dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8819774 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b) , 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not sufficiently establish that: (1) the proffered position qualifies as a specialty occupation; (2) the 
Beneficiary will be employed in a specialty occupation for the requested period; and, (3) it qualifies 
as a United States employer with an employer-employee relationship with the Beneficiary. 1 
Upon de nova review, we will dismiss the appeal. 2 
L On appeal, the Petitioner asserts that the Director only denied the petition on two ground - determining that the Petitioner did 
not sufficiently establish that: (1) the Beneficiary will be employed in a specialty occupation for the requested period, and (2) 
it qualifies as a United States employer with an employer-employee relationship with the Beneficiary, noting "we are only 
addressing the issue[ s] regarding the employer-employee relationship and availability of specialty occupation work." However, 
as the Director also concluded in her denial that the Petitioner did not establish that the proffered position qualifies as a specialty 
occupation, we will also address this H- lB eligibility issue. 
2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
I. 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: 
(I) 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). We construe the term "degree" 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). 
B. Proffered Position 
The Petitioner indicated that the proffered position is a "software developer II" arranged for through 
a series of contractual relationships with intermediary vendors and an end-client, and submitted a 
certified labor condition application (LCA) 3 for the "Software Developers, Applications" occupational 
3 A petitioner submits the LCA to U.S. Department of Labor (DOL) 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 
2 
category corresponding to the Standard Occupational Classification (SOC) code 15-1132. Within 
these proceedings the Petitioner has submitted job descriptions for the proffered position. 4 For 
instance, the Petitioner provided a list of the Beneficiary's job functions, the relative time percentage 
that he will devote to each job function, along with underlying job duties for each function, which for 
the sake of brevity we will summarize, as follows: 
• Participate in full software development process, design and reporting meetings; 
(15%) 
• Work with the team to design, develop, deploy, and test the application; (15%) 
• Develop conceptual designs, visual mockups and wireframes and manage detailed 
user interface specifications; ( 12%) 
• Involved in build and deployment on the application on [project] servers; (15%) 
• Troubleshoot, debug and update existing software; (15%) 
• Engage in requirements specification process for new software functionality; (7%) 
• Follow best practices and standards for accessibility and compatibility across the 
application; (8%) 
• Coordinate development efforts by participating in daily standup meetings; (8%) 
• Maintain a balanced environment while working on multiple projects. (5%) 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 5 
The Petitioner located in Texas, indicates in the petition and on the LCA that it will deploy the Beneficiary 
to an end-client's location in Illinois to work as a "software developer" through three intermediary 
vendors pursuant to contractual agreements, as follows: 
Petitioner ➔ E- (mid-vendor #1) ➔ I- (mid-vendor #2) ➔ T- (prime-vendor) ➔ U- (end-client). 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 
655.731 (a). 
4 We acknowledge that the Petitioner submitted additional information for the job duties, and have closely considered and 
reviewed this material, as with all evidence in the record. For example, the Petitioner discussed the Beneficiary's previous 
coursework for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the 
position. However, we are required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which 
the petitioner intends to employ him falls within [ a specialty occupation]."). 
5 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 
The Petitioner provided contractual documentation to illustrate this relationship. Nonetheless, it has not 
established definitive, non-speculative, specialty occupation employment for the Beneficiary. 6 The 
Petitioner indicates that the prime-vendor operates the end-client's managed services program (MSP) 
"to support their procurement of contingent labor from various vendors." It provides a letter from the 
end-client which discusses the MSP program as follows: 
The MSP Program is structured in such a way that [the prime-vendor] manages the 
relationships with all suppliers on behalf of [the end-client]. In this capacity, [the 
prime-vendor] holds the staffing agreements with all suppliers that are providing 
services to [the end-client] and [the end-client] is a third-party beneficiary to that 
agreement. 
Due to this, [the prime-vendor] manages all [USCIS request for evidence - (RFE)] 
communications on behalf of [ the end-client] for those suppliers who participate in the 
[prime-vendor] MSP program at [the end-client] and will respond to USCIS inquiries 
regarding assignment details on [the end-client's behalf]. 
