dismissed H-1B Case: Software Engineering

(b)(6)
MATTER OF S-A-T-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 12,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a custom computer technologies company, seeks to extend the Beneficiary's 
temporary employment as a "software engineer" under the H -1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily ,employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
-
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish a valid employef.employee relationship with the Beneficiary. 
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. THE PROFFERED POSITION 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a custom 
computer technologies company with 58 employees. The Petitioner indicated that the Beneficiary 
will work offsite in Utah. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification code and title 15-1132, "Software 
Developers, Applications." The LCA listed the aforementioned location of Utah as 
the Beneficiary's place of employment. 
In its support letter, the Petitioner confirmed its intent to employ the Beneficiary as a software 
engineer, and. listed the following job duties for her (verbatim): 
• Design, develop and implement customized business software applications in 
Java/J2EE. 
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MatterofS-A-T- , LLC 
• Develop software systems, including programmmg, documentation and 
testing procedures. 
• Support 
and maintain software functionality. 
• Maintain the system by monitoring, testing and correcting application defects. 
• Develop the user interface using JSP, HTML, CSS, and 
JavaScript. 
• Develop the application using various J2EE design patterns like MVC. 
• Create the technical design specifications for features. 
• Develop the components in the applications using Spring Framework and 
Spring Web Services. 
• Create Web Service clients using 
• Use Log4J for logging and debugging and CVS for configuration 
management. 
• Perform unit testing using soap UI and Junit. 
• Advise concerning maintenance of system. 
• Coordinate installation of software system. 
In a letter submitted in response to the Director's request for evidence (RFE), the Petitioner clarified 
- that the Beneficiary would be working in Utah at the offices of end-client 
pursuant to the Petitioner's agreement with 
II. EMPLOYER-EMPLOYEERELATIONSHIP 
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)(l5)(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 s~rvices ... 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 
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 defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
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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). 
Although "United States employer" is defined in the regulations at 8 C.P.R.§ 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the \Act indicates that an individual corning to 
the United States to perform services in a specialty occupation will have an "intending employer" who 
will file an LCA with the Secretary of Labor pursuant to section 212(n)(1) 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) of the Act, 8 U.S.C. 
§ 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" must 
file a Form I-129 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 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, eve·n though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
I 
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. 
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 
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Matter of S-A-T-, LLC 
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." 
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, "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. 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-IB 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-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB 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 
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. § 1002(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). 
However, 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)(l)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional commQn 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). 
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Matter of S-A-T-, LLC 
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. Cf 
Darden, 503 U.S. at 318-19.2 
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) of the Act, section 212(n) ofthe Act, and 8 C.F.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.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 will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). 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 based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-lB 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
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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Matter of S-A-T-, LLC 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
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 right to 
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. Analysfs 
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. 
The Petitioner asserted that the Beneficiary will work for the end-client, at the end-client's 
offices in Utah.4 The record contains, inter alia: (1) a Subcontractor Agency 
Agreement between and the Petitioner, executed on April 22, 2013, indicating that the 
Petitioner, as the vendor, will supply temporary workers to perform services for as outlined in 
Appendix A, Statement of Work; (2) Appendix A, Statement of Work, which presumably 
accompanies the agreement between the Petitioner and executed in April of2013 5; (3) a separate 
letter issued by entitled "Placement Confirmation," and two additional letters from 
identifying the Beneficiary by name and indicating that she would be assigned to by 
(4) emails'between the Beneficiary and in which verified her assignment there; and (5) 
4 
Preliminarily, we note the Director's finding that the Petitioner did not provide the name of the end-client to whom the 
Beneficiary Would render her services. Upon review, it appears that this was an oversight on the part of the Director, as 
the end-client's name is cl~arly stated in the documentation provided. The Director's statement to this effect is hereby 
withdrawn. 
5 A copy of Appendix A, Statement of Work, was not initially submitted with the petition. 
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Matter of S-A-T-, LLC 
the consulting agreement between and The Petitioner asserts that all of these 
documents satisfy its evidentiary burden and demonstrate the terms and conditions of the Beneficiary's 
employment. 
We disagree. According to the record, the Beneficiary is currently working and will continue to work at 
/ the offices ofthe end-client, However, as noted by the Director, the record of proceedings does 
not include any contract, agreement, statement of work, or other reliable document outlining in detail 
·the nature of the duties the ~eneficiary will perform for and the manner in which her work will 
be supervised. 
