 
perform. The duties, as so generally described, do not illuminate the substantive application of 
knowledge involved or any particular educational attainment associated with such application. 
Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sutlicient to establish that. in fact. the Beneficiary would 
be perfonning services primarily as a senior software system engineer 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 
of that work that determines (1) the normal minimum educational requirement for entry into the 
particular position, which is the focus of criterion I: (2) industry positions which are parallel to the 
protTered position and thus appropriate for review for a common degree requirement. under the tirst 
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 
6 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted. we have reviewed and 
considered each one. 
10 
Matter ofSRC-T-. LLC 
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. 
III. CONCLUSION 
As set forth above. we find that the evidence of record does not establish an employer-employee 
relationship between the Petitioner and the Beneficiary. The evidence of record also does not 
demonstrate that the proffered position qualifies as a specialty occupation. 
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. 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 ofOtiende. 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as 1\1atter ofSRC-T-. LLC, ID# 16355 (AAO May 3, 2016) 
11