dismissed H-1B Case: Software Quality Assurance

(b)(6)
DATE: MAY 0 5 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service� 
Administrative Appeals Oftice (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
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 
l-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.P.R. § 103.5. Do not file a motion directly with the AAO. 
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 (AAO). The appeal will be dismissed. 
The petition will be denied. 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-1 29) to the Vermont 
Service Center on April 1, 20 14 . In the Form I-12 9 visa petition, the petitioner describes itself as a 
"QA and Testing solutions firm" established in In order to employ the beneficiary in what it 
designates as a "QA Healthcare Analyst I Tester" 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. § 11 01 (a)( 15 )( H)(i)(b). 
The director denied the petition on August 4, 20 14 , on each of two independent grounds, namely, 
that the petitioner had not established (1) that it had the required employer-employee relationship 
with the beneficiary; and (2) that the beneficiary was qualified to perform the duties of the claimed 
specialty occupation position. On appeal, the petitioner asserts that the director's bases for denial 
were erroneous, and it contends that it satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the petitioner's Form I-12 9 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) the Notice of Appeal or Motion (Form I-290B) and 
supporting materials. We reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed. The petition will be denied. 
I. EVIDENTIARY STANDARD 
As a preliminary matter, and in li ght of the petitioner's references to the requirement that we apply 
the "preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review 
in this matter, as in all matters that come within its purview, we follow the preponderance of the 
evidence standard as specified in the controlling precedent decision, Matter of Chaw athe, 25 I&N 
Dec. 369, 375-376 (AAO 20 10 ). In pertinent part, that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" IS made based on the factual 
circumstances of each individual case. 
* * * 
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I d. 
NON-PRECEDENTDEC§ION 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 42 1, 43 1 (198 7) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 14 3, 14 5 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursua nt to that standard, however, we find that 
the evidence in the record of proceeding does not support the petitioner's contentions that the 
evidence of record requires that the petition at issue be approved. 
Applying the preponderance of the evidence standard as stated in Matt er of Chawathe, we find that 
the director's determinations in this matter were correct. Upon review of the entire record of 
proceeding, and with close attention and due regard to all of the evidence, separately and in the 
aggregate, submitted in support of this petition, we find that the petitioner has not established that 
its claims are "more likely than not" or "probably" true. As the evidentiary analysis of this decision 
will reflect, the petitioner has not submitted relevant, probative, and credible evidence that leads us 
to believe that the petitioner's claims are "more likely than not" or "probably" true. 
II. LACK OF STANDING TO FILE THE PETITION AS A UNITED STATES EMPLOYER : 
THE EMPLOYER-EMPLOYEE ISSU E 
A. The Law 
We will first address the director's conclusion that the petitioner did not establish that it will have 
"an employer-employee relationship with respect to employees under this part, as indicated by the 
fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. " 
8 C.F.R. § 21 4.2(h)(4)(ii). 
As will be reflected in the discussion of the common-law touchstone of control below, in 
determining whether a petitioner has established the requisite employer-employee relationship for 
standing to file as an H- 1B specialty occupation petitioner, we evaluate the totality of the record's 
evidence relevant to the relationship between the petitioner and the beneficiary as it would operate 
within the specific factual context of the beneficiary's work situation that the petitioner identifies as 
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the basis of the petition. In doing so, we consider the quality and weight of the evidence and also 
the extensiveness of the . evidence, that is, the extent to which the evidence surfaces indicia of 
control over the beneficiary and the beneficiary's work during his or her assignment away from the 
petitioner. Such evidence would include, but not be limited to, contractual terms and conditions 
whose implementation would be relevant to control over the beneficiary and the beneficiary's day­
to-day performance. This, part of the petitioner's s burden is to ensure that it provides evidence that 
is sufficiently comprehensive to both surface all of the factors of control operating in the particular 
factual context of the petition, and, as necessary, to also resolve any issues with regard to any of 
those factors. 
Section 10l (a)(1 5)(H)(i)(b) of the Act defines an H- lB nonimmigrant in pertinent part as an alien: 
subject to section 21 2U)(2), who is coming temporarily to the United States to 
perform services .. . in a specialty occupation described in section 214 (i)( l) ... , 
who meets the requirements for the occupation specified in section 21 4(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 21 2(n)( l) .... 
"United States employer" is defined at 8 C.F.R. § 214 .2(h)(4)(ii) as follows: 
United States employer means a person, firm, corpora tion, 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 re spect 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. 
As reflected in the preceding review of the documentary evidence, the record is not persuasive in 
establishing that the petitioner or any of its clients will have an employer-employee relationship 
with the beneficiary . 
Although "United States employer" is defined in the regulations at 8 C.F .R. § 21 4.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H­
lB visa classification. Section 10l (a)( 1 5)(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 21 2(n)( l) of the 
Act, 8 U .S.C. § 11 82(n)( l) (20 12 ). The intending employer is described as offering full-time or 
part-time "employment" to the H-lB "employee." Subsections 21 2(n)( l )(A)(i) and 212 (n)(2)(C)(vii) 
of the Act, 8 U.S .C. § 11 82(n)( l )(A)(i), (2)(C)( vii) (20 12 ). Further, the regulations indicate that 
"United States employers" must file a Petition for a Nonimmigrant Worker (Form I-1 29) in order to 
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classify aliens as H-1B temporary "employees." 8 C.F .R. §§ 21 4.2(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 legacy 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 -1 B visa classification, even though the regulation describes H -1 B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." Id. Therefore, for purposes of the H-IB 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." Nationw ide Mutua/I ns. Co. v. 
Darden, 503 U.S. 318 , 32 2-323 (1 992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1 989)). 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. at 323 -32 4 (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. at 440 (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 32 4 (quoting NLRB v. United Ins. Co. of 
America, 390 U.S. 254, 258 (1 968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101( a) (1 5)(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)(v ii) of the Act beyond the traditional common law definitions. See 
generally 13 6 Cong. Rec. S1710 6 (daily ed. Oct. 26, 19 90); 13 6 Cong. Rec. H12 358 (daily ed. Oct. 27, 
19 90). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
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"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of "United States employer" requires H-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-IB "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. 
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. § 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 defmition beyond the traditional common law definition." 
See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), a.ff'd, 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, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
The regulatory definition of "United States employer" requires H-1B employers to have a tax identification 
number, to employ persons in 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-IB employers· and employees to have an "employer-employee relationship" as understood by 
common-law agency doctrine, it imposes additional requirements of having a tax identification number and 
to employ persons in the United States. The lack of an express expansion of the definition regarding the 
terms "employee," "employed," "employment" or "employer-employee relationship" indicates that the 
regulations do not intend to extend the defmition beyond "the traditional common law definition." 
Therefore, in the absence of an intent to impose broader definitions by either Congress or USCIS, the 
"conventional master-servant relationship as understood by common-law agency doctrine," and the Darden 
construction test, apply to the terms "employee," "employer-employee relationship," "employed," and 
"employment" as used in section I01(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 
8 C.P.R. § 214.2(h). That being said, there are instances in the Act where Congress may have intended a 
broader application of the term "employer" than what is encompassed in the conventional master-servant 
relationship. See, e.g., section 214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated 
employers" supervising and controlling L-IB intracompany transferees having specialized knowledge); 
section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of unauthorized aliens). 
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Cf Darden, 503 U.S. at 318 -3 19 ? 
Therefore, 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) (1 5)(H)(i)( b) of the Act, section 21 2(n) of the Act, and 8 C.F.R . § 21 4.2(h). 3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, US CIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F .R. § 21 4.2(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) (1 958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also 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 38 4, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 
8 C. P.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 par ties, 
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-IB 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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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, USC IS 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 rightto 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. "' ld at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we find 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-18 temporary "employee." 
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. Without full disclosure of all of the relevant factors, we 
are unable to find that the requisite employer-employee relationship will exist between the 
petitioner and the beneficiary. 
