dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 8473362 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
The Petitioner, a talent acqms1t10n services and technology development company, seeks to 
temporarily employ the Beneficiary as a "SW Test Engineer Field Protocol Testing" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 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 that (1) it would have the requisite employer-employee relationship with the Beneficiary; 
and (2) the Beneficiary would be employed in a specialty occupation position . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We will first address the issue of whether the Beneficiary will be performing services in 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. 
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). 
B. Proffered Position 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will 
serve in the position of "SW Test Engineer Field Protocol Testing" (hereinafter "software test 
engineer."). Although the Petitioner's address is in I I Texas, the Petitioner stated that the 
Beneficiary would work for its end-client inl INew Jersey. 
On the labor condition application (LCA)1 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Occupations, All Other" 
corresponding to the Standard Occupational Classification code 15-1199. 
1 A petitioner submits the LCA to the U.S. Department of Labor (DOL) 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. § 655.73l(a). 
2 
C. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).2 
As a preliminary matter, the Petitioner indicated that the Beneficiary will work at the end-client site. 
As recognized by the court in Defensor, where the work is to be performed for entities other than the 
Petitioner, evidence of the client's job requirements is critical. Defensor, 201 F.3d at 387-88. 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. at 384. 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. 
Here, the record lacks sufficient substantive documentation from the end-client regarding the specific 
job duties to be performed by the Beneficiary. The record contains one letter from the end-client, 
which states as follows: 
[The end-client] has a long term Master Services Agreement with [the Petitioner] for 
the provision of temporary engineers and other professionals for network engineering 
and R&D projects. These projects involve both systems and test engineering with 
regard to LTE networks. [the Petitioner's] employees may be called on to work directly 
with [the end-client's] clients (carriers), gathering requirements, supporting live 
networks, implementing new technology, and maintaining the overall infrastructure. 3 
Here, both the Petitioner and the end-client make clear that the Beneficiary will be assigned to work at 
the end-client's location. Under these circumstances, evidence of the work the end-client would assign 
to the Beneficiary and evidence of the educational requirement it imposes for the performance of that 
work are indispensable. 
The end-client's letter indicated that the Beneficiary would be working on "a project" until 2022 and 
"possibly beyond," and stated that he will provide the following services: 
• Responsible for the verification and validation of latest test devices and 
software applications. - 15% 
• Includes executing field test in a mobile or stationary LTE and CDMA and/or 
GSM environment. - 15% 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 Despite the end-client's reference to a Master Services Agreement between the parties, a copy of this document was not 
submitted into the record. 
3 
• Use of logging tools and analyzing issues from logs, call failure and call drop 
analysis. - 15% 
• Prepare test reports on readiness of software after analysis of test results 
(Pass/Failures). - 15% 
• Report defects found during testing on the test management system and track 
defect status periodically. - 15% 
• Analyze carrier requirement documents/3GPP specifications, develop test cases 
and create drive routes. - 10% 
• Communicate effectively with other team members, developers in US and 
located around the globe. - 10% 
• Assist seniors in preparation of weekly progress reports, performing work audit 
and device inventory tracking. - 5% 
Aside from this letter, there is no other documentary evidence in the record pertaining to the nature of 
the Beneficiary's assignment with the end-client or the project upon which he will work. The record 
of proceedings does not contain a contractual agreement between the Petitioner and the end-client, nor 
are there work orders, statements of work, or other similar documents confirming the existence of a 
specific project requiring the Beneficiary to perform specialty occupation work. Although the 
end-client states that the Beneficiary will work on "a project," the name of the project, and its 
associated requirements and deliverables, has not been identified. 
The quality and consistency of the end-client information in this case is particularly important, given the 
absence of any other contractual documents. However, the end-client does not provide any information 
on the specific project the Beneficiary will assist with as a "software testing engineer." For example, the 
end-client did not identify the project, nor did it explain the scope and mission of the project, the team 
members on the project, how the responsibilities are delegated to the team members; the timeline of the 
project; or the complexity and milestones of the project. Moreover, the duties set forth in the end-client 
letter are generalized in nature, rendering it difficult to determine the true nature of the Beneficiary's 
duties and whether those duties encompass specialty occupation work. 
