dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 6982617 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 22, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the record did not establish 
that: (1) the proffered position qualifies as a specialty occupation and that the Beneficiary will perform 
services in a specialty occupation for the requested period of employment; and (2) an 
employer-employee relationship exists between the Petitioner and the Beneficiary. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit. Upon 
de novo review , we will dismiss the appeal. 
I. SPECIAL TY 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) 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 nonnally 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.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" 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 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
does not include sufficient consistent, probative evidence of the existence of specialty occupation work 
when the petition was filed. The Petitioner also has not demonstrated the substantive nature of the 
proffered position and has not established that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner, an information technology (IT) consulting compan , provided an itinerary indicating 
that it would deploy the Beneficiary to an end-client location i Georgia. The Petitioner 
initially submitted its master service agreement (MSA) with,__ _____ _, (mid-vendor), dated 
February 6, 2018. In the mid-vendor's March 22, 2018 letter, the mid-vendor did not identify any 
particular projects to which the Beneficiary would be assigned. Similarly in the statement of work 
(SOW) attached to the MSA, neither the mid-vendor nor the Petitioner (who both sign the SOW) refers 
to a particular project or projects that requires the Beneficiary's services. The Petitioner also submitted 
a March 25, 2018 letter on the letterhead of Georgia I I (end-client) 
indicating that it required the Beneficiary's services "whose designation is a Software Engineer with 
[the Petitioner] and [the mid-vendor] to implement this project [Emphasis in original]." The end-client 
in its letter referenced several projects but did not identify the stage of the projects or relate the 
Beneficiary's proposed duties to a particular project. The initial contractual chain in this case appeared 
to flow as follows: Petitioner ➔ Mid-vendor ➔ End-client. 
2 
In response to the Director's request for evidence (RFE), the Petitioner added a fourth erty to the 
contractual chain. In a December 28, 2018 letter, the end-client stated that the fourth party, I 
is not a vendor but only provides vendor management services (VMS) between it andl I 
(mid-vendor). Thus, the contractual chain was revised as follows: Petitioner ➔ Mid-vendor ➔ VMS 
provider ➔ End-client. 1 To support this contractual chain, the Petitioner also submitted the VMS 
provider's letter for the record. In the letter, the VMS provider noted that its "role in relation to [the 
Beneficiary] is to secure the project and assign the consultant to the project based on [its] agreement 
with [the mid-vendor]. The VMS provider and the mid-vendor do not refer to specific projects or 
expand upon the Beneficiary's proposed duties in relation to particular projects. Thus, it is not clear 
what projects had been secured, if any, for the Beneficiary's services. The end-client, although 
referring to several projects generally, again does not identify the phases or stages of particular projects 
and does not elaborate on the Beneficiary's actual duties in relation to the projects. This is important 
because the descriptions of duties provided by the mid-vendor, the VMS provider, and the end-client 
adopt the Petitioner's version of duties, without reference to projects or phases and the new versions 
of duties adds duties that would appear to occur at the initial phase of a project. It is the lack of 
information regarding the Beneficiary's proposed duties in relation to a specific project and the stages 
of the particular project(s) that raise questions regarding the legitimacy of the actual proposed position 
that has been described by the Petitioner. 
For the first time on appeal, the Petitioner submits the service agreement between the mid-vendor and 
the VMS provider and a contract amendment between the VMS provider and the end-client. The 
contract between the mid-vendor and the VMS provider is dated March 11, 2019, almost a year after 
the petition was filed. As this contract was executed subsequent to filing the petition, it does not 
establish that the VMS provider had secured work for the Beneficiary when the petition was filed. 
Further, the record does not include probative evidence that the mid-vendor complied with the legal 
obligations set out in the VMS provider-mid-vendor agreement. 2 
Moreover, the record does not include the actual contract between the VMS provider and the 
end-client. The contract amendment submitted on appeal is to demonstrate that the contract has been 
extended. The record does not include the full agreement setting out the legal obligations and 
restrictions between the contracting parties. Without the full chain of contracts demonstrating the 
process for the VMS provider to secure work, and also demonstrating that the VMS provider had 
secured work and had a legal obligation to contract that work to the mid-vendor when the petition was 
filed, we cannot conclude that there is a legal obligation on the part of the end-client to provide the 
position described in this petition. 3 
1 We note that a document titled "Contract Details for: [ contract number]" which refers to the Beneficiary appears to 
include another company I t It is not clear whether this company is also involved in this contractual chain and if 
so in what capacity. 