For the reasons to be discussed below, we conclude that the evidence of record does not substantiate 
the key element in this matter, which is who would exercise actual control over the beneficiary and 
his work. While the record contains multiple assertions from the petitioner regarding its claimed 
right to control the work of the beneficiary, it is noted that simply going on record without 
supporting documentary evidence is not sufficient for pur poses of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972) ). 
B. Review and Analysis 
The record reflects that, at the time the petition's filing, the beneficiary was in F -1 Optional 
Practical Training (OPT) status, which was due to expire. Thus, the petitioner filed this petition.to 
change the beneficiary's nonimmigrant status from F-1 to H-18. The record reflects that the 
beneficiary was already performing work for on assignment from the petitioner, doing F-1 
OPT work which the petitioner asserts as substantially the same as the work that the beneficiary 
would perform upon approval ofthis H-18 petition. 
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The petitioner claims that its employment relationship with the beneficiary would exist in a scenario 
wherein the beneficia ry would perform his services for as part of 
efforts to fulfill a contract with The petitioner claims 
that is to upgrade current version of a • proprietary software system known as 
The petitioner's submissions into the record assert the involvement of an additional 
company -
_ 
_ (hereinafter referred to as ) - which the 
contractual path depicted in the record interposes between the petitioner and pursuant to 
contractual agreements has with both of those parties, that is, with to provide 
with a person to perform project-work, and with the petitioner to obtain the beneficiary 
for assignment to that project-work. 
In its September 4, 2014 letter submitted on appeal, the petitioner characterizes as "a 
vendor of that has entered into a "Human Resource Service Agreement" ("HRS 
Agreement") with Also, the petitioner's appeal letter quotes the clause of the HRS 
Agreement by which and agreed that was contracting "as an independent 
contractor." 
The petitioner claims that the qualifying employer-employee relationship with the beneficiary will 
reside in the control that it will have over the beneficiary during his assi gnment, through to 
for 
to perform as a QA Healthcare Analyst/Tester for during project-work 
In its March 25, 2014 letter of support, submitted with the Form I-12 9, Petition for a 
Nonimmigrant Worker, the petitioner stated that the beneficiary would "be assigned to 
facility in Florida, " at the same work -location address as provided in the 
Labor Condition Application (LCA) which was submitted to satisfy the regulatory requirement for a 
certified LCA that corresponds to the petition. Further, at section 3 of Part 5 of the Form 1- 12 9, 
entered' for the "Address where 
the beneficiaries will work if different from the address at Part 1 [(which is the petitioner's own 
address)] ." 
The record reflects that the petitioner premises its employer-employee relationship claim - as well 
as its specialty occupation claim - exclusively upon upgrade project-work for 
Both the petitioner 's July 21, 2014 letter responding to the RFE and also the petitioner's 
September 4, 2014 letter for the appeal, describe as basically prime contractor 
for both upgrading and also managing the associated work: 
developed an advanced system that support[ s] the 
management[,] delivery, and administration of healthcare services and benefits. 
migrated to the system in 2004. 
is performing the upgrade and managing the project for 
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We therefore note at the outset that the petitioner's own descriptions place it in basically a human­
resourcing, personnel-supply role that little to do with day-to-day direction and supervi sion of the 
beneficiary's work, which would be provided and managed by as the entity 
contractually engaged by to both perform and manage the upgrading of own 
proprietary software package, Such a relatively remote and subservient role for the 
petitioner appears natural enough based upon our observation that the record of proceeding provides 
no evidence that was looking to the petitioner to provide any particular expertise, guidance, 
consulting, methodologies, or instrumentalities for - a system that itself apparently 
developed and markets as its own proprietary software. 
So, according to the petitioner's scenario, there would be at least three contractual relationships 
involved in producing the project-work that the petitioner claims as the basis of its 
employer-employee relationship with the beneficiary. These relationships would spring from 
contract documents executed by (1) (2) and (3) and 
the petitioner. 
Accordingly, for each, and in that order, we shall look to the record first 
for contractual documents whose terms and conditions would have an impact upon how and by 
whom the beneficiary and his work would be controlled during his assignment to the claimed 
work. Then we shall discuss whatever other documents that particular business entity may 
have provided for the record. 
2. Documentary Evidence 
Regarding 
Contractual documents 
Although , as the purported end-user of the beneficiary's services, would be the entity 
generating and ultimately determining the nature and performance requirements of the project work 
to which the beneficiary would be assigned, the record of proceeding contains no copies of any 
contractual documents executed by 
Other documents 
There are no documents from any official. 
Regarding 
Contractual documents 
The record contains a copy of the aforementioned "Human Resource Services 
Agreement" ("HRS Agreement"), which states that it "set[s] forth the terms and conditions upon 
which may from time obtain Services" from a person provided by "Vendor." 
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Page II 
We find this document noteworthy for the extent to which it materially conflicts with documents in 
the record that ascribe work-related tax and benefit-payment responsibilities to the petitioner and 
that suggest or expressly ascribe work-management responsibilities to the petitioner. As reflected 
below, an implication of the HRS Agreement is that the petitioner- who is not even 
mentioned - had been at least factored out of the beneficiary's on-assignment-work equation once 
the petitioner provided the beneficiary to as a candidate for assignment-selection by 
The HRS Agreement defines such an ·provided person as a "Vendor Employee" (i.e., "a 
Contractor and/or Subcontractor assigned by Vendor to assist Vendor in providing Services). 
"Contractor" is defined as "a person who at Vendor's direction provides services to under a 
Work Order or Purchase Order. " 
The HRS Agreement does not obligate to accept any person from at any time. It 
references a "submittal process" whereby the Vendor '.'must submit candidates through 
Onboarding system." The Agreement also provides that "shall have the right to interview all 
prospective personnel and to reject such personnel based upon specific or general skills required by 
or at its discretion." 
The HRS Agreement's "Independent Contractor" section specifies that the Vendor, lS 
contracting with as an independent contractor, and that, as such, "shall be solely 
responsible and accountable" for "any and all taxes or charges related to the compensation being 
paid" under the Agreement, including "income, social security, withholding tax deductions, 
unemployment taxes or charges, and any contributions to any employee benefit, medical, or savings 
plan. " We also note that, pursuant to the Agreement's "Warranties" section, as Vendor, 
warrants that the work performed under a Work Order or Purchase Order will be performed "with 
the highest professionalism, according to the related details and specifications, and in a good and 
workmanlike manner. " 
According to the HRS Agreement, services to be provided would be "authorized under a Work 
Order or a Purchase Order, each of which shall be governed by and subject to the terms and 
conditions of this Agreement," and any amounts payable by would be limited to work 
performed within the "the scope of services set forth in a duly executed Work Order or Purchase 
Order." 
Other documents 
• As part of its RFE-reply, the petitioner submitted a June 25, 2014 letter from HR 
Manager. Its express purpose is to "confirm the assignment of [the beneficiary] ." The letter states 
that the beneficiary "is working at _ _ in the position of Software Quality Analyst," that he "is 
currently assigned to [the] projects; and that the assignment 
is "through our contract with It important to note that here 
ascribes only seven (7) "responsibilities" to the beneficiary - an aspect which, as we shall see 
below, conflicts with information in the June 30 , 20 14 letter from the Senior Director at 
(b)(6)
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Page 12 
We find that stating that the beneficiary is assigned "through" its contract with 
provides little helpful information, in that the only contract specifically referenced in 
the record is the HRS Agreement discussed above, and, by its express terms, that Agreement only 
becomes operative and applicable when a duly-executed Purchase Order or Work Order has been 
issued that sets the scope, specifications, and pricing of authorized work. However, the record does 
not contain a copy of any such Purchase Order or Work Order. 