We note that the Petitioner provided a more detailed statement of the duties of the proffered position 
than articulated by the end-client in its letter, and relied on this description to establish that the 
proffered position requires the Beneficiary to perform services in a specialty occupation despjt: the 
evidentiary deficiencies noted above. Specifically, the Petitioner submitted a letter byl I I I, a professor at I !Community College. In his letter, Professorl7 relies on the 
duty description set forth by the Petitioner (not the end-client), and concludes tiiat'the duties "are 
specialized, complex, and sophisticated" and thus specifically satisfy the requirements of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)( 4). The professor also concludes that "[a]n attainment of anything less than a 
Baccalaureate degree in Computer Information Systems (CIS) or its equivalent will not meet the 
requirements for this job." 4 
4 Professo~ I conclusion regarding the minimum educational requirements for the proffered position contradicts the 
claims of the Petitioner and the end-client, who state that a bachelor's degree in engineering, electrical engineering, or a 
related discipline is required. No explanation for this discrepancy was provided. 
4 
Professor I I does not discuss the duties of the proffered position in any substantial detail in 
relation to the project at the end-client. In fact, he does not reference the end-client assignment at all. 
His level of familiarity with the actual job duties as they would be performed in the context of the 
end-client's business has therefore not been substantiated. More
1
ver, hel provides insufficient analysis 
in explaining how he arrives at his conclusion. While Professor states that he evaluated many 
transcripts, has written numerous credentials evaluations, and has authored many expert opinion 
letters, there is no indication that he has conducted any research or studies pertinent to the educational 
requirements for the proffered position ( or parallel positions) or has been recognized by professional 
organizations that he is an authority on those specific requirements. Finally, the professor cites to 
Wikipedia numerous times in his letter. With regard to information from Wikipedia, there are no 
assurances about the reliability of the content from this open, user-edited Internet site. 5 
Therefore, the letter from Professor I lis insufficient to support the Petitioner's assertion that the 
proffered position qualifies as a specialty occupation. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). However, we will reject an opinion or give it less weight if it is not in accord with 
other information in the record or if it is in any way questionable. Id. 
In addition to the lack of a clear explanation of the duties to be performed by the Beneficiary, we note 
a further issue with regard to the ultimate end-user of the Beneficiary's services. The end-client states 
in its letter that that Beneficiary "may be called on to work directly with [the end-client's] clients 
(carriers)." It appears, therefore, that the services of the Beneficiary may possibly be subcontracted 
by the end-client to one or more of these additional clients/carriers, thus modifying the contractual 
path of the Beneficiary's assignment to add additional end-users of the Beneficiary's services and 
reducing the current end-client to merely a vendor. No additional information, such as the identity of 
these clients, their locations, and their specific needs and requirements should the Beneficiary be 
assigned to them to perform services, was submitted. Without documentary evidence that delineates 
the contractual terms between the Petitioner and the end-client, including the duties and the 
requirements for the position and the right of the end-client to assign the Beneficiary to perform work 
for additional entities not identified herein, we are unable determine the substantive nature of the 
proffered position. 
In summation, we conclude that the insufficient evidence from the end-client regarding the position 
and its requirements raises questions regarding the actual substantive nature of the proffered position, 
5 Online content from Wikipedia is subject to the following general disclaimer: ·'Wikipedia is an online open-content 
collaborative encyclopedia; that is, a voluntary association of individuals and groups working to develop a common 
resource of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. 
Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide 
you with complete, accurate or reliable information. 
That is not to say that you will not find valuable and accurate information in Wikipedia; much of the time you will. 
However, Wikipedia cannot guarantee the validity of the information found here. The content of any given article 
may recently have been changed, vandalized or altered by someone whose opinion does not conespond with the state of 
knowledge in the relevant fields. Note that most other encyclopedias and reference works also have disclaimers. See 
https://en.wikipedia.org/wiki/Wikipedia:General_ disclaimer (last visited Mar. 26, 2020). 
5 
which therefore precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because the substantive nature of the work 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. 6 
II. EMPLOYER-EMPLOYEE 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. Nevertheless, we concur with the Director's 
determination that the record as constituted does not establish that the Petitioner meets the regulatory 
definition of a United States employer under 8 C.F.R. § 214.2(h) (4) (ii) and will briefly address the 
issue below. 
The United States Supreme Court determined that where federal law fails to clearly 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)). 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." 
Id.; 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)). 
Without documentary evidence demonstrating the terms and conditions under which the Beneficiary 
will provide services for the end-client, including the manner in which his services may ultimately be 
6 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's assertions regarding the criteria under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
6 
subcontracted by the end-client to its own clients/carriers as suggested in its letter, we are not able to 
ascertain what the Beneficiary would do, where the Beneficiary would work, as well as how this would 
impact circumstances of his relationship with the Petitioner. 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). 
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 a 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 will 
the work be located, and who has the right or 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. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner 
would exercise complete control over the Beneficiary does not establish eligibility in this matter. 
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. 
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