dismissed H-1B Case: Software Development And Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT-A- INC. 
Non-Precedent Dfcision of the 
Administrative Appeals Office 
DATE: AUG. 30, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "business analyst/marketing research analyst" under the H-lB nonimmigrant 
classification. 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, Vermont Service Center, revoked the approval ofthe petition. The Director concluded 
that the Petitioner was no longer employing the Beneficiary in the capacity specified in the petition, 
and that the Petitioner violated the terms and conditions of the approved petition. 
The Petitioner subsequently filed an appeal, which we summarily dismissed. The matter is now 
before us on a motion to reopen. 
Upon de novo review, we will grant the motion in part for the purpose of withdrawing our decision 
to summarily dismiss the appeal. 1 However, as the Petitioner has not overcome the Director's 
findings, we will deny the remainder of the motion and dismiss the appeal on its merits. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F .R. § 103 .5( a:)(l )(i) includes the following statement limiting a USCIS 
officer's authority to reopen the proceeding or reconsider the decision to instances where "proper 
cause" has been shown for such action: "[T]he official having jurisdiction may, for proper cause 
shown, reopen the proceeding or reconsider the prior decision." · 
1 Since we did not address the merits of the appeal in our initial decision, we are issuing a combined decision on the 
motion to reopen and the appeal. 
Matter ofT-A- Inc. 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B that is properly 
completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper 
cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing 
motions in proceedings before the Service," "[a] motion that does not meet applicable requirements 
shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states: "A motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be 
supported by affidavits or other .documentary evidence." 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
"Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or 
documentary evidence that establish eligibility at the time the underlying petition or application was 
filed." 2 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case." Matter 
ofCoelho, 20 I&N Dec. 464,473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-
40 (lOth Cir. 2013). 
Here, the Petitioner provided "new" facts in support of its motion to reopen. We will grant the 
motion in part to withdraw our decision? However, as the Petitioner has not overcome the bases of 
the Director's decision, we will deny the remainder ofthe motion and dismiss the appeal. 
II. REVOCATION 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R. § 214.2(h)(ll)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
2 The regulation at 8 C.P.R. § 103.2(a)(l) states in pertinent part: 
Every benefit request or other document submitted to DHS must be executed and filed in accordance 
with the form instructions, notwithstanding any provision of 8 CFR chapter I to the contrary, such 
instructions are incorporated into the regulations requiring its submission. 
3 We note for the record that we also discovered these new facts before we received the Petitioner's motion and, once 
they came to our attention, we sought to reopen the matter ourselves. As the Petitioner filed its own motion before we 
could take further action, however, we have combined both motions and will grant them in part for the purpose of 
withdrawing our prior decision to summarily dismiss the appeal. 
2 
Mqtter ofT-A- Inc. 
(I) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition, or if the beneficiary is no longer 
receiving training as specified in the petition; or 
(2) , · The statement of facts contained in the petition was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; 
or 
( 4) The petitioner violated requirements of section 101(a)(15)(H) of the 
Act or paragraph (h) of this section; or 
\ 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or· in part. If the 
petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
III. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
The Petitioner filed the Form I-129, Petition for·a Nonimmigrant Worker, on September 18, 2013. 
On the H-1 B petition, the Petitioner described itself as a five-employee software development and 
consulting business. The Petitioner indicated that it would employ the Beneficiary as a business 
analyst/marketing research analyst, and that the position requires a "bachelor's or master's degree 
with an emphasis in business administration." The Petitioner described the proffered duties as 
follows: 
[The Beneficiary] is responsible for statistical analysis for market research, services, 
pricing, and costing using Function Point Analysis; analyze factors affecting our 
business, operations; design of decision-support systems, spreadsheets, databases, 
break-even analysis, SWOT analysis; prepare reports for management on the basis of 
such analysis and study using MS Access, MS Word, Excel, and PowerPoint; directs 
and coordinates research and development activities of our company; .·plans and 
formulates research and development proposals and will determine objectives of 
projects and make use of findings; assess costs of projects and equipment; reviews 
3 
(b)(6)
Matter ofT-A- Inc. 
and analyzes proposals submitted to determine if the benefits derived and possible 
applications justify expenditure; reviews and submits proposals considered feasible. to 
management for consideration; develops and implements methods and procedures for 
monitoring projects such· as preparation of records of expenditures and research 
findings, progress reports and c.onferences to inform management of the current status 
of each project. [The Beneficiary] will also perform competitive analysis, strategic 
planning and budget allocation; perform statistical analysis to evaluate market trends 
and recommend market decisions; analyze market research data; perform sales 
analysis; evaluate projects and monitor advertising and marketing budget; develop 
pricing strategies; and direct activity bases costing systems. 
