dismissed H-1B Case: Software Development

(b)(6)
MATTER OF D-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Adi'ninistrative Appeals Office 
DATE: OCT. 28, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software developer and consulting company, seeks to extend the employment of the 
Beneficiary as a "programmer analyst" under the R.:lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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, Vermont Service Center, initially approved the petition. Subsequently, U.S. 
Citizenship and Immigration Services (USCIS) conducted a site visit and issued a notice of intent to 
revoke (NOIR) approval of the petition. The Petitioner submitted a response to the NOIR. Upon 
review of the record, including the Petitioner's rebuttal, the Director revoked approval of the 
petition. The Director concluded that the Petitioner had 
not established an employer-employee 
relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by not considering the Petitioner's explanations submitted in rebuttal 
to the NOIR. The Petitioner maintains that it has established that the petition should remain 
approved under the preponderance of the evidence standard. 
-' 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Evidence of ~ecord and Procedural History 
The Petitioner filed the H-lB petition on September 16, 2011. On the labor condition application 
(LCA) submitted in support of the H-lB petition, the Petitioner designated the proffered position 
under the 
occupational category "Computer Systems Analyst" corresponding to the Standard 
Occupational Classification code 15-1121. The Petitioner designated the Beneficiary's work 
location on the LCA as its office address in Georgia. 
(b)(6)
Matter of D-, Inc. 
On October 27, 2011, the Petitioner responded to the Director's request for evidence (RFE). The 
Petitioner submitted a copy of a contractor agreement between itself and 
dated May 4, 2010, and a letter from dated September 28, 2011. The 
representative stated that the Beneficiary will be working on a specific project for it at the 
Petitioner's office location. Based on the evidence in the record, the Director approved the petition. 
Subsequent to its approval, the petition was randomly selected for verification within USCIS' 
Administrative Site Visit and Verification Program. On January 19, 2012, USCIS officers attempted 
to visit the Petitioner's business location identified on the petition. The site inspector was not 
allowed inside the building location and was only able to talk to one of the· Petitioner's employees 
from outside the building. The employee provided little information but did confirm that the 
Beneficiary worked for the Petitioner. On October 29, 2012, USCIS contacted the Petitioner 's 
attorney of record. . On the same date, the attorney of record responded indicating that the 
Beneficiary had performed work for an end client in Tennessee from May to August 
2012, and was working for an end client in Georgia and had been since August 2012. 
Based on this information, the Director issued a NOIR in accordance with the provision at 8 C.F.R. 
§ 214.2(h)( 11 )(iii), on December 10, 2014. The Director summarized the results of the site visit and 
raised questions as to whether the Petitioner and the Beneficiary had an employer-employee 
relationship, among other issues. 
In the NOIR response, the Petitioner submitted an itinerary for the Beneficiary. The Petitioner noted 
that the Beneficiary: worked at its office location from September 30, 2011, to May 6, 2012; worked 
for an end client, at its offices in Tennessee, from May 7, 2012, to July 29, 
2012; 
1 
worked for the an end client, at its offices in 
Georgia from July 30, 2012, to June 30, 2013; and currently worked at its office location in 
'Georgia from July 1, 2013, to the present. The Petitioner submitted the Beneficiary 's 
three-year employment agreement, dated February 23, 2010, and documentary information regarding 
an in-house project. 
On appeal, the Petitioner submits two additional employment agreements with the Beneficiary, each 
for three years, dated February 23, 2012, and February 23, 2015? 
The Petitioner also submits a letter from verifying that the Beneficiary worked at 
its offices in Tennessee, "from May 2012 till August 2012," through a 
contracting firm. The record also includes a letter signed on behalf of verifying the 
Beneficiary's employment as stated in the letter and referencing an (additional third party 
1 The Beneficiary 's timesheets show that he worked from May 7, 2012, to August 5, 2012, for a total of90 days, at the 
Tennessee location . 
2 USCIS records show that the Petitioner filed a Form 1-129, on behalf of the Beneficiary in September 2014, requesting 
a further extension ofH-lB employment, which was approved for a validity period .ofSeptember 30, 2014, to September 
29,2017 
2 
(b)(6)
Matter of D-, Inc. 
contract with The Petitioner includes its contract with the 
appeal. The Petitioner's contract with indicates that the Petitioner will provide the 
Beneficiary's services as a consultant and that the "[c]"onsultant shall work under the direction of the 
management of the Client." The contract identifies the "client" as a customer and 
the term of the contract as 90 days, beginning May 7, 2012. The record includes the Beneficiary's 
timesheets for the project beginning May 7, 2012, and continuing through August 5, 2012. 
The record further includes a contract between the Petitioner and 
dated July 9, 2012, with an attached statement of project. The statement of project identifies 
client as the and the Beneficiary as the 
personnel required. The Petitioner provided the Beneficiary's timesheets for work at the 
location in Georgia from July 30, 2012, to June 30, 2013. In a 
letter from a representative of the the representative confirms that 
the Beneficiary worked at its location during this time period and "was contracted from 
VIa 
B. Law 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in 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 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. 
3 
Matter of D-, Inc. 
(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). 
C. Analysis 
Although "United States employer" is defined in the regulations at 8 C.F:R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an 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-JB "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 Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-1B 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 B 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 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 -1 B 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 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." 
4 
Matter of D-, Inc. 
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)). 
Specifically, the regulatory definition of "United States employer" requires H-lB 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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 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. at318-19? 
