dismissed H-1B Case: Software

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 7, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software business, seeks to employ the Beneficiary as a programmer analyst and 
classify her as a nonimmigrant worker in a specialty occupation. See 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, 
California Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. PROCEDURALBACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I -129), the Petitioner describes itself as a software 
business, with 23 employees, established in In order to employ the Beneficiary in what it 
designates as a computer systems analyst position, the Petitioner seeks to classify her as a 
nonimmigrant worker in a specialty occupation. 
The Director denied the petition, concluding that the Petitioner did not establish (1) that it meets the 
regulatory definition of a United States employer , and (2) that the proffered position qualifies as a 
specialty occupation. On appeal, the Petitioner asserts that the Director's bases for denial were 
erroneous and contends that 
it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE); (3) the Petitioner's response to the RFE; (4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 1 
For 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. 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of M-, Inc. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We agree with the Director's finding that the Petitioner has not established that it meets the 
regulatory definition of a United States employer. 
A. Legal Framework 
For an H-1B petition to be granted, the Petitioner must establish that it meets the regulatory 
definition of a United States employer. 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner must 
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." !d. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as a foreign 
national: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111,61121 (Dec. 2, 1991). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application with the Secretary of Labor 
pursuant to section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(l) (2012). The intending employer is 
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Matter of M-, Inc. 
described as offering full-time or part-time "employment" to the H-1B "employee." Subsections 
212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). 
Further, the regulations indicate that "United States employers" must file a Petition for a 
Nonimmigrant Worker (Form I-129) in order to classify foreign nationals as H-1B temporary 
"employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States employer" 
indicates in its second prong that the Petitioner must have an "employer-employee relationship" with 
the "employees under this part," i.e., the H-1B Beneficiary, and that this relationship be evidenced by 
the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C.F.R. § 214.2(h)( 4 )(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes H-
1B beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H -1 B visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual 
Ins. Co. v. Darden, 503 U.S. 318,322-323 (1992) (hereinafter "Darden") (quoting Community.for 
Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and 
means by which the product is accomplished. Among the other factors relevant to 
this inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the 
work is part of the regular business of the hiring party; whether the hiring party is 
in business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non- Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, PC. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. o.f America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
4 
Matter of M-, Inc. 
See generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition.2 
Specifically, the regulatory definition of "United States employer" requires H -1 B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)( 4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition ofUnited 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. C.f Darden, 503 U.S. at 318-319.3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly indicates 
legislative intent to extend the definition beyond the traditional common law definition." See, e.g., Bowers v. 
Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) ofthe Act, "employment" in section 212(n)(1)(A)(i) ofthe Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1 B visa 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, USA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these tenns 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)). 
5 
Matter of M-, Inc. 
as used in section 101(a)(l5)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" ofan "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) Q[ Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" ofH-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual Petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties relevant 
to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-324. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
4 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
Matter of M-, Inc. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, 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-IB temporary "employee." We examined each piece of evidence for 
relevance, probative value, and credibility, both individually and within the context of the totality of 
the evidence, and find that the Petitioner did not establish the requisite employer-employee 
relationship with the Beneficiary. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
For H-lB classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, or if there is no written agreement , a summary of the terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.F.R. § 214.2(h)( 4)(iv)(A) and (B). The 
Petitioner has not submitted an employment offer letter or written employment agreement. In the 
initial submission, the Petitioner states: "[w]e have a contractual agreement with the Beneficiary that 
he will be our employee for the entire duration of the requested employment with an annual salary of 
$63606/year." In response to the Director's RFE requesting that .the Petitioner submit a copy of an 
employment offer letter detailing the terms and conditions of employment and an employment 
agreement that clearly describes the nature of the employer-employee relationship , the Petitioner 
stated, "[w]e have a verbal agreement with the Beneficiary that he/she will be working as a 
programmer analyst under our direction and control." However, the Petitioner did not provide any 
specific details regarding the actual terms of this verbal agreement, such as information on the 
Beneficiary's chain of command, description of the work to be performs, details of the benefits 
offered (vacation, insurance, etc.), and procedure for wage payments and tax withholdings, among 
other things. 
In the Form I -12 9 and on the LCA, the Petitioner stated that the Beneficiary will work at the 
Petitioner's office located at California. 5 The 
Petitioner does assert that it will be the Beneficiary's employer according to common law principles, 
making declarations such as: 
The Beneficiary will be working under our direction. Beneficiary will 
adhere to our work hours, dress code and our human resources policies . We will 
be instructing his work and providing overall guidance. 
