dismissed H-1B Case: Software Engineering

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MATTER OF V-T-S- LTD 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 9, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software and information teclp10logy services company, seeks to temporarily 
employ the Beneficiary as a "software engineer" 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. § 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ 
a qualified individual 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, California Service Center, denied the petition.. The Director concluded that the 
evidence of record does not establish that: (1) the Petitioner would engage the Beneficiary in an 
employer-employee relationship; and (2) the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a letter and much of the 
previously provided, evidence, and asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes 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 of any such employee." 8 C.P.R.§ 214.2(h)(4)(ii). -
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant in pertinent part as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
Matter of V-T-S- Ltd 
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 definyd at 8 C.P.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.P.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner would have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.P.R. § 214.2(h)(4)(ii), it is 
noted that the telms "employee" and "employer-employee relationship" are not defined for purposes 
of the H -1 B visa classification. Section 1 01 (a)( 15)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application (LCA) with the Secretary of 
Labor pursuant to section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). The intending employer is 
described as offering full-time or part-time "employment" to the H-1B "employee." Subsections 
212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe,Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, 
the regulations indicate that "United States employers" must file a Form I-129, Petition for a 
Nonimmigrant Worker, in order to classify individuals as H-1B temporary "employees." 8 C.P.R. 
§§ 214.2(h)(l ), (2)(i)(A). Finally, the definition of "United States employer" indicates in its second 
prong that the Petitioner must have an "employer-employee relationship" with the "employees under 
this part," i.e., the H-1B beneficiary, and that this relationship be evidenced by the employer's ability 
to "hire, pay, fire, supervise, or otherwise control the work of any such employee." 8 C.P.R. § 
214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the legacy Immigration a~d Naturalization Service nor U.S. Citizenship and Immigration 
Services (USCIS) defined the term's "employee" or "employer-employee relationship" by regulation 
for purposes of the H -1 B visa classification, even though the regulation describes H -1 B beneficiaries 
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Matter of V-T-S- Ltd 
as being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has 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 Mutual 
Ins. Co. v. Darden, 503 U.S. 318,322-323 (1992) (quoting Community 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 )ocation 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." 
!d.; 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)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context of the H-1B visa classification, the regulations define 
the term "United States employer'' to be even more restrictive than the common law agency 
definition. 1 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
1 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, ,e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
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, Matter of V-T-S- Ltd 
Accordingly, the term "United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.P.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
v 2 
absurd results. Cf Darden, 503 U.S. at 318-319. 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.P.R.§ 214.2(h).3 
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, USCIS 
must focus__, on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .... " (emphasis 
added)). 
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; se(! also Restatement (Second) of Agency § 220(2) (1958). 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)(1) (adopting a materially identical test and 
indicating that said test was basedon the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 
(5th Cir. 2000) (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 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, (1945)). 
3 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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(b)(6)
Matter of V-T-S- Ltd 
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 ofthe 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, 5,38 U.S. at 448:-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factqr 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 323-324. For example, while the assignment of additionalrrojects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
i 
Lastly, 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. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' ld. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner would be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, we find that the 
record of proceedings does not contain sufficient, consistent, and credible documentation confirming 
and describing the circumstances of the Beneficiary's claimed assignment to the end~client. 
Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has 
not been substantiated. 
On the H-1 B petition, the Petitioner stated that the Beneficiary would work at 
in Washington. This address corresponds to the work location of the claimed end-
Client, at whose location the Petitioner claims the Beneficiary would work pursuant to an agreement 
executed between the Petitioner and the mid-client.4 
4 The Petitioner submitted a Labor Condition Application (LCA) certified for the end-client's Washington location, as 
well as the Petitioner's Illinois location. However, the Petitioner clarified that it was "never the 
position of [the Petitioner] that [the Beneficiary] would be working at [the Petitioner's] location." The Petitioner 
5 
Matter of V-T-S- Ltd 
In support of its assertion that the Beneficiary would be working on a project at the end-client's 
location, the Petitioner submitted an agreement entitled "Recruitment Services Agreement," 
executed between the Petitioner and the mid-client on April 20, 2010. The Petitioner also submitted 
an undated purchase order, which listed the Beneficiary as the consultant who would work at the 
end-client's Washington location with a start date of September 21,2015. The purchase order stated 
that it was governed by the terms of "Subcontractor Agreement" executed by the Petitioner and the 
mid-client on April 7, 2008. The record of proceedings, however, does not contain the referenced, 
2008 subcontractor agreement. Without the said 2008 subcontractor agreement, by which the 
purchase order is governed, we are unable to ascertain whether the Petitioner would in fact engage 
the Beneficiary's services pursuant to this purchase order. 