For example, the Appendix A, Statement of Work (SOW), identifies the Beneficiary as the 
Petitioner's representative who wouJd be assigned to work as a "Java Developer" for the end-client, 
from January 1, 2016, through December 31, 2016, with "assignment extensions possible." 
But 
this document holds little probative value toward ascertaining the actual terms and conditions of the 
Beneficiary's assignment to and, consequently, who actually would exercise primary control 
over determining and evaluating the efficiency, quality, and acceptability of the Beneficiary's 
day-to-day work. Other than' stating that bi-weekly invoices should be submitted to 
in the accounting department, the document identifies no personnel who will interact with or 
supervise the Beneficiary's work. For example, the SOW does not identify to whom the Beneficiary 
will report to at premises, from whom she would receive her assignments and daily instructions 
regarding her work, and the reporting relationship between and the Petitioner. 
The Placement Confirmation letter from indicates that "will' provide general guidance to 
the provided contract consultant." Similarly, the letters from state that its company, in 
conjunction with the Petitioner, "provide[ s] technical support when required." However, the Petitioner 
has not further explained the nature of the "general guidance" provided by to the Beneficiary, or 
the nature of the "technical.support" provided by to her. Without more, the statements made by 
appear to contradict the Petitioner's statements that "neither the end-client nor the vendor have 
direct control of decisions related to [the Beneficiary's] hiring, firing, supervision" and "[o]nly [the 
Petitioner] 
has the right to control the beneficiary's work." 
The Petitioner asserts that the Beneficiary's "immediate supervisor" is 
whom the Petitioner identifies on the Form I-129 as its president. However, the Petitioner has not 
provided additional details regarding such as where he works, whether he works for 
a different end-client, his job duties, and the nature and frequency of his interaction with the 
Beneficiary. Notably, the Petitioner's initial organizational chart does not depict as 
the Beneficiary's direct supervisor. Instead, the Petitioner's initial organizational chart depicts the 
Beneficiary as reporting to a resource manager as well as a separate technical manager, 
whom "manages all technical aspects of the project" including architecture, technical resolution, and 
project implementation guidelines. While the Petitioner's subsequent organizational chart depicts the 
6 The Petitioner initially submitted only the first and last pages of this document. On appeal , the entire document was 
submitted . 
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Matter of S-A-T- , LLC 
Beneficiary as directly reporting to - and also depicts the Beneficiary as supervising 
who is identified as a software engineer - the Petitioner has not explained these changes 
in its organizational hierarchy and pointed to where the truth lies. "[l]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N_ 
Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. /d. at 
591-92. 
The Petitioner submits additional documentation in support of its employer-employee relationship with 
the Beneficiary, including Application Support Documents, copies of the Beneficiary's performance 
evaluations, and status reports. However, we find that these documents do not establish that the 
Petitioner has the requisite employer-employee relationship with the Beneficiary as contemplated by the 
regulations. For example, while the performance evaluations appear to be completed by 
as the Beneficiary's supervisor, they nevertheless lack context with regard to how the 
evaluations were prepared. While they contain comments regarding the Beneficiary's work, they do not 
clarify the frequency of his interaction with the Beneficiary or whether he routinely works onsite as a 
supervisor at the Beneficiary's location. The omission of such critical details, coupled with the 
discrepancies noted above, render these documents of little evidentiary value. 
The status reports reflect that the Beneficiary is updating the Petitioner on work she has completed as 
well as her goals for the upcoming weeks. We note that there is no evidence with regard to the origin of 
these goals, suggesting that she likely is receiving direction on these items from the end-client, not the 
Petitioner. The fact that the Beneficiary is advising the Petitioner of project status and upcoming 
performance goals suggests that the Petitioner's role is not that of a delegate or supervisor, which once 
again undermines the Petitioner's claim that it controls the work of the Beneficiary. Moreover, the 
status reports are "reviewed arid approved" by the human resources manager, not as 
evidenced by the time sheets in the record which are also approved by this same individual. 
Finally, the record contains copies of Application Support Documents, which demonstrate the 
resolution of numerous problems arising on the Beneficiary's projects. However, while these 
documents appear to indicate that the Beneficiary is receiving some type of technical ;support, there is 
nevertheless no explanation of the nature of these documents and what they represent, who prepared 
them, or when they were prepared. Absent additional evidence explaining the relevance of these 
documents, their evidentiary value is diminished. 