The last paragraph of the letter speaks in the future tense, stating that the beneficiary "will work 
remotely from his home located" in Massachusetts. Not only does the letter mis-identify the 
beneficiary's home address with the petitioner's office address, but more importantly, it specifically 
states that the petitioner will be supervised by a person whom the letter indicates to be a 
official, namely, ' who is the implementation consulting manager" and for 
whom provides a phone number and e-mail address. Further, as with the letter's 
statements regarding the beneficiary's current assignment, no copy of a Work Order or Purchase 
Order has been submitted into the record to corroborate that, in fact, there exists a Work Order or 
Purchase Order for the intended H-1 B employment period specified in the petition. 
• The petitioner's RFE-reply also included a June 30, 2014 letter from the Senior Director at 
The letter opens with a statement that 'has contracted with under a service 
agreement to be provided with programming, systems analysis, quality assurance, and engineering 
related services. " However, the scope of those services does not accord with the one 
contractual document in the record, that is, the HRS Agreement which we discussed directly above. 
The body of the HRS Agreement does not itself specify any scope of work but leaves that aspect to 
the whatever Work Order or Purchase Order had been issued to authorize a particular scope of 
work, particular specifications, and pricing for the work. As we noted, the record does not contain 
any such document. Therefore, the record does not substantiate that, in fact, there is a 
agreement for the scope of services declared in this letter. Further, in light of the absence of a copy 
of a related Work Order or Purchase Order for the employment period specified in the petition, the 
petitioner has not established that and had contracted for to provide a QA 
Healthcare Analyst/Tester for that period. 
Next we note that the letter states that "as per the service agreement" the beneficiary is "cu rrently 
[(1 )] working on our [that is, 
_ 
project and [(2)] working on project 
upgrade " leaving us to wonder whether is asserting that the 
beneficiary is currently working on two separate projects for We also see that the 
letter specifies 16 responsibilities for the beneficiary, which is 11 more than the June 25, 20 14 
letter discussed above. 
Here Senior Director asserts that "[t]he duration ofthese projects at are [sic] ongoing 
in duration and expected to extend one year," and that the beneficiary "will work a 40 hour week. " 
The letter also declares that the petitioner will pay the beneficiary's compensation and "will be his 
actual employer. " The letter also asserts that the beneficiary "will be operating at all times under 
the control of [the petitioner's] management" and that "all activities, including managerial 
supervision and hiring and firing decisions, as well as performance evaluations[,] are controlled by 
[the petitioner]." Here this official also states that 'will not have the right 
(b)(6)
NON-PRECEDENTDEC�ION 
Page 13 
to control [the beneficiary l and will not have the authority to assign him to different sites." We 
find, however, that this official's statement about control of the beneficiary does not square 
with the June 30, 20 14 letter, in which HR Manager stated that implementation 
consulting manager would supervise the beneficiary. Further, the evidentiary value of the letter is 
negligible, as the relevance of its comments about conditions that would prevail with regard to the 
beneficiary's work has not been established by evidence of Pe rformance Orders or Work Orders 
evidencing that such work has been secured for the beneficiary for any appreciable part of the 
intended employment period specified in the petition. In any event, by submitting both the HR 
Manager's letter and the Senior Manager's letter as evidence of the contractual framework 
which would govern the beneficiary's assignment, the petitioner endorsed the content of both letters 
- without resolving their apparent inconsistencies. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 92 (BIA 19 88 ). 
Moreover, as the official does not provide the source of his knowledge about 
contractual arrangements, we would not accord any weight to his statements on that matter, anyway. 
Regarding and the Petitioner 
Contractual documents 
• The documents submitted with the Form 1- 12 9 also included an "Agreement for Professional 
Services between [Indus] and [the Petitioner]," effective January 20, 2013, to which we shall 
refer as "the Services Agreement. " The Services Agreement indicated that the petitioner, as 
Vendor, would "provide software-consulting services by providing its employees as contractors for 
hire." 
We note that, in apparent conflict with the claims of the beneficiary's authorization to work 
"remotely" (i.e., at his home address or at the petitioner's offices), this 'Petitioner Services 
Agreement does not contemplate the petitioner's "contractors" working remotely. Section 1 of the 
Agreement specifies only two locations for the performance of any services to which the 
Agreement applies, stating, "Vendor or its employee may provide its services at or at 
Client's site." 
Next, we find that the copy of the Petitioner Services Agreement submitted into the record 
is incomplete. It lacks a copy of the Agreement's Exhibit A, which the Agreement's "Term" section 
identifies as the "Task (Purchase) Order" in which "(t]he anticipated term of this Agreement is 
outlined." Also, the Agreement's "Scope" section identifies the "Pu rchase Order" as the document 
in which software services to be performed will be briefly described and "which shall also state the 
term of the Agreement. " Therefore, the absence of a copy of a Purchase Order undermines the 
relevance of the 'Petitioner Services Agreement, because standing alone that Agreement as 
submitted demonstrates neither that it would be ef fective for the period sought in the petition or in 
any specific -client project. Accordingly, we find that the 'Petitioner 
Services Agreement has limited probative value. 
(b)(6)
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Page 14 
Other documents 
We have already discussed the only letter submitted by that is, the June 30, 2014 letter 
from Senior Director. ·The letter states that has contracted with under a 
service agreement, for quality assurance and related services; confirms the existence of an 
Agreement between the petitioner and Indus; states that via these two agreements, the beneficiary 
has been assigned to work remotely from Massachusetts on projects; and further states that 
"during implementation time, we might ask them to come for few days to . location in 
FL. " However, as with the HRS Agreement the record does not contain a 
copy of any Work Order or Purchase Order authorizing to provide any work for and it 
and leaves unaddressed the authorized performance period, scope or work, performance 
specifications, and other terms and conditions as should be specified in any such Work Order or 
Purchase Order. 
Additional Submissions from the Petitioner 
+ As part of its reply to the RFE, the petitioner submitted a May 12, 2014 document entitled 
"Description and Itinerary of [S]ervices for Employment at [the Petitioner] for [the 
Beneficiary]," to which we shall refer as "the petitioner's Itinerary of Services." indicating that the 
beneficiary will provide services as a Quality Assurance Analyst and Tester for "the project" which 
the document describes as follows: 
Name of Client: 
Location of End Client: [The address of 
Duration of Project: Ongoing Long-Term 
Contractual Work Order Enclosed: Yes 
Location Mentioned in LCA: Yes, Please see 
Role to be Performed: Quality Assurance Healthcare Analyst/Tester 
Florida] 
We first note that no "Contractual Work Order" appears anywhere within this record of 
proceedings. Also, whether or not has a long-term project is inconsequential unless in fact the 
petitioner has established a specific Quality Assurance Healthcare Analyst/Tester assignment for the 
beneficiary and at least the minimum period secured for that assignment that "the project" generated 
for the beneficiary for the period of employment specified in th� petition. This the petitioner has 
not done. In this petition's claimed contractual context, wherein both the HRS 
Agreement and also Pet itioner Service Agreement become applicable only when aligned 
with Purchase Orders or Work Orders issued under their umbrella, the petitioner has submitted 
neither type of document to corroborate that, for the employment period sought in the petition, the 
petitioner and the beneficiary would have an ongoing relationship based upon the project work that 
the petitioner claims as the basis of the petition. 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 of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
• The petitioner's RFE-reply also included four virtually-identical declarations from persons 
identifying themselves as QA Analystsffesters assigned to the project, signed in 
June 2014 or July 2014. All declarants but one state that the beneficiary works "remotely in the 
same team for "4 that "manages the whole/implementation/software/upgrade teams," and 
that the team members are supervised @ Implementation manger named 
" We find that these assertions all contradict the petitioner's assertions 
that it is directly supervising and controlling the beneficiary and his day-to-day work. 
