dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8843390 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
The Petitioner, a software development and information technology services company, seeks to 
temporarily employ the Beneficiary as a "UI developer" under the H-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 Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. On appeal, the Petitioner submits a brief from counsel along with additional 
evidence and asserts that the Director erred in denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 1 
Upon de nova review, we will dismiss the appeal. 2 
I. BACKGROUND 
The Petitioner, a software development and information technology services company , seeks to deploy 
the Beneficiary to an end-client pursuant to a series of contracts executed between the Petitioner and 
.__ ___ ~ ____ __._first vendor) between the first vendor andl lsecond vendor), 
and between the second vendor and I le end-client). The contractual path of succession 
between the four actors in this case therefore appears to flow as follows: 
Petitioner ➔ First vendor ➔ Second vendor ➔ End-client 
Upon review of the record in its totality and for the reasons set out below , we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 3 
Specifically , we conclude that the Petitioner has not established the substantive nature of the work that 
1 Section 291 of the Act, 8 U.S.C. § 1361. 
2 We follow the preponderance of the evidence standard. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
3 The Petitioner submitted docum entation to support the H-lB petition , including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted , we have reviewed and considered each 
one. 
the Beneficiary will perform due to insufficient evidence regarding the availability of non-speculative 
work and material inconsistencies contained within the record of proceeding. The failure to establish 
the substantive nature of the work to be performed by the Beneficiary precludes us from determining 
whether the proffered position satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). In addition to this, though not the basis of the Director's denial, we also 
conclude that the Petitioner failed to establish that it would engage the Beneficiary in an employer­
employee relationship. 
II. 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 offered 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. 4 
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. 5 
4 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 See Royal Siam COip. v. Chertof(, 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"). 
2 
B. Substantive Nature Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. In particular, the Petitioner has not established 
the substantive nature of the position, which precludes a determination that the proffered position 
qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
1. Speculative Work 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 6 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of the end-client to 
provide it. It follows that if we cannot determine whether the proffered position as described in this 
petition would actually exist, then we cannot ascertain its substantive nature, let alone determine 
whether it is a specialty occupation. As noted, the contractual path of succession between the four 
actors at play in this matter runs as follows: 
Petitioner ~ .... ______ _.~first vendor) ➔ ~I --~I (second vendor) 1._ ___ ~I (end-client) 
The Petitioner filed this petition in April 2019 and claimed that the Beneficiary would work at the end­
client's location from October 2019 to August 2022. To support this claim, the Petitioner submitted 
a subcontractor services agreement that it executed with the first vendor and an associated statement 
of work that enabled the first vendor to outsource the Beneficiary to the second vendor for an 
undetermined period of time. In addition to this, the Petitioner provided a supplemental staffing 
services agreement executed between the first vendor and the second vendor that outlined the 
parameters whereby the first vendor supplies personnel for the second vendor's clients. The Petitioner 
failed to submit all pages of this document, rather electing to include only the first and the last. 
Therefore, we cannot know what legal obligations the agreement created and whether the end-client 
was mentioned as one of the second vendor's clients. 
Though we acknowledge two informational letters from the end-client, which list the Beneficiary's 
duties and state that the second vendor has assigned the Beneficiary to work at the end-client's site, 
the Petitioner submitted no contractual agreement between the second vendor and the end client. The 
absence of such documentation weighs heavily here because the existence of the proffered position 
appears dependent entirely upon the willingness of the end-client to provide it. Absent copies of 
purchase orders, statements of work, or other contractual agreements, 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. 7 
6 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419 (proposed June 4, 1998). 
7 Cf Galaxy Sofiware Solutions, Inc. v. USC1S, 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"). 
3 
In addition to gaps in the contractual chain, the end-client letters themselves raise questions as to 
whether the individual who prepared them is an authorized official of the end-client who would be 
involved in the Beneficiary's placement at the end-client site. The end-client is a large, well-known 
company, which we assume has various reporting requirements to multiple federal agencies. Given 
these letters' inconsistent tenses and their grammatical and punctuation errors, we have concerns as to 
whether the end-client authorized this individual to make representations on its behalf before USCIS. 
