dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 5803326 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position . 
The California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that: ( 1) the proffered position qualifies as a specialty occupation, and (2) an 
employer-employee relationship will exist with the Beneficiary. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. SPECIALTY OCCUPATION 
First, we will address whether the record establishes the proffered position qualifies as a 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. 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis 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. 
B. Analysis 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and determining whether the proffered position qualifies as a specialty occupation. 2 
2 The Petitioner submitted documentation to support the H-1 B 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. 
2 
The Petitioner, which is located in Georgia, indicated on the Form I-129, Petition for a Nonimmigrant 
Worker, and on the certified labor condition application (LCA)3 that the Beneficiary will work as a 
"software engineer" for an end-client in Oregon, through contractual relationships between the Petitioner, 
and ultimately the end-client. The claimed contractual chain is as follows: 
Petitioner ➔ I-/Y- (end-client) 
First, the Petitioner has not established that it had secured definitive, non-speculative employment for 
the Beneficiary when it filed this petition. In other words, the current record is not sufficient to 
establish that the proffered position as described actually exists, let alone determine its substantive 
nature so as to ascertain whether it is a specialty occupation. Again, the Petitioner claims that the 
Beneficiary will work for the end-client in Oregon. When it filed this petition, the Petitioner provided 
a "Contractor Agreement - Services" (CA) document it executed with the end-client in May 2012. 
The CA provides: 
1. Agreement. This agreement shall consist of the following: 
a. The [CA] which shall define the general terms and conditions of the 
relationship between [the end-client] and [the Petitioner. 
b. The Order Schedule which shall describe in detail (1) the specific services 
and requirements; (2) compensation for services performed; and (3) any 
additional terms meeting with mutual approval of the parties. 
2. Performance of Services by [ the Petitioner]. At the direction of and in consultation 
with [the end-client], [the Petitioner] shall perform the services described in the 
Order Schedule(s). 
The Petitioner initially noted that "the Beneficiary will be physically working at the [end-client]. She 
shall work [ from the end-client location] for the entire duration of the requested employment." The 
end-client indicated in its initial letter that "pursuant to our contract with [the Petitioner], [the 
Beneficiary] shall be providing services." However, the Petitioner did not provide an order schedule 
or similar contractual document specific to the Beneficiary's placement with the end-client. Noting 
this lack of evidence, the Director subsequently issued a Request for Evidence (RFE) and requested 
documentation to establish the work to which the Beneficiary will be assigned. The Director provided a 
list of suggested evidence that could be submitted to establish specialty occupation work availability for 
the Beneficiary. In response to the RFE, the Petitioner provided an updated letter from the end-client 
which described its business operations as follows: 
[The end-client] is a multi-channel marketing platform with solutions for e-mail campaign 
management, database information management, social media and mobile marketing, 
integrated data analysis, and media solutions for large enterprises. [The end-client] helps 
3 A petitioner submits the LCA to U.S. Department of Labor 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
3 
marketers evolve customer interactions via technology, insights and services across, 
mobile, web and social. 
The Petitioner also provided the end-client's order schedule for the services of a "Java Architect" for 
a six-month period of time commencing in May 2012 and ending in November 2012, a period of time 
that elapsed nearly six years prior to the requested employment start date in the petition. Notably, the 
order schedule did not mention the Beneficiary ( or any other intended consultant who would be 
assigned to provide the Java Architect services). Further, indicated that the location of the employment 
would be in Georgia, not in Oregon which is the only work location identified in the petition and 
supporting LCA. The order schedule also did not provide farther information specific to end-client's 
requirements for the position, or the nature of the project(s) to which the Java Architect would be 
assigned, other than to note that the incumbent would "[ w ]ork on Design & Develop using Java, 
[ d]evelop and support existing APis," and "[ w ]ork on web applications and Data Structures." The 
Petitioner did not how establish how this long-expired order schedule for employment at a location 
other than the sole work location specified in the LCA was relevant to the employment offer in the 
Petition. 
In light of the inconsistencies between the submitted end-client order schedule relative to the 
Petitioner's statements regarding the specifics of the Beneficiary's assignment, we conclude that the 
submitted contractual documentation is insufficient evidence of the terms and conditions of the 
Beneficiary's specific proposed employment at the end-client location. The Petitioner must resolve this 
inconsistency and ambiguity in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Though requested by the Director in her RFE, the lack of complete contractual documentation specific to 
the Beneficiary's employment is important because, in this case, the existence of the proffered position 
appears dependent entirely upon the willingness of the end-client to provide it. 4 Absent executed 
contracts and accompanying order schedules ( or similar documentation) between the Petitioner and 
the end-client, the record lacks evidence of any legal obligation on the part of the end-client to provide 
the position described by the Petitioner in this petition. 5 It is the Petitioner's burden to prove by a 
preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N 
Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. Here, the Petitioner did not document the contractual terms and conditions 
of the Beneficiary's employment as imposed by the end-client. See Defensor, 201 F.3d at 387-88 
(where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical). 