Below you will find the pertinent pages from the Master Services Agreement ("MSA") 
between [the end-client] and [the prime-vendor]. 
The Petitioner provides a partial copy of the end-client's consulting service agreement (CSA) with 
[ the prime-vendor], comprised of 3 heavily redacted pages of the CSA ( pages 1, 13, and 14) of a 41 
page document. The CSA indicates on page 1 under "scope of services:" 7 
The [prime-vendor] will perform the services described in Exhibit A. Any subsequent 
consulting services shall be agreed to by the parties and attached to this Agreement as 
a separate Exhibit A. To the extent of any inconsistencies between this agreement and 
an Exhibit A, the Exhibit A shall control." 
Page 13 of the CSA contains the signatures of officials from the end-client and the prime-vendor, but 
all of the preceding text on the page is redacted. The attached Exhibit A on page 14 of the CSA 
appears to be a template for a statement of work (SOW) as the sections of the template for the party 
to be performing consulting services for the end-client are blank, and the effective date of the SOW is 
identified as "MONTH DAY, 2016." 
On appeal, the Petitioner provides 4 pages of a 25 page June 2016 SOW between the end-client and 
the prime-vendor, which is largely redacted. For instance the section entitled "MSP Services" is 
entirely redacted, while other sections such as "definition of terms," and "MSP Program description" 
are largely redacted. Page 25 contains the signatures of officials for the end-client and the prime­
vendor, but the omitted pages and redacted text do not establish what the parties actually agreed to. 
6 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(C); 8 C.F.R 214.2(t)(IO)(ii)(C), and has provided copies of wage statements for his 
employment with the Petitioner. 
7 The remaining section headings and 7 paragraphs of text on page 1 are redacted. 
4 
We conclude that the Petitioner has not substantiated the relevant terms and conditions of the end­
client's contractual arrangements with the prime-vendor for the administration of the end-client's MSP 
program, through the submission of copies of the end-client's contractual documents in which most 
of the material was omitted or substantially redacted. This is important because the Petitioner asserts 
that the Beneficiary is to be hired as a contingent worker for the end-client pursuant to the MSP 
program. 
The Petitioner also provided a partially redacted copy of an indirect vendor services agreement (IVSA) 
between the prime-vendor and mid-vendor #2. The IVSA describes certain relevant attributes of the 
end-client's MSP program, to include this program description: 
Under the MSP Program, [the end-client] will submit electronic requests for candidate 
submissions from all or select vendors that participate in the MSP Program 
("Requisitions"). The Requisitions will be distributed to the vendor's electronically, 
utilizing a web-based application (the "VMS System") hosted and maintained by the 
[the prime-vendor] or [the-end-client]. Upon receipt of candidate submissions from 
vendors responsive to the Requisitions, [ the prime-vendor] will same on behalf of [ the 
end-client]. [The end-client] may then, at its option, submit orders, which will be 
issued electronically, to a specific vendor for the selected candidate. 
Upon receipt of a Requisition, [mid-vendor #2] may submit one or more candidates 
through the VMS System .... Prior to the submission of a candidate in response to a 
Requisition, [ mid-vendor #2] shall take reasonable steps to independently confirm (i) 
that candidate meets the qualifications as set forth in the Requisition .... 
No selected candidate will commence an assignment for [the end-client] as [mid­
vendor #2' s] personnel under the MSP Program until a purchase order is completed by 
the parties prior to the commencement of any such personnel assignment. Each 
purchase order will specify the type of services or level of effort required, the term -
including anticipated end date, the hourly bill rate, the name of the [personnel provided] 
to perform the services, and the performance locations .... 
The [prime-vendor] will serve as a resource to [the end-client's] personnel and [mid­
vendor #2] by, assisting in the completion and review of Requisitions, posting 
requisitions to vendors, reviewing and evaluating candidate resumes at [the end-client's 
request], forwarding resumes to hiring managers for review, scheduling interviews at 
[the end-client's request], providing feedback and interfacing with [the end-client] and 
vendors throughout the acquisition process. 
5 
[The prime-vendor] will coordinate on behalf of [the end-client] all interactions 
between [mid-vendor #2] and [the end-client's] hiring managers concerning [mid­
vendor #2' s] personnel including but not limited to pay rate issues, time reporting 
issues, performance issues, terminations and job extensions or completion. 
