dismissed H-1B Case: Software Engineering

(b)(6)
MATTER OF LHPS-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 8, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software service company, seeks to temporarily employ the Beneficiary as an 
"embedded software engineer" under the H-1 B nonimmigrant classification. 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-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 ofa 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 sufficiently establish that: (1) it qualifies as a United States employer with an 
employer-employee relationship with the Beneficiary; and, (2) the proffered position qualifies as a 
specialty occupation. The Petitioner then filed a motion to reopen and reconsider the Director's 
decision. The Director granted the motion, but affirmed her decision to deny the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the Petitioner did not establish an employer-employee 
relationship with the Beneficiary and that the proffered position is not a specialty occupation. Upon 
de novo review, we will dismiss the appeal. 1 
I. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary as a full-time "embedded software engineer " from 
October 1, 2015, to September 3, 2018, at an annual salary of $80,000. The Petitioner, which is 
located in Indiana, stated that the Beneficiary will work off-site for 
[end-client] in Michigan. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 
375-76 (AAO 2010) . 
Matter of LHPS-, LLC 
\ 
In response to the request for evidence (RFE), the Petitioner submitted a statement of work (SOW) 
that outlined the job duties the Beneficiary will perform as follows: 
• Create detailed software requirements documentation based on customer and internal 
specifications, review and clarifications. 
• Develop and document automotive quality embedded software algorithms based on 
software requirements, an existing modular platform framework and expectations of 
future reuse. 
• Implement- software designs in C code to automotive quality expectations utilizing 
existing development environments and processes[.] 
• Develop unit and integration level test plans and perform associated testing both on 
bench and in target applications. 
• Coordinate software issue investigation and resolution including bench and vehicle 
level troubleshooting both internally and onsite with customers[.] 
• Participate in global requirement, implementation and issue rev}ews both internally 
and with customers[.] 
• Integrate and release embedded software using an SVN version control system and 
automotive quality processes. 
• Create and setup reliable and configurable modular software development 
environments[.] 
• Improve a robust global platform to exceed automotive quality standards while 
supporting the flexibility to meet future application requirements with rapidly 
changing technologies. 
• Improve global software development processes to meet CMMI Level3 expectations. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Law 
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 
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Matter of LHPS-, LLC 
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.F.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.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.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 
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) 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)(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-lB temporary "employees." 8 C.F.R. § 214.2(h)(1), 
(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.F .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-lB visa classification, even though the regulation describes H-
1B beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
3 
Matter of LHPS-, LLC 
"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 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." 
!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 10l(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 ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
d fi . . 2 
e mttlon. 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of I 974 (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. 
I 992). 
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 2l2(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 
4 
Matter of LHPS-, LLC 
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-lB 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.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 318-19.3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional mast~r-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) of the Act, and 8 C.F.R. § 214.2(h).4 
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 -1 B nonimmigrant petitions, USC IS 
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 
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). 
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 
Matter of LHPS-, LLC 
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 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 
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 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 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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-1B temporary "employee." 
1. Supervision 
A key element in this matter is who would have the ability to hire, fire, supervise, or otherwise 
control the work of the Beneficiary for the duration of the H-IB petition. Upon review, we find that 
the Petitioner has provided inconsistent information regarding the Beneficiary's supervisor. Further, 
the Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, detailing 
6 
(b)(6)
Matt er of LHPS-, LLC 
the manner in which the Beneficiary's supervisor actually oversees, directs, and otherwise controls 
the off-site work of the Beneficiary. 
For example, in response to the RFE, the Petitioner stated that the Beneficiary's on-site manager is 
an employee of the Petitioner, and he "provides day-to-day instruction, project 
support, and work-related information to [the Petitioner's] employees on-site at (the end-client]." 
The Petitioner also claimed that they ensure "employees are meeting (the Petitioner's] standards 
through our On-Site Management program." However, in the same letter, the Petitioner stated that 
"(t]he Beneficiary's supervisor is the President of [the Petitioner's] Engineering 
Resources" and that ' is the director of the business unit to which (the Beneficiary] is 
assigned." 