Based on the discussion above, we find that the record lacks sufficient evidence outlining the terms and 
conditions of the Beneficiary's employment and, consequently, who actually exercises substantive 
control over the Beneficiary and the work that she is to perform. 
We do acknowledge the documentary evidence indicating that the Petitioner will be responsible for 
administrative matters such as dispensing pay to the Beneficiary, compliance with 
immigration-related requirements, and making contributions to taxes, social security, and workers 
compensation insurance for the Beneficiary. However, while payment of salary, federal and state 
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Matter of S-A-T-, LLC 
income tax withholdings, and other benefits are still relevant factors in determining who will control 
a beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, who will provide the instrumentalities and tools, where will the work be located, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be 
assessed and weighed in order to make a determination as to who will be the Beneficiary's 
employer. 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. 
For all of these reasons, the key element in this matter, which is who exercises actual control over 
the Beneficiary and her work, has not been substantiated. While the record contains multiple 
assertions from the Petitioner regarding its claimed right to control the work of the Beneficiary, it is 
noted that simply going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sojfici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter a/Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
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.F.R. § 214.2(h)(4)(ii). Thus, the Petitioner has not demonstrated that it will have 
an employer-employee relationship with the Beneficiary. Accordingly, the appeal will be dismissed 
and the petition will be denied on this basis. 
III. SPECIALTY OCCUPATION 
We also find the evidence of record insufficient to establish that the proffered position qualifies as a 
specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(I)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
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Matter of S-A-T-, LLC 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry i!lto the occupation in the United States. 
Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: r 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature. of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.P.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted the term "degree" in the criteria 
at 8 C.P.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 at 387. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum, for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court 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. The court held that the former INS had reasonably interpreted the statute and regulations as 
requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
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Matter of S-A-T- , LLC 
occupation on the basis of the requirements imposed by the entities using the beneficiary's services. 
Id Such evidence must be sufficiently detailed to demonstrate the type and educational level of 
highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. 
B. Analysis 
I 
We find the evidence insufficient to establish that the proffered position qualifies for classification as 
a specialty occupation. 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) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. 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 of proceedings is similarly devoid of sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary for that company. The only 
evidence contained in the record from the end-client is an email chain between the Beneficiary and 
an employee of containing a client letter drafted by the Beneficiary. According to the email 
correspondence, the Beneficiary asked the employee of to adopt the drafted letter, which 
provides an overview of her claimed assignment and associated duties. declined, noting that 
it does not issue such documents, and no other documentation regarding the Beneficiary's duties 
with is provided. / 
On appeal, the Petitioner asks us to accept this document as evidence of the Beneficiary's duties 
with the end-client, and points out th'at the employee never denied or contradicted any of the 
claims made by the Beneficiary in the drafted language. While that may be the case, there is no 
evidence in the record from the end-client to corroborate the claimed duties and scope of the 
Beneficiary's assignment.7 The Petitioner's letters, as well as the statements provided by 
describe the Beneficiary's job duties in brief, generalized terms that fall short of conveying the 
substantive nature of the proffered position and its constituent duties. 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 for For example, the Petitioner and state that the 
Beneficiary will "[ d]esign, develop and implement customized business software applications" but 
has not further explained the nature of these software applications. Also, although the letters 
reference an "information technology project of our client," there is no further explanation of this 
particular project. 
7 
The Board of Immigration Appeals has held that testimony should not be disregarded simply because it is 
"self-serving." See, e.g, Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, 
however: "We not only encourage, but require the introduction of corroborative testimonial and documentary evidence, 
where available." Id; see also Matter of Y-B-, 21 l&N Dec. 1136 (BIA 1998) (noting that there is a greater need for 
corroborative evidence when the testimony lacks specificity , detail, or credibility). 
I I 
(b)(6)
Matter of S-A-T-, LLC 
Nor is there a detailed explanation regarding the demands, level of responsibilities, complexity, or 
requirements necessary for the performance of these duties as imposed by See id. (evidence 
of the client company's job requirements is critical). In fact, it is noted that, while the Petitiorier 
claims simply that only a bachelor's degree is needed, the Beneficiary's email to stated a 
requirement of a master's degree for the client letter. Again, "it is incumbent upon the petitioner to 
resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582 at 
591. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petition,er 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. · 
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.P.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. 
}\ccordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. For this additional reason, the petition 
cannot be approved. 
IV. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-A-T-, LLC, ID# 9786 (AAO Oct. 12, 2016) 
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