• As evidence of the beneficiary's current employment, the RFE-reply docurpents also included 
( 1) copies of emails from the beneficiary to (employees of the 
petitioner), dated June 28, 20 14 and July 10 , 2014.; 5 (2) a copy of a pay record from the petitioner 
that reflects that it issued a check to beneficiary for the pay period of June 1, 20 14 to June 30, 20 14 , 
at an address not in the petitioner's state, Massachusetts, but in Tennessee; and (3) 
copies of six computer-screen weekly Timesheet printouts, which reflect daily hours worked by the 
beneficiary on " during the period from April 7, 20 14 
to May 11 , 20 14; . 
We recognize these documents as evidence that, for the related time periods, the beneficiary was 
reporting to and being paid by the petitioner for ·project work that meets the general 
description of the ·project in which the petitioner claims that the beneficiary would be engaged 
during the period ofrequested H-1B employment. However, even when read in the context of all of 
the other evidence presented in the petition, those documents do not establish that the petitioner has 
secured for the beneficiary, and for the time requested in the petition, the specific type of work 
claimed in the petition. In this regard, we note again that the record contains no copies of Work 
Orders, Purchase Orders, or like documents that would indicate the scope of work and precise work­
period that was authorized for the beneficiary. Further, the e-mails only reflect (1) after-the-fact 
reporting to the petitioner on work during the previous week and (2) tasks that have already been set 
for the previous week. Also, instead of seeking guidance, they merely welcome questions from the 
petitioner about the duties already performed or the tasks already planned. Also, as mentioned in 
the footnote, the e-mail reports are addressed to someone other than the person identified in the 
appeal as the petitioner's direct supervisor of the beneficiary. 
We also note the unexplained discrepancy between the Tennessee address for the 
beneficiary and contrary assertions in the record about the beneficiary's location. 
• On appeal, the petitioner submits a two-page "unsworn declaration pursuant to 28 USC § 
17 46" from dated June 27, 2014. Identifying himself as the petitioner's 
Technical Manager for Pro jects, enumerates the ways in which he exercises 
supervisory co ntrol over the persons that the petitioner assigns to projects, including the 
beneficiary. The evidentiary weight of assertions about his supervisory role 
4 The declaration of does not mention the beneficiary. 
5 Although the declaration of dated June 27, 20 14, claims that he will receive the 
beneficiary's weekly status reports since he is the beneficiary's first line supervisor, is not 
identified as a recipient of these emails. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
partly depends upon whether his submission and/or other evidence of record establishes that the 
beneficiary would in fact be employed as claimed by the petitioner for the period sought in the 
petition. We note explicit claim, in the third paragraph of his statement, that 
" [the beneficiary] is needed to perform services for our project," as we also note 
that claim that the beneficiary will be under his direct supervision when 
performing those services." However, as reflected in this decision's comments upon the evidence of 
record, the petitioner has not established that it secured for the beneficiary the project work that it 
claims in the petition for the approval period sought; and this particular official of the petitioner has 
not remedied that failure by introducing any credible and persuasive evidence on that issue. Again, 
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. at 16 5 (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 19 0. (Reg. Comm. 19 72)). 
Also, we must note a conflict between _ statement and other information in the 
record. states that he works at the petitioner's location and that the beneficiary is 
"working from our office." However, the natural reading of this assertion conflicts with the 
petitioner's indications, at page four of its letter on appeal, that it is only upon approval of the H-1 B 
petition that the beneficiary would be located at the petitioner's offices, and that while still in F -1 
Post Completion Occupational Training (OPT) status, the beneficiary would be working "either 
remotely at his residence or at the end-client site." Thus, the record presents yet another factual 
discrepancy - and one which, we find, has not been resolved by objective evidence addressing it. 
• The submissions on appeal also include an "Employer-Employee Agreement" between the 
petitioner and the beneficia ry. Signed on March 37 , 20 14 , this document specified an 
employment period that corresponds to the H-1B classification period requested in the petition. We 
note that it does not specify any particular project whether "in-house" or offsite, work location, or 
client but allows the petitioner to "assign employee to certain client sites or in-house projects" not 
specified. While the existence of this agreement is a factor weighing in the petitioner's favor, it is 
has no significant weight as there is no credible, probative evidence showing how this Agreement 
would actually translate into an employer-employee relationship when the beneficiary would be 
assigned through to perform work for proprietary technology. 
• Also submitted on appeal is a "Consultant--Non-Disclosure Agreement" signed in June 2014 , 
in which the beneficiary agrees to certain non-disclosure and non-competition terms. Interestingly, 
the line for the beneficiary to specify his location remains empty. Read in the light of the record's 
inconsistent work-location evidence, this aspect of the Agreement underlines that inconsistency. 
• Another documentary exhibit for the appeal is a copy of the petitioner's review of the 
beneficia ry's performance for the first quarter of 2014 . While this also indica tes a relationship 
between the petitioner <;md the beneficiary, there is no indication in the record that the review is 
required reading for or that it has or reflects any substantial influence or 
control over the beneficiary and his day-to-day supervision on any project. We find that this 
document and the process in which it was generated is not inconsistent with a situation where 
petitioner would be acting primarily as a supplier of a personnel asset to vendors and an end-user 
that handles human-resources, administrative aspects of the beneficiary's assignment while having 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
and exercising no substantial control over what the beneficiary would do in performing the services 
for which he was assigned, or over the means and methods by which those services would be 
performed - and such a relationship is not sufficient to establish an employer-employee relationship 
under the common-law touchstone of control. 
• On appeal, the petitioner also provides an Organizational Chart, for which the petitioner does 
not establish any probative value. 
C. Additional comments and findings 
In the first place, based upon the evidentiary deficiencies and discrepancies reflected in our 
discussion, comments, and findings above, we find that the record of proceeding does not contain 
sufficient credible, probative, and persuasive evidence to establish that it is more likely than not that 
the claimed project-work presented as the basis of the requisite employer-employee relationship 
would exist as claimed, and for the employment period specified in the petition. 
In this regard, we also note the absence of any corroborative evidence from the end-client, 
even on the issue of whether it had in fact had any contractual agreement with or any other 
party that would generate continuous work for the beneficiary for the period specified in the 
petition. We note not only the absence of any contractual documentation from but also 
the absence of any submission from to demonstrate that it has, through contractual 
documents such as service contracts and associated work orders, generated a requirement for 
services from the beneficiary that comports with the petitioner's claims as to nature , scope, and 
performance period. Further, absent input from whatever terms, conditions, and 
reservations of power it may have imposed upon the purported project-work remains unknown, as 
does whatever management and supervisory structure may have in place that would 
influence the course of the beneficiary 's day-to-day work, if indeed he were to be assigned in 
accordance with the beneficiary's claims for the requested H -1 B employment-period. Further, 
could acknowledge whether it would authorize the purported project-work - variously 
referred to in the record as a "project" and as "projects" - for an entire, continuous period that 
would parallel the employment period specified in the petition, or for shorter periods to be specified 
by work orders issued according to whatever needs might then exist, or not at all. Consequently, we 
conclude that the petitioner has not established that it would have such a relationship with the 
beneficiary for the period requested as would be required for us to reasonably conclude that it 
would satisfy the common-law touchstone of control. 
There are significant indicia of control about which doubt has been raised, such as for instance, 
which business entity would determine, supervise, and directly control the beneficiary's day-to-day 
work. Further, we note that the petitioner has not presented credib le, probative evidence that it 
would control the manner and means by which the claimed project-work would be accomplished, in 
this contractual scenario where not only is the originator, developer, and supplier of 
proprietary informational technology that would be the subject of the asserted project-work but is 
also the holder of the prime-contract with that is the claimed to be the origin of all of the 
other contractual relationships described as operating in the context of this petition. Further, we 
note that there is no affirmative evidence that the petitioner would provide any instrumentalities or 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
tools essential to the claimed project. (Here we reject the petitioner's contention that the 
beneficiary's knowledge and experience should be regarded as an instrumentality.) On the other 
hand, we find it self-evident that (1) would have to provide access to critical 
instrumentalities within its control, namely, informational technology that is the subject 
of the upgrade project at the center of this petition, and (2) that, if anyone, it would be that 
would provide proprietary information necessary for the project. 