It appears as though another entity provided this individual with a series of statements and a list of 
position duties which the individual pasted into the letters without regard to its contents. At minimum, 
it raises questions as to the actual, substantive nature of the proffered position. 
Finally, we note that depending on the contractual party, the anticipated project end date varies, raising 
further questions as to whether non-speculative employment exists. For instance, the Petitioner states 
on appeal that the project ends in December 2022, whereas the end client provides a start date with simply 
"the high possibility of extension" and that the length of service "shall be long term based on business 
need." The first vendor states that the expected length of the Beneficiary's service "shall be till October 
2022 and with the high possibility of further extension based on business need." The very existence of 
these varied estimates suggests that the contractual parties have different understandings of the position 
and length of services. Again, 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. 
2. Material Inconsistencies 
In addition to speculative employment concerns, we cannot ascertain the substantive nature of the 
proffered position due to material inconsistencies within the record. Chief among these concerns is 
that the duties of the position as described on appeal differ in several key areas from what was 
previously described in response to the Director's request for evidence (RFE). For example, on appeal, 
the Petitioner provides a duty description as follows: "performs complex tests using JASMINE and 
KARMA (for JQuery code base) and Enzyme and JEST (For ReactJS- redux code base) before 
upgrading to the new system. After successful completion of all test cases, [the Beneficiary] uses GIT 
command line tools to push the new system to the development area" ( emphasis removed). This 
description appears to be an entirely new responsibility, though the Petitioner lists it within the larger 
duty of use "knowledge of computer capabilities, Proof-of-Concepts ... to build highly rich user 
interface ... " As such, the duty description does not merely provide additional detail on the overall 
duty, but rather creates new work, which raises questions as to the substantive nature of the position. 
The confusion concerning this description continues when we see that though the description appears 
under one duty heading, the substance of it appears similar to a separately listed duty entitled "perform 
unit and functional testing using jasmine and karma JavaScript testing frameworks ... " According to 
the Petitioner's list, not only does the additional description appear to create a new responsibility 
falling under a duty heading marked as comprising 30% of the Beneficiary's time, it also appears to 
be its own separate duty involving 10% of the Beneficiary's time. The lack of clarity in the duties as 
described raises questions as to what the duties actually involve and how much time the Beneficiary 
will devote to them. 
4 
Similarly, the duty listed as "[ m ]aintain confluence page of application and demonstrate knowledge 
of continuous integration framework/approach" contains an entirely new description on appeal, which 
appears to suggest elevated levels of responsibility not previously mentioned. On appeal the Petitioner 
adds that this duty includes "designing, engineering, and developing portions of major projects or 
entire projects of lesser complexity" and that these responsibilities will be performed "[u]nder limited 
supervision." In its prior response to the Director's RFE, the Petitioner's description of this exact duty 
contains no such responsibilities or any mention of a decrease in supervision. 
Likewise, the duty heading of "perform direct revision, repair, or expansion of existing programs to 
increase operating efficiency. Adapt new requirements including process design and workflow ... 
correct errors by making appropriate changes and recheck the program to ensure that the desired results 
are produced" contains descriptions on appeal that differ from the descriptions presented in 
Petitioner's RFE response. These descriptions do not maintain similarity while simply adding 
clarification and detail. Rather, the substance of the duty appears to have completely changed on 
appeal. 
On appeal, the Petitioner cannot offer a new position to the Beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy, the associated job 
responsibilities, or the requirements of the position. The Petitioner must establish that the position 
offered to the Beneficiary when the petition was filed merits classification for the benefit sought. 8 A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform 
to USCIS requirements. 9 These changes raise questions about the substantive nature of the position 
and preclude us from determining whether the proffered position qualifies as a specialty occupation. 
In addition to our concerns about the duties, the Petitioner also inconsistently describes its minimum 
education requirement for entry into the position. The Petitioner originally stated that "a Bachelor's 
degree in the specialized field is a minimum requirement to perform the respective duties" but did not 
specify what specialized field. In response to the RFE and on appeal the Petitioner articulates its 
minimum education requirement as a "bachelor's degree in Computer Science, or Computer 
Information Systems." 