2 For example, the schedule A to the agreement between the VMS provider and the mid-vendor requires the mid-vendor 
to submit a plan to communicate and manage their staff:1/key persons placed at the client. The record does not include this 
evidence. 
3 Speculative employment is generally not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419, 30419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
3 
We reviewed the SOW s and letters the Petitioner claims are written by the contracting parties, 
however, as will be discussed these documents do not provide consistent information regarding the 
proposed position, raising further concern regarding the nature of the position. 4 Even if we set aside 
the speculative nature of the proffered position entirely we would still have significant questions as to 
the proffered position's actual, substantive nature due to the inconsistencies, discrepancies, and 
unanswered questions contained within the record. 
On the labor condition application (LCA), 5 the Petitioner designated the proffered position under the 
occupational category "Software Developer, Applications" corresponding to the Standard 
Occupational Classification (SOC) code 15-1132, at a Level II wage. Although the Petitioner claims 
that the proffered position is a software developer position, the record includes several different 
descriptions of the proffered position and the minimum requirements necessary to perform the duties 
of the position. Initially, the Petitioner provided an itinerary and job description indicating that the 
Beneficiary would be assigned to work on three different projects at the end-client at different times 
within the intended employment period. 6 The Petitioner divided the Beneficiary's duties into six 
categories and allocated his time to those duties as: 
• Requirement gathering and analysis - 5% 
• Functional Design - 5% 
• Implementation or Coding - 70% 
• Testing- 10% 
• Deployment - 5% 
• Maintenance- 5% 
The Petitioner described the duties under each of these headings indicating that the Beneficiary would 
perform different functions using third party software, platforms, environments, and frameworks. The 
Petitioner asserted that "[ c ]ompanies seeking to employ a Software Engineer require prospective 
candidates to have a strong foundation in the field of Computer Science or a related field and ITIL 
processes, which can only be obtained through a bachelor's degree or progressively responsible 
experience in the aforementioned fields [emphasis in original]." 
4 We also reviewed the information regarding the three projects the Petitioner claims the Beneficiary would work on at the 
end-client. However, the information submitted does not substantiate the stage of the various projects or the resources 
needed to implement any revisions or maintenance to the projects. The Petitioner's indication on the itinerary of the 
different phases of the projects is not corroborated in the record by the end-client or the other contracting parties. Thus, 
even if the Beneficiary would be assigned to work at the end-client's facility, there is insufficient evidence in the record to 
demonstrate that the end-client had or has specific work for the Beneficiary; rather it appears that the Beneficiary would 
augment the end-client's staff in various roles rather than be assigned specific software development work. 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-lB worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.73l(a). 
6 The intended employment period is rrom October 1, 2018 to August 31, 2021. The itinerary indicates the Beneficiary's 
assignment is rrom February 27, 2018 to July 27, 2021. The record includes evidence that the Beneficiary was in OPT 
status when the petition was filed. 
4 
In the end-client and mid-vendor's initial letters, the letter-writers listed a number of responsibilities 
indicating the Beneficiary would use a number of technologies. This list includes some overlap with 
the Petitioner's initial description. The end-client indicated that the position requires at least a 
"Bachelor's degree ( or the equivalent) in a field closely and directly related to the nature of the work" 
but did not specify the particular bachelor-level discipline that would relate to the proposed work. The 
mid-vendor repeated the end-client's list of responsibilities and did not identify any requirements to 
perform the proposed position in its letter. The initially submitted SOW signed by both the mid-vendor 
and the Petitioner on February 6, 2018, did not include any academic requirements for the position 
and noted only that the Beneficiary would need 3 to 5 years of experience in full product life cycle 
development and advanced or working knowledge of different technologies and experience and 
understanding of other technologies. 
In response to the Director's RFE, the Petitioner repeated the duties initially provided on the itinerary. 
The end-client adopted the Petitioner's description of duties and allocation of time to those duties 7 and 
revised its academic requirements to perform the duties to a bachelor's degree in computer science or 
a related field. In a revised SOW, signed by both the Petitioner and the mid-vendor, the SOW adopted 
the Petitioner's description as set out on the Petitioner's itinerary without reference to any projects and 
revised the requirements to perform the duties of the position to a "Bachelor's degree from an 
accredited college or university with coursework in computer science or related field AND minimum 
3-5 years of related experience" ( emphasis in original). 8 The VMS provider's letter-writer also 
adopted the Petitioner's description of duties and noted that "[ t ]his type of position normally requires 
a combined education and experiential background with at least bachelor's degree in computer science 
or related field." 