Additionally, although the petitioner asserts that the beneficiary will be assigned to work for 
pursuant to contractual arrangements with we note again the absence of 
any contract and contract-generated documents from (such as contracts, statements 
of work, and work orders to which either or both are a party). These omissions, coupled with the 
discrepancies noted above, present little reason to presume that either would cede 
to the petitioner - an entity located in another region of the country - control over determining the 
specific day-to-day work that the beneficiary would actually perform and over evaluating the 
quality and efficiency of such work, or over providing instrumentalities and tools for the work, or 
over deciding the means and methodologies for such work in a specific environment where the 
subject of the work would be own proprietary informational technology. Further, we find 
that, in any event, the absence of such contractual evidence from leaves to 
speculation the extent of control that the petitioner would exert over both the beneficiary and the 
specific content of the day-to-day work that the beneficiary must perform to meet the ultimate 
client's requirements. 
Then there are the discrepancies which we have noted with regard the beneficiary's work location. 
Lastly, we find that the petitioner has not established that it has secured for the beneficiary the 
specific work that the petitioner asserts as the basis of its employer-employee relationship with the 
beneficiary for the period specified in the petition. Without that foundation of actual work to 
sustain the relationship, any weight to the petitioner's claim to an employer-employee relationship 
with the beneficiary vanishes. 
We have noted that, as in its itinerary document, the petitioner's RFE-reply letter, states that "the 
duration of the project is ongoing and long-term." We also have noted that in support of the 
existence and longevity of the so-called Advance Release 6 upgrade project" the 
petitioner's RFE-reply letter summ arizes a June 25, 20 14 letter from as follows: 
[The] Human Resources Manager, . :,] provides a letter dated 
June 25, 2014 that names the beneficiary, job title, and client, and job duties. The 
Client letter from states that the beneficiary is assigned to the 
project through 
The Client letter also states that the beneficiary will be working remotely. 
However, close reading of the HR Manager's letter reveals no mention of the 
or any other project as a specific project upon which 
the beneficiary would work at any time during the employment period specified in the petitio n. 
Rather, the letter's content only indicates that, as of June 25, 20 14 , the beneficiary, who was F- 1 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
OPT status at the time, was working at in the position of Software Quality Analyst, where he 
was "currently assigned to Upgrade projects." We find, then, that the HR Manager's 
letter is not evidence that, for the employment period specified in the petition, there would exist any 
project that would generate any type of employment 
relationship between the petitioner and the beneficiary. 
We also find it significant that the petitioner's letter incorrectly summ arizes the HR Manager's 
letter as speaking of one "proje ct," whereas the letter actually speaks, in the plural, of "projects." 
We find this inconsistency significant, in that it, too, reflects that, contrary to the petitioner's 
interpretation, the HR Manager is not directly addressing any particular project, or specifically 
supporting the existence or duration of the claimed project upon which the petitioner bases 
its claims. 
The first problem that the so-called project presents for the 
employer-employee issue is that the petitioner has not presented any documentary evidence that 
substantiates not only the terms and conditions of any such project, but also that it would exist for 
the October 1, 2014 to September 19 , 20 17 employment period asserted in the petition, or for even 
any particular part of that period. 
The record of proceeding lacks copies of whatever contract may exist between 
with regard to upgrading its system; and we reasonably assume that any 
such contract would include terms and conditions regarding the contract's performance period. We 
recall once again the petitioner's claim, which, simply stated, requires the beneficiary to provide 
upgrades to the existing system utilized by the end-client and receiver of the 
beneficiary's services. according to the petitioner, is a proprietary system of 
According to the petitioner, the beneficiary, as its employee, would be assigned on a contractor basis to 
provide services to pursuant to the petitioner's agreement with and a subvendor 
agreement between There is no evidence documenting material terms of any 
agreement or contract between for upgrade services; nor is there any evidence in the 
record to suggest that the petitioner or any of its workers or supervisors possess such specialized 
knowledge on any level of the system that would depend upon them to operate 
independent of substantial control on the ·developed and maintained informational 
technology that is asserted to be the subject of any-project work to which the beneficiary would be 
assigned. 
Consequently, the lack of contractual documents to which both are parties, with 
whatever information they would contain concerning the exact nature and duration of the project-work 
to be perf ormed and the terms and conditions under which the project-work would be performed, 
renders it impossible for us to fully evaluate how elements of control over the beneficiary and his work 
would be divided among the petitioner and the other parties involved in securing the claimed 
assignment of the beneficiary to work. 
Also, - the developer and presumed owner of the system whose upgrading, it is 
claimed, would be the focus of the beneficiary's work - has provided no evidence with regard to the 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
particular identity and performance period of any 
beneficiary would be assigned. 
upgrade-project to which the 
Next, we find that the petitioner has not established that it has secured for the beneficiary the 
specific work that the petitioner asserts as the basis of its employer-employee relationship with the 
beneficiary for the period specified in the petition. Without that foundation of actual work to 
sustain the relationship, any weight to the petitioner's claim to an employer-employee relationship 
with the beneficiary vanishes. 
We have noted that, as in its itinerary document, the petitioner's RFE-reply letter, states that "the 
duration of the project is ongoing and long-term." We also have noted that in support of the 
existence and longevity of the so-called project" the 
petitioner's RFE-reply letter summarizes a June 25, 20 14 letter from as follows: 
[The] Human Resources Manager, ,] provides a letter dated 
June 25, 20 14 that names the beneficiary, job title, and client, and job duties. The 
Client letter from states that the beneficiary is assigned to the 
project through 
The Client letter also states that the beneficiary will be working remotely. 
However, close reading of the HR Manager's letter reveals no mention of the 
project or any other project as a specific project upon which 
the beneficiary would work at any time during the employment period specified in the petiti on. 
Rather, the letter's content only indicates that, as of June 25, 20 14 , the beneficiary, who was F- 1 
OPT status at the time, was working at in the position of Software Quality Analyst, where he 
was "currently assigned to projects." We find, then, that the HR Manager's 
letter is not evidence that, for the employment period specified in the petition, there would exist any 
project that would generate any type of employment 
relationship between the petitioner and the beneficiary. 
We also find it significant that the petitioner's letter incorrectly summ arizes the HR Manager's 
letter as speaking of one "project," whereas the letter actually speaks, in the plural, of "projects." 
We find this inconsistency significant, in that it, too, reflects that, contrary to the petit ioner's 
interpretation, the HR Manager is not directly addressing any particula r project, or specifically 
supporting the existence or duration of the claimed project upon which the petitioner bases 
its claims. 
As some of the evidence that the petitioner premises its petition, and its claim to an employer­
employee relationship with the beneficiary, exclusively upon the existence and requirements of the 
so-called ' project," we point to (1) the aforementioned letter 
of support filed by the petitioner with the Form I -1 29, for its assertions about the proff ered position; 
(2) the June 27, 20 14 "unsworn declaration" by the petitioner's Technical Manager for Pro jects, 
for its assertion that the beneficiary "is needed to perform services for our on 
project in the aforementioned letter of support that the petitioner filed with the petition; 
and (3) the content of the aforementioned RFE-reply letter from the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
The first problem that the so-called project presents for the 
employer-employee issue is that the petitioner has not presented any documentary evidence that 
substantiates not only the specific terms and conditions of any such project, but also that it would 
exist for the October 1, 2014 to September 19 , 20 17 employment period asserted in the petition, or 
for even any particular part of that period. 
The record of proceeding lacks copies of whatever contract may exist between 
with regard to upgrading its system; and we reasonably assume that any 
such contract would include terms and conditions regarding the contract's performance period. 
