dismissed H-1B Case: Software Engineering

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 2 2 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
.�' , :K� /_ . �\. ' 
/ 1U�· 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office. The appeal will be dismissed. The 
petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Form I-129 visa petition, the petitioner describes itself as a "Global leader in virtualization 
software and cloud computing infrastructure," with 6,646 employees in the United States. In order 
to continue to employ the beneficiary in what it designates as a "Senior Software Engineer" position, 
the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S. C. 
§ 110l(a)(15)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to establish that it has standing to 
file the instant visa petition as the beneficiary's prospective United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii). 
The record of proceeding before us contains: (1) Form I-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) Form I-290B and supporting materials. We reviewed the record in its entirety 
before issuing its decision. 
II. THELAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 2120)(2), who is coming temporarily to the United States to 
perform services .. . in a specialty occupation described in section 214(i)(1) ... , 
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.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; 
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(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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
III. ANALYSIS OF THE LAW 
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 10l(a)(15)(H)(i)(b) of the Act indicates that an alien 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)(1) of the Act, 
8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens as 
H-1B 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 -1B visa classification, even though the regulation describes H -1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
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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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 (quotingNLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 1 
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), affd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 u.s. 1000 (1994). 
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)(1)(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-1B 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
Finally, it is also noted that if the statute and the regulations were somehow read as extending the definition of 
employee in the H-1B context beyond the traditional common law definition, this interpretation would likely 
thwart congressional design and lead to an absurd result when considering the $750 or $1,500 fee imposed on 
H-1B employers under section 214(c)(9) of the Act, 8 U.S.C. § 1184(c)(9). As 20 C.P.R.§ 655.731(c)(10)(ii) 
mandates that no part of the fee imposed under section 214(c)(9) of the Act shall be paid, "directly or 
indirectly, voluntarily or involuntarily," by the beneficiary, it would not appear possible to comply with this 
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Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R.§ 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition of 
United States employer in 8 C.P.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf. 
Darden, 503 U.S. at 318-319.2 
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) of the Act, and 8 C.P.R. § 214.2(h)? 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.P.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .. .. " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control include when, 
provision in a situation in which the beneficiary is his or her own employer, especially where the requisite 
"control" over the beneficiary has not been established by the petitioner. 
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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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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 New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also 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-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual 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 448-449; New Compliance Manual 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 
323-324. 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). 
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-lB temporary "employee." 
IV. EVIDENCE 
The visa petition states that the beneficiary would work at 
Massachusetts; , Massachusetts; and 
Virginia. It describes the location as an office of the 
petitioner, the address as a "home office," and the Virginia address as a 
client site, although it does not identify that client. The LCA submitted is certified for employment 
at those three locations. 
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An addendum to the visa petition states: 
The Beneficiary will be an employee of [the petitioner]. The Beneficiary will be paid 
by [the petitioner] and will be eligible for standard company benefits. 
The beneficiary will be controlled and supervised entirely by [the petitioner]. At the 
customer site, the Beneficiary will report directly to the [petitioner's] Professional 
Services Practice Manager, The manager will be responsible for 
overseeing all [of the petitioner's] staff and handling all human resources 
administrative responsibilities. The Beneficiary will not provide labor to a third 
party. Indeed, the Beneficiary will be entirely controlled and supervised by [the 
petitioner], the U.S. employer, at all times. 
That addendum does not indicate that 
beneficiary. 
would work at the same location as the 
On April 29, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence of the conditions of the beneficiary's employment at the Virginia 
location. The director outlined the specific evidence to be submitted. 
In response, counsel submitted (1) a statement, dated 
(2) statements of Work (SOWs) purportedly issued by 
(3) counsel's own letter, dated May 16, 2014. 
May 15, 2014, from 
to the petitioner; and 
In his May 15, 2014 statement, identified himself as the petitioner's "Practice 
Manager," and stated that the beneficiary, "currently supports approximately 10 [of the petitioner's] 
customers located in Virginia, and approximately 100 [of the petitioner's] customers 
located in Massachusetts metropolitan area." As to the supervision of the 
beneficiary, Mr. stated: 
I am currently (the beneficiary's] Practice Manager and supervise his work. The 
Company's supervision protocol for remote engineers includes daily supervision on 
[the petitioner's] projects by the (petitioner's] Engagement Manager, who has daily 
contact with [the beneficiary], as well as weekly progress reports to the Practice 
Manager and one-on-one meetings every three weeks to monitor the status of current 
projects. I also perform his annual performance reviews and salary reviews. 