Though relevant, the letters from the end-client are not sufficient to fill this gap, as they do not 
sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, the end-client's 
4 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. ~ 103.2(6)(14). 
5 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"). 
4 
letters do not detail its legal obligation to offer employment to the Beneficiary beyond noting that the 
Beneficiary "shall be providing services" to the end-client; and that she is the Petitioner's employee 
who will work for the end-client "pursuant to our contract with [the Petitioner]." 
In summary, if we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 6 
Even if we were to set this foundational deficiency aside, we would still be unable to ascertain the 
substantive nature of the proffered position. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the proffered 
position's duties sufficiently 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. 
As detailed above, the record does not sufficiently establish that the Petitioner will actually place the 
Beneficiary at the end-client's location. Further, we are currently unable to ascertain the substantive 
nature of the proffered position. For example, as previously discussed, the Petitioner submitted the 
long expired order schedule for a six-month period of employment in Georgia (not Oregon) for a Java 
Architect. This material does not adequately address the end-client's minimum educational 
requirements; and the specific job duties and tasks to be performed by the Beneficiary in the proffered 
position. 
Additionally, the record lacks sufficient documentation regarding the Petitioner's and end-client's 
business activities; the project for which the Beneficiary will be assigned; and the actual work that the 
Beneficiary would perform during the intended period of employment; to establish the substantive 
nature of the work the Beneficiary will be performing for the end-client, and the associated applications 
of specialized knowledge that their actual performance will require. For example, the end-client provided 
a list of job duties for the proffered position, and indicated that the Beneficiary will work as an 
"independent contractor" and will be assigned to "a multi-phased project." However, the end-client has 
not explained what the "multi-phased project actually is. The Petitioner also provided various lists ofjob 
duties, and stated the Beneficiary "will be working on the development of applications monitoring tools 
to improve the proficiency for the end-client," but did not detail what applications monitoring tools were 
actually being developed by the end-client, and how these products would improve the end-client's 
business operations. Here, the record contains insufficient supporting documentation that identifies 
the scope, duration, and magnitude of the end-client's projects, to establish the substantive nature of 
the Beneficiary's role therein. 7 
Further, the generally-stated duties provided by the Petitioner and the end-client without the context of a 
specific project and the Beneficiary's actual role in the project adds little to our understanding of the 
Beneficiary's duties. For instance, the end-client indicates that the Beneficiary will "[w]ork with 
6 The agency made clear long ago that speculative employment is not pennitted in the H-1 B program. See. e.g.. 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
7 Defensor, 201 F.3d at 387-88. 
5 
operations, database administration and engineering teams to ensure all jobs are completed on time, 
and to customer specifications." However, though requested by the Director in her RFE, the Petitioner 
did not provide evidence of how the Beneficiary's specific job duties relate to the end-client's products 
and services. 8 
The Petitioner also describes various generic duties that software developers may typically perform, 
stating for instance that the Beneficiary will "[ m Jove the application to production environment," 
"develop the application code from scratch using the technologies needed - Java springs, JSP and 
Mysql," "ensure application high availability and failover architectures working with application 
server admin and unix teams," and "text and fix bugs the application." These descriptions identify the 
use of software, hardware, and data formats in the performance of generic information technology job 
functions which do not give context to the specific tasks that the Beneficiary will perform. Therefore, 
the duties as described by the Petitioner and the end-client, outside of the context of the end-client's 
information technology projects which require the Beneficiary's services, do not communicate (1) the 
actual work that the Beneficiary would perform, (2) the complexity, uniqueness, or specialization of 
the tasks, and (3) the correlation between that work and a need for a particular level education of highly 
specialized knowledge in a specific specialty. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines (1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate prong 
of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. We therefore conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 9 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 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"). 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; 
8 See 8 C.F.R. § 103.2(b)(14). 
9 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not fiuiher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of agency, 
we consider the hiring party's right to control the manner and means by which the product is 
accomplished. Among the other factors relevant to this inquiry are the skill required; the source 
of the instrumentalities and tools; the location of the work; the duration of the relationship 
between the parties; whether the hiring party has the right to assign additional projects to the 
hired party; the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether the work is 
part of the regular business of the hiring party; whether the hiring party is in business; the 
provision of employee benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 10 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
The Director denied the petition, in part, concluding that there was insufficient evidence from the end­
client in the record to establish that the Petitioner would exercise control over the Beneficiary's day­
to-day employment. 
