dismissed H-1B Case: Software Engineering

MATTER OF K-G-I-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 28,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an engineering company, seeks to temporarily employ the Beneficiary as a "software 
engineer" under the H-1B 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)(l5)(H)(i)(b). The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as 
a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the proffered position is a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
·approved. 
Upon de novo review, we will dismiss the appeal. 
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 ofthe following criteria to qualify as a specialty occupation: 
Matter of K-G-1-S- LLC 
(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 have consistently interpreted 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 
According to the Petitioner, the Beneficiary will work in-house as a "software engineer" and, on the 
labor condition application (LCA) 1 submitted in support ofthe H-1B petition, designated the proffered 
position under the occupational category "Software Developers, Applications" corresponding to the 
Standard Occupational Classification code 15-1132.2 
The Petitioner initially stated in its support letter that "[t]he major assignments for this individual 
[are] to develop our company software products and assist our marketing departments to promote 
1 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services to demonstrate that it 
will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the "area of 
employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding ofthe occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of K-G-1-S- LLC 
our products."3 The Petitioner, however, did not provide any information regarding its software 
products in its initial submission. 
In its response to the Director's request for additional evidence (RFE), the Petitioner explained that 
the Beneficiary would work on an in-hous.e project entitled " for W -G­
( 
end-client), and it submitted the following listing of duties that the Beneficiary would perform 
(note: errors in the original text have not been ch:nged): 
• Performing weekly plan and assigning daily activities. Preparing the monthly 
metrics and workload. 
• Preparing timelines & action plan for ensuring timely completion of Design & 
Development activities. 
• Ensure layouts complies to standard to standard global drawing & stack templates 
and document deviations 
• Train new team members on project & product, providing training in UG routing 
andGMUG 
• tool, Packaging. Design tools 
• Providing design proposals for vanous components such as Automatic 
Transmission Case, 
• Housing, motor supports for different programs ... by analyzing the internal and 
External 
• Packaging ofthe Transmission and considering the Vehicle environment. 
• Execute Engineering Work Orders in case of more workload. 
The record also contains a list of duties prepared by the end-client. The end-client set forth the same 
bullet-pointed duties described by the Petitioner above, and then also stated that the Beneficiary 
would perform the following duties (note: errors in the original text have not been changed): 
• Taking care of day to day operation activities which involves troubleshooting 
incident requests by maintaining satisfactory SLA, taking bridge calls with 
clients, preparing required documentation and coordination with other teams. 
• Taking care of new joiners which includes logistics, cab arrangements, 
attendance, roaster of service desk team, introduction with other teams, taking 
basic network troubleshooting sessions of service desk, taking project DL 
ownership, published and maintained SharePoint knowledge base for all tracks. 
3 The Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it has three employees. It is 
reasonable to assume that the size of an employer's business has or could have an impact on the claimed duties of a 
particular position. See EG Enters., Inc. v. Dep 't of Homeland Sec., 467 F. Supp. 2d 728 (E. D. Mich. 2006). The size of 
a petitioner may be considered as a component of the nature of the petitioner's business, as the size impacts upon the 
actual duties of a particular position. Here, the Petitioner has not established that it has the necessary personnel to 
develop its own software, or that it has a "marketing department." 
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Matter of K-G-1-S- LLC 
• Actively involved in initial OMC infrastructure set-up, coordination with IS and 
Telco team including network, security, desktops, phone, etc. 
• Day to day incidents handling and preparing required documentation to make the 
operation delivery better with my efforts. 
• Act as CHANGE MANAGER for the team. Responsible to be present in CCB 
(change control board) meetings and address all Network's scheduled changes to 
the clients and also responsible to manage all the change requests generated by 
both Data and Voice team and coordination with the Change management team. 
• Track and lead Networks, involved in preparation of Project & Operation growth 
plan, prepare daily report with Tickets Auditing, CSAT tracking, etc. 
• Manage time to time KT's to team, On-call roaster design, SLA management, etc. 
According to an evaluation submitted by the Petitioner, the proffered position requires a bachelor's 
degree in engineering, science, computer science, computer applications, information technology, or 
a closely related field. The end-client did not state a minimum educational requirement. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the proffered position requires an educational 
background, or its equivalent, commensurate with a specialty occupation.
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' 
As noted above, the end-client did not state a minimum educational requirement for the position. 