[Mid-vendor #2's] personnel performing services for [the end-client will] report their 
time worked to [the prime-vendor] through the electronic timecard feature of the VMS 
System ( either directly or via another application or system that will import time to the 
VMS System.) These time cards will be electronically routed via the VMS System to 
the appropriate hiring manager or other approving authority of the [end-client]. 
[Redacted text.] 
The context of certain other relevant sections of the agreement bearing headings such as "relationship 
of the parties," and "client contact," are either redacted in their entirety, or are partially redacted to 
such an extent that the context of the un-redacted text does not provide adequate detail regarding the 
terms and conditions of the Beneficiary's employment thereunder. 
The Petitioner also submitted an end-client policy document that discusses policy guidelines for end­
client personnel who manage contingent workers, which states the following, among other things: 
Contract workers for [the end-client] are engaged through [the end-client's] MPS 
Program that is managed by [the prime-vendor]. [The prime-vendor] manages the 
contingent worker hiring process via Fieldglass and all steps of the process must be 
facilitated through this portal. . . . [T]hese guidelines are not intended to govern 
professional consulting agreements or broader enterprise service type arrangements 
that are project-based and subject to a statement of work (SOW). Temporary contract 
workers, on the other hand, are generally engaged to bridge gaps caused by staffing 
shortages in roles that exist within [the end-client's] organization. It is this latter group 
that the below guidelines are intended to cover. 
Visa and Passport - [The end-client] should not be involved in the sponsorship of 
contractors, to include the creation, signing, or sharing of evidence letters for USCIS. 
If approached by a worker for such a document, the worker should be redirected to 
his/her employer and the employer can work with [the prime-vendor] on additional 
documentation that may be required. 
Term Limits of a Contractor - Contract workers should be engaged by project or 
specific assignments rather than length of time. Generally, a contract workers 
assignment to [the end-client] should not exceed a year. [For extensions beyond 24 
6 
months] [y Jou will need to include a business justification and the extension will need 
to be approved by your business leader at the Managing Director level. The division 
VP, VP of HR Services and Legal will also be advised for all extensions for labor 
beyond 24 months. 
Considering the end-client and prime-vendor material, it appears that the prime-vendor is performing 
certain contractual management responsibilities for the end-client that in part form the basis of the 
Beneficiary's employment at the end-client location. However, the record contains no affirmation 
from the end-client that the IVSA adequately reflects the terms and conditions of the actual agreement 
between the end-client and the prime-vendor. Therefore, the Petitioner has not established that the 
partially redacted IVSA sufficiently reflects the relevant contractual framework through which the 
prime-vendor will operate the end-client's managed services program (MSP) "to support their 
procurement of contingent labor from various vendors." 
The Petitioner also submitted a Fieldglass work order ---------~ for the Beneficiary's 
employment at the end-client location, which identifies the end-client location and the Beneficiary, and 
contains a job posting identifier (Web Developer ___________ _,, for a period of 
employment from October 2019 through December 2019. Large portions of the work order are 
completely redacted. The un-redacted text within the work order does not identify the Petitioner or the 
mid-vendors, the job duties of the proffered position, the requirements of the position, the end-client's 
project to which the Beneficiary will be assigned, or the Petitioner's role, if any, in the Beneficiary's day­
to-day work for the end-client. While this work order reflects that the Beneficiary has been assigned to 
work at the end-client location, it does not substantiate the terms and conditions of the assignment 
sufficient to establish that the end-client will offer the Beneficiary specialty occupation caliber work 
through the contractual relationships described in the petition. 
On appeal, the Petitioner asserts: 
The Consulting Agreement executed between [the prime-vendor] and [the end-client] 
though redacted due to the confidential nature of the transaction, was provided with the 
intent of establishing the contractual chain between the Petitioner, [mid-vendor#2], and 
the end-client, and the availability of services .... In addition, the Indirect Vendor 
Services Agreement [IVSA] executed between the mid-vendor#2] and [the prime­
vendor] was lightly redacted and contained unredacted relevant portions .... 