We will supply the necessary tools (computer, printers, workstation, fax 
machine, training manuals) and authorize any financial expenditures in order for 
him to perform her job as a programmer analyst. 
5 In addition , the Petitioner answered "no" when asked on the Fom1 1- I 29 whether the Beneficiary would work offsite . 
.., 
(b)(6)
Matter of M-, Inc. 
However, the information in the record does not support these assertions. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of So.fjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972) ). Despite the specific requests 
from the Director in the RFE, the Petitioner has not submitted information on its organizational 
structure, has not provided information on the Beneficiary's 
position within the company, has not 
identified the position and location of persons in the Beneficiary's chain of command, has not 
detailed the process for assigning and supervising work, and has not submitted information on the 
company's performance review process. This information is necessary to determine whether the 
Petitioner is serving as the Beneficiary's U.S. employer and .the absence of this information 
precludes us from evaluating whether the Petitioner and Beneficiary will have an employer­
employee relationship. Furthermore, failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition . 8 C.F.R. § 103.2(b)(l4). 
Moreover, the record contains material inconsistencies regarding the Beneficiary's place of 
employment. Again, the Petitioner stated in the Form 1-129 and on the LCA that the Beneficiary 
would be working at the Petitioner's , California business location, and checked the box at 
page 4 of the petition to state that she would not be working at any offsite locations. However, in 
response to the Director's RFE the Petitioner states that the Beneficiary will not be employed at the 
Petitioner's office as indicated in the petition but will instead be working at " 
offices at . " The Petitioner 
further states that "the labor condition application for . CA is in the same 
metropolitan/geographical area and covers the intended work location ."6 
With the RFE response, the Petitioner also submitted a Master Services Agreement (MSA) between 
itself and dated April 12, 2011. The Petitioner fmther submitted a purchase order 
(PO) between itself and with an effective date of October 1, 2014 with a term of 
one year. The PO states that the Petitioner will supply personnel in the "role of Programmer 
Analyst/Java Test Engineer/Software Engineer." The PO further states that the "supplier will assign 
Consultants (multiple) under this purchase order." The purchase order does not specifically name 
the Beneficiary and no additional POs, Statements of Work, or similar documentation naming the 
Beneficiary were submitted . Given the content of the MSA and the infotmation submitted in 
response to the RFE, it appears that the Beneficiary would be placed at the end-client, 
through the middle vendor, However, the record does not contain 
information from , such as a contract between and 
, or a description of the Beneficiary's intended duties from that would 
allow USCIS to fully evaluate the employment relationship between the Beneficiary and the 
Petitioner. Without information on the contractual relationship between the middle-vendor and the 
end-client, we cannot conclude that the Petitioner would retain control over the Beneficiary's work. 
6 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 l&N Dec. 582, 591-92 (BIA 1988). 
0 
(b)(6)
Matter of M-, Inc. 
The Petitioner also submitted additional documentation, including information from the Internal 
Revenue Service and the California Employment Development Department, regarding methods to 
determine whether an individual would be considered an employee according to each organization's 
specific guidelines, which focused on the payment of wages and taxes as the determining factor. We 
acknowledge that the method of payment of wages can be a pertinent factor to determining the 
Petitioner's relationship with the Beneficiary. 
However, 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. Furthermore, the Petitioner has not provided documentary evidence to establish that it 
would in fact be the entity paying the Beneficiary's wages, social security contributions, worker's 
compensation contributions, unemployment insurance contributions , federal and state income tax 
withholdings. 
On appeal, the Petitioner claims that the designation of as the end-client was a 
scrivener's error and asserts that the Beneficiary will actually be working for as 
the end-client. The Petitioner also submitted a letter from . _ stating: "Our company 
does not have the right to assign additional projects to [the Beneficiary] without notifying the 
[Petitioner's] manager of the additional scope of work/project or term. Moreover, the [Petitioner] 
manager must coordinate, discuss, and explain any additional project terms to [the Beneficiary] in 
order for her to perform additional duties." 
However, we note that the Petitioner named 
response and that the MSA between the Petitioner and 
to the work that the Petitioner's personnel will do for 
that will be dictated by such clients. Specifically the MSA states: 
3. Consultant's Responsibilities. 
as the end client twice in the RFE 
. contains sections referring 
clients and the conditions 
f. Consultant agrees to abide by all provisions that are hereby flowed down to 
consultant from any agreement that Company has in place with Client, for which 
Consultant provides under this Agreement, including non-disclosure , employee 
screening, and insurance requirements. 