- the developer and presumed owner of the 
would be the focus of the beneficiary's work - has 
particular identity and performance period of any 
would be assigned. 
system whose upgrading, it is claimed, 
provided no evidence with regard to the 
upgrade project to which the beneficiary 
For all of the reasons discussed in this segment, as well as in greater detail earlier in the decision, 
we conclude that the petitioner has not presented a sufficiently comprehensive, credible, and 
probative range of evidence to establish that the weight of common-law indicia of control balances 
in its· favor. Based upon all of the aspects of the record that we have discussed as bearing on the 
employer-employee issue, we conclude that the evidence of record is inconclusive on the issue of 
whether it is more likely than not that the petitioner and the beneficiary would have the requisi te 
employer-employee relationship in the context of the work to be performed if this petition were 
approved. We reach this conclusion based upon the application of the above-discussed common 
law principles to the extensiveness and quality of the totality of the evidence of record. As it is the 
petitioner's burden to establish that such employer-employee relationship exists, the appeal will be 
dismissed, and the petition will be denied. 
· 
IV. POS ITION NOT ESTABLISHED AS A SPECIALTY OCCUPATION 
USCIS is required to follow long-standing legal standards and determine first, whether the proffered 
position is a specialty occupation, and second, whether an alien beneficiary is qualified for the 
position at the time the nonimmigrant visa petition is filed. Cf Matter of Michael Hertz Assoc. , 19 
I&N Dec. 558, 560 (Comm'r 19 88) ("T he facts of a beneficiary's background only come at issue 
after it is found that the position in which the petitioner intends to employ him falls within [a 
specialty occupation] ."). 
Therefore, before we turn to the director's second basis for denial, we will here state our 
determination that the petitioner has not established that the proffered position qualifies as a 
specialty occupation. Although this determination is beyond the decision of the director, which did 
not address the specialty occupation issue, it is within our authority to make enter findings and 
conclusions - adverse or favorable - on material aspects of the record that were not addressed by 
the director. This is because we conduct appellate review on a de novo basis. See Soltane v. DOJ, 
381 F.3d 14 3, 14 5 (3d Cir. 2004). It was in the exercise of that independent review of the entire 
record of proceeding that we have made this adverse determination, and it precludes approval of the 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
petition even if the petitioner had overcome the grounds for denial specified in the petition - which 
it has not done. 
According to the LCA that the petitioner submitted as comporting with the occupational category in 
which the beneficiary would serve, the proffered position belongs to the Software Quality 
Assurance Engineers and Testers occupational group, identifiable by the Standard Occupational 
Classification System code 15 -1 19 9. The O* NET Online information for this occupational group 
designates it as a Job Zone Four group, thus placing it among occupations of which "most" require 
"a four-year bachelor's degree, but some do not." Also, the "Education" portion of the O*N ET 
Online's Summary Report provides the following information from members of the occupation who 
voluntary responded to a survey: 
Education 
Percentage of 
Respondents 
64 --
14 -
9. 
Education Level Required 
Bachelor's degree 
Associate's degree 
Master's degree 
See Employment & Training Administration, U.S. Dept. of Labor, O* Net OnLine, Summary Report 
for Software Quality Assurance Engineers and Testers, available at 
http://www .onetonline.org/link/summary/15-1 1- 1 19 9.01 (last accessed April 21, 20 1 5). 
The O* Net Online information supports the conclusion that the proffered positon's inclusion within 
the Software Quality Assurance Engineers and Testers occupational group is not in itself sufficient 
to establish that the proffered positon is one which requires the application of at least a bachelor's 
level of a body of highly specialized knowledge in a specific specialty, so as to satisfy the statutory 
and regulatory requirements for an H- 1B "specialty occupation" as described at section 21 4(i)( l) of 
the Act, and at 8 C.F .R. § 21 4.2(h)(4)(ii) and the supplementary criteria at 8 C.F .R. § 
214 .2(h)( 4)(iii)(A). 
We also observe that the U.S. Department of Labor's Occupational Outlook Handbook, which we 
regard as an authoritative resource with regard to the duties and educational requirements of the 
occupations upon which it reports, has no information on the Software Quality Assurance Engineers 
and Testers occupational group. 
Next, we do not accord any probative weight to the "Position [E]valuation" provided to the 
petitioner by Professor Nareen Kadali. 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
First, we see that Professor appears to have considered only one source of information from 
the petitioner, and that is the "itinerary of services that has been filed along with the petition." 
Professor quotation of those is identical to the following "Responsibilities" list provided in 
the previously-discussed petitioner's "Description and Itinerary of [S] ervices for Employment at 
[the Petitioner] for [the Beneficiary] , which reads: 
• Develop Test Plans, Test Cases, Test Scripts, Test Scenarios, Test Data, and 
Traceability Matrix. 
• Parti cipate in Requirement Analysis, Business Analysis, Use-Case Analysis, 
and Gap Analysis. 
• Eligibility, Emollment, Membership, and Providers applications. 
• Test the EDI intake process of HIPAA 837 claims with ICD- 10 Diagnostic 
and Proced ure codes and payment remittance by testing the process at the 835 
HIPAA gateway. 
• Test the Web Applications and Web Portals linked to EDI HIPAA 
transactions. 
• Coordinate End-to-End testing with HIPAA validation. 
• Participate in developing test scripts for the ANXI Xl2 EDI transactions 
270 /27 1, 276/277, 834, 835, and 837. 
• Test EDI 270/27 1 for Eligibil ity and 276/277/ 83 5/83 7for Claims. 
• Test adding/updating/deleting of the providers, members, groups, facilities, 
hospitals in :. ] 
• Test Claims Adjudication, Claims Re-pricing and Claims processing on 
. ] 
• Test Billi ng and Capitation management in 
• Test the Group, Emollment, Eligibility and Membership in 
• Test and Validate Data and Diagnosis Codes from ICD-9 to ICD- 10 . 
• Analyze the impact of lCD 10 for Diagnosis/Procedure codes. 
• Retrieve test data from Oracle database using SQL Statements. 
• Create Defect Statistics Reports and Test Metrics Reports using HP Quality 
Centre. 
However, the professor's adoption of this list as comprising the daily responsibilities comprising the 
proffered position is a fatal error, in that, as we have previously noted, the June 25, 20 14 letter from 
the HR Manager ascribed only seven (7) of those 16 responsibilities to the beneficiary. This 
feature undermines the relevancy of the professor's opinion as it is based upon a factual foundation 
that is not adopted or endorsed by the business entity claimed to be in charge of the project 
work to which the beneficiary would be assigned. This aspect of Professor evaluation of 
the proffered position is sufficient for us to dismiss the evaluation as factually inaccurate and 
therefore irrelevant- and we do so. 
We shall also mention some additional aspects of the professor's evaluation document that weigh 
against its reliability and, therefore, its probative value. 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
As impressive as it may be, nothing in the professor's lengthy resume indicates that she has obtained 
any level of particularly specialized knowledge about the type of position that is the subject of her 
evaluation, and the professor neither references nor discusses any studies, research, surveys, or 
other empirical sources to support her findings. Further, the professor provides no documentary 
basis for us to acknowledge that she should be regarded as a recognized authority, or even as a 
reliable evaluator, in the area which she opines, namely, the specialty occupation status of a 
particular position. Further still, the professor provides no factual and analytical basis for her 
apparent inflation of the position to the level presented in this first narrative paragraph at page 3 of 
his submission, which begins with the statement: 
As evident from the itinerary of services, [the beneficiary] would be ensuring the 
total quality management of application development as well as systems testing and 
requirements gathering and process analysis using the Waterfall, Spiral, Iterative, 
Rational, and Incremental models. 
As such, we also find that the professor's opinion is perfunctory and conclusory, and therefore of no 
material help to us in evaluating the specialty-occupation issue. 
