dismissed H-1B Case: Software Development

(b)(6)
MATTER OF H-G-S- , INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting firm, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. 
§ 1101(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 had not demonstrated that, if the H-1 B petition were approved , (1) the Petitioner would 
have a valid employer-employee relationship with the Beneficiary such that the Petitioner could 
meet the definition of a United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii) ; 
and (2) the Beneficiary would work in a specialty occupation position. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence of 
record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-1 B petition , the Petitioner stated that the Beneficiary will' serve as a "programmer analyst." 
The Petitioner provided the following job description for the position: 
• Design and develop a comprehensive .Net application for 
project. May Review and advice [sic] ori design solutions 
developed by others. 
• Comply with programming standards , processes, and evaluate and identify 
opportunities for programming standardization. 
• Use of .net coding standards and integration processes /objects/framework that can 
be leveraged for an IT Solution. 
(b)(6)
Matter of H-G-S- , Inc. 
• Participate in, coordinate or lead computer code review to ensure strategies and 
applications adhere to State and agency policies, standards or guidelines. 
Participate in department wide coding standards review. Work with the solutions 
architect to set up guidelines/processes on code review. 
• With a Business Analyst and I or other project team members , presents the 
information gathered to the Project Review Board and/or Project Sponsors during 
project review meetings, project workgroups and to the Technical Review Board 
. providing clarification and answers to questions. 
• Participate in project planning, estimating , budgeting, scheduling, structured 
walkthroughs , issue tracking, and project execution. 
• Perform and I or participate in the full testing lifecycles, typically involving the 
following or similar types of testing: unit, function, integration, performance, 
system and standards, user acceptance and regression testing. 
• Capture Business objectives and process providing support to existing applications. 
On the labor condition application (LCA)
1 
submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers , 
Applications" corresponding to the Standard Occupational Classification code 15-1132.2 
The record indicates that the Beneficiary would perform his duties at an offsite location for the 
(end-client) , pursuant to contracts executed between the Petitioner and 
(first vendor), between the first vendor and (second vendor), and between 
the second 
vendor and the end-client. The contractual path of succession appears to be as fqJlows: 
Petitioner -7 First Vendor -7 Second Vendor -7 End-client 
1 
The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualification s who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
2 The Petitioner classified the proffered position at a Level II wage (the second-lowe st of four assignable wage levels) . 
We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" 
issued by the DOL provides a description of the wage levels. A Level II wage rate is generally appropriate for positions 
for which the Petitioner expects the Beneficiary to perform only moderately complex tasks involving limited judgment. 
U.S. Dep't of Labor, Emp't · & Training Admin. , Prevailing Wage Determination Policy Guidance , Nonagric . 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com /download / 
NPWHC_Guidance_Revised_J 1_2009 .pdf A prevailing wage determination starts with an entry level wage and 
progresses to a higher wage leve l after considering the experience, education , and skill requirements of the Petitioner 's 
job opportunity . /d. 
2 
Matter of H-G-S-, Inc. 
II. EMPLOYER-EMPLOYEE 
A. Legal Framework 
Section l01(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, m pertinent part, as an 
individual: 
[S]ubject to section 2120)(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 tiled 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 ofany 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-
1 B 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-lB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S. C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form l-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-lB 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-lB beneficiary, and that this relationship 
3 
Matter of H-G-S-, Inc. 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-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 tetms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non- Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"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 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)(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. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
3 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
4 
Matter of H-G-S-, Inc. 
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-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 
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 318-19.4 
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).5 
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)). 
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)(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. 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 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 (I 989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 4 I 0, 414 (I 945)). 
5 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. § I 184( 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). 
5 
Matter of H-G-S-, Inc. 
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" of H -1 B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
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 tinder 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 tor 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 ofthe relationship ... with no 
one factor being decisive."' ld at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find 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-lB temporary "employee." 
We observe that the record of proceedings does not contain copies of any contracts executed between 
the Petitioner and the vendors, between the vendors themselves, or between either of the vendors of the 
end-clients. Nor are there copies of common documents executed pursuant to those contracts such as, 
for example, work orders or statements of work. In other words, there is no evidence of any binding 
6 
Matter of H-G-S-, Inc. 
obligation on the part of any of these four actors to provide any work for the Beneficiary. Absent that 
foundational showing - that there is actually work tor the Beneficiary to perform - we are unable to 
determine whether such work would entail the. Petitioner engaging in an employer-employee 
relationship with the Beneficiary. 
However, even if we set that issue aside, we still would find insufficient evidence of an employer­
employee relationship. Even if the Petitioner has work for the Beneficiary and would assign the 
Beneficiary to work for another company at a remote location as claimed, we would find that the tenns 
of that employment had not been demonstrated. 
First, we observe that assigning duties and supervising performance is central to an employer-employee 
relationship. The record does not demonstrate that the Petitioner would do either. 
The record indicates that the Beneficiary's workplace \vould be located approximately 70 miles from 
the Petitioner's office. The Petitioner stated in its request for evidence (RFE) response that it would 
"indirectly supervise all aspects of this duties." It did not indicate what "indirectly supervise" means. 
However, the Petitioner submitted an LCA certified at a Level II wage, which indicates that the 
Beneficiary would require close supervision, as that wage is only appropriate for positions in which the 
Beneficiary would perform moderately complex duties requiring limited judgement. It would appear 
that an employee who performs only moderately complex duties requiring limited judgment would 
require more than "indirect supervision," and it does not appear as though the Petitioner would be in a 
position to be the one to provide it. It does not appear as though the Petitioner would assign the 
Beneficiary's duties. 