As discussed, the submitted end-client and prime-vendor contractual material does not sufficiently 
describe the specific services to be provided through the contractual relationships between and 
amongst the Petitioner, the intermediary vendors, and ultimately the end-client. We determine the 
Petitioner's submission of these partial, heavily redacted documents diminishes their evidentiary 
value, as it deprives us of the remaining portions that may reveal information either advantageous or 
detrimental to the petitioning organization's claims, and therefore, are of little probative value. 8 It is 
8 The claim a document is confidential does not provide a blanket excuse for a petitioner not providing such a document if 
that document is material to the requested benefit. Although a petitioner may always refuse to submit confidential 
7 
the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be 
determined not by the quantity of evidence alone but by its quality. Id. The Petitioner has not done 
so through the submission of these incomplete, redacted documents. 
We also conclude that the Petitioner has provided inconsistent and insufficient documentation of the 
asserted contractual relationships between mid-vendor#2 and mid-vendor#l, and between mid­
vendor#l and the Petitioner. For instance, the Petitioner states that it has directly contracted with mid­
vendor#l for the provision of the Beneficiary's services with the end-client, and has submitted a letter 
from mid-vendor#l which states the same. However, the Petitioner has not provided a copy of its 
contractual agreement with mid-vendor#l or other material beyond mid-vendor#l 's letter to 
substantiate this relationship. In contrast, the Petitioner provided a "temporary services agreement" 
(TSA) with mid-vendor#2 which states that there is a master subcontracting services agreement 
(MSSA) between the Petitioner and mid-vendor#2, that omits mention ofmid-vendor#l. 9 The TSA 
indicates that the Beneficiary will be a subcontractor employee for the end-client as a "Software 
Developer," and will "[ e ]ngage in designing of architecture/frameworks for the application, Develop 
application using specialized technologies but not limited to ASP.NET, AngularJS, Javascript, HTML, 
[and] CSS.SQL Server," commencing in July 2019. The Petitioner has not clarified whether it is 
directly contracting with the mid-vendor#l, or with mid-vendor#2, for the Beneficiary's placement 
with the end-client. 10 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is important because, in this case, the existence of the proffered position 
appears dependent entirely upon the willingness of the end-client to provide it.11 Absent folly executed 
contracts and accompanying statements of work ( or similar documentation) between the Petitioner 
and mid-vendor#l; mid-vendor#l and mid-vendor#2; mid-vendor#2 and the prime-vendor; and, the 
prime-vendor and the end-client, the record lacks evidence of any legal obligation on the part of the 
end-client to provide the position described by the Petitioner in this petition. 12 The Petitioner did not 
commercial information if it is deemed too sensitive, the Petitioner must also satisty the burden of proof and runs the risk 
of a denial. Cf Matter of Marques, 16 l&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his 
claim under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion 
with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
9 The Petitioner did not provide a copy of the referenced MSSA with mid-vendor#2. 
10 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Umesolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
11 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(14). 
12 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
8 
document the contractual terms and conditions of the Beneficiary's employment as imposed by the 
end-client. See 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). 
While relevant, the letters from the end-client and prime-vendor are not sufficient to fill this gap, as 
they do not sufficiently describe the contractual relationship between the parties such that we can 
ascertain the nature and terms of that relationship and determine whether there is, in fact, a legal 
obligation on the part of the end-client to provide the position the Petitioner describes. For instance, 
the end-client's letters do not detail its legal obligation to offer employment to the Beneficiary beyond 
noting that the prime-vendor "manages the relationship with all suppliers on behalf of [the end­
client]." Likewise, the prime-vendor's letters indicate that "[the Beneficiary's] work at [the end-client 
location] has been arranged through a series of contracts between [the prime-vendor] and [mid­
vendor#2], but does discuss the terms and conditions of the agreements between all of the parties. 13 
Again, the record lacks evidence of any legal obligation on the part of the end-client to provide the 
position to the Beneficiary as described by the Petitioner in this petition, let alone determine its 
substantive nature so as to ascertain whether it is a specialty occupation. 