10 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. 
7 
The Petitioner states in its response to the Director's RFE, and on appeal, that contractual evidence 
from the end-client is not required to establish its employer-employee relationship with the Beneficiary 
during the period of requested H-lB employment, asserting on appeal "it is the Petitioner who has the 
right to decide the job duties for the Beneficiary as well as assign her to any of the ongoing project(s) 
for various clients or specifically [the end-client]." The Petitioner cites to a webpage on the USCIS 
website that provides questions and answers on the topic of "employer-employee relationships" in H­
lB petitions, maintaining that "[a] number of different forms of documentation may be provided to 
demonstrate that a right to control exists." 11 However, the webpage also indicates that the Petitioner 
has the burden to establish that a qualifying employer-employee relationship will exist. In other words, 
the webpage does not alleviate the Petitioner of its burden to prove by a preponderance of evidence 
that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
As previously discussed, the record contains inconsistent documentation that does not sufficiently 
establish that the Petitioner will actually place the Beneficiary at the end-client's location, or that there 
is a legal obligation on the part of the end-client to provide the position described by the Petitioner in 
this petition. 12 Without contracts or agreements between all the parties that detail the terms and 
conditions of the Beneficiary's employment, we are not able to fully ascertain what the Beneficiary 
will do, where the Beneficiary will work, as well as how this impacts the Petitioner's ability to control 
and direct the Beneficiary's day-to-day work. 
Given this specific lack of evidence, the Petitioner has not corroborated who has or will have actual 
control over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's 
services. In other words, the Petitioner has not established it will have and maintain the requisite 
employer-employee relationship with the Beneficiary for the duration of the requested employment 
period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring the 
Petitioner to engage the Beneficiary to work such that it will have and maintain an employer-employee 
relationship with respect to the sponsored H-lB nonimmigrant worker). Again and as previously 
discussed, there is insufficient evidence detailing the specific projects to be performed by the 
Beneficiary, or for which company the Beneficiary will ultimately perform these services. 
Moreover, the Director concluded in her denial of the petition that while the Petitioner had provided 
letters from the end-client, the letters did not detail who in the Petitioning organization would actually 
exercise supervision and control over the Beneficiary's work at the end-client location, or how the 
Petitioner would provide supervisory oversight of the Beneficiary's work on the end-client's projects. 
We agree. The end-client's March 2018 and January 2019 letters each state: 
[The Petitioner] shall retain the authority to pay, hire, fire, and supervise [the 
Beneficiary]. We are not responsible for [the Beneficiary's salary], control, 
employment review process, compensation and other employment benefits. However, 
we do supervise IT contract workers such as [the Beneficiary] to a limited extent to 
ensure our project goals are achieved. This includes day to day communication with 
us regarding project updates. 
11 https://www.uscis.gov/news/questions-answers-uscis-issues-guidance-memorandum-establishing-employee-employer­
relationship-h-1 b-petitions (last visited Jan. 8, 2020.) 
12 Matter of Ho, 19 I&N Dec. at 591-92. 
8 
Considering the end-client's letters, it appears that the end-client will exercise a substantial level of 
supervisory control over the Beneficiary's day-to-day duties at the end-client location. On appeal, the 
Petitioner asserts that the Beneficiary "will directly report tq l[the Petitioner's president]," 
who will "have complete control over the duties performed by the Beneficiary." However, the 
Petitioner has not established how the Beneficiary's supervisor will actually be involved in the end­
client's information technology development projects such that he will be able to prospectively 
manage, direct, and/or control the manner and means by which the Beneficiary will work at the end­
client's work location. The Petitioner does not sufficiently distinguish how it exerts control over the 
Beneficiary's duties at the end-client's location, relative to the end-client's claimed supervision over 
the Beneficiary, which includes engaging in "day-to-day communication" with her regarding her 
services on its projects. 13 
Therefore, we conclude that the Petitioner has not demonstrated that it will exercise actual control over 
the Beneficiary's work. It appears that the Petitioner's role and responsibilities are essentially limited 
to the administration of the Beneficiary's payroll and other related benefits, including the filing of 
immigration benefits. While social security contributions, worker's compensation contributions, 
unemployment insurance contributions, federal and state income tax withholdings, and other benefits 
are still relevant factors in determining who will control the Beneficiary, other incidents of the 
relationship, e.g., who will oversee and direct the work of the Beneficiary, who will provide the 
instrumentalities and tools, where the work will be located, and who has the ability to affect the 
projects to which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without foll disclosure of all of the 
relevant factors, we are unable to conclude that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. For the reasons discussed, the petition cannot be approved 
for this additional reason. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
13 The Petitioner must resolve this ambiguity in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 l&N Dec. at 591-92. 
9