The Petitioner also submitted a master service agreement between the mid-client and the end-client, 
which is effective until "March 31,2016 (or earlier)." Accompanying this master service agreement 
is a statement of work entitled "Amendment No. 002 to Statement of Work No. 
20120125.058.S.045" between the mid-client ("supplier") and the end-client, effective February 1, 
2015, to January 31, 2016. Importantly, this statement of work contains two tables listing the 
"supplier resource type," but neither table lists the Beneficiary's claimed title of "software 
engineer." 5 Therefore, we are unable to ascertain whether this statement of work specifically 
pertains to the Beneficiary. 
Even if the Beneficiary were included in the above statement of work, this agreement ends in 
January of2016. The evidence of record does not contain other contractual agreements between the 
mid-client and 1 the end-client specifically for the Beneficiary's services beyond 2016. The 
Petitioner, in comparison, is requesting to employ the Beneficiary until2019. 
On appeal, the Petitionyr acknowledges that the statement of work expires on January 31, 2016. 
However, the Petitioner states that "presumably" a new SOW will be executed. The mid-client's 
letter states that the Beneficiary's assignment is "long term in nature" and has been "extended 
multiple times in the past." The letter further states that the Beneficiary's assignment is expected to 
get extended beyond the current assignment of three years. But the evidence of record does not 
support these assertions, as there is no valid agreement between the mid-client and the end-client 
beyond 2016, and there are no copies of previous agreements. Similarly, one of the end-client's 
letters stating that the end-client "would like to engage [the Beneficiary's] services for a minimum of 
three years until end of 20 18" is not corroborated by other evidence in the record. "[ G ]oing on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings." Mqtter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
continued to state that it listed its Illinois location on the LCA "in case [the Beneficiary] had to abruptly come off of the 
[end-client] project" 
5 The tables list the following resources: test analyst Ill, senior test analyst, SDET, test lead II, test, lead senior, test 
analyst II, and QA & test program manager. Certain information, including the number of resources and each position's 
hourly rate, appears to have been removed from the submitted copies. 
I ' 
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Matter of V-T-S- Ltd 
For all these reasons, we find that the Petitioner has notsubstantiated the existence of the work to be 
performed by the Beneficiary at the claimed end-client's work site. Consequently, the record is 
insufficient to establish that the Petitioner would in fact engage the Beneficiary in an employer­
employee relationship. 6 
However, even if we were to ignore this foundational deficiency, we would still find the evidence of 
record insufficient to establish the requisite employer-employee relationship between the Petitioner 
and the Beneficiary. This is because the Petitioner, which is located in Illinois, has not explained 
and documented in detail how it wo.uld supervise and otherwise control the Beneficiary's day-to-day 
activities while he works for the claimed end-client in the State of Washington. 
Despite the Petitioner's- repeated claims that it would maintain control over the Beneficiary, the 
evidence of record does not sufficiently derponstrate how the Petitioner would supervise and 
otherwise exercise control over the Beneficiary's employment. For example, the Petitioner's 
organizational chart does not clearly depict who would supervise the Beneficiary: the chart appears 
to depict the Beneficiary as simultaneously supervised by unnamed "team leads," the vice president 
of product development, and the vice president of solutions. The chart also does not contain 
additional information about these employees' names, job duties, and work locations. The Petitioner 
has not ~stablished whether any o:fthese apparent supervisors would also be working for the claimed 
end-client in Washington and could therefore supervise the Beneficiary's daily work. 