In summary, if we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 14 
The Petitioner must resolve these inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Nonetheless, even if we were to set these foundational deficiencies aside, we would still be unable to 
ascertain the substantive nature of the proffered position. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. As noted, the record lacks 
sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. 
Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the 
client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. 
Considering the evidence in its entirety, we conclude that the record lacks sufficient documentation from 
the end-client regarding the projects and initiatives to which the Beneficiary will be assigned, and the 
actual work that the Beneficiary would perform to establish the substantive nature of the work the 
Beneficiary will be performing for the end-client, and the associated applications of specialized 
knowledge that their actual performance will require.15 The contingent worker requisitioning and 
placement process collectively described as the "MSP program" in the record suggests that the prime­
vendor manages certain aspects of the end-client clients efforts "to procure[] contingent labor from 
various vendors," such as vetting candidates submitted by vendors who respond to the end-client's 
13 The prime-vendor references its contractual agreements between the Petitioner, and mid-vendor#2, but omits mention of 
mid-vendor#l. 
14 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
15 Defensor, 201 F.3d at 387-88. 
9 
requisitions to identify the candidates that meet the end-client's requirements, and submitting the 
qualifying candidates to the end-client's hiring managers for consideration. The prime-vendor may 
also be charged with communicating with USCIS inquiries regarding the specifics of an H-lB 
beneficiary's proposed employment at the end-client location. 
Nonetheless, under this arrangement it is the end-client who issues requisitions and work orders 
through Fieldglass in order to specify the actual work to be performed, the requirements to perform 
such work, and the duration of the work assignment. Ultimately, the end-client's hiring managers may 
then elect to submit a work order to a "specific vendor for the selected candidate" through the MSP 
program hiring program. 
Though requested by the Director in her RFE, the Petitioner did not provide sufficient evidence of 
how the Beneficiary's specific job duties relate to the end-client's products and services. 16 In this case, 
the record describes the proffered position with the end-client as that of a contract worker hired to 
augment the end-client's existing information technology staff on a short-term basis, but does not 
sufficiently describe the nature of actual work that the Beneficiary will perform at the end-client 
location. The end-client's Fieldglass work order for the Beneficiary's employment at the end-client 
location, indicates that the Beneficiary will be employed as a Web Developer for a period of 
employment from October through December 2019. As previously discussed, this heavily redacted 
end-client work order does not identify the duties of the proffered position, the end-client's 
requirements for the position, or the end-client's project to which the Beneficiary will be assigned. 
The Petitioner also provided the end-client's policy document which indicates that contract workers 
covered under this policy are "generally engaged to bridge gaps caused by staffing shortages in roles 
that exist within [the end-client's] organization." However, the end-client material in the record 
specific to the Beneficiary's employment does not detail the staffing shortage that his employment 
will address, or otherwise discuss the specific work he will perform. 
On appeal, the Petitioner states "USCIS is well aware of the difficulties companies like the Petitioner 
face in obtaining and providing letters and related documentation, which is practically impossible 
AND should not be insisted upon." Notably in this case the Petitioner describes an end-client 
contingent worker requisitioning and selection process whereby "sub-vendors" such as the Petitioner 
are provided with the end-client's requisitions which provide requirements for the positions being 
requisitioned, which the "sub-vendors" can respond to by submitting the credentials of candidates for 
consideration who they believe meet the end-client's requirements to perform the specific assignments 
outlined therein. The "sub-vendor" is issued end-client work orders if its candidate is selected for an 
assignment. Therefore, the Petitioner's assertion that end-client documentation specifically relating 
to the Beneficiary's assignment is "practically impossible to obtain" seems incongruent with other 
evidence within this petition. 17 The documentation provided is not probative towards establishing the 
16 We must review the actual duties the Beneficiary will be expected to perform to asce1iain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
17 Matter of Ho, 19 T&N Dec. at 591-92. 
10 
terms and conditions of the Beneficiary's assignment as imposed by the end-client. See 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). 
