dismissed H-1B Case: Software Engineering

(b)(6)
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U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 12, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software services and internet consulting company , seeks to temporarily employ the 
Beneficiary as a "senior - 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. § 110l(a)(15)(H)(i)(b). The H-IB 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, California Service Center, denied the petition. The Director concluded the Petitioner 
did not 
establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
_Upon de novo review, we will dismiss the appeal. 
I. ISSUES 
As indicated, the issue before us is whether the proffered position qualifies as a specialty occupation . 
However, beyond the decision of the Director, we will first determine whether the record of 
proceedings establishes that the Petitioner will have a valid employer-employee relationship with the 
Beneficiary. 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "senior software 
engineer." The Petitioner also stated that the Beneficiary will work off-site at its client's ot1ices 
, located at m Ohio. In the letter of support , the Petitioner provided 
the following job duties for the position: 
• Technical consulting and development of application m HTML5 , CSS3, 
JavaScript and JQuery. 
/" 
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Matter of P-1-, Inc. 
• Analyze [sic] the business requirements and determining technical feasibility of 
implementing them. 
• Participating in the design review with the development team and provide review 
comments. 
• Identifying gaps in the backend core services layer for achieving desired 
functionality. 
• Defect [sic] fixes for issues found in continuous integration of iterative 
application builds. 
• Scheduling, identifying project development milestones and tracking progress 
against these milestones. 
• Coordinating with offshore team to implement the design for new requirements. 
• Conducting meetings with offshore team and provide regular updates to the client 
across various phases. 
• Coordinating with the Integration test teams in planning and executing the end to 
end QA and product testing. 
• Providing warranty support for the project after production deployment. 
• Coordinating in fixing the reported issues found in production. 
The Petitioner did not state its educational requirement for the position. 
1 
In response to the Director's request for evidence (RFE), the Petitioner clarified that the end-client is 
and provided a letter from The letter confirms that 
has engaged the services of the Petitioner to provide information technology consulting services. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will 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.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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 
1 
The Petitio~er did not claim that the position requires 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 requirement for entry into the occupation, as 
required by the Act. See section 214(i)(l) of the Act. 
2 
Matter of P-1-, Inc. 
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 Code of Federal Regulations defines the term "United States employer" 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. 
8 C.F.R. § 214.2(h)(4)(ii) (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), notably 
the terms "employee" and "employer-employee relationship" are not defined for purposes ofthe H-lB 
visa classification. Section 101 ( a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) ofthe 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-IB 
temporary "employees." 8 C.F.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-1 B 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.F.R. § 214.2(h)(4)(ii). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-lB beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." ld. Therefore, for purposes of the H-lB 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 Mut. Ins. Co. v. 
3 
Matter qf P-1-, Inc. 
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 tool's; 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." 
ld.; 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, "employrrent" in section 212(n)(l)(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-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
Specifically, the regulatory definition of "United States employer" requires H-lB 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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B employers and employees to have an 
2 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 definitioJil 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)(l )(A)(i) of the Act, or ''employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term ''United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
4 
Matter of P-1-, Inc. 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and employing 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.F.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 absurd results. C.Y. 
Darden, 503 U.S. at 318-19.3 
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)(l5)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).4 
Therefore, in considering whether a person is 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.F.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 ')'ill 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). 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 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 -1 B 
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). 
3 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)). 
4 
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-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
5 
(b)(6)
]!..fatter of P-1-, Inc. 
Notably, however, 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 exists. Furthermore, not all or 
even a majority of the listed criteria need be met; hO\vever, 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)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the rightto 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
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."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
As a preliminary matter, the Petitioner has not established the duration of the Beneficiary's 
employment for the entire requested period. On the Form 1-129, the Petitioner requested that the 
Beneficiary be granted H-1B classification from June 17, 2016, to May 30, 2019. However, the 
Petitioner has not submitted supporting documentation to substantiate that the Beneficiary will be 
engaged at the client location during the entire period of the requested visa. For instance, the 
Petitioner submitted an amendment to a Master Services Agreement (MSA) between itself and 
reflecting that the Beneficiary would be assigned to from November 1, 
2015, to April 30, 2017. Further, the Petitioner provided two project summary documents 
referencing an "ongoing project" with the Petitioner listing an "estimated" project period of July 1, 
2014, to May 31, 2017. Therefore, the evidence of the record is not only inconsistent as to the 
timing of the Beneficiary's assignment, but it is also not in concert with the requested period of 
employment stated as ending on May 30, 2019. The Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582,591-92 (BIA 1988). 