The Petitioner submitted copies of its performance review for the Beneficiary's work for the time 
period of July 1, 2014, to June 30, 2015. The performance review identifies the Beneficiary's 
department and division as "information technology" and "network solutions group," respectively. 
6 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 
individual 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 individual 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 individual 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 indiv:idual 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). 
(b)(6)
Matter of V-T-S- Ltd 
However, the Petitioner's organizational chart does not depict an' "information technology" 
department or a "network solutions group." 
Moreover, the Petitioner's performance review lists the Beneficiary's supervisor as who 
is identified elsewhere in the record as the Petitioner's vice president. But the Petitioner has not 
provided further information and evidence regarding employment, such as his job 
duties and work location. 7 In fact, name does not appear in any of the Petitioner's 
quarterly wage and tax records - not even for the quarter ending on June 30, 2015, which 
corresponds to the time period in which he purportedly evaluated the Beneficiary's work as his 
supervisor. We note that, according to the Petitioner's quarterly wage and tax records, only the 
Beneficiary and one other employee, earned wages in the State of Washington in 
2015. 
The Petitioner states in its offer letter that it will review the Beneficiary's performance "at the end of 
[his] first three months of employment and annually thereafter." According to this letter, the 
1 Beneficiary will "provide reports concerning [his] work activities on a weekly basis." Nevertheless, 
the Petitioner has not submitted examples of the Beneficiary's weekly reports for the record. 
Contrary to the Petitioner's position that one or more of its employees will supervise the Beneficiary, 
the undated purchase order signed by the Petitioner and the mid-client identifies an 
employee of the end-client, as the Beneficiary's "supervisor." The master service agreement 
between the end-client and the mid-client likewise states that "[the end-client's] project manager 
may, at any time, make changes to the scope of Work." In this respect, the Petitioner acknowledges 
in its request for evidence response that the Petitioner and end-client share the "right to control" the 
Beneficiary's work, "[s]ince the Beneficiary may report to an onsite Manager at End-Client location 
just for the purpose of allowing End.,.Client to have knowledge of the pace at which Beneficiary is 
performing his assignment and not for the purpose of supervision." However, the test of control 
hinges upon who exercises actual control; not merely the right to control, the Beneficiary's work. 
Darden, 503 U.S. at 323-324. 
We also note the provisions in the master service agreement between the end-client and the mid­
client, which state that the mid-client "remains fully responsible for performance [of subcontracted 
work]" and "shall ensure that its representatives, including employeesand subcontractors ... will [] 
perform Work which conforms to the Specifications." These provisions indicate that the mid-client, 
too, has some extent of control. The Petitioner has not sufficiently explained the relationship 
between the end-client, mid-client, and Petitioner with respect to the actual day-to-day supervision 
and control pfthe Beneficiary's work. 
Overall, the evidence of record provides insufficient insight into how, from a remote location, the 
Petitioner would control the Beneficiary's work on a daily basis. While the Petitioner states 
name appears on the Petitioner's federal tax returns (statement 4) as a source of assets. He is not listed 
elsewhere in the tax returns. 
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Matter of V-T-S- Ltd 
repeatedly in its letters that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with 
the Beneficiary while he works at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative detail of the degree of supervision, direction, or 
control that the Beneficiary would receive from a long-distance employer. 
We will briefly address the invoices the Petitioner issued to the mid-client purportedly for the 
Beneficiary's services. We find that these invoices lack credibility, as some of the Petitioner's 
invoices were for work the Beneficiary purportedly performed while he was in H-1B status for other 
companies. In particular, the record reflects that the Beneficiary was approved for H-1B status from 
September 28, 2009, to approximately December 13, 2010, based on a petition filed for him by the 
mid-client.8 But the Petitioner billed the mid-client for the Beneficiary's services performed from 
August 2, 2010, to August 31,2010, and from October 1, 2010, to October 31,2010. The Petitioner 
has not explained why it would bill the mid-client for services he supposedly performed while still in 
the mid-client's employ.9 It is incumbent upon the Petitioner to resolve inconsistencies in the record 
by independent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
For all of these reasons, the evidence of record does not sufficiently demonstrate the requisite 
employer-employee relationship between the Petitioner and the Beneficiary. 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 foreign national 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 foreign 
national 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 full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H -1 B temporary 
"employee." 8 C.P.R. § 214.2(h)(4)(ii). Thus, we agree with the Director's decision that the 
8 Since December 14, 2010, the Beneficiary has been in H-1 B status based on a petition filed for him by the Petitioner. 
9 Even if the invoices were genuine and were considered together with the Petitioner's issuance of earning statements 
and Forms W-2 to the Beneficiary, this evidence is still insufficient to demonstrate an employer-employee relationship. 
