dismissed H-1B Case: Technology Consulting

U.s. Citizenship 
and Immigration 
Services 
MATTER OF M-C-T-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a technology consulting company, seeks to temporarily employ the Beneficiary as a 
"computer systems analyst" under the H-1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(H)(i)(b). The H-lB 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 ofhighly 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that the Petitioner has specialty occupation work available for 
the Beneficiary for the intended employment period and that the Petitioner will have an 
employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in her findings. 1 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 
During our preliminary review of the record, we were unable to determine if the Petitioner remained a corporation in 
good standing in the State of Georgia. We issued a notice of intent to dismiss and a request for evidence to resolve this 
issue. In response to our request, the Petitioner submitted sufficient evidence to establish that it is a corporation in good 
standing in the State of Georgia and that it continues to engage in business. 
Matter of M-C-T-, Inc. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree. or its equivalent is 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Chert(df, 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). 
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will be employed as a computer systems analyst 
responsible for coordination and management of activities related to design, configuration, and 
implementation of an off-site project for computer system and application development. The 
Petitioner described the specific responsibilities of the position as: 
• Coordinate and manage activities related to the designs, configuration, and 
implementation of the system; collaborate in the testing of configurations with 
department representatives; communicate with network and server administrator, 
and vendors to ensure that end-client is using the system to its full potential and in 
accordance with best practices; 
• Analyze end-client's various business practices and requirements; recommend the 
use of information system in support of end-client's functions; improve the 
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Matter of M-C- T-, Inc. 
efficiency and productivity of operations using system's abilities ruld [sic] 
applications; set priorities for applicable system enhancements; 
• Provide management and oversight of the implementation of the system; identify 
potential points of resistance or confusion, and develop specific plans to mitigate 
or address concerns; collaborate with stakeholders at all levels in the formulation 
of plans and activities to support project implementation; 
• Gather, analyze and document requirements for the selection, implementation, 
integration, and support ofthe system; 
• Coordinate feasibility studies for software and system products under 
consideration for purchase and provide findings and 
recommendations; 
• Develop and deploy strategies, standards, methodologies, and best practices for 
implementation, maintenance and upgrade of the system; 
• Collaborate in the testing of software pro gran 1 s [sic] and applications, 
communicate with network and server administrator, vendors, end-users, and 
Systems Analysts to ensure quality assurance, program logic and data processing; 
develop, implement, and disseminate information to best practices for application 
usage; 
• Develop and coordinate training, including development of training materials, 
user procedures and training curriculum, conduct training sessions as necessary; 
develop ruid [sic] maintain user documentation, implementation and maintenance 
plans' 
• Create custom 
administrative and quantitative reports for internal customers based 
on business requirements; [and] 
• Facilitate the maintenance, support, and upgrade of existing system; coordinate 
and communicate software upgrade, enhancements and changes[.] 
According to the Petitioner, to perform the described duties, ' 
degree or its equivalent in Science, Technology, Engineering, 
closely relevant major." 2 
III. ANALYSIS 
requires at least a Bachelor's 
Business Administration, or any 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 
or (the Petitioner initially refers to this company as but all agreements 
and later references are to is the mid-vendor between the Petitioner and the ultimate 
end-client, An addendum to the Petitioner's letter in support of the petition states:· is a mobile 
application for and operations system [the Petitioner's] consultants are developing for The 
Petitioner also included printouts from the ' website for the record. We note that the record does not 
consistently identifY the application, it is sometimes referred to as' ' ' and sometimes referred to as" 
(b)(6)
Matter of M-C- T-, Inc . 
For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-lB caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor 's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition . 