In its appeal, the Petitioner states that it "is unable to provide documentation demonstrating that the 
project will last until the employment end date since and [the] Petitioner have had the practice 
where Petitioner obtains short term approvals." The Petitioner indicates that based on past practice 
"there is no reason to believe that this project will not be further extended, close to the time of its 
expiration." In support of this assertion on appeal, the Petitioner submits another amendment to its 
6 
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Matter of P-1-, Inc. 
MSA with dating from 2014-15 which lists a number of other Petitioner employees engaged 
at the end-client location. The Petitioner states that this demonstrates that it has numerous projects 
with and that it has been engaged in "short term renewals" with this client since 2011. 
We do not find the Petitioner's assertions and the additional evidence persuasive in establishing the 
Beneficiary's employment for the entire requested peri~d. First, the amendment to the MSA and 
internal reports from indicate that the Beneficiary ' s engagement will only continue until April 
or .M._ay 2017. Although the Petitioner asserts that there )s "no reason to believe" that the 
engagement of the Beneficiary will continue throughout the entire requested period, it does not 
submit probative evidence substantiating additional projects or specific work for the Beneficiary for 
this entire time. Further, we do not find the previous amendment to the MSA from 2014-15, 
completely unrelated to the Beneficiary's assignment , convincing in demonstrating the Beneficiary ' s 
employment for the entire requested period . Indeed, the previous amendment and the Petitioner's 
statements reflect that the Petitioner and its end client are engaged in a series of short term annual 
renewals with respect to the allocation of resources , leaving further question that the Beneficiary 's 
work is definitivel y established for the entire requested period. A petitioner 's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of proof , 
particularly when supporting documentary evidence would reasonably be available. See Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o.fTreasur e Craft o.fCal., 14 I&N Dec. 
i 90 (Reg'l Comm'r 1972)); see also Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
Petitioner must support its assertions with relevant , probative, and credible evidence. See Matter o.f 
Chawathe, 25 I&N Dec. at 376. 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. 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)(l). A visa petition may not be approved based on speculation of future eligibility 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Thus, even if it were found that the 
Petitioner would be the Beneficiary's United States employer as that term is defined at 8 C.F.R. § 
214.2(h)(4)(ii), the Petitioner has not demonstrated that it would maintain such an employer-employee 
relationship for the duration of the period requested . 5 
5 Speculative emplo yment is not permitted in the H-1 B program . For example , a 1998 proposed rule document ed this 
position as follows : 
Historically , the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined , prospective employment. The H-1 B 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 contr acts. 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) of the Immigration and Nationality Act (the " Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
(b)(6)
Matter of P-1-, Inc. 
Furthermore, applying the Darden and Clackamas tests to this matter, we find that the evidence of 
record does not sufficiently establish that the Petitioner will be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-1 B temporary "employee." 
Specifically, we find that the record of proceedings does not contain sufficient, consistent, and 
credible documentation confirming and describing who exercises control over the Beneficiary. 