Mr. stated the duties of the proffered position as follows: 
• Design and develop software products and features for the next generation of [the 
petitioner's] solutions; 
• Modify existing software to correct errors, adapt to new hardware, and improve 
performance; 
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• Develop and direct software systems testing and validation procedures, 
programming, and documentation; 
• Analyze information and user needs to determine, recommend, and plan 
installation of new or modified systems; 
• Assignment to client project locations in certain major markets within range of the 
home base as required to configure, implement and deploy out-of-the-box and 
tailored solutions for clients in a customer-facing role; 
• Design, develop, and modify software systems to meet customer needs and 
company goals; 
• Work with cross-functional teams including systems analysts, engineers, 
programmers and other to interface between hardware and software, develop 
specifications and performance requirements, and resolve customer problems; 
• Coordinate software system installation and monitor equipment and product 
function to ensure delivery of quality products and solutions; 
• Utilize knowledge of data base management system software, development 
environment software, object oriented development software, program testing 
software, operating system software, and various programming languages; 
• Utilize knowledge of computer hardware and software, including applications and 
programming, and systems architecture and components, including networking 
and storage; and 
• Apply knowledge of engineering principles, best practices, and technologies to 
the design, development, testing, and production of various [of the petitioner's] 
products and services. 
The SOWs provided purport to have been issued by 
_ 
to the petitioner. All three 
purport to have become effective on June 27, 2006, although none states a beginning or end date for 
the projects to which they pertain. 
Two of the SOWs indicate that up to three consultants would work pursuant to their terms, and that 
the workers assigned pursuant to that agr eement would work either at a customer site, or at some 
other location, as required. The customers and their sites are unidentified. The term of that 
agreement is unstated. 
The other SOW states that the customer is located in Maryland, but not whether the work 
would be performed there or at some other location.4 It states that the work to be provided is divided 
into three Work streams, with an expected duration of 15 days, 15 days, and 35 days, respectively. It 
does not state how many of the petitioner's workers would be assigned to work on that project. 
4 We observe that , Maryland is not near any of the locations where the visa petition states that the 
beneficiary would work and for which the LCA is valid. It is approximately 100 miles from 
Virginia, for instance, and considerably more distant from the Massachusetts locations identified. 
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None of the SOWs indicate that the beneficiary would be assigned to work pursuant to them and, in 
any event, none of the SOWs is signed. 
In his May 16, 2014 letter, counsel stated that the evidence submitted establishes the nature of the 
work the beneficiary would perform, the location where the beneficiary would work, and that the 
petitioner would have an employer-employee relationship with the beneficiary. 
The director denied the visa petition on May 27, 2014, finding, as was noted above, that the 
petitioner had not demonstrated that it has standing to file the instant visa petition as the 
beneficiary's prospective U.S. employer. 
On appeal, counsel asserts that the evidence presented makes clear that the petitioner is "not a 
staffing or consulting company," but "develops proprietary virtualization software." Elsewhere 
in the appeal brief, counsel asserts, "[The petitioner] is not primarily a provider of information 
technology consulting services." As to the supervision of the beneficiary, counsel states, "the 
Beneficiary reports to a centralized office ([the petitioner's] office in MA) when not 
engaging in physical deployments at the customer location . . .. " Counsel further states, "The 
Beneficiary spends the majority of his time working either at the [petitioner's] location in 
_ 
MA, or from his home office i MA," but did not reveal his basis for that 
statement. Counsel asserts that, "more than sufficient evidence was provided" to prove "a true 
employer-employee relationship." 
V. ANALYSIS OF THE EVIDENCE 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control an alien 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 
alien beneficiary is assigned, must also be assessed and weighed in order to make a determination as 
to who will be the beneficiary's employer. 
In the instant case, counsel asserts that the beneficiary would work at the petitioner's location or his 
own home office most of the time, but provided insufficient evidence to support that assertion. 
Counsel also implied that when the beneficiary is deployed to customer locations, it would not be to 
provide information technology consulting services, but to install the petitioner's proprietary 
software and conform it to the customer's requirements. 