As a matter of discretion, USCIS may use advisory opinion statements submitted by the petitioner as 
expert opinion testimony. Matter of Caron International, Inc. , 19 I&N Dec. 79 1, 795 (Comm'r 
19 88). However, USCIS will reject an expert opinion or give it less weight if it is not in accord 
with other information in the record or if it is in any way questionable. Id. USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought; 
the submission of expert opinion letters is not presumptive evidence of eligibility. Id. ; see also 
Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly 
a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will 
assist the trier of fact to understand the evidence or to determine a fact in issue.'"). 
We further find, that, even if Professor position-evaluation document were taken at face 
value - its ultimate conclusion would not support recognition of the proffered position as a specialty 
occupation. Professor opined that the minimum educational component of the proffered 
position's performance requirements would be: 
A four year bachelor's degree in Computer Information Systems or Engineering or 
Business Administration or a related field with coursework in 
Pharmacy/Phar maceutical Science from a regionally accredited college or Institute of 
Higher Learning in the United States or an equivalent degree awarded by another 
country. 
By recognizing an undifferentiated degree in "Business Administration" as a sufficient educational 
attainment and also by recognizing an "Engineering" degree, without further specification as 
sufficient educational credential, the professor opines, by implication, that the proffered position is 
not a specialty occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 25 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent) " requirement of section 214 (i)( l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent) ," unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
21 4(i)( l) (B) of the Act (emphasis added) . 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 21 4(i)( l) (B) of the Act; 8 C.F .R. § 214 .2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
Again, the petitioner states that its minimum degree-requirement for the proffered position is a 
bachelor's degree in "Computer Information Systems or Engineering or Business Administration or 
a related field." The issue here is that the field of engineering is a broad category that covers 
numerous and various specialties, some of which are only related through the basic principles of 
science and mathematics, e.g., nuclear engineering and aerospace engineering. Therefore, besides a 
degree in electrical engineering, it is not readily apparent that a general degree in engineering or one 
of its other sub-specialties, such as chemical engineering or nuclear engineering, is closely related 
to computer science or that engineering or any and all engineering specialties are directly related to 
the duties and responsibilities of the particular position proffered in this matter. 
Here and as indicated above, the petitioner, who bears the burden of proof in this proceeding, has 
not established either ( 1) that Computer Information Systems, Engineering, and Business 
Administration in general are closely related fields or (2) that engineering or any and all engineering 
specialties are directly related to the duties and responsibilities of the proffered position. Absent 
this evidence, it cannot be found that the particular position proffered in this matter has a normal 
minimum entry requirement of a bachelor's or higher degree in a specific specialty or its equivalent 
under the petitioner's own standards. Accordingly, as the evidence of record does not establish a 
standard, minimum requirement of at least a bachelor's degree in a specific specialty or its 
equivalent for entry into the particular position, it does not support the proffered position as being a 
specialty occupation and, in fact, supports the opposite conclusion. 
Therefore, absent evidence of a direct relationship between the claimed required-degrees and the 
duties and responsibilities of the position, it cannot be found that the prof fered position requires 
anything more than a general bachelor's degree. USCIS interprets the degree requirement at 
8 C.F. R. § 214 .2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the 
(b)(6)
NON-PRECEDENT DECISION 
Page 26 
proposed posttlon. Further, USCIS has consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in Business Administration, may be a legitimate prerequisite for 
a particular position, requiring such a degree, without more, will not ju stify a finding that a 
particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. 
Chertoff, 484 F.3d 13 9, 14 7 (1s t Cir. 2007). 
Next, we note that in light of all of the evidentiary def ects, the absence of copies of critical 
contractual documents, and the unresolved discrepancies that we have noted in this decision, the 
petitioner has not established the substantive nature of the work to be performed by the beneficiary, 
and this is a material failure that precludes a finding that the proffered position satisfies any 
criterion at 8 C.F.R . § 21 4.2(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. 
Further, because of the limited extent ofthe evidence presented and the evidentiary discrepancies in 
the record -which we discussed in the employer-employee part of this decision - we also find that 
the petitioner did not establish that it had filed the petition on the basis of definite, non-speculative 
work that it had by then secured for the beneficiary for the period of employment specified in the 
petition. A position may be awarded H -1 B classification only on the basis of evidence of record 
establishing that, at the time of the filing, definite, non-speculative work would exist for the 
beneficiary for the period of employment specified in the Form I-1 29. The record of proceeding 
does not contain such evidence. USC IS regulations affirmatively require a petitioner to establish 
eligibili ty for the benefit it is seeking at the time the petition is filed. See 8 C.F.R . 10 3.2 (b)( l) . A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 19 78) ; Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 19 71) . 
In sum, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F. R. 
§ 21 4.2(h)(4)(iii)(A), it cannot be found that the prof fered position qualifies as a specialty 
occupation. Consequently, for this additional reason the petition may not be approved 
V. BENEFICIARY QUALIFICATIONS 
As a preliminary matter, we observe that, because the evidence of record does not establish that the 
proffered position is a specialty occupation, the beneficiary's qualifications are inconsequential to 
the ultimate outcome of this appeal. As we noted earlier, "The facts of a beneficiary's background 
only come at issue after it is found that the position in which the petitioner intends to employ him 
falls within [a specialty occupation]."). However, for the sake of a fuller and more instructive 
decision, we shall discuss why we conclude that the evidence of record does not establish 
beneficiary would not qualify to perform services in the proff ered position if- which is not the case 
(b)(6)
NON-PRECEDENT DECISION 
Page 27 
- the evidence of record had established it as one requiring a degree from the range that Professor 
opined as necessary for the position's performance. 
Because the failures (1) to establish the petitioner as U.S. employer with standing to file this 
petition, and (2) to establish the proff ered position as a specialty occupation each decisively 
preclude approval of the petition, we shall not engage in a detailed application of all of the 
beneficiary-analysis regulations to the evidence of record. Rather we shall concen trate on the 
cardinal defect in the petitioner's beneficiary-qualification case. 
In a report her aforementioned "Po sition evaluation" document, Professor opined that "[a] 
four[- ]y ear bachelor's degree in Computer Information Systems" would suffice as a minimum 
degree for the proffered position. Following suit, Professor "Credential Evaluation Report" 
opines that the beneficiary has obtained the equivalent of such a degree by a combination of earned 
academic credits and "25 credits of University [-]level education in the field of Computer 
Information Systems obtained through the conversion of [the beneficiary's] work experience into 
academic credits." However, Professor misinterprets and misapplies what she refers to, 
mistakenly, as the equivalency ratio mandated [by] [USCIS] of three-years of work experience to 
one year of college training ( 3 for 1 rule) ." 
There is no such "mandatory 3 for 1 rule". The only three-for-one equivalency ratio in the USCIS 
beneficiary-qualification regulations appears at 8 C.F .R. § 214 .2(h)(4)(iii)(D)(5), which only 
mandates clearly-demonstrable evidence that a petitioner must submit to even merit USCIS 
consid eration for possible recognition of college-level equivalency of training and/or work 
experience (emphasis added): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks. . . . It must be clearly 
demonstrated that [(1)] the alien's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the 
specialty occupation; [(2)] that the alien's experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and [(3)] that the alien has recognition of expertise in the 
specialty evidenced by at least one type of documentation such as: 
(i) 
(ii) 
Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation;6 
Membership in a recognized foreign or United States association or 
6 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1 ) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; 
(3) how the conclusions were reached; and ( 4) the basis for the conclusions supported by copies or citations 
of any research material used. See 8 C.F.R. § 21 4.2(h)(4)(ii). 
(b)(6)
Page 28 
NON-PRECEDENTDEC�ION 
society in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, 
trade journals, books, or major newspapers; 
(iv) Licensure or regi stration to practice the specialty occupation m a 
foreign country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
Thus, there is no such mandatory rule as the professor apparently relies upon, and we find that the 
evidence of record does not satisfy the multiple-tier requirements specified at 8 C.F .R. 