This section of the agreement indicates that the relationship between the Petitioner and 
is one where performs as a middle vender and that the Beneficiary 
may be assigned to work for third-party clients, rather than for . itself, as claimed 
on appeal. 
Thus, the record of proceeding contains at least four competing claims regarding the nature of the 
Beneficiary's work: that she would work directly for the Petitioner, as indicated in the petition; that 
she would perform services for : that she would perform services for 
9 
(b)(6)
Matter of M-, Inc. 
. .; and that she would perform services for the clients of pursuant to the 
above-referenced MSA. 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. 591-92. Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. !d. The Petitioner provided inconsistent information 
regarding the nature and scope of the Beneficiary's employment. Therefore, the key element in this 
matter, which is who exercises control over the Beneficiary, has not been substantiated and we 
cannot make an affirmative determination given the current inconsistencies i~ the record. 
The evidence in the record, therefore, is insufficient to establish that the Petitioner qualifies as a 
United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that 
the Petitioner exercises complete control over the Beneficiary, without evidence supporting the 
claim, does not establish eligibility in this matter. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSo.ffici , 22 I&N Dec. at 165. The evidence of record prior to adjudication did 
not establish that the Petitioner would act as the Beneficiary's employer in that it will hire, pay, fire, 
or otherwise control the work of the Beneficiary. 
Furthermore, we find that the Petitioner has not established that the petition was filed for non­
speculative work for the Beneficiary, for the entire period requested, that existed as of the time of the 
petition's filing. The instant petition requests H-lB status for the Beneficiary from October 1, 2014 
until May 31, 2017. The MSA discussed above states: 
The term of this agreement is from the Effective Date and shall continue 
until December 31, 2015 ("End Date"). The term of this agreement shall be 
extended in the event seeks additional services from [the 
Petitioner] and is subject to the termination provisions of this Section 5. 
The associated PO states that it is valid, 
Beginning October 1, 2014 and for a minimum of one years ("minimum 
time requirement") and extendable or as otherwise provided on the agreement. 
Any extension of this agreement may be obtained by way of a communication 
over email or an additional purchase order, signed by an authorized 
representative of [the Petitioner] and accepted by the contractor. 
The Petitioner has not submitted evidence, such as additional POs or signed correspondence from 
the interested parties, to indicate that the MSA has been extended beyond October 31, 2015. 
Upon review, we find that there is insufficient documentary evidence in the record corroborating the 
availability of work for the Beneficiary for the requested period of employment and, consequently , 
what the Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
the circumstances of his relationship with the Petitioner. Again, USCIS regulations affirmativel y 
10 
Matter of M-, Inc. 
require a Petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 
See 8 C.F.R. 103.2(b)(1). 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'l Comm'r 1978). Moreover, the burden of proving 
eligibility for the benefit sought remains entirely with the Petitioner. Section 291 of the Act. The 
Petitioner has not established that, at the time the petition was submitted, it had located H -1 B caliber 
work for the Beneficiary that would entail performing the duties as described in the petition, and that 
was reserved for the Beneficiary for the duration of the period requested. Thus, even if it were found 
that the Petitioner would be the Beneficiary's United States employer as that term is defined at 8 
C.F.R. § 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would maintain such an 
employer-employee relationship for the duration of the period requested. 7 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-1B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. SPECIALTY OCCUPATION 
Furthermore, we find that the record does not establish that the Beneficiary would be employed in a 
specialty occupation, as defined by applicable statues and regulations, for the duration of the 
requested H-1B validity period. 
A. Legal Framework 
7 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. The H-1 8 
classification is not intended to be utilized to meet possible workforce needs arising from potential business expansions 
or the expectation of potential new customers or contracts. For example, a 1998 proposed rule documented this position 
as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a Petitioner is certainly permitted to change its intent with 
regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a 
material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
II 
Matter of M-, Inc. 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the m1mmum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is l+Sually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F .R. § 214.2(h)( 4 )(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
12 
Matter of M-, Inc. 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry. requirement in the United States of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of 
the particular position; fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
As noted above, the Petitioner describes itself as a software business, established in 2009 with 23 
employees. In the letter submitted in support of the instant petition, the Petitioner states that it is 
filing a petition for a programmer analyst with the following job duties: 
Install, maintain and may design internal software operating systems 
and/or business applications. Prepare concepts for information systems solutions. 