The prime-vendor's July 2019 letter asserts that the Beneficiary will be engaged in a long-term project, 
but further notes that the Beneficiary's "projects will be short-term SOW extended every three months, 
or may be ended based on the business needs." 18 In its March 2019 letter the prime-vendor described 
the project that the Beneficiary would be assigned to as follows: 
[The project] is an advanced froFn:..:.t---=e'-"n:..:::d:.....=Ja=l:..:.ic::..:a::..:t:;:;,,:io::.:n~fo""r::........::;th:..:.e::..i..,. _________ __J 
computer systems. Employees in.__ _________ _. have been working with 
[the project] technology development team to ensure that [the project] functionality is 
easy-to-use and an efficient tool to best serve our customers. A common service layer 
allows all users access to consistent data, regardless of the system they use. [ The 
project] employs a Google-powered ITA shopping experience, which aligns with [the 
end-client's website]. Availability on [the end-client's website] and [on the project] 
will be the same. 
The Petitioner also provided a copy of the end-client's overview of the project and additional 
documentation about the end-client's.__ _______ _." project, but did not present material that 
would delineate the Beneficiary's specific role and responsibilities as a member of the end-client's 
technology development team(s) for these projects. To further illustrate, the Petitioner emphasized 
throughout the proceedings that the Beneficiary will liaise or interact with various end-client personnel 
and stakeholder groups, including: 
• Work with business and technology groups to refine requirements and provide 
possible solutions; 
• Involve business and customers in the development process to propose requirement 
changes; 
• Work with database team to execute scripts and maintain data; 
• Participate in daily scrum calls to provide a brief report on the assigned tasks for 
the day; 
• Ensure everyone involved in the project follows standard software engineering 
methodologies while multitasking between projects. 
Though the Petitioner described the job duties of the position, the evidence does not show the 
operational structure within this initiative in a manner that would establish the Beneficiary's role. The 
submitted material does not communicate the actual work that the Beneficiary will perform on a day­
to-day basis within the context of the end-client's project, and the correlation between that work and 
a need for a particular education level of highly specialized knowledge in a specific specialty. 
18 The letter from mid-vendor#2 states that the Beneficiary will be "providing contract services on an on-going basis to 
[the end-client]," but does not discuss the provision of the Beneficiary's services within the context of end-client's project. 
11 
The Petitioner provided a copy of the Beneficiary management hierarchy as noted in his end-client 
email which indicate that he is noted therein as a "Developer (GEN) IV," and reports to an end-client 
"ScrumMaster IT." The record also contains copies of the Beneficiary's emails showing a listing of 
"user stories" that have been assigned to him, and copies of the Beneficiary's timesheets which 
itemized some of his daily assignments, such as "Changed button styles as per prototype in seats 
modal," "Bug 849132 - fix to display seats total for each tab," "Display credit card FOP as default 
FOP," and "Implemented tabs component for seats modal." 
Additionally, considering the listed duties provided by the Petitioner, we observe that many of these 
items are not job functions, but instead resemble general knowledge and skill requirements for an 
information technology position. To illustrate, listings within the job duties such as "[m]aintain a 
balanced environment while working on multiple projects," and "[f]ollow best practices and standards 
for accessibility and compatibility across the application," seem to reflect knowledge and skills that a 
person might need to perform work, not the actual job duties to be performed. 
Other items within the job duty listings describe general information technology job functions, which 
lend little insight into the relative complexity and specialization of the Beneficiary's day-to-day 
duties. 19 For instance, job duties such as "[d]evelop preliminary data models and business process 
models using structured techniques," "[u]sing tools like Visual Studio Code, Team Foundation Server 
and GIT to develop and monitor the application process," and "[ d]eploy the application to production 
environment daily for any fixes for bugs or enhancements to the application," do not provide sufficient 
detail regarding the work these duties with the end-client will entail, and how these tasks merit 
recognition of the proffered position as a specialty occupation. Therefore, the duties as described by 
the Petitioner and the end-client, outside of the context of the end-client's information technology 
projects which require the Beneficiary's services, do not communicate (1) the actual work that the 
Beneficiary would perform, (2) the complexity, uniqueness, or specialization of the tasks, and (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 20 
The evidence in the record is also insufficient to establish the m1mmum requirements for the 
Beneficiary's position at the end-client location. As discussed, the Petitioner has presented material 
indicating that the end-client uses a contingent worker procurement process whereby the end-client 
electronically issues requisitions and work orders in order to specify the actual work to be performed, 
and the requirements to perform such work, and will issue a work order to a "specific vendor for the 
selected candidate" through the MSP program hiring program. 