The Beneficiary's salary and the method of payment is a factor to be considered. However, in some instances, a 
petitioner's role is limited to invoicing and proper payment for the hours worked by a beneficiary. In such cases, with a 
petitioner's role limited to essentially the functions of a payroll administrator, a beneficiary is even paid, in the end, by 
the end-client. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). It is therefore necessary to weigh and 
compare on all of the circumstances in the relationship between the parties in analyzing the facts of each individual case. 
9 
Matter of V-T-S- Ltd 
Petitioner has not demonstrated that it will have an employer-employee relationship with the 
Beneficiary. 
II. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner would employ the Beneficiary in a specialty occupation position. 
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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into th~ 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). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
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Matter of V-T-S- Ltd 
B. Proffered Position 
In the H-lB petition, the Petitioner stated that the Beneficiary would serve as a "software engineer" 
and would work off-site at the end-client's Washington location. The Petitioner provided the 
following duties of the proffered position and indicated the percentage of time the Beneficiary would 
spend on the job duties, as follow (verbatim): 
Responsibility % Oftime 
allocated 
·• Consulting with peers and business users to determine the 5% 
requirements of the current and future systems. 
• Provide the proof of concept by researching new and emerging 5% 
technologies to resolve the user issues pertaining to information 
systems. 
• Analyze, plan and test the lOT notifications rules engine to support 20% 
customer/client/system notifications which includes bl,lt not limited to 
plan changes, feature changes, device changes, usage, 
1 
porting, 
subscriber number changes and account moves. 
• Configure and then test the lOT notifications rules engine based on 10% 
the OEM/Business need. 
• Install, program, configure and test the Mobility customer offer rules 10% 
engine based on tenure, credit class, liability, device type, roaming 
and payment history to generate the wireless offers for National 
Retail Front Ends. 
• Analyze the existing lOT notification engine and the customer offers 5% 
engine to improve system performance. 
• Analyze server logs, generate reports and then work with end clients 5% 
to drive process improvements. 
• Review other projects to access risk and do perform impact analysis. 5% 
• Debug issues reported by clients and provide solution/fix. 5% 
• Create documentation/visuals on how to configure the tools for 10% 
testing. 
• Review Contivo mappings to ensure backward compatibility of the 5% 
middle-ware application. 
• Write complex SQL scripts to retrieve data and to perform database 5% 
validations and generate and validate XML scripts 
• Executing test plans to produce actual results, working with Business 5% 
Analysts/ clients to validate actual test results to expected results and 
ensure the test requirements are met. 
• Responsible for tFaining the business users and write project 5% 
documentaticm. 
11 
(b)(6)
Matter of V-T-S- Ltd 
The Petitioner indicated that the minimum education requirement for the proffered position is a 
"bachelor's degree in a field related to computer or information sciences" or a "relevant technology 
field." The mid-client and end-client provided the same duties listed above, and stated that a 
"Bachelor's degree or its equivalent in the related field" is the minimum requirement for the 
position. 
1 
C. Analysis ofthe Proffered Position 
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. 
For H-1B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1B caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, ~he Petitioner indicated that the Beneficiary would be employed at the end-client's 
location as a so,ftware engineer. However, we find that the Petitioner has not provided sufficient, 
credible evidence to establish the Beneficiary's employment for the entire validity period requested 
(March 2016 through March 2019). For example, and as already discussed, the contractual 
I 
agreements betweenthe Petitioner, mid-client, and end-client do not extend beyond 2016. Further, 
the statement of work between the mid-client and the end..:'client does not contain any reference to the 
Beneficiary's job title as a "software engineer." 