Throughout the record, however, the Petitioner continuously refers to the courses the Beneficiary took 
in his master's degree program as providing the requisite knowledge to perform the duties. In the 
Petitioner's RFE response, the Petitioner lists courses related to the performance of each duty. The 
Petitioner lists the Beneficiary's master's degree courses far more frequently than his bachelor's 
degree courses, thereby suggesting that it is the Beneficiary's master's degree that has more 
appropriately prepared him for the position than his bachelor's degree. On appeal, the Petitioner lists 
several of the proffered position's duties and skills, contending that they can only be acquired through 
courses that the Beneficiary purportedly took during his master's degree program. As such, we 
question whether the Petitioner has accurately described its minimum education requirements. These 
inconsistencies call into question the reliability of the Petitioner's assertions even farther, while also 
adding an additional layer of uncertainty to the actual, substantive nature of the proffered position. 
8 See Matter of Michelin Tire COip., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
9 SeeMatteroflzummi, 22 l&NDec. 169,176 (Assoc. Comm'r 1998). 
5 
We acknowledge the opinion letter provided b Professor oflnformation Systems 
Management atl !University. ~----~'s letter starts with his qualifications to opine on the 
matter, followed by an overview of the Petitioner's organization and the proffered position. He then 
lists the duties that were already provided to us by the Petitioner and provides conclusions as to the 
educational requirements of the position. The letter also contains statements concerning an industrfs 
standard and that the position is important for the overall success of the Petitioner. I _s 
letter, however, does not resolve the inconsistencies described above. Though he lists many duties, 
he fails to provide meaningful analysis of those duties so that we may understand how he reached his 
conclusions concerning the educational requirements for the position and an overall industry 
standard. 10 
3. Summary of Substantive Nature Issues 
We cannot determine the substantive nature of the position due to (1) insufficient evidence regarding 
the availability of non-speculative work for the Beneficiary to perform; (2) material changes in the 
duties submitted on appeal when compared with the descriptions in the RFE response; and (3) the 
inconsistent claims as to the educational requirements of the position. A crucial aspect of this matter 
overall is whether the Petitioner has sufficiently described the proffered position and its duties such 
that we may discern the nature of the position, and whether the position actually requires the theoretical 
and practical application of a body of highly specialized knowledge attained through at least a 
baccalaureate degree in a specific discipline. We conclude that the Petitioner has not done so here. 
Because we cannot determine the substantive nature of the position or whether it exists, we are unable 
to determine whether the proffered position is a specialty occupation. The petition therefore cannot 
be approved. Though not discussed as a basis for the Director's decision, we conclude that another 
issue precludes approval of this petition: namely, the Petitioner's failure to demonstrate that it would 
engage the Beneficiary in an employer-employee relationship. 
III. EMPLOYER - EMPLOYEE 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 11 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: 
(]) Engages a person to work within the United States; 
10 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'/, Inc., 
19 T&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Id. Here, the opinion presented 
does not offer a cogent analysis of the duties and why the duties require a bachelor's degree in a specific specialty. 
11 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring 
to the "intending employer"). 
6 
(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-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that where federal law does 
not helpfully 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." 12 Thus, to interpret these terms, USCIS will apply common law agency principles which 
focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, 13 USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the 
parties; the petitioner's right to assign additional projects to the hired party; the extent of the 
beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's 
role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the 
provision of employee benefits; and the tax treatment of the beneficiary. 14 We will assess and weigh 
all of the factors of the relationship, with no one factor being decisive. 
B. Analysis 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability to hire, fire, remunerate, supervise, and otherwise control his work. The Petitioner 
further claims it will perform numerous administrative functions pertaining to the Beneficiary's 
employment. Social security, worker's compensation, and unemployment insurance contributions, as 
well as federal and state income tax withholdings, and the provision of other employment benefits, are 
relevant factors in determining who will control a beneficiary. While such factors might appear to 
satisfy a cursory review that a petitioning entity could be an individual's employer, these elements are 
not necessarily sufficient to provide a full appraisal of the relationship between the parties. We must 
also assess and weigh other factors to determine who will be a beneficiary's employer. For example, 
we consider who will oversee and direct a beneficiary's work, who will provide the instrumentalities 
and tools, where the work will be located, and who has the right or ability to affect the projects to 
which a beneficiary will be assigned, among other factors. A petitioner must sufficiently address all 
12 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)); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). 