However, although the petitioner has asserted that the petitioner's em loyee, would 
supervise the beneficiary, there is no indication in the record that Mr. would be assigned to 
work at the remote locations to which the beneficiary is assigned. Further, the unsigned SOWs 
provided to show that the petitioner has work for the beneficiary to perform pertain to the 
assignment of the petitioner's workers, through an intermediary company, to work on the projects of 
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other companies, either at their locations or at other locations that they may designate. Further still, 
two of the three SOWs make explicit that, "[The] Customer will provide oversight to the 
engagement scope and will provide daily project management, status reporting, issue management, 
project quality management and overall risk mitigation." If the beneficiary were deployed pursuant 
to those SOWs, the assertion that the petitioner would assign the beneficiary's tasks and supervise 
his performance of them is not credible. 
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-lB temporary 
"employee." 8 C.P.R. § 214.2(h)(4)(ii). The appeal will be dismissed and the visa petition will be 
denied on this basis. 
VI. ADDITIONAL BASES 
The record suggests additional issues that were not addressed in the decision of denial but that, 
nonetheless, also preclude approval of this visa petition. 
In order for the instant visa petition to be approved, the petitioner is obliged to demonstrate that, if 
the visa petition were approved, the petitioner would employ the beneficiary in a specialty 
occupation position, that is, a position that requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent. See generally section 214(i)(l) of the Act, 8 C.P.R. § 214.2(h)(4)(ii), and 
8 C.P.R.§ 214.2(h)(4)(iii)(A). 
Notwithstanding the petitioner's steadfast denials, the unsigned SOWs submitted to show that the 
petitioner has work for the beneficiary to perform indicate that the petitioner assigns its workers to 
other companies, through at least one intermediary, to work on those other companies' projects at the 
direction and under the supervision of employees of those other companies. For example, one of the 
SOWs states that "the [petitioner's] resident consultants will take project, task, and day-to-day 
direction from the Customer project manager." Although the petitioner provided some abstract 
descriptions of the work the beneficiary would perform, it appears that the beneficiary is to be 
assigned to work for another company under that other company's direction and supervision. 
As recognized by the court in Defensor v. Meissner, 201 F.3d at 387-388, 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 Immigration and Naturalization Service had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered 
position qualifies as a specialty occupation on the basis of the requirements imposed by the entities 
using the beneficiary's services. Id. at 384. 
Here, the record contains no evidence from the prospective end-user or end-users of the beneficiary's 
services pertinent to the duties they would assign to the beneficiary. The petitioner's failure to 
establish the substantive nature of the work to be performed by the beneficiary precludes a finding 
that the proffered position is a specialty occupation under any criterion at 8 C.P.R. 
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§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position 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. The petitioner has not established 
that the work to which the beneficiary would be assigned would qualify as specialty occupation work 
pursuant to any of the criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A). The visa petition must be denied for 
this additional reason. 
Also, at a more basic level, as reflected in this decision's discussion of the evidentiary deficiencies, 
the record lacks credible evidence that when the petitioner filed the petition, the petitioner had 
secured work of any type for the beneficiary to perform during the requested period of employment. 
That is, the evidence submitted for that purpose consists of SOWs, none of which appear to have 
been executed, none of which indicate that the beneficiary would work pursuant to them,5 and which, 
further, purport to have become effective on June 27, 2006 and bear no indication that they are still 
in effect.6 The petitioner has not established that it has any work for the beneficiary to perform. The 
visa petition must be denied for this additional reason. 
VII. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). Moreover, when we deny a petition on 
multiple alternative grounds, a plaintiff can succeed on a challenge only if it shows that we abused 
our discretion with respect to all of the enumerated grounds. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 683. 
The director's decision will be affirmed and the petition will be denied 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
5 Two of the SOWs indicate that the petitioner would assign up to three of its workers to the projects 
governed by those SOWs. The third SOW does not indicate how many of the petitioner's workers would be 
assigned to work pursuant to its terms. The petitioner reported that it has 6,646 workers in the United States. 
6 In fact, as was discussed above, one of those SOWs, which was to become effective on June 27, 2006, 
provided for work expected to continue for a total of 65 days. 
(b)(6)