The Petitioner indicated that information about how its managers oversee the employees was 
contained in its itinerary of services and employee handbook. We reviewed the Petitioner' s 
itinerary, which states that the Beneficiary's supervisor would be but that 
(not would be the on-site manager. The itinerary does not explain the role 
between and The organization chart lists as 
overseeing a number of employees, including the Beneficiary, however, the employees appear to be 
assigned at different companies. According to the organization chart, the Beneficiary is the only 
employee assigned to work for the end-client. Therefore, contrary to the Petitioner's statements that 
would work on-site with the Beneficiary, appears to be a roving manager 
for 15 employees (including the Beneficiary), most of whom work at different client-sites. Further, 
is not listed in the organization chart as being in the same division (LER technical 
organization) as the Beneficiary or Instead, she is in the engineering resources division 
and it does not appear that she works in the same office of which contradicts the 
Petitioner's claim that the Beneficiary was assigned to the business unit overseen by 
Further, is listed as the human resources officer for offices in Ohio as well as Michigan, 
and the manager of the OSM listed in the Beneficiary's division is who oversees 
as well as four other employees who appear to be in different locations from 
We have reviewed the employee handbook and do not find that it discusses the OSM program. 
However, according to the OSM program expectations 
submitted with the Petitioner's motion, the 
OSM program manager is expected to meet with his or her employees on a weekly or bi-weekly 
basis. Again, this contradicts the Petitioner's statement that is an on-site manager at the 
end-client location. Further, the OSM program expectations outline what employees can expect 
from the OSM program manager, including "monthly meetings with OSM's, sharing updates from 
[the Petitioner] regarding financials, company strategies or initiative, company announcements, 
etc ... " This demonstrates that, while the OSM program manager may have 
general oversight of the 
project, he will not manage the Beneficiary's day-to-day duties at the client site. 
From the evidence submitted, it is not clear exactly how the OSM works, how much time 
will spend at the client site, or who would actually oversee the Beneficiary's day-to-day 
(b)(6)
Matter of LHPS-, LLC 
work at the client site. Additionally, the Petitioner did not explain the discrepancies between its 
claims that _ would provide day-to-day support at the client site and the organization 
chart. "[I]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. Thus, we do not find that the Petitioner will assign 
and control the Beneficiary's work at the client site.5 
2. Relationship Between the Parties and Duration of the Project 
The Petitioner has not sufficiently established the relationship between the parties and that it has 
definite, non-speculative work for the Beneficiary for the entire validity period requested. 
The Staffing Agreement (SA), which is between the Petitioner and the end-client, was signed on 
March 31, 2015. The agreement states that the "[the Petitioner] and [the end-client] have reached an 
agreement whereby [the Petitioner], upon [the end-client]'s request, shall provide workers to 
supplement [end-client]'s workforce on a temporary basis under the terms and condition set forth in 
this Agreement." 
The Petitioner submitted an unsigned SOW between the Petitioner and the end-client with . a 
commencement date of April 1, 2015, and a termination date of April 1, 2016. The SOW lists the 
Beneficiary and the duties that will be performed by the Beneficiary for the end-client. In support 
of the motion, the Petitioner resubmitted the SOW, this time signed by both parties on September 18, 
2015·. 
On appeal, the Petitioner claims that the SOW is "not signed in the ordinary course ofbusiness," and 
that the "master agreement controls the legal relationship between the parties." Further, the 
Petitioner asserts that the SOW "[i]s a mere progress indicator for the types of services [the 
Beneficiary] will deliver in order for [the Petitioner] to achieve the milestones that it intends to 
achieve within a year." However, if it is the Petitioner's argument that the SOW is not controlling, 
this further raises questions regarding the nature and duration of the Beneficiary's claimed 
assignment to the end-client. Further, the itinerary states that "[the end-client] Purchase Orders take 
precedence over this Statement of Work," however, the Petitioner did not provide copies of any 
purchase orders. Therefore, we cannot determine if the information provided in the SOW regarding 
the duration or nature of the project has been amended or invalidated through any purchase orders. 