13 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. 
14 Darden, 503 U.S. at 324; Clackamas. U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (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-IB beneficiaries). 
7 
of the relevant factors to enable us to evaluate whether the requisite employer-employee relationship 
will exist between a petitioner and a beneficiary. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. The vendors and end-client claim that the Beneficiary would be employed by 
the Petitioner, and while the Petitioner does appear to retain the right to hire, fire, supervise, or 
otherwise control the Beneficiary's work, the Petitioner has not sufficiently explained the actual 
manner in which it provides such instructions and oversight. 
The record contains some information regarding the project upon which the Beneficiary would work 
for the end-client, which appears to be on the end-client's systems. However, there is little information 
regarding any ongoing role for the Petitioner on that project. The project documents provided indicate 
that the end-client assigns the Beneficiary work and, in fact, that the Beneficiary has authority to 
update project documents with no apparent need to consult the Petitioner. If the Petitioner has little 
to no role to play on the project, then it is unclear how it could feasibly direct the Beneficiary's day­
to-day duties as they relate to this project. To the contrary, the Petitioner's role appears limited to the 
provision of the Beneficiary's services with little room for actual direction of his activities. 
The Petitioner provided status report printouts of the Beneficiary's work, which the Beneficiary 
prepared and the Petitioner signed. However, these documents only marginally help to establish an 
employer-employee relationship in that they appear to be after-action summaries of what the 
Beneficiary accomplished, rather than evidencing actual delegation of work or supervision on the part 
of the Petitioner during completion of the work. 
Additionally, the vendor and end-client letters and contracts in the record do not reflect an active 
ongoing role for the Petitioner in the project upon which the Beneficiary would work. In the few 
contractual documents we have to review, we read that the first vendor does not guarantee the number 
of hours it will utilize the services of the Petitioner; the first vendor can terminate the work assignments 
and the relationship at its discretion; and that the Petitioner's personnel, of which the Beneficiary 
would presumably be one, must observe the work hours, rules, and policies set forth by the first vendor. 
Moreover, the first vendor dictates when the Petitioner must remove its personnel from the first 
vendor's client site and the level of contact that the Petitioner may have with the first vendor's clients. 
Finally, we read that the first vendor's clients approve the time sheets of Petitioner's personnel in order 
for the Petitioner to receive payment. In addition to this, we read that the second vendor is not 
obligated to use the first vendor for its supply of workers and, in fact, that the second vendor can select 
which of the first vendor's workers it wants. As previously stated, we have no contractual 
documentation on how the second vendor engages with the end-client. In summary, it appears as if 
the first vendor, second vendor, and end-client all have decision-making authority as to when, how 
much, and whether the Beneficiary can perform work, but that the Petitioner has little contractual 
power in this regard. 
If there is no provision for the Petitioner's input, then we question whether it actually controls the 
Beneficiary, as claimed. Having the full set of contracts executed between the actors might have shed 
light on this question, but they were not submitted. From the documentation we have to review, the 
contractual arrangement appears to resemble a staff augmentation scheme with little provision for 
input by the Petitioner on the Beneficiary's daily tasks. 
8 
The record appears to indicate that the Petitioner acts merely as a conduit for administrative and 
personnel logistics, thereby relieving the burden of such responsibilities from the other entities. Our 
review of the four comers of this H-1 B petition leads us to conclude that the Petitioner would not 
operate as the Beneficiary's employer in the common law sense, but that it would instead act as a 
supplier of personnel to temporarily supplement the staff of organizations, such as the end-client, who 
would then control the content, means, and methods of those individuals' work. In this regard, we 
observe that not only would the end-client determine and assign the Beneficiary's day-to-day work, 
but that it would also control the Beneficiary's access to the systems utilized and without such access, 
the Beneficiary's work could not be done. 
The evidence of record is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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). 
IV. 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. 
ORDER: The appeal is dismissed. 
9