In this matter, although the Petitioner indicated that the Beneficiary would be employed at the 
end-client's worksite on a specific project, the evidence of the record does not sufficiently support 
the Petitioner's assertion. In a document identified as an "Itinerary of Services," the Petitioner 
asserted that the Beneficiary "will be delivering temporary subject matter expertise to 
and that he "will perform the duties of System Analyst" at work site for the duration 
of the requested employment period. The Petitioner also submitted a contract between 
and and a statement of work (SOW) for the ' project 
which identified the off-site consulting services as designing, developing, enhancing, and testing the 
application for and operating systems. The SOW identified multiple 
positions, including nine developers, two programmer analysts, four senior quality assurance 
analysts, three quality assurance analysts, and a program manager for work estimated to end at 
various times from September 2017 to December 2018. The hourly rate for these different positions 
ranged from $35 to $75 per hour. The Petitioner has not explained which of these positions, if any, 
refer to the Beneficiary , whose title is "computer systems analyst." A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof. See Matter ofSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft 
o_fCal., 14 I&N Dec. 190 (Reg'! Comm'r 1972)); see also Matter o{Chawathe, 25 l&N Dec. 369, 
376 (AAO 201 0). The Petitioner must support its assertions with relevant , probative, and credible 
evidence. See Matter o_fChawathe, 25 I&N Dec. at 376. 
The Petitioner further included its agreement with executed on February 6, 2014, which 
states that this contract may be "terminated at any time by either party upon fourteen ( 14) days 
written notice, prior to the termination date; provided however, that may 
terminate upon 
shorter notice, or no notice , at the Client's request." Therefore, this agreement does not demonstrate 
a definite commitment between the parties tor the entire employment period requested in the 
petition. 3 In addition , this agreement states that the Client will set forth the work to be performed by 
3 On appeal, the Petitioner claims that the Beneficiary will be employed in the proffered position for the duration of the 
intended employment period and if for some business reason the project ends, the Beneficiary will work 
in-house until he can be assigned to another project. However , the record does not include documentary evidence of any 
in-house or third party projects , other than the claimed project. Without properly executed agreements and 
work orders, service authorizations, or other similar documentation required by such agreements encompassing the 
period requested in the petition , we cannot find that the Petitioner has demonstrated availability of in-house or other third 
party projects for the Beneficiary at the time the petition was filed that would last for the entire period requested. 
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Matter of M-C-T-, Inc. 
the technical services personnel in a purchase order or similar form. In that regard, the Petitioner 
included a document labeled purchase order between it and which identified the 
Beneficiary. The purchase order does not, however, identify the prospective work, project, or client. 
We note that the initial record also included a letter signed by identifying its client as 
and listing different duties than the Petitioner listed as duties of the proffered position. 
This letter appears to be for "an onsite coordinator on the project'' for long-term care and 
behavioral health members and not relevant to the ' project. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter on 
letterhead to confirm agreement with which also noted that 
had reviewed the Beneficiary's qualifiC(ations and is satisfied that he met their minimal requirements 
for the specific role of "software developer, applications." In the same letter, 
representative listed the same generic duties initially provided by the Petitioner and stated that the 
Beneficiary's project role would be as a "computer systems analyst." The Petitioner also provided a 
letter on letterhead which included this same information, including the 
inconsistent designation of the Beneficiary's position and the verbatim generic description of duties 
for the proffered position initially submitted by the Petitioner. 4 
Upon review of the duties of the proffered position, as initially submitted by the Petitioner and 
adopted by and in response to the RFE, the description paraphrases some of 
the duties of a computer systems analyst as outlined in the U.S. Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) subchapter on the occupation. See U.S. Dep't of 
Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., "Computer 
SystefUS Analysts," http://www.bls.gov/ooh/computer-and-information-technology/computer­
systems-analysts.htm#tab-2 (last visited Dec. 7, 2016). However, the duties as generally described 
do not include: information specific to the claimed project; information which identities the 
Beneficiary's role in the project, specifically whether the Beneficiary will develop, test, program, or 
lead the project; or other evidence which identifies the Beneficiary's specific day-to-day duties as 
they relate to the project. The description of duties does not include specific details regarding the 
Beneficiary's actual proposed work such that we may ascertain the type and educational level of 
highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. 