The court in Defensor , 201 F.3d at 387-88, held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring a petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using a beneficiary's services (emphasis added). Therefore, in order for us to 
determine whether the proffered position qualifies as a specialty occupation, the end-client must 
provide sufficiently detailed information regarding the minimum educational requirements necessary 
to perform those duties. As the end-client does not address the issue, we cannot determine whether 
it requires a bachelor's degree in a specific specialty, or the equivalent to perform the ~ duties of the 
position. For this reason alone, the position is not a specialty occupation. 
Setting this deficiency aside, we find that the Petitioner has not provided consistent information 
regarding the proffered position's duties and nature. For example, the Petitioner did not reference 
the existence of the ' ' project or the end-client when it filed the petition. 
Instead, the language of the support letter indicated that the Beneficiary would design and develop 
"systems," work on "projects," and develop "products." The Petitioner did not identify a single 
4 
The Petitioner submitted documentation . to support the H-1 B petition , including evidence regarding the pro~fered 
position and its busine ss operations. While we may not discuss every document submitted , we have reviewed and 
considered each one. 
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Matter of K-G-1-S- LLC 
system, project, or product or indicate that the Beneficiary would be limited to a single system, 
project, or product. It was only in response to the RFE that the Petitioner amended the proposed 
duties and narrowed the scope of the Ben~ficiary's employment to a single project. 
We find further that some of the Petitioner's statements regarding the proposed duties are overly 
generalized. For example, the Petitioner claims 
that the Beneficiary would assign daily activities 
and train new team members. However, it is not apparent who these team members are. In this 
regard, we acknowledge the itinerary's statement that the Beneficiary would work with the 
Petitioner's staff. Though the record contains numerous references to various "teams," including 
teams of business analysts, teams of clients, teams of developers, a production deployment team, 
etc., it is not clear whether these teams consist of employees of the Petitioner, the end-client, or 
another entity. The Petitioner has only three employees, some of whom appear to be working on 
other projects. Further, the employment contract's statements that the Petitioner "has no right to 
control any aspect of the project" raises additional questions as to whose personnel would comprise 
these "teams." 
The Petitioner's Level I wage designation raises additional questions regarding the overall reliability 
of the job descriptions submitted by the Petitioner and the end-client. As noted, in designating a 
Level I wage the Petitioner indicated that the proffered position is an entry-level position. As 
instructed in the DOL wage-level guidance cited above, statements that a job offer is for a research 
fellow, a worker in training, or an internship are indicators that a Level I wage should be considered. 
However, several of the proposed duties appear to conflict with the Petitioner's Level I designation. 
For example, the Petitioner stated that the Beneficiary would assign other workers' daily activities 
and train new team members. The end-client stated that the Beneficiary would work as a "change 
manager," that he would "take care of new joiners," and discussed the fact that he would take 
ownership of various aspects of the project. In a position evaluation submitted by the Petitioner, 
used the word "lead" several times to discuss the Beneficiary's role, and then also 
described how the Beneficiary would manage and lead other software professionals. These and 
similar statements of record suggest that the Beneficiary would exercise a higher level of judgement, 
discretion, and independence than that indicated by the Level I wage designation. 5 In any event, it 
calls into question the reliability of the Petitioner's job description. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. !d. 
5 
In any event, they call into question whether the LCA corresponds to and supports the H-1 B petition, which would 
appear to constitute another ground for denial. However, because the proffered position is not a specialty occupation we 
will not discuss this matter further except to note that the Petitioner should be prepared to address it in any future 
proceedings. 
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Matter of K-G-1-S- LLC 
Moreover, the record does not establish that this project with the end-client would be valid for the 
requested employment period. The record contains a software services agreement (agreement) with 
the end-client, which states that "the services to be performed under this agreement will be defined 
through Schedule of Service that are signed by an Authorized Representative of [the Petitioner] and 
an Authorized Representative of [end-client]." While the record contains the letters and itinerary 
from the end-client discussed above, the record does not contain a copy of the schedule of service 
document described in the agreement that defines the scope of services to be provided. Thus, the 
Petitioner did not substantiate itsongoing project for the requested H-lB validity period.6 
For the reasons discussed above, we are precluded from finding that 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 the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; 
(3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or 
its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity ofthe specific duties, which is the focus of criterion 4. 
Because we have found that the Petitioner did not establish the substantive nature of the proffered 
position and its constituent duties, evaluation of the position is of limited use. 