As noted, tlie Petitioner states that the Beneficiary will work for the end-client at its work-site 
in OH. The Petitioner asserts that it has submitted sufficient evidence to demonstrate by 
a preponderance of the evidence that it will control the Beneficiary while he is assigned to the end­
client's location. In response to the RFE, the Petitioner submitted an employment letter between 
itself and the Beneficiary detailing his compensation and benefits, cause for his termination, and 
"other responsibilities both parties have towards each other." The Petitioner provided an 
organizational chart reflecting that the Beneficiary would re ort to Director of 
who in turn is ~upervised by Senior Vice President , 
The Beneficiary's employment letter dated July 8, 2016, indicates in paragraph 6 
that the Beneficiary will report directly to "who will be solely responsible for 
[the Beneficiary 's] work allocation , reviewing quality of output and for assessing [his] 
performance." In addition, the Petitioner provided a letter from stating that the Beneficiary 
will not be employed by the company, that the Petitioner's professional s "will be directed and 
controlled by [the Petitioner], and that the Petitioner will pay their salary and benefits and "maintain 
the ultimate decision with respect to the professionals ·employment." 
However, the Petitioner provided other .conflicting evidence leaving question as to whether it 
actually controls the Beneficiary's work on a daily basis. On appeal , the Petitioner submits an 
amendment 
to its MSA with from 2014-15 , which is not specific to the Beneficiary , but which 
reflects that the Petitioner had 46 employees assigned to the end-client during these years. The 
amendment also indicated that/ the "supplier relationship manager " was the aforemention ed 
the Beneficiary's stated supervisor in his employm ent letter. Further, the most 
recent MSA covering 2016-17 includes nearly 69 Petitioner employees assigned to the end­
client, including the Beneficiary. As noted, the Petitioner provides an organizational chart reflecting 
that the Beneficiary will be supervised by and an employment letter that he will be 
overseen daily by asserted supervisor in the organizational 
chart. However , it is questionable that and/or who hold titles 
indicating that they are responsible for sales related work, can provide daily supervision and work 
assignments to 69 information technology subordinates on a daily basis. 
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 B 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, 
199&) (to be codified at & C.F.R. pt. 214). 
8 
(b)(6)
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Matter of P-1-, Inc. 
Otherwise, the Petitioner has not articulated or documented who will be responsible for assigning 
and controlling the Beneficiary's daily work, suggesting that this direction may be provided by the 
end-client. Indeed, a internal report on the project reflects that there is a project manager, 
assigned to the Beneficiary's project, and his role with respect to the 
Beneficiary's proposed assignment is not explained. Although the Petitioner submits a letter from 
stating that the Beneficiary is not employed by the end-client and that the Petitioner provides 
his salary and benefits, this letter does not provide any detail or probative information on how, and 
by whom, the Beneficiary will be directed. 
Further, the terms of the MSA between the Petitioner and also suggest that the end-client will 
have a significant amount of daily control over the Petitioner's employees. For instance, section 65 
of the agreement indicates that the Petitioner's employees will receive a identification badge, 
that they must comply with all employee requirements, and undergo fingerprinting and drug 
tests conducted by the end-client. Further, section 6.7 "Replacement of Supplier Personnel" reflects 
that has wide ranging discretion to replace any of the Petitioner's assigned employees, while 
6.8 states that Petitioner employees are bound to adhere to all standards of "personal and 
professional conduct." In addition, the MSA includes an exhibit setting forth an extensive list of 
information security requirements which Petitioner employees must follow while on location. 
As such, although the MSA states generally that Petitioner's employees will remain just that, and not 
be considered employees of its actual terms are indicative of a large degree of oversight and 
control by once these employees are assigned. Indeed, it is not clear who \vill monitor 
compliance with 
these significant requirements while Petitioner employees are on assignment. 
The Petitioner does not submit clear objective explanations and evidence to refute these suggestions. 
For instance, the Petitioner does not provide credible evidence demonstrating the daily supervision 
of his information technology work by a Petitioner representative. This, and the evidence referenced 
above, suggests that the Beneficiary is likely acting independently to client needs as they arise rather 
than primarily taking direction from the Petitioner. Further, it is noteworthy that the letter from the 
end-client is from its "Executive Director & Assistant General Counsel" and not from an employee 
that will work with the Beneficiary on a daily basis describing his daily activities in detail and how 
he will not be primarily under the end-client's control. 
