dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 8283560 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 2, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as an "embedded software engineer" under 
the H-IB nonimmigrant classification for specialty occupations . See Immigration and Nationality Act 
(the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S .C. § l 10l(a)(l5)(H)(i)(b) . The H-lB program allows a 
U.S. employer to temporarily employ a qualified foreign worker in a position that requires both: (a) 
the theoretical and practical application of a body of highly specialized knowledge; and (b) the 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum 
prerequisite for entry into the position. 
The Director of the California Service Center denied the petition , concluding that the evidence of 
record does not establish that: the proffered position qualifies as a specialty occupation ; and (2) the 
Petitioner will have an employer-employee relationship 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; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012) . Upon de nova review , we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
As noted, the Director concluded that the proffered position is not a specialty occupation . However , 
we find that conclusion premature , as the record of proceedings is not currently sufficient to establish 
that the certified labor condition application (LCA) corresponds to and supports the H-lB petition . 
The purpose of the LCA wage requirement is "to protect U.S. workers ' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers ." 1 It also serves to protect H-lB 
workers from wage abuses . A petitioner submits the LCA to the Department of Labor (DOL) to 
demonstrate that it will pay an H-lB 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 . 
1 See Labor Condition Applications and Requirement s for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) . 
§ 655.73l(a). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) 
determines whether the LCA's content corresponds with the H-lB petition. See 20 C.F.R. 
§ 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, .... "). 
In the LCA, the Petitioner designated the proffered position under the occupational category "Software 
Developers, Applications" corresponding to the Standard Occupational Classification 15-1132. 2 The 
Petitioner selected a Level II wage as consonant with the job requirements, necessary experience, 
education, special skills and other requirements of the proffered position. The Petitioner stated that 
the Beneficiary would work at the end-client's location in I I Iowa, pursuant to a contract 
executed between the Petitioner and the end-client. As noted 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. 
In the instant matter, the Petitioner provided the end-client's SAP Fieldglass Job Posting for the 
proffered position. The end-client's job posting states that the position requires a bachelor's degree 
in electrical, computer, software engineering, or computer science, along with "4+ years of experience 
as Software Architect experience with a minimum [ of] 2 years working as a software systems architect, 
specifically for AUTOSAR compliant systems" and "3+ years of experience with embedded software 
development for embedded microcontrollers in mobile applications." Considering the end-client's 
combined education and experience requirements, it appears the Petitioner's Level II wage rate 
designation was incorrect. 
To assess whether the wage indicated on the H-lB petition corresponds with the wage level listed on 
the LCA, USCIS applies DOL's guidance, which provides a five-step process for determining the 
appropriate wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). 
We will focus on the second step of DOL's aforementioned five step process for wage level 
determinations. The second step involves a comparison of the end-client's requirements to those listed 
in DOL's Occupational Information Network (O*NET). Software developers are classified within 
Job Zone 4 with a Specific Vocational Preparation (SVP) rating of "7.0 < 8.0." 3 This SVP rating 
means that the occupation requires "over 2 years up to and including 4 years" of specific vocational 
training. In the SVP context, the "over 2 years up to and including 4 years" consists of the two years 
one focuses on completing coursework for the specialty while obtaining a bachelor's degree, as well 
as "up to and including" four years of work experience. If the end-client requires a bachelor's degree, 
along with "4+" and "3+" years of work experience, a wage level increase is required as follows: 
2 See O*NET Summary Report for "Software Developers, Applications," SOC code 15-1132.00 at 
https://www.onetonline.org/link/summary/15-l 132.00 (last visited March 29, 2020). 
3 Appendix E of the DOL guidance provides that SVP is the amount of time for an individual to achieve average 
performance in a specific job-worker situation. The DOL guidance states: "This training may be acquired in a school, 
work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, 
apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs." 
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• If more than two years and up to three years of work experience is required (the low end of the 
experience and SVP range), a one level increase is required. 
• If more than three years and up to four years of work experience is required (the high end of 
the experience and SVP range), a two-level increase is required. 
• If more than four years of work experience is required (greater than the experience and SVP 
range) a three-level increase is required. 4 
The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-lB 
worker the higher of either the prevailing wage for the occupational classification in the "area of 
employment" or the actual wage paid by the employer to other employees with similar experience and 
qualifications who are performing the same services. 5 Based on the foregoing, it appears the Petitioner 
should have designated the proffered position at least at the Level III rate on the LCA. Doing so would 
have resulted in a higher wage than the $75,000 it was offering the Beneficiary. A Level III prevailing 
wage for the Software Developer, Applications category, for the relevant location and timeframe was 
$81,390. 6 
Therefore, we conclude that the Petitioner has not demonstrated that the LCA corresponds with and 
supports the petition. 
II. EMPLOYER-EMPLOYEE 
Nor has the Petitioner established that it will have an employer-employee relationship with the 
Beneficiary. 
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." 
4 See the DOL guidance. 
5 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Simeio Solutions, LLC, 26 I&N Dec. at 545-546. 
6 Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search Wizard available at 
http://www. flcdatacenter. com/O ES WizardStart.aspx. 
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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)). 
As such, 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 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. 
In the instant matter, the Petitioner asserts that the Beneficiary will be supervised by .... I ____ _. 
Practice Head and Client Account Manager. Moreover, the end-client letters state that the Petitioner 
"is responsible for. .. supervision (remotely and by traveling to [the end-client] offices as needed), 
performance evaluation, discipline and termination, payment of salary and determining eligibility for 
increases .... " However, as discussed by the Director, the Master Procurement Framework Agreement 
executed between the Petitioner and the end-client states that "[the end-client] may require [the 
Petitioner] to remove a Representative if dissatisfied with that individual's performance. [The 
Petitioner] shall promptly replace removed Representative with a qualified and experienced 
replacement." These statements appear to be at odds with the Petitioner's claims. The Petitioner has 
not sufficiently explained how it will supervise and control the Beneficiary's work while he is placed 
at the end-client's location. Thus, the Petitioner has not established that it will have an employer­
employee relationship with the Beneficiary. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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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