4 Neither the Petitioner nor the third parties in this matter clarify whether the Beneficiary will be employed in a computer 
systems analyst position or a software developer, applications, position. "[I]t is incumbent upon the petitioner to resolve 
the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). Any attempt 
to explain @r reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. This is a significant inconsistency as the Petitioner has designated the 
position as a computer systems analyst position on the labor condition application (LCA). We note that the Petitioner is 
required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the higher of either the 
prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar exp,erience and qualifications who are performing the same services. See Matter of 
Simeio Solutions, LLC, 26 I&N Dec: 542, 545-546 (AAO 20 15). Here, if the proffered position is actually a softwar~ 
developer, applications, position, the certified LCA would not correspond to the petition and the petition must be denied 
on that basis alone. 
5 
Matter of M-C-T-, Inc. 
Without additional information and documentation establishing what projects have been secured for 
the Beneficiary, and accordingly, the specific duties the Beneficiary would perform on these 
projects, we are unable to discern the substantive nature of the position and whether the position 
indeed qualifies as a specialty occupation. 
Consequently, we are precluded from finding that the protTered 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. As the Petitioner has not 
established that it satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that 
the proffered position qualifies as a specialty occupation. Therefore, the appeal must be dismisrsed 
and the petition denied for this reason. 
Even if assuming, for the sake of argument, that the Beneficiary would perform the duties of a 
computer systems analyst, a review of the Handbook does not indicate that, simply by virtue of its 
occupational classification, such a position qualities as a specialty occupation in that the Handbook 
does not state a normal minimum requirement of a U.S. bachelor's or higher degree in a specific 
specialty, or its equivalent, for entry into the occupation of computer systems analyst. See U.S. 
Dept. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and~information­
technology/computer-systems-analysts.htm#tab-4 (last visited Dec. 7, 20 16). 
Further, the Petitioner and the mid-vendor state that the proffered position requires a Bachelor's 
degree or its equivalent in Science, Technology, Engineering, Business Administration, or any 
closely relevant major. This claimed entry requirement of at least a bachelor's degree in one of a 
variety of majors does not denote a requirement in a specific specialty. 
Furthermore, the claimed requirement of a degree in such majors as "Science" or "Business 
Administration" for the proffered position, without further specialization, is inadequate to establish 
that the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as science or 
business administration, without further specification, does not establish the position as a specialty 
occupation. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm 'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
6 
Matter of M-C-T-. Inc. 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. 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 proposed position. Although a 
general-purpose bachelor's degree, such as a degree in science or business administration, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
The Petitioner's acknowledgement that the proffered position may be performed with only a 
general-purpose bachelor's degree alone is evidence that the proffered position is not in fact a 
specialty occupation and also requires the dismissal of the appeal and denial of the petition. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-1 B 
employer. 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 doctrine." 
Nationwide Mut. Ins. Co .. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Onty. fiH 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 assi~n 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." 
!d.; see also Clackamas Gastroenterology Assocs .. F. 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 
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Matter ~~ M-C- T-, Inc. 
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 of 
proceedings lacks sufficient documentation evidencing exactly what 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 . We also note that the record does not include probative evidence of 
the Beneficiary's proposed supervisor(s), evidence of who will instruct · the Beneficiary in the 
performance of any duties, or contractual evidence of work for other clients if the end-client , 
terminates his position, as is allowed in its contract. Without full disclosure of all of 
the relevant factors, we are unable to properly assess whether the requisite employer-employee 
relationship w·ill exist between the Petitioner and the Beneficiary. Therefore, the Director's decision 
is affirmed, and the appeal is dismissed for this additional reason. 
V. CONCLUSION 
As the Petitioner emphasized on appeal , it must prove by a preponderance of evidence that the 
Beneficiary is fully qualified for the benefit sought. Matter of Chawathe , 25 I&N Dec. 369, 376 
(AAO 201 0). In evaluating the evidence, eligibility is to be determined not by the quantity of 
evidence alone but by its quality. !d. As discussed above, the record does not establish that more 
likely than not, the proffered position is a specialty occupation, that the Petitioner has specialty 
occupation work available for the Beneficiary for the requested employment period, and that it has 
an employer-employee relationship with the Beneficiary. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ~f M-C-T-, Inc., ID# 11188 (AAO Dec. 27, 2016) 
8