We acknowledge that the prime-vendor specified that a degree in computer science/engineering or a 
related discipline was required; mid-vendor#2 indicated that a bachelor's degree in computer science, 
computer information systems, or information technology was required; while the Petitioner required 
a bachelor's degree in computer science or engineering ( electrical or electronics) or information 
technology or information systems with relevant experience for the proffered position. However, the 
record does not contain requisitions, work orders or other contractual documentation specific to the 
19 The mid-vendors' and prime-vendor's verbatim repetition of the generally-stated duties in its letters adds little to our 
understanding of the Beneficiary's actual duties. 
20 Matter of Chawathe, 25 l&N Dec. at 376. 
12 
Beneficiary's assignment under the MSP program which includes the end-client's requirements for 
the position. Without more, the Petitioner has not established the end-client's minimum requirements 
of the proffered position. Id. 
The Petitioner also submitted a letter from~---------~ofl I university, who 
determined that the nature of the duties of the position require "at least a bachelor's degree in computer 
science or engineering ( electrical or electronics) or information technology or information systems." 
After careful consideration, we conclude that the opinion letter is not persuasive. The professor, 
indicated that his opinion is based upon a review of the Petitioner's letters submitted in support of the 
Petition, and of the Petitioner's business, and his "own independent research." However, he did not 
specifically discuss what his independent research entailed, nor was his research documentation 
provided in support of the petition. 
For instance, while he opined that "[a]mong industry professionals, it is widely recognized that 
individuals [employed in the proffered position] must have [the professor's previously stated 
requirements]," his letter does not substantiate his conclusions, such that we can conclude that the 
Petitioner has met its burden of proof Here, the professor does not reference, cite, or discuss any 
studies, surveys, industry publications, authoritative publications, or other sources of empirical 
information which he may have consulted to complete his evaluation. 
Importantly, the professor indicates that the Beneficiary will be deployed on a long-term project 
providing consulting services through [vendors] to the end-client," but does not reference the specifics 
of the particular projects upon which the Beneficiary would work in meaningful detail. He also quotes 
the job functions and job duties present in the record, which as we stated previously were insufficient 
for determining what the Beneficiary would be actually doing at the end-client location. Therefore, 
his level of familiarity with the actual job duties as they would be performed in the context of the end­
client's business has not been substantiated. 
Further, the professor provided narrative regarding academic degrees that would be acceptable for 
entry into the proffered position, and identified various coursework therein. However, he did not 
discuss any detailed course of study or the "educational foundation" provided by those degrees in 
relation to the specific duties of the position at the end-client location. We conclude that the Petitioner 
has not demonstrated through the professor's analysis how an established curriculum of courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to 
successfully serve in the proffered position. 
For the reasons discussed, we conclude that the opinion letter from the professor is insufficient to 
satisfy the first criterion. Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service 
is not required to accept or may give less weight to an advisory opinion when it is "not in accord with 
other information or is in any way questionable."). For the sake of brevity, we will not address other 
deficiencies within the professor's analyses of the proffered position. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether 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 
13 
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. We therefore conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 21 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association 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.) 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" 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)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services 
(USCIS) will apply common law agency principles which focus on the touchstone of control. 
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 
21 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
14 
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." 
Darden, 503 U.S. 318, 322-23. 22 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-lB beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we also conclude 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." The Petitioner has not submitted sufficient, 
consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. 
Therefore, as we will further explain, the Petitioner has not substantiated key elements in this matter, 
including who exercises control over the Beneficiary. 
The Director denied the petition, in part, concluding that there was insufficient evidence in the record 
to establish that the Petitioner would exercise control over the Beneficiary's day-to-day employment. 