The Petitioner further indicated on the H-IB petition that the Beneficiary would be employed at the 
Petitioner's facility in New York. The Petitioner did not request other worksites 
and did not submit an itinerary.
4 
The Petitioner supported the H-1B petition with, inter alia. a labor 
condition application (LCA), certified on June 20, 2013. On the LeA, the Petitioner attested that the 
Beneficiary would only work at the Petitioner's facility. Based upon this record, 
the Director approved the H-1 B petition. 
Subsequently, users attempted to conduct a site visit at the Petitioner's facility but no personnel 
were present, and was unable to gain access to the premises. Thereafter, on March 5 and 11, 2014, 
USers conducted telephonic interviews with the Petitioner's president and the Beneficiary, 
respectively. As a result of the information provided therein, USers was unable to verify that the 
Beneficiary has been employed in a specialty occupation at the Petitioner's facility pursuant to the 
terms and conditions specified in the approved petition. On March 2, 2015, USCIS issued the 
Petitioner a notice of intent to revoke (NOIR) the approval of its petition. 
In response to the NOIR, the Petitioner explained that there was a change of work location for the 
Beneficiary due to a fire at the Petitioner's facility, which occurred on April 21, 
2014. The Petitioner stated that "due to the fire Incident at our office, we had to reallocate our 
resources and assigned [the Beneficiary] on our [end-client's] pr2ject at their office located at 
TEXAS effective from July 1, 2014." The Petitioner also 
explained that, due to the fire, it had to "reshuffle [its] plan to open up an office in TX." 
The Petitioner stated that prior to the fire, "the beneficiary has been working at our otfice as well as 
from home."5 The Petitioner submitted, inter alia, two itineraries and corresponding LCAs. One 
LCA, certified on March 13, 2014, covered the Beneficiary's worksites at the Petitioner's 
facility in New York, as well as a second facility in Texas. The second LCA was 
certified on June 25, 2014, for the Beneficiary to work at the end-client site at 
m Texas. 
4 See 8 C.F.R. § 214.2(h)(2)(i)(B) (requiring an itinerary for services performed in more than one location). 
5 The Form I-129 identified the Beneficiary's home as located in New York. 
4 
(b)(6)
Matter ofT-A- Inc. 
The Director revoked the approval of the petition on November 2, 2015. The Director cited the lack 
of evidence from the claimed end-client verifying the terms and conditions of the Beneficiary's 
assignment at its worksite. The Director concluded that the Petitioner was no longer 
employing the Beneficiary in the capacity specified in the petition , and that the Petitioner violated 
the terms and conditions of the approved petition. The Director also noted the lack of evidence 
regarding a valid employer-employee relationship between the Petitioner and the Beneficiary. 
In its appeal brief, the Petitioner reiterates that the Beneficiary has been providing services to its 
end-client in since July 1, 2014: The Petitioner provides the same list of job duties for the 
Beneficiary as previously claimed with its initial petitio:p., and . states that the proffered position 
requires at least a bachelor's degree in business administration or its equivalent. In support of its 
appeal, the Petitioner submits, inter alia, the "Business Consultant Agreement," dated June 19,2014, 
in which the end-client "authorizes (the Beneficiary] . . . to perform the Various Business 
Analysis/Market Research analysis duties for the company." · The Petitioner also submits a letter 
from the end-client, dated November 20, 2015, confirming the Beneficiary's assignment as a 
business analyst/market research arlalyst to perform the following job duties: 
• Perfonn competitive analysis, strategic planning and budget allocation. Statistical 
analysis to evaluate market trends and recommend market decisions; analyze market 
research data, evaluate projects and monitor advertising and marketing budget. 