We now tum .to the end-client's letter listing the Beneficiary's "projects." According to this letter, 
the only "current" project, was performed throughout the first and 
second quarters of 2016 (through June 30, 2016). All other projects that the Beneficiary would 
purportedly be assigned, to - from the first quarter of 2016 through the fourth quarter of 2018 
(through December 31, 2018)- are specifically identified as "proposed" or "future" projects. The 
terms "future" or "proposed" indicate that these projects have not yet been secured. Thus, the 
Petitioner has not adequately established that it has non-speculative work for the Beneficiary for the 
entire period requested that existed as of the petition's filing date. USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.F.R. 103.2(b)(1). 
Without additional inf9rmation ,and documentation establishing what projects have been secured, 
and accordingly, the specific duties the Beneficiary would perform on these projects, we are unable 
to discern the substan~ive nature of the position and whether the position indeed ·qualifies as a 
12 
\._ 
Matter of V-T-S- Ltd 
specialty occupation. 1° Consequently, 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 
an4 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 altemate 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. As the 
Petitioner has not established that it satisfies 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. 
D. Requirements 
The Petitioner asserts that the position requires at least a bachelor's. degree in a computer-related 
field, or its equivalent. However, the letters from the end-client do not state the same requirement. 
The end-client's letters state only that the proffered position requires a "Bachelor's degree or its 
equivalent in the related field," but does not further define what "related field" or fields are sufficient 
by the end-client's own standards. We emphasize that, where the work is to be performed for 
entities other than the Petitioner, evidence of the client companies' job requirements is critical. 
Defensor v. Meissner, 201 F.3d at 387-88, 
If the end-client requires a general bachelor's degree without further concentration or specification, 
then this degree requirement is inadequate to establish that the proposed position qualifies as a 
specialty occupation. 11 A petitione\ must demonstrate that the proffered position requires a precise 
10 The Petitioner submits several agreements it had with various companies and asserts that these documents demonstrate 
the type of work the Beneficiary would perform "in case [he] had to abruptly come off of the [end-client's] project." 
However, these documents are insufficient to establish that the Petitioner has secured non-speculative employment for 
the Beneficiary for the requested employment period at the time the petition was filed. As previously noted, the 
Petitioner maintains that "[i]t was never the position of[ the Petitioner] that the beneficiary ... would be working at [the 
Petitioner's] location." We therefore cannot find these documents relevant to the proffered position. 
11 
A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty 
occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher 
degree in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 
at 147. 
It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference 
for certain qualifications for the position or the claimed requirements of a petitioner or, in this case, an end-client. See 
Defensor v. Meissner, 201 F.3d at 387. Instead, the record must establish that the performance of the duties of the 
proffered position requires both the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into 
the occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)( 4 )(ii) (defining the term "specialty occupation"). 
13 
Matter of V-T-S- Ltd 
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 general degree, without further specification, does not establish the position as a 
specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. Cf Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558, ·560 (Comm'r 1988) ("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."). 
E. Prior Approvals 
Finally, it is noted that the Beneficiary currently holds H-1B status. However, a prior approval does 
not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide 
sufficient documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 
2612 (Jan. 26, 1990). A prior approval also does not preclude USCIS from denying an extension of 
an original visa petition based on a reassessment of eligibility for the benefit sought. See Texas 
A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). We are not 
required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology 
Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). Ifthe previous nonimmigrant petitions were approved 
based on the same unsupported and contradictory assertions that are contained in the current record, 
the approvals would COJ1Stitute material rrror on the part of the Director.12 
III. CONCLUSION 
The evidence of record does not establish: (1) that the Petitioner would engage the Beneficiary in an 
employer-employee relationship; and (2) that the proffered position qualifies as a specialty 
occupation. The burden is on the Petitioner to show eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-T-S-Ltd, ID# 17341 (AAO Sept. 9, 2016) 
12 Our authority over the service centers is comparable to the relationship between a court of appeals and a district 
court. Even if a service center director had approved nonimmigrant petitions on behalf of a beneficiary, we would not be 
bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied,l22 S.Ct. 51 (2001). 
14