We agree. The Petitioner maintains on appeal that "the vendor and the end-client (through its MSP) 
provided letters that clearly accept and acknowledge that the Petitioner has the sole right to control the 
Beneficiary's services; and that the end-client also acknowledged that the Petitioner is the 
Beneficiary's employer." However, we conclude that the submitted contractual documentation does 
not sufficiently demonstrate how the Petitioner exercises control over the Beneficiary's off-site 
employment. The documents stipulate that the Beneficiary will perform services as a contingent 
worker at the end-client location. We note that the partially redacted prime-vendor's IVSA provides 
that the prime-vendor will coordinate on behalf of the end-client interactions between subcontractors 
and the end-client's hiring managers concerning matters related to contingent workers "including but 
not limited to pay rate issues, time reporting issues, performance issues, terminations and job 
extensions or completion." Notably, the IVSA's section relating to "client contact" was completely 
redacted. Here, the record does not adequately detail how the Petitioning entity, through its asserted 
contractual relationships with three intermediary vendors will impact and oversee the Beneficiary's 
work assignment at the end-client location. 
22 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists or 
will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for by the 
common-law test. See Darden, 503 U.S. at 323-24. 
15 
As previously discussed, we conclude that the Petitioner has provided insufficient and inconsistent 
evidence of the contractual relationships regarding the Beneficiary's proposed off-site employment, 
and the scope and nature of his role within the end-client projects to which he potentially will be 
assigned. As a result, we are not able to fully ascertain how these contractual agreements impact the 
Petitioner's ability to control and direct the Beneficiary's day-to-day work. 
On appeal, the Petitioner maintains the "documentation showing the supervisory role of the Petitioner 
over the [B]eneficiary's work was adequately submitted." The Petitioner indicates in its RFE response 
that "all of our technical employees are supervised by our Project Manager. ... [] who maintains 
supervision over the duties performed by the employees in the [Petitioner's] technical team by way of 
coordinating with the team-members working in multiple projects and making the deliverables 
deployed on-time. . . . Supervision will be maintained through multiple means such as regular 
submission of time sheets, project progress reports, etc." The Petitioner also submitted copies of the 
Beneficiary's monthly performance reviews. Importantly, the Petitioner has also not established how 
it gains knowledge of the day-to-day services the Beneficiary performs for the end-client, if not from 
the Beneficiary himself: e.g., through the Beneficiary's submission of timesheets or project progress 
reports, which erodes the Petitioner's claim that it actively monitors and supervises the Beneficiary's 
day-to-day work at the end-client location. Therefore, the Petitioner has not offered persuasive 
evidence to illustrate how it will supervise and guide the Beneficiary's work assignments for the 
end-client. 
Moreover, since the contractual material in the record suggests that the end-client must approve the 
Beneficiary's timesheet in order for the intermediary vendors, the Petitioner, and ultimately the 
Beneficiary to be paid, there appears to be some level of shared supervision and control between the 
end-client, prime-vendor, mid-vendor#2, mid-vendor#l, and the Petitioner over the Beneficiary's 
employment at the end-client location. For instance, the prime-vendor's IVSA provides that 
"personnel performing services for [ the end-client will] report their time worked to [ the prime-vendor] 
through the electronic timecard feature of the VMS System .... These time cards will be electronically 
routed via the VMS System to the appropriate hiring manager or other approving authority of the [end­
client]." Therefore, for these reasons we must also question the Petitioner's claimed supervision and 
control over the Beneficiary's employment. 
Considering the evidence in its totality, we conclude that the Petitioner has not demonstrated that it 
exercises actual control over the Beneficiary's day-to-day work. It appears that the Petitioner's role 
and responsibilities are essentially limited to the administration of the Beneficiary's payroll and other 
related benefits, including the filing of immigration benefits. 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 the work will be located, and who 
has the 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. 
16 
Without foll disclosure of all of the relevant factors, we are unable to conclude that the requisite 
employer-employee relationship will exist between the Petitioner and the Beneficiary. The Petitioner 
has not corroborated who has or will have actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary's services. In other words, the Petitioner has not established it 
will have and maintain the requisite employer-employee relationship with the Beneficiary. 23 See 8 
C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring the Petitioner to 
engage the Beneficiary to work such that it will have and maintain an employer-employee relationship 
with respect to the sponsored H-lB nonimmigrant worker). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered 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. The Petitioner 
has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
23 MatterofChawathe, 25 l&NDec. at 376. 
17