Develop pricing strategies and direct activity bases costing systems. 
• Plans and formulates research and development proposals and will determine 
objectives of projects and make use of findings. Assess costs of projects and 
equipment. 
• Reviews and analyzes proposals submitted to determine if the benefits derived and 
possible applications justify expenditure. Reviews and submits proposals considered 
feasible to management for consideration. 
• Perform sales analysis. Directs and coordinates research and development activities 
of our company. Statistical analysis for market research, services , pricing, and 
costing using Function Point Analysis. 
• Develops and implements methods and procedures for monitoring projects such as 
preparation of records of expenditures and research findings, progress reports and 
conferences to inform management of the current status of each project. 
• Prepare vario~s reports for management using MS Word, Excel, PowerPoint and MS 
Access .. Analyze factors affecting our business operation and design of decision­
support systems, spreadsheets, databases, break-even analysis, SWOT analysis. 
5 
(b)(6)
\._ 
Matter ofT-A- Inc. 
IV. ANALYSIS OF DIRECTOR'S DECISION 
Upon review of the record, we determine that the Director properly revoked the approval of the 
petition because the Petitioner was no longer 
employing the Beneficiary in the capacity specified in 
the petition, 8 C.F.R. § 214.2(h)(11)(iii)(A)(J), and had violated the terms and conditions of the 
approved petition, 8 C.F.R. § 214.2(h)(11)(iii)(A)(3). 
On the Form I-129, initial LCA, and other supporting documentation, the Petitioner represented that 
it would employ the Beneficiary solely at the Petitioner's worksite in New York, 
for the entire validity period requested from October 1, 2013, to September 30, 2016. The 
Beneficiary's job duties, as initially described, were to provide business development, analysis, and 
market research support to the Petitioner's management. 
However, as the Petitioner now asserts, the Beneficiary has been working for the Petitioner's end­
client at its worksite since at least July 1, 2014. 6 The Beneficiary's current work 
location was not previously disclosed in the Form I-129 and supporting documentation which, as 
noted above, covered only the Beneficiary's employment at the Petitioner's facility in 
New York. Nor was the possibility that the Beneficiary would work for an entity other than 
the Petitioner disclosed with the initial petition. By assigning the Beneficiary to work at a location 
and for a party other than that specified in the initial petition, the Petitioner was no 'longer employing 
the Beneficiary in the capacity specified in the petition, and had violated the terms and conditions of 
the approved petition. 8 C.F.R. § 214.2(h)(ll)(iii)(A)(l), (3). 
We acknowledge the evidence in the record regarding the fire that occurred at the Petitioner's 
facility on April 21, 2014. We also acknowledge the Petitioner's explanations that, 
as a result of the fire, the Petitioner: (1) "reallocate[ d]" the Beneficiary to its end-client's worksite in 
Texas; (2) was forced to relocate its office to its current New York, address; (3) 
was forced to "reshuffle" its plans to open an office in Texas; and (4) lost relevant business 
documents. Additi'onally, we acknowledge the fact that the Petitioner subsequently obtained two 
LCAs to cover the Beneficiary's change in work locations, including the LCA certified on June 25, 
2014, for the Beneficiary to work at the end-client site in Texas. 
But we find that these explanations and circumstances do not absolve the Petitioner of its legal 
requirements to comply with the terms and conditions·of the approved petition, and if unable to do 
so, to file a new or amended petition to reflect the material changes to the Beneficiary's employment 
and eligibility. The regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) states: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any 
material changes in the terms and conditions of employment or training or the alien's 
6 As will be discussed in more detail infra, the Beneficiary may have started working for this end-client earlier than July 
1, 2014. 
6 
(b)(6)
Matter ofT-A- Inc. 
eligibility as specified in the original approved petition. An amended or new H-1 C, 
H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department 
of Labor determination. In the case of an H-1B petition, this requirement includes a 
new labor con,dition application. 
' . 
Furthermore, Petitioners must "immediately notify the Service of any changes in the terms and 
conditions of employment of a beneficiary which may affect eligibility" for H-1 B status and, if they 
will continue to employ the Beneficiary, file an amended petition. 8 C.F.R. § 214.2(h)(11)(i)(A). 