The lack of consistent evidence regarding the academic requirements for the proffered pos1t10n 
undermines the Petitioner's claim that the proffered position requires a bachelor's degree in a specific 
discipline. As noted above, the minimum requirements to perform the proffered position range from 
an undefined amount of experience to a general unspecified bachelor's degree, to a bachelor's degree 
in computer science, to an unidentified amount of coursework in computer science and an additional 
3-5 years of related experience. The wide variety of acceptable requirements to perform the duties of 
the proffered position from the various entities involved in the contractual chain demonstrates, more 
likely than not, the proffered position is not a specialty occupation. It appears that the proposed 
technology position at the end-client's facility may require a few basic technology courses or 
certifications but primarily requires experience with various third party technologies in order to 
perform the duties described. 
In that regard, when reviewing the various, similar descriptions of the proposed pos1t10n, the 
descriptions do not establish the substantive nature of the proposed position or demonstrate that 
performing such duties would require the theoretical and practical application of highly specialized 
knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. We 
7 However, the end-client did not allocate the Beneficiary's time amongst various projects and did not describe the 
proposed duties within the context of any project. 
8 The mid-vendor's letter indicates that the duties require at least a bachelor's degree in computer science or related field. 
There is no explanation for the variances in the mid-vendor's minimum academic and experience requirements to perfonn 
the duties described in its letters or for the revised SOW. 
5 
understand that the proffered position is a technology occupation. However, we must be able to 
determine whether the proffered position is a computer systems analyst position, a web developer 
position, a computer programmer, a software developer position, or some other technology 
occupation. 9 This is necessary so that we may assess whether the certified LCA corresponds to and 
supports the position. 10 Here the jargon-laden descriptions do little to illuminate the substantive nature 
of the position. The record does not include sufficient detail to ascertain the nature or level of 
responsibility of the proffered position. 
We note that there are other indications in the record that the end-client may require only the services 
of a web developer. For example, the Beneficiary's badge issued by the end-client identifies the 
Beneficiary as a "webmaster." Although we do not rely solely on job titles regarding proposed 
positions, when a beneficiary is fulfilling requests for augmentation of staff: the record must provide 
sufficient consistent evidence establishing the level ofresponsibility and requirements expected of the 
requested resource. Again the descriptions provided do not sufficiently communicate (1) the actual 
work the Beneficiary would perform on a day-to-day basis; (2) the complexity, uniqueness and/or 
specialization of the tasks; or (3) the correlation between that work and a need for a particular level of 
education of highly specialized knowledge in a specific specialty. 
The inconsistent and ambiguous information in the record when viewed in its totality does not establish 
the substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
conclusion 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. The Petitioner has not established that the proffered position is a 
specialty occupation under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner also has not 
established that the proposed position satisfies the definitions of specialty occupation as set out in the 
statute and regulation. 
II. EMPLOYER-EMPLOYEE 
We also determine that the Petitioner has not established it will have an employer-employee 
relationship with the Beneficiary. 
9 We note that based on the Petitioner's listing of potential positions on its website, the Petitioner appears to recruit 
individuals for a variety of technology occupations including programmer/analyst, business analyst, systems administrator, 
as well as software engineers. The potential positions have a variety of academic and experience requirements. 
10 While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and Immigration 
Services (USCTS), DOL regulations state that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form 
1-129 actually supports that petition. See 20 C.F.R. § 655.705(b). Here, the record does not include sufficient information 
to conclude that the certified LCA supports the petition. 
6 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 
C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(I) 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.) 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
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." 
Darden, 503 U.S. 318, 322-23. 11 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
11 When examining the factors relevant to determining control, we 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. 
7 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
As discussed, the record is insufficient to demonstrate that the Petitioner has secured definite, 
non-speculative work for the Beneficiary for the entire validity period, as claimed, and that the 
Petitioner has substantiated the nature of the proposed work. However, even if we set those issues 
aside, we still would determine that there is insufficient evidence of an employer-employee 
relationship. Specifically, the Petitioner has not established that it would exercise supervision and 
control over the Beneficiary's work. 
As observed above, the record does not include the actual contract between the VMS provider and the 
end-client. Additionally, the contract between the VMS provider and the mid-vendor was executed 
almost a year after the petition was filed. We cannot determine what limitations and restrictions the 
end-client and its VMS provider may have agreed to regarding the actual supervision and instruction 
of the Beneficiary. As also noted above, even if the record included a timely contract between the 
VMS provider and the mid-vendor, the schedule A to the agreement requires the mid-vendor to submit 
a plan to communicate and manage their staff/key persons placed at the client. We question why this 
material information was not provided for the record as it directly impacts the Petitioner's claim that 
it will manage its contracted personnel at the end-client. 