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 lOl(a)(lS)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).4 
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-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 this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (Emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
. 3 To the e~tent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
4 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). 
5 
(b)(6)
Matter of D-, Inc. 
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); Deftnsor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining 
that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-1B 
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)(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 
323-24. 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). 
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 H -1 B temporary "employee." 
Specifically, the contract between the Petitioner and requires that the Beneficiary 
work under the direction of the management of client, which in this case is 
through The Petitioner also does not include information regarding the source 
of the instrumentalities and tools the Beneficiary will use while placed at the distant location. While 
the Petitioner's contract with does not identify its client, 
as directing the Beneficiary's work, the record does not include the agreement between and 
its client, thus, there is no document detailing the nature, scope, and direction of the Beneficiary's 
6 
(b)(6)
Matter of D-, Inc. 
employment at the Therefore, the key element in this matter, 
which is who exercises control over the Beneficiary, has not been substantiated. 
While social security contributions, worker's compensation contributions , .unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who 
1
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 are 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
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). We have considered the information in the 
letters from the and however, merely claiming 
that the Beneficiary is not their employee does not establish eligibility in this matter. The record 
does not include sufficient probative evidence establishing that the Petitioner exercises control over 
the Beneficiary and his work for third parties, and in fact it appears the Petitioner relinquished 
control of the Beneficiary and his work for at least 90 days when he worked for 
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 approval of the petition will remain revoked for this 
reason. 
II. SPECIALTY OCCUPATION 
Even if the Petitioner had overcome the ground of revocation discussed above on appeal, we would 
have had to remand this matter to the Director for the issuance of a new NOIR to address an 
additional ground of eligibility we have identified. Specifically, we observe that the Petitioner has 
not demonstrated that the proffered position qualifies for classification as a specialty occupation . 
Section 214(i)(l) ofthe Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation"·as an 
(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. 
7 
Matter of D-, Inc. 
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 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted 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 proposed position. See Royal Siam Corp. v. Chertoff, 
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). 
In this matter, the Petitioner identified the proffered position on the H-1B petition as a programmer 
analyst. On the LCA submitted in support of the H-1B petition, the Petitioner designated the 
proffered position under the occupational category "Computer Systems Analyst" corresponding to 
the Standard Occupational Classification code 15 ~ 1121. The Petitioner initially submitted a broad 
overview of the duties of the proffered position and a similarly vague description in response to the 
Director's RFE. The Petitioner also stated that it required "a minimum of a Bachelor degree in 
Engineering, Computer Science, Computer Information System, Accounting, Business 
Administration, Management or related field" to perform the duties of its programmer analyst. 
In response to the. NOIR, the Petitioner submitted a copy of its advertisement for the position of 
systems analyst, the occupation identified on the LCA, and identified a similar list of acceptable 
degrees to perform the position. 5 The Petitioner also provided three letters from companies it 
5 The advertisement also included the position of senior programmer analysts and indicated that this position required a 
master's degree in computer science, engineering, math, accounting, business administration, or information technology 
related. However, as the Petitioner identified the proffered position as a Level I wage (the lowest of four assignable 
wage levels) on the LCA, the proffered position is not a senior position. We note that the "Prevailing Wage 
Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A Level I wage rate is 
8 
Matter of D-, Inc. 
claimed were similarly situated IT consulting and software development firms. Each letter included 
only the following sentence, in part: "we routinely hire employees with Bachelors or Higher degree 
or its equivalent for doing computer software development & support related work in our 
organization." The Petitioner further provided a list of three individuals, their transcripts, diplomas, 
credential evaluations, and IRS Form W-2s to demonstrate that it normally requires a bachelor's 
degree in a specific specialty, or its equivalent, for the position. The. Petitioner also submitted 
company brochures and website printouts to provide information regarding its products and services. 
We also note that while the record includes some information regarding the Beneficiary's tasks for 
the third party end clients, these descriptions are also overly broad. 
Upon review of the record in its totality, we find that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record does not describe the 
position's duties with sufficient detail. As such, 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.P.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 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. 
Moreover, we note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work 
is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations 
as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
occupation on the basis ofthe requirements imposed by the entities using the beneficiary's services. 
!d. Such evidence must be sufficiently detailed to demonstrate the type and educational level of 
highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. Here, the Petitioner did not include definitive position descriptions for the work to be 
performed by the Beneficiary for the third party end clients. 
generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the 
occupation. This wage .rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require 
limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed 
for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. 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 _II_ 2009.pdf A 
prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the 
experience, education, and skill requirements of the Petitioner's job opportunity. !d. 
9 
Matter of D-, Inc. / 
Finally, the Petitioner's acceptance, as supported by its advertisement, of a bachelor's degree in a 
number of fields, including the general field of business administration:, as a sufficient minimum 
requirement for entry into the proffered position indicates that the proffered position is not in fact 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. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988).6 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)( A) to require a degree in a specific specialty that is directly related to the proposed 
position. 7 Here, as the Petitioner has not established that it has satisfied any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for 
classification as a specialty occup~tion. 
III. 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 ofD-, Inc., ID# 12211 (AAO Oct.28, 2016) 
6 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertojf, 484 F.3d at 147. 
7 It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements ofa petitioner. See Defensor v. Meissner, 201 F.3d 
384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties of the proffered position 
requires both the the9retical and practical application of a body of highly specialized knowledge and the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimm:p for entry into the 
occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "specialty occupation"). 
10