Be responsible for project control, quality and implementation 
13 
(b)(6)
Matter of M-, Inc. 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The 
Petitioner indicates that the proffered position corresponds to the occupational category "Computer 
Systems Analysts"-SOC (ONET/OES Code) 15-1121, at a Level I (entry-level) wage. 
The Director reviewed the submitted position information and issued an RFE, requesting additional 
information from the Petitioner concerning the proposed assignment. In response to the Director's 
RFE, the Petitioner stated that the Beneficiary 
would be working at and 
provided the following more detailed description of the duties: 
Analyze the business requirement and system functionalities, code and develop 
Applications as per the business requirements using Java,.Net tool on oracle. 
Review and modify any changes to the application and increase the process 
workflow and run the technical and business functionality of the application 
through the test process either by automated testing or manual testing process .. 
On appeal, the Petitioner stated that the Beneficiary would be employed with and 
submitted a letter from which states that the Beneficiary will be "engaged as a 
Programmer Analyst Consultant whose duties essentially fit the job title of Software Engineer 
Analyst and that by normal industry standards these service require at least a Bachelor Degree or 
equivalent in a relevant technology field." The letter from states that the 
Beneficiary's duties will. include the following tasks: 
• Develop full Life Cycle object oriented software system 
• Gather and analyze business requirements from users and functional team 
• Write technical design document for various interface, conversions , forms and 
reports using Functional Documents 
• Design and Develop system using .Net and other web based technologies such 
as JQuery NHibemate 
• Assist in designing Database and its Development 
• Create various DB Object (Table, View, and Sequence Scripts) and writing 
SQL queries, Stored Procedures , Functions , Alerts and Triggers to retrieve, 
update and delete data from SQL Server Database 
• Create Testing Fixtures 
and Fixing defects and builds 
• Work with the team leader in devising methods to solve problems and meet 
user needs 
C. Analysis 
We find that the evidence of record does not demonstrate that the proffered position as described by 
the Petitioner in fact falls within the "Computer Systems Analysts" occupational category as 
designated by the Petitioner on the LCA. We make this finding primarily based upon the lack of 
14 
(b)(6)
Matter of M-, Inc. 
information and evidence regarding the specific duties of the proffered position and the 
inconsistencies present in the position descriptions supplied by the Petitioner.8 
The initial duties provided by the Petitioner are generic in nature. The Petitioner's description is 
generalized and generic in that the Petitioner does not convey either the substantive nature of the 
work that the Beneficiary would actually perform, any particular body of highly specialized 
knowledge that would have to be theoretically and practically applied to perform it, or the 
educational level of any such knowledge that may be necessary . For example, the duties include "be 
responsible for project control, quality and implementation" and "prepare concepts for information 
systems solutions." The description provided in response to the RFE continued to describe the 
position in general terms and did not indicate what type of knowledge may be required to perform 
the duties. The responsibilities for the proffered position contain generalized functions without 
providing sufficient information regarding the particular work, and associated educational 
requirements, into which the duties would manifest themselves in their day-to-day 
performance. The abstract, speculative level of information regarding the proffered position and the 
duties comprising it is exemplified by the phrases "analyze the business requirement and system 
functionalities" and " develop applications as per the business requirements." 
Further, the amended job description provided by _ ~ on appeal is inconsistent with 
the information previously provided.9 The amended job description contains little to no overlap in 
the specific tasks to be performed or knowledge to be used, as was specified in the original 
submission. 10 Specifically, the initial duties consist of "install, maintain and may design internal 
software operating systems and/or business applications"; while the amended job description 
provided by includes skills such as "create various DB Object (Table, View, and 
Sequence Scripts) and writing SQL queries, Stored Procedures, Functions , Alerts and Triggers to 
retrieve, update and delete data from SQL Server Database," without mention of previously how 
these relate to previously enumerated duties. In this matter, the record contains material 
inconsistencies concerning the description of the proffered position. 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. 591-92. 
8 We note that even if we were able to conclude that the proffered positon would be that of a computer systems analyst , 
the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) does not support the assertion that 
the normal minimum entry requirement to become a computer systems analyst is the obtainment of a baccalaureate 
degree in a specific specialty , or its equivalent. Specifically, the Handbook states that some employers hire workers with 
a liberal arts degree , which does not establish that working as a computer programmer normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for entry into the occupation . Therefore it would not be 
considered a specialty occupation, absent additional evidence from the Petitioner that it met one of the criteria stated at 8 
C.F.R. § 214.2(h)(4)(iii)(A). We recognize the Handbook as an authoritative source on the duties and educational 
requirements ofthe wide variety of occupations that it addresses . The Handbook, which is available in printed form , may 
also be accessed on the Internet, at http://www.bls .gov/oco/ . All of our references to the Handbook are to the 2014-
2015 edition available online. 
