dismissed H-1B Case: Statistical Programming

MATTER OF T-C- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a business consulting services company, seeks to temporarily employ the Beneficiary 
as a "statistical programmer" under the H-1B nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(H)(i)(b) . The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not sufficiently establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. 
Upon de nova review, we will dismiss the appeal. 1 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We follow the preponderance of the evidenc e standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter ofT-C- LLC 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See 
Royal Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
The Petitioner, located in New Jersey, indicated on the Form I-129, Petition for a Nonimmigrant 
Worker, and on the certified labor condition application (LCA)3, that the Beneficiary will work as a 
2 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered 
position and its business operations. Although we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 A petitioner submits the LCA to U.S. Department of Labor to demonstrate that it will pay an H-lB worker the higher of 
either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
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Matter ofT-C- LLC 
"statistical programmer" for~-----------~ (end-client), m Massachusetts, for the 
petition's entire employment ,eriod as follows: Petitioner ~ lcvendor) ➔ 
I J(end-client). 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary 
will work for the end-client. In support of this assertion, the Petitioner submitted a "Consulting 
Agreement" (CA) document it executed with the vendor. The Petitioner has not established this 
document's relevance to the Beneficiary's assignment as it does not reference the Beneficiary; the 
job title of the proffered position; the job duties and tasks to be performed by a statistical 
programmer, the proffered position; or the end-client. Nor does the document provide any detail 
regarding the Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end­
client, or the expected duration of the Beneficiary's work for the end-client. The Petitioner also 
submitted an "Exhibit A-Work Order" (WO) document between the Petitioner and the vendor. While 
the WO does reference the Beneficiary and the end-client, it does not detail the job title of the proffered 
position or the job duties and tasks to be performed by a statistical programmer, the proffered position. 
Nor does it establish the Petitioner's role in the Beneficiary's day-to-day work with the end-client. 
Therefore, the referenced documents are not sufficient to substantiate what type of work the 
Beneficiary would perform for the end-client. 
These documents-the Consulting Agreement and the Exhibit A-Work Order-are the only legal 
documents that purport to create any obligation to provide work for the Beneficiary to perform. They 
create no obligation on the part of the end-client; the end-client is not a party to any of the referenced 
agreements. They do not establish the existence of a specialty occupation position at the end-client's 
worksite. In other words, there is no evidence of any obligation on the part of end-client to provide 
the position the Petitioner describes in this petition for the Beneficiary. There is little indication that 
this petition was filed for non-speculative employment. 4 If we cannot determine whether the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
4 The agency made clear long ago that speculative employment is not permitted in the H-lB program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-IB classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-IB classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
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Matter ofT-C- LLC 
position as described by the petitioner actually exists, then we cannot ascertain its substantive nature, 
let alone determine whether it is a specialty occupation. 
Even if we set the issue of speculative employment aside, we would still be unable to ascertain the 
substantive nature of the proffered position. For example, although the Petitioner submitted a letter 
from the end-client on appeal that states that the Beneficiary will be working at their site, it is not 
sufficient. The record lacks sufficient detail and concrete explanation regarding the "New Drug 
Application project" for which the Beneficiary will be assigned, to establish the substantive nature of 
the work the Beneficiary will be performing for the end-client, and the associated applications of 
specialized knowledge that their actual performance will require. Further, the generally-stated duties 
provided by the end-client without the context of a specific project and the Beneficiary's actual role in 
the project adds little to our understanding of the Beneficiary's duties. The end-client letter does not 
contain specific and credible details about the duties that the Beneficiary would perform, and it 
therefore also does not establish the substantive nature of the proffered position. Nor does it 
reference the Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end­
client 
Further, we find that the duties themselves are vague. The generally-stated duties provided by the 
Petitioner without the context of a specific project and the Beneficiary's actual role in the project adds 
little to our understanding of the Beneficiary's duties. The job descriptions lack sufficient detail and 
concrete explanation to establish the substantive nature of the work the Beneficiary will be performing 
for the end-client, and the associated applications of specialized knowledge that their actual 
performance will require. For instance, the Petitioner indicates that the Beneficiary will "prepare data 
for processing" and "provide SAS programming support," but the Petitioner does not provide any 
detail regarding the work these duties with the end-client will entail, and how these tasks merit 
recognition of the proffered position as a specialty occupation. The duties as described do not 
communicate (1) the actual work that the Beneficiary would perform, (2) the complexity, 
uniqueness, or specialization of the tasks, and (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. It is therefore not 
evident that the proposed duties as described in this record of proceeding, and the position that they 
comprise, merit recognition of the proffered position as a specialty occupation. Additionally, as 
determined above, there is insufficient evidence of an obligation on the part of the end-client to 
provide any work for the Beneficiary, let alone work of specialty occupation caliber. 
The Petitioner's supporting evidence is not sufficient to fill these gaps. For example, though we 
acknowledge the letters from.__ ______ ____. Ph.D. and I I Ph.D., they are not 
sufficient to establish the substantive nature of the proffered position, as they do not discuss the 
duties of the proffered position in substantive detail beyond those presented by the Petitioner. There 
is no information regarding the complexity of the job duties, supervisory duties (if any), independent 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
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Matter ofT-C- LLC 
judgment required, or the amount of supervision received. There is no indication that I I and 
~---~I possess any knowledge of the Petitioner's proffered position beyond this job description, 
e.g., visited_ the Petitioner's business, observed the Petitioner's employees, interviewed them about 
the nature of their work, or documented the knowledge that these workers apply on the job prior to 
documenting their opinions regarding the proffered position. 
In sum, the record lacks sufficient documentation regarding the Petitioner's and end-client's business 
activities; the project for which the Beneficiary will be assigned; the actual work that the Beneficiary 
would perform during the intended period of employment; and the minimum requirements of the 
proffered position; to establish the substantive nature of the work the Beneficiary will be performing 
for the end-client, and the associated applications of specialized knowledge that their actual 
performance will require. Given this specific lack of evidence and the insufficient job descriptions 
contained in the record, we cannot determine the substantive nature of the work to be performed by 
the Beneficiary. 
As the Petitioner has not established the substantive and non-speculative nature of the work to be 
performed by the Beneficiary, we cannot reach a conclusion as to whether the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work 
that determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. Accordingly, the Petitioner has not 
established that the proffered position is a specialty occupation. 5 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
The Petitioner has not demonstrated that it qualifies as a United States employer. We are not able to 
fully ascertain what the Beneficiary will do, where the Beneficiary will work, as well as how this 
impacts the Petitioner's ability to control and direct the Beneficiary's day-to-day work. Given this 
specific lack of evidence, the Petitioner has not corroborated who has or will have actual control 
over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In 
other words, the Petitioner has not established it will have and maintain the requisite employer­
employee relationship with the Beneficiary for the duration of the requested employment 
period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring the 
Petitioner to engage the Beneficiary to work such that it will have and maintain an employer­
employee relationship with respect to the sponsored H-lB nonimmigrant worker). Therefore, the 
petition cannot be approved for this additional reason. 
5 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
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Matter ofT-C- LLC 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
Cite as Matter of T-C- LLC, ID# 4655194 (AAO Sept. 12, 2019) 
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