§ 214 .2(h)(4)(iii)(D)(5). Consequently, the professor's conclusion as to the educational equivalency 
of the beneficiary's experience is erroneous and fatally undermines the probative value of the 
professor's ultimate conclusion that the beneficiary has attained the educational equivalency of a 
U.S. Bachelor's Degree in Computer Information Systems. 
Further, the petitioner should note that award of college-level equivalency under 8 C.F.R . § 
214 .2(h)(4)(iii)(D)(5) is solely a matter for US CIC determination. That regulatory provision opens 
with this description ofthe process as (emphasis added) : 
A determination by the Service [(1) ] that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, specialized 
training, and/or work experience in areas related to the specialty and [(2)] that the alien has 
achieved recognition of expertise in the specia lty occupation as a result of such training 
and experience .... 
In reaching its determination USC IS will of course review and consider any pertinent evidence 
presented for part of its evaluation. In the instant case, however, the professor's analysis and 
conclusion about the educational equivalency of the beneficiary's experience has limited probative 
value. They are founded upon evidence insufficient to satisfy the stringent requirements of the 
regulation at 8 C.F .R. § 21 4.2(h)(4)(iii)(D)(5) 
The petitioner must establish eligibi lity under the applicable statutory and regulatory provisions. 
Section 21 4(i)(2) ofthe Act, 8 U.S.C. § 11 84(i)(2), states that an alien applying for classification as 
an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required 
to practice in the occupation, 
(B) completion ofthe degree described in paragraph (l )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, 
and 
(b)(6)
Page 29 
NON-PRECEDENT DECISION 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
The degree referenced by section 21 4(i)(l)(B) ofthe Act, 8 U. S.C. § 11 84(i)(l )(B), means one in a 
specific specialty that is characterized by a body of highly specialized knowledge that must be 
theoretically and practically applied in performing the duties of the proffered position. 
In implementing section 21 4(i)(2) of the Act, the regulation at 8 C.F.R. § 214 .2(h)(4)(iii)(C) states 
that an alien must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately 
engaged in that specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible 
experience that are equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
For purposes of 8 C.F.R. § 21 4.2(h)(4)(iii)(C)(4), the provisions at 8 C.F.R. § 21 4.2(h)(4)(iii)(D) 
require one or more of the following to determine whether a beneficiary has achieved a level of 
knowledge, competence, and practice in the speci alty occupation that is equal to that of an 
individual who has a baccalaureate or higher degree in the specialty : 
(1) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an 
individual 's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PO NSI); 
(b)(6)
Page 30 
NON-PRECEDENT DECISION 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 7 
(4) Evidence of certification or regi stration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or regi stration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by 
the specialty occupation has been acquired through a combination of 
education, specialized training, and/or work experience in areas related to the 
specialty and that the alien has achieved recognition of expertise in the 
specialty occupation as a result of such training and experience .... 
The petitioner submitted transcripts and diplomas demonstrating that the beneficiary earned a 
Master of Science degree in Regulatory Af fairs for Drugs, Biologics, and Medical Devices form 
University, and a Bachelor's degree in Pharmacy from University, 
The petitioner also submitted an evaluation of the proffered position conducted by 
On appeal, the petitioner also submitted employment verification letters from both the 
petitioner and . located in India. 
The petitioner did not submit evidence to satisfy the criteria outlined in 8 C.F .R. 
§ 214 .2(h)( 4)(iii)(D)(2)-( 4) to establish that the beneficiary possesses a baccalaureate or higher 
degree in the specific specialty directly related to the duties of the prof f ered position (or its 
equivalent) . 
In the present matter, the record demonstrates that the beneficiary's undergraduate degree, earned in 
India, is in Pharma cy. Moreover, the record demonstrates that the beneficiary possesses a U.S. 
master's degree in the field of "Regulatory Aff airs for Drugs, Biologics, and Medical Devices. " We 
have no reason to doubt the legitimacy of the beneficiary's U.S. master's degree. 
The proffered position, however, is classified under SOC (ONET/O ES) code 15 -1199, which 
corresponds to occupations in the "Computer Occupations, All Others" category. We note that, 
while not selected by the petitioner for the LCA, SOC (ONET/OES) code 15 -1 19 9.01, the first 
subsection under the petitioner's selected category entitled "Software Quality Assurance Engineers 
and Testers," appears to correspond to the title conferred on the proffered position by the petitioner. 
It describes the associated duties of this classification as follows: "Develop and execute software 
test plans in order to identify software problems and their causes." 
It is unclear how degrees in Pharmacy and in Regulatory Affairs for Drugs, Biologics, and Medical 
devices qualify the beneficiary to perform the services of a quality assurance tester, or more 
7 The petitioner should note that, in accordance with this provision, USCIS will accept a credentials 
evaluation service's evaluation of education only, not experience. 
(b)(6)
NON-PRECEDENT DECISION 
Page 31 
generally, qualify him to perform duties within all other computer occupations. A beneficiary's 
academic achievements will not qualify him to perform the services of a specialty occupation, 
unless the academic courses pursued and knowledge gained is a realistic prerequisite to a particular 
occupation in the field. The petitioner must demonstrate that the beneficiary obtained knowledge of 
the particular occupation in which he or she will be employed. Matter of Ling, 13 I&N Dec. 35 
(Reg. Comm'r 19 68). However, the petitioner did not submit sufficient evidence regarding the 
proff ered position for us to make an assessment of whether the beneficiary obtained knowledge 
equivalent to at least a bachelor's degree in a specific specialty required by the particular occupation 
in which he will be employed. Indeed, it is not clear what the beneficiary will actually be doing. 
We note that the evaluation of the proffered position conducted by states that the 
beneficiary's transcripts include coursework that addresses "theoretical and practical aspects of 
Computer Information Systems that directly relate to the daily job responsibilities of the specialty 
occupation." does not expand on this conclusion. Furthermore, as noted by the director, 
the beneficiary's transcripts indicate that his coursework is heavily concentrated in the area of 
pharmacy, an area whose connection to the duties of the proffered position has not been established. 
Finally, we note that the petitioner repeatedly stated that degrees in a variety of fields, such as 
computer science, pharmacy, healthcare management, computer information systems, electronics 
engineering, or management information systems are acceptable prerequisites for the proffered 
position. Provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty" requirement of section 21 4(i)( l )(B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of a degree in two disparate fields, such as philosophy and 
engineering, would not meet the statutory requirement that the degree be "in the specific specialty," 
unless the petitioner establishes how each field is directly related to the duties and responsibilities of 
the particular position such that the required body of highly specialized knowledge is essentially an 
amalgamation of these different specialties. Section 21 4(i)( l) (B) of the Act (emphasis added). The 
petitioner has not explained how a degree in Pharmacy would directly relate to the proffered 
position in this matter. 
Thus, even if the evidence of record had established the prof fered position as a specialty occupation, 
which is not the case, the petitioner has not established that the beneficiary possesses the necessary 
credentials to qualify for service in such a position in accordance with the regulations at 8 C.F.R. §§ 
21 4.2(h)(4)(iii)(C) & (D). Accordingly, the appeal must be denied, and the petition must be denied, 
on this basis also. 
VI. CONCLU SION 
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 10 25, 10 43 (E.D. Cal. 
(b)(6)
NON-PRECEDENT DECISION 
Page 32 
200 1) , aff'd, 345 F.3d 683 (9th Cir. 2003 ); see also Soltane v. DOJ, 381 F.3d 14 5 (noting that the 
AAO conducts 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 our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 10 43 , aff'd. 345 F.3d 
683 . 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 8 In visa petition proceedings, 
the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 
291 of the Act, 8 U. S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
8 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 145. However, as the 
appeal is dismissed, and the petition is denied for the reasons discussed above, we will not further discuss the 
additional issues and deficiencies that we observe in the record of proceeding.