Without sufficient information regarding the Beneficiary's duties and duration of the project, the 
( 
5 The Petitioner submitted an offer letter to the Beneficiary for the position of embedded software engineer to commence 
employment on March 30, 2015. However, while an employment agreement may provide some insights into the 
relationship of a Petitioner and a Beneficiary, it must be noted again that 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."' /d. at 451 (quoting Darden, 503 U.S. at 324). 
8 
(b)(6)
Matter of LHPS-, LLC 
SOW does not establish availability of continued, non-speculative employment for the Beneficiary 
for the entire H-1B validity period.6 
The Petitioner also submitted an unsigned agreement letter from the end-client dated September 13, 
2012, almost three years prior to filing the current Form 1-129. The letter states that the end-client 
has contracted with the Petitione~ to provide temporary personnel. The letter was submitted with an 
unsigned and undated SOW for the Beneficiary to work on "embedded software development in C 
for automotive body electronics modules for ' It is therefore not clear whether the 
end-client is the actual the end-client for the project. 
Moreover, the Petitioner stated in response to the RFE that '"if the project with [end-client] is 
complete, we will continue to employ [the Beneficiary]." However, the Petitioner did not provide 
any information regarding the work the Beneficiary would perform once the project ends. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg.'l Comm'r 1972)). Thus, even if it 
were found that the Petitioner would be the Beneficiary's United States employer as that term is 
6 It is noted that the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § I 03.2(b )(I). A visa petition may not be approved 
at a future date after the Petitioner or the 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). As such, eligibility for the benefit sought must be assessed and 
weighed based on the facts as they existed at the time the instant petition was filed and not based on what were merely 
speculative facts not then in existence. 
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 
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 contracts .. 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 
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 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; 
1998) (to be codified at 8 
C.F.R. pt. 214). While a petitioner is certainly permitted to petition for H-1 8 classification on 
the basis of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have 
these facts considered in any eligibility determination requested , as the agency may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
9 
Matter of LHPS-, LLC 
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. 
3. Conclusion 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
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 three-year period requested 
from October 1, 2015, to September 1, 2018. 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. at 248. The petition must therefore be denied on this basis. 
III. SPECIALTY OCCUPATION 
A. Law 
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 the particular position; 
10 
Matter of LHPS-, LLC 
(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). U.S. Citizenship and Immigration Services (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). 
B. Analysis 
The petition must also be denied because the Petitioner has not established that the. proffered 
position qua~ifies for classification as a specialty occupation. As recognized in Defensor v. 
Meissner, 201F.3d 384, 387-8 (5th Cir. 2000), it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location 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 in this case is similarly devoid of sufficient information from the end-client regarding 
the specific job duties to be performed by the Beneficiary for that company. 
Further, as discussed above, the Petitioner submitted documentation with respect to the project for 
the end-client; however, none of the contracts or documents establish specialty occupation work is 
available for the duration of the Beneficiary's requested employment period. Without further 
information regarding specific projects to which the Beneficiary would be assigned that covers the 
duration of the period of employment requested, we are not able to ascertain what the Beneficiary 
would do, where the Beneficiary would work, as well as how this would impact circumstances of her 
relationship with the Petitioner. 
· Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive 
information and supportive documentation sufficient to establish that, in fact, the Beneficiary would 
be performing services primarily as an embedded software engineer for the duration of the requested 
employment period. As the Petitioner has not established the substantive nature of the work to be 
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Matter of LHPS-, LLC 
performed by the Beneficiary, which therefore precludes a 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. 
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 cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
IV. CONCLUSION 
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 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 LHPS-, LLC, ID# 17125 (AAO July 8, 2016) 
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