dismissed H-1B Case: Systems Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 8825951 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY . 1, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "systems engineer" under the H-1B 
nonirnmigrant classification for specialty occupations . See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 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 California Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States . 
The regulation at 8 C.F.R . § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
( I) 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. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude 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). 1 
The Petitioner stated that the Beneficiary would work at the end-client's location in ._I ___ __, 
California, pursuant to contracts executed between the Petitioner and the vendor, and between the 
vendor and the end-client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ End-Client. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of an end-client to 
provide it. And if we cannot determine whether the proffered position as described in this petition 
would actually exist then we cannot ascertain its substantive nature, let alone determine whether it is 
a specialty occupation. 
The Petitioner filed this petition in April 2019 and claimed that the Beneficiary would work as a 
systems engineer at the end-client's California location from October 2019 to August 2022. To 
1 The Petitioner submitted documentation to suppmt 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. 
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support that claim, the Petitioner submitted a Sub-Vendor Agreement (SA) executed between itself 
and the vendor and two Fieldglass work orders. Upon review of the SA, we observe that it does not 
reference the Beneficiary; the job title of the proffered position; the job duties and tasks to be 
performed by a systems engineer, the proffered position; or the end-client. While the initial Fieldglass 
work order references the Beneficiary, it states that the Beneficiary will be providing services as a 
"Platform Engineer" in I I from "12/01/2018 to 05/31/2019." It does not indicate that the 
Beneficiary will serve as a systems engineer (as stated in the H-lB petition) but rather as a "Platform 
Engineer." The work order does not describe the duties of the "Platform Engineer" in order to 
determine whether they are sufficiently similar to those of the proffered position. Moreover, the 
Fieldglass work order states the work site location as l ~ which is a city in Utah. The work order 
does not mention the end-client. Furthermore, it appears that the Beneficiary's services will end prior 
to the requested H-lB start date. 
In response to the Director's request for evidence, the Petitioner provided a second Fieldglass work 
order. The work order states that the Beneficiary's services as a "Systems Engineer" will be needed 
from "03/30/2019 to 11/29/2019" inl I California. It must be noted that this work order does 
not demonstrate the Petitioner's eligibility at the time of filing because it was created in August 2019, 
approximately four months after the petition was filed and after the Director issued her request for 
additional evidence. 2 Nevertheless, the work order shows that the Beneficiary's services will end 
approximately one month after the requested H-lB start date. Thus, the referenced documents do not 
establish that the Beneficiary will serve as a systems engineer inl I California for the duration 
of the requested H-lB period. 3 Again, if we cannot determine whether the proffered position will 
actually exist, then we cannot ascertain its substantive nature so as to determine whether it is a specialty 
occupation. 4 
Even if we were to set the speculative nature of the Petitioner's offer of employment aside, we would 
still be unable to ascertain the substantive nature of the proffered position. First, we observe that the 
record lacks sufficient detail and concrete explanation regarding the 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. 
Moreover, as recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. In other 
words, as the employees in that case would provide services to the end-client and not to the petitioning 
2 U.S. Citizenship and Immigration Services (USCIS) regulations affirmatively 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 T&N Dec. 248, 249 (Reg'! Comm'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCTS requirements. Sec Matter of lzummi, 22 
T&N Dec. 169, 176 (Assoc. Comm'r 1998). The second work order therefore carries little evidentiary weight. 
3 Though acknowledged, the letters from the Petitioner, the vendor, and the end-client do not serve to fill this gap. as they 
are not evidence of an obligation on the part of the end-client to provide the position the Petitioner describes. 
4 Speculative employment is not permitted in the H-lB program. See. e.g., 63 Fed. Reg. 30419, 30419-20 (proposed June 
4, 1998) (to be codified at 8 C.F.R. pt. 214). 
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staffing company, the job duties and alleged requirements to perform the duties that the Petitioner 
provided were irrelevant to a specialty occupation determination. See id. 
Here, the Petitioner asserts that the Beneficiary will be employed offsite at an end-client's location. 
The record of proceedings, however, is devoid of information from the end-client regarding the nature 
of the Beneficiary's proposed position and the duties associated therewith. While the record contains 
job descriptions from the Petitioner, there is no evidence in the record from the end-client to 
corroborate the claimed duties and scope of the Beneficiary's assignment. 
Moreover, the Petitioner has not provided information from the end-client outlining the company's 
educational requirements. The record, therefore, also lacks documentation or information about the 
end-client's educational requirements for the position and whether such educational requirements 
would match the Petitioner's requirements and qualify for a specialty occupation and meet the wage 
level specified on the labor condition application. Consistent with Defensor, where the work is to be 
performed for entities other than the Petitioner, evidence of the client companies' job requirements is 
critical. However, the record of proceedings does not contain such evidence. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without documents from the end-client that sufficiently 
provide pertinent information such as the Beneficiary's assigned project and detailed duties to 
demonstrate what he will actually do on a day-to-day basis, we cannot determine the substantive nature 
of the proffered position. As the Petitioner has not established the substantive nature of the work to 
be performed by the Beneficiary, this precludes a conclusion that the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. 5 
Specifically, the Petitioner has not demonstrated that it will have a valid employer-employee 
relationship with the Beneficiary. The United States Supreme Court 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 
5 In reviewing a matter de nova, we may identify additional issues not addressed in the Director's decision. See Spe!lcer 
EJ1te1prises, IJ1c. v. UJ1ited States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
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doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). 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." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). 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. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Given this specific lack of evidence, the Petitioner has not 
established who has or will have actual control over the Beneficiary's work or duties, or the condition 
and scope of the Beneficiary's services. Moreover, the record shows that the Petitioner has provided 
inconsistent information regarding the Beneficiary's supervisor. In its itinerary, the Petitioner states 
that~-------~will supervise the Beneficiary. However, the end-client letter states that 
the vendor "will directly employ and control all [vendor] employees, and control subcontractors, 
including those who work onsite at [the end-client's] offices." In addition, the end-client letter states 
"[the vendor] would be the most accurate source from which to obtain a detailed description of a 
prospective or in-fact [vendor] employee or subcontractor's work activities." There is no explanation 
in the record for these inconsistencies. Without full disclosure of all of the relevant factors, we are 
unable to properly assess whether the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. 
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III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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. 
ORDER: The appeal is dismissed. 
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