Thus, while the Petitioner obtained a new, certified LCA covering the Beneficiary's assignment to 
the end-client's worksite prior to his claimed start date, this only partially satisfied the 
Petitioner's' obligations. The Petitioner was still required to "immediately notify" USCIS of any 
changes in terms and conditions of employment and submit a new or amended petition that was 
accompanied by this new LCA. 8 C.F.R. § 214.2(h)(2)(i)(E); 8 C.F.R. § 214.2(h)(11)(i)(A); Matter 
of Simeio Solutions, LLC, .26 I&N Dec. 542 (AAO 2015).7 See also 8 C.F.R. § 103.2(b)(l) 
(requirin,g eligibility at the time of filing). 8 
Because the Petitioner did not employ the Beneficiary in the capacity specified in the petition, did 
not comply with the terms and conditions of the approved petition, and did not file a new or 
amended petition to reflect the material changes to the Beneficiary's employment and eligibility, the 
Director properly revoked the approval of the petition. 
7 On April 9, 2015, we issued the precedent decision , Matter of Simeio Solutions, LLC, 26 l&N Dec. 542 (AAO 20 15). 
This decision clarified the regulatory requirements to file a new or amended petition before placing an H-1 B employee at 
a new place of employment not covered by an existing, approved petition. 
On July 21, 2015, USC IS issued a policy memorandum stating that, if a petitioner's H-1 B employee moved to a new 
place of employment (not covered by an existing, approved H-1 B petition) on or before April 9, 2015, then USC IS 
generally will not pursue new adverse action. USC IS Policy Memorandum PM-602-0 120, USC IS Final Guidanc e on 
When to File an Amended or New H-/B Petition After Matter of Simeio Solutions, LLC 3-4 (Jul. 21 , 2015) , 
https ://www . uscis.gov/ l~ws / policy-memoranda . This memo also states that " USCIS will, however, preserve adverse 
actions already commenced or completed prior to July 21 , 2015 and will pursue new adverse actions if other violations 
are determined to have occurred ." !d. 
In this case, the Director's adverse action, i.e., the issuance of the NOIR, also commenced prior to July 21,2015 . The 
Director's revocation and our dismissal of the appeal are therefore consistent with the memorandum's guidance that 
adverse actions already commenced will be preserved. 
8 8 C.F.R. § 103.2(b)(l) states: 
Demonstrating eligibility . An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial evidence 
required by applicable regulations and other USCIS instructions . Any evidence submitted in 
connection with a benefit request is incorporated into and considered part of the request. 
Matter ofT-A- Inc. 
V. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also find that the evidence of record is insufficient to establish that the Petitioner has an 
employer-employee relationship with the Beneficiary. 9 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed.r Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1 B visa 
classification. The United States Supreme Court determined that where federal law fails to clearly 
define the term "ell}ployee," 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: 
9 Although the Director did not revoke the petition on this basis, the Director's revocation specifically advised the 
Petitioner to address the e~ployer-employee relationship issue on appeal. 
8 
(b)(6)
Matter ofT-A- Inc. 
"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 ofthe.hired party." 
ld.; 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)). 
Here, the evidence of record - including the Petitioner's appeal briefs, the "Business Consultant 
Agreement," and end-client letter submitted on appeal - is insufficient to demonstrate that the 
Petitioner has maintained an employer-employee relationship with the Beneficiary at the end-client's 
facilities. Despite the Petitioner and end-client's conclusory statements that the Petitioner is the 
Beneficiary's "employer" and has "full and ultimate control" over his work, the record does not 
sufficiently demonstrate the manner in which the Petitioner exercises this claimed control. "[G]oing 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Specifically, the Petitioner's 
most recent itinerary lists the Beneficiary's direct supervisor as its vice 
president, But the Petitioner's organizational chart depicts the market research 
analyst position (presumably the Beneficiary) as reporting to an unidentified senior project manager. 