9 Further, and as was discussed earlier , the claim that the Beneficiary would perform services for . is 
one of numerous employment scenarios described in the petition. 
10 A Petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USClS 
requirements. See Matter of !zttmini, 22 l&N Dec. 169, 176 (Assoc . Comm'r 1998). 
15 
(b)(6)
Matter of M-, Inc. 
As discussed above, the MSA contains provisions regarding service performed for a client and the 
Petitioner previously stated that the Beneficiary would be performing work for a third party client. 
Therefore, it appears that the Beneficiary may be working for a third-party end-client, rather than for 
, as claimed on appeal. 
We note that, as recognized by the court in Defensor , supra, where the work is to be performed for 
entities other than the Petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner , 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. Id. at 384. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. In 
this case, the Petitioner provided information from , but did not identify or provide 
information concerning the proffered position from _ client. Without such 
information we are unable to determine whether or not the proposed occupation would qualify as a 
specialty occupation. 
On appeal, the Petitioner contends that as USCIS has approved other petitions for programmer 
analyst positions, it should likewise conclude the proffered position in this case is a specialty 
occupation. If a Petitioner wishes to have unpublished service center or our prior decisions 
considered by USeiS in its adjudication of a petition, the Petitioner is permitted to submit copies of 
such evidence. The Petitioner did not submit such evidence in this case. 
Nevertheless, even if this evidence had been submitted and even if it had been determined that the 
facts in those cases were analogous to those in this proceeding, those decisions are not binding on 
USeiS. While 8 e.F.R. § 103.3(c) provides that our precedent decisions are binding on all USers 
employees in the administration of the Act , unpublished decisions are not similarly binding. 
Moreover, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the director. We are not required to approve applications or 
petitions where eligibility has not been demonstrated , merely because of prior approvals that may 
have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(eomm'r 1988). It would be "absurd to suggest that [USeiS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The Petitioner also asserts that certification of the LeA by DOL supports the assertion that the 
proffered position qualifies as a specialty occupation. However, While DOL is the agency that 
certifies LeA applications before they are submitted to users, DOL regulations note that the U.S. 
Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USeiS) is the 
. department responsible for determining whether the content of an LeA filed for a particular Form I-
129 actually supports that petition. See 20 e.F.R. § 655.705(b) , which states, in pertinent part 
(emphasis added): 
16 
Matter of M-, Inc. 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with 
the DOL certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the [LCA} is a specialty occupation or whether the 
individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements of H -1 B visa 
classification. 
11 
The certification of an LCA by the DOL does not signify that the occupation named in the LCA is a 
specialty occupation. Rather, as noted above, it is DHS which will make this determination. 
The Petitioner must establish, with specificity, the duties of proffered position, in order to 
demonstrate that the proffered position is in a specialty occupation. Because the record of 
proceeding in this case is devoid of sufficient consistent information regarding the specific job duties 
to be performed by the Beneficiary, the Petitioner has not established the substantive nature of the 
work to be performed by the Beneficiary, which therefore precludes a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). We note that it is the substantive 
nature of that work that determines (1) the normal minimum educational requirement for the 
particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, 
which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a 
Petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and 
( 5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 
4. The Petitioner, therefore, has not established that the proffered position is a specialty occupation. 
IV. BENEFICIARY QUALIFICATIONS 
We do not need to examine the issue of the Beneficiary's qualifications, because the Petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the Beneficiary's credentials to perform a particular job are relevant 
only when the job is found to be a specialty occupation. 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the Beneficiary possesses that degree or its equivalent. 
11 See also 56 Fed. Reg. 61111,61112 (Dec. 2, 1991)("An approved labor condition application is not a factor in 
determining whether a position is a specialty occupation.") 
1'"7 
Matter of M-, Inc. 
V. CONCLUSION AND ORDER 
As discussed, we agree with the Director's decision denying this petition. In visa petitiOn 
proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 12 
ORDER: The appeal is dismissed. 
Cite as Matter o.fM-, Inc., ID# 13959 (AAO Oct. 7, 2015) 
12 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address additional grounds of 
ineligibility we observe in the record of proceeding. 
18