We also reviewed the end-client's letters signed byl I Manager [end-client] IT Division 
who writes that he works closely with the Beneficiary. This letter-writer claims that the Beneficiary 
reports directly to I I Supervisor, and submits monthly status reports to a supervisor. The 
letter-writer claims that the Petitioner will control and supervise the Beneficiary's overall work at the 
end-client site. The mid-vendor in its letter in response to the Director's RFE uses this same paragraph 
with the same grammar, inconsistent spacing, and awkward turns of phrase as the end-client's letter 
regarding the control and supervision of the Beneficiary's work. The verbatim language raises 
questions regarding the independence and authenticity of the letters. Further, as the record does not 
include the mid-vendor's plan to communicate with and manage personnel at the end-client or 
evidence that it has abdicated this obligation and that the VMS provider approved such abdication, we 
find the letters have little probative weight regarding even the right to control and supervise the 
Beneficiary's daily work. Given this specific lack of evidence, the Petitioner has not corroborated 
who has or will have actual control over the Beneficiary's work or duties, or the condition and scope 
of the Beneficiary's services. The record does not establish that it is the Petitioner who will instruct 
and direct the Beneficiary's performance of daily duties. We also note that the Petitioner has not 
provided evidence of the manner in which it exercises the claimed supervision and control of any 
proposed work. 
We have considered the Petitioner's claims that it will evaluate the Beneficiary's work performance. 
However, the performance evaluations submitted for the record include little meaningful review by 
the Petitioner. The evaluation which consists of biographical information and a section which includes 
boxes to be checked on a scale of "poor" to "excellent," provide little evidence of meaningful review. 
While the evaluations do contain space for written remarks, the remarks are so generalized and short 
8 
that they similarly provide little evidence of any meaningful review. It appears as though the 
performance review process would be based largely upon the feedback received from the client and 
the Beneficiary. In other words, the performance evaluation process reflects little, if any, role for the 
Petitioner in directing, or even influencing, the Beneficiary's work as it unfolds on a day-to-day basis 
at the end-client's worksite. Similarly, although the record includes time and status reports submitted 
by the Beneficiary to the Petitioner, these reports do not contain evidence that the Beneficiary is 
receiving instruction or guidance from the Petitioner on his daily work. These documents also are not 
indicative of an employer-employee relationship. 
We have reviewed the information contained in the record regarding the projects the Petitioner submits 
as evidence that the Beneficiary has worked. These materials do not make any reference to the 
Petitioner or any ongoing role for the Petitioner on these projects. If the Petitioner has little to no role 
to play on these projects, then it is unclear how it could direct the Beneficiary's day-to-day duties as 
they relate to the projects. To the contrary, the Petitioner's role appears limited to provision of the 
Beneficiary's services with little room for actual direction of his activities. In that regard we reviewed 
the printouts of several email chains involving the Beneficiary while he worked at the end-client site. 
This evidence also weighs against the Petitioner's claim of an employer-employee relationship with 
the Beneficiary. For example, we observe the apparent lack of any inclusion of the Petitioner in this 
correspondence and the lack of any indication in the Beneficiary's email signature that he is linked to 
or affiliated with the Petitioner. These details do not indicate that the Petitioner exercises control or 
supervision over the Beneficiary as he performs duties at the end-client site. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of the four comers of this 
H-lB petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer 
in the common-law sense, but that it would instead act as a supplier of personnel to temporarily 
supplement the staff of the end-client who would control the content, means, and methods of those 
individuals' work. In this regard, we observe that it appears that not only would the end-client 
determine and assign the Beneficiary's day-to-day work, but that it would also control the 
Beneficiary's access to the systems without which his work could not be done. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors in 
determining who will control the Beneficiary, other incidents of the relationship, e.g., who will oversee 
and direct the work of the Beneficiary, who will provide the instrumentalities and tools, where will 
the work be located, and who has the right or ability to affect the projects to which the Beneficiary is 
assigned, must also be assessed and weighed in order to make a determination as to who will be the 
Beneficiary's employer. Based on the tests outlined above, we conclude that 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.F.R. § 214.2(h)(4)(ii). 
III. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation and 
that the Beneficiary will perform services in a specialty occupation throughout the requested 
9 
employment period. The record also does not establish the employer-employee relationship between 
the Petitioner and the Beneficiary. 
ORDER: The appeal is dismissed. 
10