dismissed H-1B Case: Software Engineering

MATTER OF K-G-I-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 15,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a technology consulting and staffing services company, seeks to temporarily employ 
the Beneficiary as a "software engineer" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's decision was in 
error. 
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. 
Matter of K-G-1-S-LLC 
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: 
(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. Cherto.IJ, 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. Analysis 
Upon review of the entire record and for the reasons set out below, we determine that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation.' 
The Petitioner indicated that the Beneficiary will be employed in-house as a software engineer. 
However, we find that the Petitioner did not provide sufficient, credible evidence to establish in­
house employment for the Beneficiary for the validity of the requested H-lB employment period .. 
The Petitioner initially stated in its support letter, "[t]he major assignments for this individual [are] 
to develop our company software products and assist our marketing departments to promote our 
1 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 
products."2 The Petitioner, however, did not provide any information regarding its software product 
in its initial submission. 
In response to the Director's request for evidence (RFE), the Petitioner indicated that the Beneficiary 
would work on a client project. However, the Petitioner provided inconsistent information regarding 
what project the Beneficiary would work on. Specifically, the Petitioner stated that it will "complete 
the development of [client] Product named "Music Festival Application" and provided a list of skills 
and time that the Beneficiary would spend on each duty. However, in another document titled 
"Itinerary of Work to be Performed by Beneficiary," the Petitioner described the product as "S4 
Workflow.'' 3 Then later in the same document, the Petitioner listed "Music Festival Application" 
under "Initial Work by Beneficiary." 
Even if we assume that the Petitioner had sufficiently established that the Beneficiary would work 
on "Music Festival Application," the Petitioner has not provided reliable documents from the end­
client that describe the duties and requirements for the project. 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 proposed job duties and the minimum educational requirements 
necessary to perform those duties. 
The Petitioner submitted letters and 1tmerary from the end-client, but the documents contain 
discrepancies that undermine the authenticity of the documents. For example, the list of duties from 
the end-client's unsigned letter, is verbatim from the Petitioner's itinerary and contains the same 
grammatical errors. For example, the document states, in part, the following (note: errors in original 
have not been changed): 
2 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." 
3 In response to the RFE, the Petitioner submitted a brochure that states (errors in the original text have not been 
changed): "S4 Workflow is the product, using this we can create the workflows for different business requirements 
related to various industries. In S4 workflow we are using the Spreadsheet to create the different activities based on the 
requirement/s. This will give the flexibility to create and use the workflows quickly and hence this will stand as the very 
useful took in the current trend." The Petitioner did not submit any evidence of contracts with clients regarding this 
software product. 
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Matter of K-G-1-S- LLC 
• Being the CHANGE MANAGER of my team, my responsibility is to be present 
in CCB (change control board) meeting 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 Change 
management team. 
• Being Problem Manager of my team, my responsibility is to drive all the SEV -1 
calls, preparation of RCA document and presenting them in RCA meetings with 
customer. 
Both documents use first-person pronouns for these two duties when other duties are described 
without any personal pronouns. Likewise, the itineraries from the end-client and the Petitioner also 
use identical language and both provide information about the end-client under the same section in 
the same format. When documents are worded the same and include identical errors, it raises 
questions regarding the source of the documents and its credibility. We further note that the 
documents from the end-client are either not signed or the signatures do not match. To determine 
whether a petitioner has met its burden under the preponderance standard, we consider not only the 
quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. 
See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010); Matter of E-M-, 20 l&N Dec. 77, 80 
(Comm'r 1989). 
Further, the duties from the end-client do not sufficiently delineate the nature of the Beneficiary's 
position. For example, the Beneficiary's duties include (errors in the original text have not been 
changed) "taking care of day to day operation activities at offshore which involves trouble shooting 
incident requests by maintained satisfactory SLA," and "majorly involved in initial OMC 
infrastructure set up of Noida as well as Bangalore to the Client's Network with IPLC and IPSEC 
VPN set-up, coordination with IS and Telco team including network; security, desktops, phones, 
etc." It is not clear how these duties relate to "Music Festival Application" project. Further, the 
end-client did not explain its "day to day operations activities at offshore" or what "set up ofNoida" 
involves. It is not clear what the Beneficiary would actually do on day-to-day basis and whether 
performance of these duties require theoretical and practical application of a body of highly 
specialized knowledge and at least a bachelor's degree a specific specialty, or its equivalent. 
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]." However, the Petitioner did not submit a schedule of 
service that defines the scope of services to be provided. While the record contains letters and 
itinerary from the end-client, as discussed, they contain inconsistencies that undermine the 
credi~ility of the documents. The Petitioner did not provide additional evidence of in-house projects 
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Matter of K-G-1-S- LLC 
for the Beneficiary. Thus, the Petitioner did not substantiate its ongoing project for the requested 
H-lB validity period. 4 
For the reasons discussed above, we are precluded from finding that the proffered position satisfies 
any of the 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. 
However, even if we assume that the documents are from the end-client and the documents 
sufficiently establish the substantive nature of the proffered position, the end-client does not indicate 
that the position requires a minimum of a bachelor's degree in a specific specialty. While we 
acknowledge that the itinerary from the end-client and the Petitioner both staty that (note: errors in 
original have not been changed)"[a]ll employees of the company are minimum bachelor's degree," 
neither document indicates that the end-client requires a minimum of a bachelor's degree in a 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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) ofthe 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 8 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 
specific specialty. Without more, these statements alone indicate that the proffered position is not in 
fact 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. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college 
degree for the sake of general education, or to obtain what an employer perceives to be a higher 
caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 
degree 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. 
In light of the above, we cannot find that the proffered position qualifies for classification 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 
respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or 
otherwise control the work oLiny such employee." 8 C.F.R. § 214.2(h)(?l)(ii). 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(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)(l) .... 
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Matter of K-G-1-S- LLC 
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-1B 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"). 
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-1B 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 
Matter of K-G-1-S- LLC 
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-lB temporary "employee." 
In response to the Director's RFE, the Petitioner asserts that it "has direct control of the employee." 
On appeal, the Petitioner submits a letter from the end-client which also states that the Petitioner 
"will have ultimate right to control and supervise [the Beneficiary]'s overall work." These claims, 
however, are contradicted by the submitted evidence. According to the "Employer Agreement" 
(agreement) between the Petitioner and the Beneficiary, the Beneficiary is "[a ]n independent 
contractor" who "is solely responsible for the services" he "provides to the Client." The agreement 
further states that the Beneficiary "acknowledges that [the Petitioner] has no right to control any 
aspect of the project." The Petitioner must resolve these inconsistencies in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-592 (BIA 1988). 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 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 ofK-G-1-S- LLC, ID# 415959 (AAO June 15, 2017) 
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