Although we do not doubt that the Beneficiary is likely being paid and that his benefits are being 
administered by the Petitioner, the preponderance of the evidence appears to indicate that the 
Beneficiary is primarily under the direction of the end-client and that he only occasionally checks in 
with the Petitioner as to his progress. While payroll, tax withholdings, and other employment 
benefits are 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. Here, we find that the 
preponderance of the evidence demonstrates that the Beneficiary will be primarily under the control 
of the end-client and not the Petitioner. 
9 
Matter of P-I-, Inc. 
Based on the above, the Petitioner has not established that it qualities as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). The Director's decision must be affirmed and the petition 
denied on this basis. 
IV. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will 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 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 normallyrequires 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. Cherto.fj; 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement i,n a specific specialty" as "one 
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Matter ~fP-1- , Inc. 
that relates· directly to the duties and responsibilities of a particular position"); Defensor, supra, 
201 F.3d at 387. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below , we determine that the 
evidence is insufficient to establish that the proffered position qualifies for classification as a 
specialty occupation . 
Here, the record of proceeding is absent sufficient information from the end-client regarding the 
specific job duties to be performed by the Beneficiary for that company. The end-client letter makes 
no mention of the Beneficiary's job duties and does not convey the substantive nature of the 
proffered position and its duties. As recognized in Defensor, it is necessary· for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location(s), as 
well as any hiring requirements that it may have specified, in order to properly ascertain the 
minimum educational requirements necessary to perform those duties. See Defensor , 201 F.3d at 
387-388. In other words, as the nurses in that case would provide services to the end-client hospitals 
and not to the petitioning staffing company, the petitioner-provided job duties and alleged 
requirements to perform those duties were irrelevant to a specialty occupation determination. See id. 
Here, the record is insufficient to establish that, in fact, the Beneficiary would be performing 
services for the type of position for which the petition was filed, in this matter, a senior software 
engineer. Accordingly, we concur with the Director's determination that the record is insufficient to 
establish that the duties of the proffered position comprise the duties of a specialty occupation. 
Further, the Petitioner did submit a letter explaining the Beneficiary 's duties, but these duties are 
vague and convey only general tasks and not the specific work and assignments to be completed by 
the Beneficiary. For example, the letter from the Petitioner lists duties such as "technical consulting 
and development of application[ s ]," "analyz[ing] business requirements and determining technical 
feasibility," "participating in design review with the development team," "identifying gaps in the 
backend services layer," formulating "defect fixes for issues," amongst others. The letter also makes 
reference to "HTML5, CSS3, JavaScript and JQuery," applications with which the Beneficiary will 
work. However , the letter, nor other evidence , explains the nature of these applications or the 
specific work to be performed by the Beneficiary at the end-client location . The record of 
proceedings does not. contain a more detailed description explaining what particular duties the 
Beneficiary will perform on a day-to-day basis, nor is there a detailed explanation regarding the 
demands, level of responsibilities, complexity , or requirements necessary for the performance of 
these duties (e.g., what "HTML5, CSS3, JavaScript and JQuery" are and what body of knowledge is 
required to perform the duties). In fact, the amendment to the MSA indicates that the Beneficiary 
will be assigned to ' and that his skills are in "Javascript, " but the record does 
not otherwise explain in detail this project or the Beneficiary's skills. Further, the end-client letter 
makes no reference to the specifics of the project. 
II 
Matter of P-1-, Inc. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore 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 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. 
/ 
Furthermore, even if the Petitioner had established the substantive nature of the Beneficiary's 
position, it has not, at minimum, articulated what bachelor's degree in a specific specialty is required 
for the proffered· position. As stated previously, 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. Here, the Petitioner has not articulated what bachelor's degree in a specific 
specialty is required for the position, but merely stated that the Beneficiary is qualified for the 
position. It is 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. See Defensor, 201 F.3d at 384, 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"). 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cann9t be found that the proffered position qualifies for classification as a 
specialty occupation. For this additional reason, the petition cannot be approved. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fP-1-, Inc., ID# 186588 (AAO Jan. 12, 2017) 
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