Moreover, the Petitioner has not described and documented the relationship between the 
Beneficiary's supervisor (whether its vice president or senior project manager) and the end-client's 
management whom the Beneficiary ·is tasked to support. For instance, the Petitioner has not 
explained where or its senior project manager is physically working, whether he or she is 
also assigned to the Sc,lme end-client, the nature of his or her job duties, and the frequency of 
communication with the Beneficiary. The Petitioner also has not explained and documented who 
provides the tools and instrumentalities utilized in the Beneficiary's work. 
Further, the Petitioner has not demonstrated that the Beneficiary's work as a business 
analyst/marketing research analyst is a part of the Petitioner's regular business. The Petitioner 
describes itself as a software development and consulting business that "has been providing effective 
and efficient software solutions." In its appeal brief, the Petitioner specifically discusses the 
company's development of a application/document management system for use by its 
9 
Matter ofT-A- Inc. 
various customers. The Petitioner does not claim, nor does the evidence show, that it is in the 
business of providing business analysis and marketing services for other clients.10 
Furthermore, the Petitioner states on appeal that the Beneficiary's "educational background makes 
[him] precisely the type of the [sic] candidate who is needed to fill positions in creating and 
developing advanced software applications." In his 2014 performance evaluation, the Beneficiary 
also discussed his work with "offshore" operations (e.g., "Dealing with offshore is bit challenging" 
and "I am kind of disconnected in real [life] due to the regional timings, and the location where I am 
at this point."). There is no further explanation of how these software and offshore aspects of the 
Beneficiary's duties correspond to his claimed duties of providing business and marketing services 
to the end-client. It is incumbent upon the Petitioner to resolve inconsistencies in the record by 
independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For these reasons, the evidence of record does not sufficiently demonstrate that the Petitioner has 
maintained an employer-employee relationship with the Beneficiary. This further supports the 
Director's revocation of the approval of the petition in that the Petitioner did not employ the 
Beneficiary in the capacity specified in the petition, and did not comply with the terms and 
conditions of the approved petition. 
VI. SPECIALTY OCCUPATION 
We will now address another independent ground, not identified by the Director, which could also 
have warranted initiation of revocation proceedings under 8 C.F.R. § 214.2(h)(11)(iii)(A)(5). 
Specifically, we find that the evidence of record is insufficient to establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty oc~upation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainmen~ 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. 
10 Despite his claimed placement at the end-client's facilities, the Petitioner confusingly states on appeal that the 
Beneficiary's current job duties include analyzing the Petitioner's business operations and directing the Petitioner's 
research and development activities. 
In fact, the record does not sufficiently demonstrate what type of work the Beneficiary is actually performing for the end­
client. That is, the Petitioner has not sufficiently explained how the Beneficiary's duties are performed within the 
context of the end-client's particular business operations. Simply submitting generic job descriptions that are not 
specific to the Beneficiary and the Petitioner or end-client's operations, is insufficient to establish the nature of the duties 
the Beneficiary is actually performing for each entity. 
10 
Matter ofT-A- 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. 
I 
8 C.F .R. § 214.2(h)( 4 )(iii)( A). 'USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed 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). 
Here, the Petitioner has consistently stated that the proffered position and its constituent job duties 
require at least a bachelor's degree in business or business administration, or its equivalent. Based 
on the Petitioner's own requirements, the proffered position as initially described, i.e., when the 
Beneficiary was working for the Petitioner at its facility, did not qualify as 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. To prove that a job requires the 
theoretical and practical application of a body of highly specialized knowledge as required by 
section 214(i)(1) 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, 
US CIS 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. Since there must be a direct 
correlation between the required specialized studies and the position, the requirement of a degree 
with a generalized title, such as business or business administration, without further specification, 
does not establish the position as a specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d at 
147; cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988). 
1 1 
(b)(6)
Matter ofT-A- Inc. 
Moreover, the record does not establish that the Beneficiary's current assignment for the end-client 
qualifies as a specialty occupation. 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 end-client 
companies' job requirements is critical. The court held that the statute and regulations is reasonably 
interpreted as requiring the Petitioner to produce evidence that a proffered position qualifies as a 
specialty occupation on the basis of the requirements imposed by the entities using the Beneficiary's 
services. Id. 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. 