The record contains an evaluation of the Beneficiary's performance. The Petitioner provided a fo1111 
headed, "Employee Performance Review" which purports to evaluate the· Beneficiary's performance 
from September 29, 2015, when evidence in the record indicates that the Petitioner hired the 
Beneficiary, to January 21, 2015.6 Although the performance evaluation provided indicates that the 
Petitioner's vice president rated the Beneficiary's "Work Performance," "Supervision Required," 
"Teamwork Characteristics," "Leadership Skills," etc., the record contains insufficient indication that 
the Petitioner's vice president worked at the end-client location, or was otherwise in a position to 
observe those aspects of the Beneficiary's performance. In other words, it is not clear how the evaluator 
obtained the information he or she used to arrive at the conclusions reached as part of the evaluation. It 
therefore does not appear as though the Petitioner would meaningfully evaluate the Beneficiary's 
performance. 
\ 
6 The Beneficiary was previously approved for H-1 B employment with another employer. An RFE requested evidence 
that the Beneficiary had maintained his H-1 B status. In response, the Petitioner provided evidence that it had hired the 
Beneficiary on September 29, 2015, the date it filed the instant H-1 B petition. We observe that the Petitioner did not 
sufficiently address this issue. In order to show that the Beneficiary was in valid H-I B status, the Petitioner was 
requested to submit evidence regarding the Beneficiary's employment during the previously approved H-1 B status. The 
Petitioner should address this basis in any future proceedings in this matter. 
7 
Matter of H-G-S-, Inc. 
In addition, as noted above the record does not contain any of the contractual agreements between any 
of the four relevant actors. Such documentation could have shined light on the deficiencies identified 
above. 
The current record does not establish that the Petitioner would supervise, evaluate, or otherwise control 
the Beneficiary's work. 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-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). The appeal will be 
dismissed on this additional basis. 
IlL SPECIALTY OCCUPATION 
A.' Legal Framework 
Section ·214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(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 theindustry in parallel positions among 
similar organizations or, in the alternative, an employer may shmv that its 
particular position is so complex or unique that it can be performed only-py 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 'vith the 
attainment of a baccalaureate or higher degree. 
8 C.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has 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 
8 
(b)(6)
Matter of H-G~S-, Inc. 
positiOn. See Royal Siam Corp. v. Cherto.ff, 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 
As discussed, the Petitioner intends to assign the Beneficiary to the first vendor, which would then 
assign him to the second vendor, which would in turn assign him to the end-client. As evidence in 
support of that arrangement, the Petitioner provided three documents. 
The first document is a letter from the second vendor's XRM Program Manager, who states that the 
Beneficiary is working for the end-client and will continue to work there "until fmiher notice." We 
observe that the letter does not indicate any 
minimum period of time during \vhich the Beneficiary's 
work at that location will continue. 
The second document submitted is a letter from a vice president at the ft.rst vendor , who stated that 
the Beneficiary will be provided to work for the end-client. As to the term of that project, the letter 
states "there is no anticipated end date for the project at this time." It further states that the project , 
"could take three years or more to complete." That the project could take three years or more to 
complete does not reveal any minimum period during which the Beneficiary's work on that project 
will continue. 
Finally , the Petitioner provided a print out of an email from an application 
development manager at the end-client , which confirms that the Beneficiary has been working at the 
end-client's location and reiterates the duty description provided by the Petitioner. It does not 
indicate that the Beneficiary's work on that project will continue in the future or provide any 
estimate of how long the project to which the Beneficiary is assigned will continue. 
The period of employment requested in the instant H-1 B petition is from October 1, 2015, to August 
31, 2018. None of the evidence provided is sufficient to demonstrate that, if the H-1 B petition were 
approved, the Beneficiary would work at the end-client's location during any part of the period of 
requested employment , let alone throughout it. As noted above , the record does not contain copies 
of any of the contracts executed between any of the four relevant actors in this matter. Nor does the 
record contains copies of the types of documents commonly executed pursuant to these types of 
agreements, such as work orders, statements of work, or similar documents. In short, there is no 
evidence of any binding obligation on the part of any of these actors to provide any work for the 
Beneficiary to perform. 
Further, the record does not contain evidence sufficient to show that the Petitioner has work for the 
Beneficiary to perform at any other location. Given that the Petitioner has not demonstrated that it 
has work for the Beneficiary to perform , the duties the Beneficiary would perform, if any, in the 
event that the H-1 B petition were approved , have not been demonstrated. 
9 
Matter of H-G-S-, Inc. 
It is noted that the Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. 
§ 103 .2(b )(1 ). A visa petition may not be approved at a future date after the Petitioner or the 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg'! Comm'r 1978). As such, eligibility for the benefit sought must be assessed and 
weighed based on the facts as they existed at the time the instant petition was filed and not based on 
what were merely speculative facts not then in existence. 
The agency made clear long ago that speculative employment is not permitted m the H-1 B 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-lB classification is 
not intended as a vehicle for an alien to engage in a job search w!thin 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 B nonimmigrant under the statute, the Service must first 
examine the duties of the 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 ). While a petitioner is certainly permitted 
to petition for H-1 B classification on the basis of facts not in existence at the time the instant petition 
was filed, it must nonetheless file a new petition to have these facts considered in any eligibility 
determination requested, as the agency may not consider them in this proceeding pursuant to the law 
and legal precedent cited, supra. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under 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. 
10 
Matter of H-G-S-, Inc. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
The burden is on the Petitioner to show 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 Matter ofH-G-S-. Inc., ID# 10204 (AAO Dec. 29, 2016) 
II