That said, we reviewed his letter nonetheless, and find that the letter does not sufficiently establish 
that the proffered position qualifies as a specialty occupation even if the Petitioner had established 
the position's substantive nature. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of K-G-1-S- LLC 
For example, did not discuss the duties of this position in any detail beyond listing 
them in the same bullet-pointed fashion as the Petitioner's RFE response. When he did describe 
duties beyond those bullet-points, he made the statements discussed above that conflicted with the 
Petitioner's Level I wage designation. did not discuss or otherwise reference the 
Level I wage designation, the project upon which the Beneficiary would work, or the fact the 
Beneficiary would be working for the end-client. Considered collectively, we find that these 
shortcomings indicate an incomplete review of the position by 
In addition, we observe that does not state that the proffered position requires a 
bachelor's degree in a specific specialty. According to the proffered position 
requires a bachelor's degree in engineering, science, computer science, computer applications, 
information technology, or a closely related field. However, a requirement for a bachelor's degree in 
"science" is not a requirement for a bachelor's degree in a specific specialty, and it is inadequate to 
establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly to the position 
in question. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as science, without further 
specification, does not establish the position as a specialty occupation. C.'f Matter of Michael Hertz 
Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). To prove that a job requires the theoretical and 
practical application of a body ofhighly 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 explained above, we interpret 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. We have consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&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. !d. Consistent with Caron Int 'l, we find that even if had been able 
to glean from the record the substantive nature of this position, evaluation would 
not satisfy any of the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
As the evidence does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be 
found that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also find an additional basis for denial because the evidence of record does not establish that the 
Petitioner would be a "United States employer" having "an employer-employee relationship with 
Matter of K-G-1-S- LLC 
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." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
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 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire. pay, .fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1 B visa 
classification. Therefore, in considering whether or not one will be an "employee" in an "employer­
employee relationship" with a "United States employer" for purposes of H-IB nonimmigrant 
petitions, we will look to common-law agency doctrine and focus on the common-law touchstone of 
"control." See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992); Clackamas 
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958) (defining "servant"). 
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Matter of K-G-1-S- LLC 
Such indicia of control include when, where, and how a worker performs the job; the continuity of 
the worker's relationship with the employer; the tax treatment of the worker; the provision of 
employee benefits; and whether the work performed by the worker is part of the employer's regular 
business. See Clackamas, 538 U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a 
materially identical test and indicating that said test was based on the Darden decision); Defensor, 
201 F.3d at 388 (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-IB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man.at § 2-III(A)(l). 
-B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H -1 B temporary "employee." 
The Petitioner states throughout the petition that it would act as the Beneficiary's employer, and that 
it would engage him in an employer-employee relationship. To that end, the Petitioner emphasizes 
that it would exercise control over the Beneficiary's work. However, the employment agreement 
states that the Beneficiary will be an independent contractor, that the Petitioner has no right to 
control any aspect of the projects upon which he would work, that neither the Petitioner nor any end­
client would assume any financial liability incurred by the Beneficiary while he worked for the 
Petitioner, that the Petitioner would assume no responsibility for working conditions at a client site, 
and that the Petitioner would have no right to control any aspect of the Beneficiary's work while at a 
client site, and assigns to the Beneficiary the responsibility to "discuss directly with the [end-client] 
the task requirements prior to acceptance of the work." Such lack of control over the project by the 
Petitioner, and delegation of responsibility to the Beneficiary as to whether to even accept the project 
on behalf of the Petitioner, 7 conflicts directly with the Petitioner's claim of an employer-employee 
relationship with the Beneficiary. 
7 
This delegation of responsibility would also appear to conflict with the Level I Clesignation in that it would empower 
the Beneficiary to make a decision with significant financial impact to the Petitioner. 
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Matter of K-G-1-S- LLC 
Further, the agreement does not provide any level of specificity as to the Beneficiary's duties, the 
requirements for the position, number of hours to be worked per week, annual leave allotment, 
salary, etc. While an employment agreement may provide some insights into the relationship of a 
petitioner and a beneficiary, the "mere existence of a document styled 'employment agreement"' 
shall not lead inexorably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 
450. 
In light of the above, we are unable to find that the Petitioner has not sufficiently established the 
requisite employer-employee relationship with the Beneficiary. 
III. CONCLUSION 
The Petitioner has not established that: (1) the proffered position qualifies as a specialty occupation; 
and (2) the requisite employer-employee relationship would exist between the Petitioner and the 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-G-1-S- LLC, ID# 441782 (AAO July 28, 2017) 
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