In this matter, the record is likewise devoid of evidence from the end-client detailing its job 
requirements. Neither the "Business Consultant Agreement," nor the end-client's letter, specifies the 
minimum educational requirement to perform the proffered duties. 11 The record does not contain 
any other documentation from the end-client. 
As the evidence of record is insufficient to establish that the proffered position initially qualified as a 
specialty occupation, the Director's approval of the petition violated paragraph (h) of this section or 
involved gross error. And as the evidence of record does not demonstrate that the proffered position 
still qualifies as a specialty occupation based on the end-client's requirements, the record further 
supports the Director's revocation of the approval of the petition in that the Petitioner did not employ 
the Beneficiary in the capacity specified in the petition, and did not comply with the terms and 
· conditions of the approved petition. It therefore would have been within the scope of the Director's 
authority to initiate revocation-on-notice proceedings regarding this issue upon proper notice to the 
Petitioner of her intent to do so. 
VII. NOTICE OF DEROGATORY INFORMATION 
Finally, we hereby advise the Petitioner of additional derogatory information found during USCIS 's 
telephonic interviews with the Petitioner and Beneficiary. 8 C.F.R. § 103.2(b)(16)(i). 
During the Petitioner's telephonic interview with USCIS on March 5, 2014, the Petitioner stated that 
the Beneficiary has been working remotely from Texas, for weeks at a time, and would 
return to t~e Petitioner's New York location, travelling back and forth between the two locations. 
During the Beneficiary's telephonic interview on March 11, 2014, the Beneficiary confirmed that he 
has been working in two locations, travelling back and forth between Texas and New York, since 
September 2013. Th~ Beneficiary stated that he spends three weeks in Texas where he works 
11 The end-client's letter ~tites that the Beneficiary is qualified to perform the proffered position by virtue of his 
education and experience. However, the test to establish a position as a specialty occupation is not the skill set or 
education of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. In any event, we 
recall that the Beneficiary possesses the equivalent to a U.S. master's degree in business administration, without further 
concentration. This implies that the proffered duties for the end-client, like for the Petitioner, can be performed by 
someone with an otherwise unspecified business administration degree. 
12 
(b)(6)
Matter ofT-A- Inc. 
remotely from his home, and one week in New York where he reports to the Petitioner's facility in 
The Beneficiary also provided a copy of his Texas State driver's license as a form 
of identification. 
Based on the above derogatory information, we must question whether the statement of facts 
contained in the H-1B petition (and supporting documentation) was not true and correct, inaccurate, 
fraudulent, or misrepresented material facts, 8 C.P.R. § 214.2(h)(11)(iii)(A)(2), and whether 
revocation of the petition was proper under other grounds, 8 C.P.R. § 214.2(h)(11 )(iii)( A). 
That is, the Petitioner's H-1B petition filed in September 2013 represented that the Beneficiary 
would only work at the Petitioner's facility, and no other locations. However, the 
( Beneficiary stated thathe has been working in both Texas and New York since September 2013. 
Since the Petitioner now claims that the Beneficiary did not start working in Texas until July 1, 
2014, we must question, among other things: whether the Beneficiary was working for another, 
unidentified end-client; what job duties he was performing for that company; that company's job 
~· requirements; whether the Petitioner had, if ever, an employer-employee relationship with the 
Beneficiary; and whether the Petitioner met all initial filing requirements including the submission 
of an itinerary and a corresponding LCA. 
Again, it is incumbent upon the Petitioner to resolve inconsistencies in the record by independent 
objective evidence. M[Jtter of Ho, 19 I&N Dec. at 591-92. Any attempt to explain or reconcile the 
inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing 
I 
to where the truth lies. !d. 
Although the above-stated derogatory information does not form a basis for our decision to dismiss 
the appeal, the Petitioner must address these and 
any other issues arising from this derogatory 
information in future filings with USCIS. 
VIII. CONCLUSION 
The Director properly r.evoked the approval of the petition. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. Accordingly, the motion to reopen is denied in part and granted in part, and the appeal 
is dismissed. 
ORDER: The mot'ion to reopen is denied in part and granted in part. 
Cite as Matter ofT-A- Inc., .ID# 10567 (AAO Aug. 30, 20 16) 
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