remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 18, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology solutions company, seeks to temporarily employ the 
Beneficiary as a "software quality assurance tester" under the H-1B nonimmigrant 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-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 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, California Service Center, denied the petition. The Director concluded that the Petitioner 
had not demonstrated that the Beneficiary is qualified to perform services in a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
concluding that the Beneficiary is not qualified to perform the duties of the proffered position, and 
submits additional evidence in support of this assertion. 
Upon de novo review, the matter will be remanded to the Director for action consistent with this 
decision. 
I. BENEFICIARY'S QUALIFICATIONS 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform services in a specialty occupation. A beneficiary's credentials to perform a 
particular job, however, are relevant only when the job is found to qualify as a specialty occupation. 
U.S. Citizenship and Immigration Services (USCIS) is required to follow long-standing legal 
standards and determine first, whether the proffered position qualifies as a specialty occupation, and 
second, whether a beneficiary was qualified for the position at the time the nonimmigrant visa 
petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The 
facts of a beneficiary's background only come at issue after it is found that the position in which the 
petitioner intends to employ him falls within [a specialty occupation]."). 
In the instant case, the record of proceedings does not establish that the proffered position qualifies 
as a specialty occupation. The record of proceedings also does not establish another fundamental 
Matter of A- Inc. 
Issue: that the Petitioner will have and maintain an employer-employee relationship with the 
Beneficiary. We will discuss each ofthese issues in tum. 
II. 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 
(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). 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. 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). 
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(b)(6)
Matter of A- Inc. 
B. Proffered Position 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-lB, 
indicating that the proffered position is that of a "software quality assurance tester" corresponding to 
the occupational category "Computer Occupations, All Other," SOC (ONET/OES) code 15-1199, at 
a Level I (entry level) wage. 1 In its initial letter of support, the Petitioner claimed that the Beneficiary 
would be employed offsite at the offices of its client, (Company S), and would be 
responsible for the following duties: 
• Create detailed test plans 
• Create 
test scenarios and test conditions 
• Identify data requirement for testing 
• Setup repository and test management tool for test execution 
• Execution of test conditions for system integration testing and user acceptance 
testing 
• Responsible for defects retests and regression tests during execution 
• Perform post implementation validation testing. 
The Petitioner stated that the proffered position requires a candidate with a minimum of a bachelor's 
degree in computer science, computer information systems, information systems engineering, 
mechanical engineering, computer science and engineering, computer engineering, or a related field, or 
its equivalent. 
In support of the petition, the Petitioner submitted, inter alia, an "itinerary of services," a letter from 
Company S, a statement of work, and a master services agreement. 
C. Analysis 
Upon review of the record in its totality, the Petitioner has not demonstrated that the proffered 
position qualifies as a specialty occupation. The Petitioner has not demonstrated that it has definite, 
non-speculative work available for the Beneficiary for the entire validity period requested (from 
October 1, 2015, to September 13, 2018). 
In this matter, the Petitioner claims that the Beneficiary would be employed off-site as a "software 
quality assurance tester" for Company S. The Petitioner's "itinerary of services" states that the 
Beneficiary, "as a Software Quality 
Assurance Tester [would be] a part of the team responsible to 
support [Company S] migration project," identified as The itinerary further states that 
the Beneficiary's period of service would be from October 1, 2015, to September 30,2018. 
1 The Director incorrectly classified the proffered position as that of a computer programmer, and erroneously stated that 
the Petitioner had submitted an LCA certified for that position. 
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(b)(6)
Matter of A- Inc. 
However, the record does not contain objective documentation directly from Company S confirming the 
Beneficiary's claimed assignment. For instance, the submitted statement of work and master services 
agreement are between (Company R) and the Petitioner's 
sister company in India. The record does not demonstrate the exact relationship between Company 
S and Company R so as to establish these documents' relevance to the Beneficiary's claimed 
assignment at Company S' worksite? More importantly, the statement of work, master services 
agreement, and letter from Company S do not specifically reference the Beneficiary. 
Nor does the statement of work, master services agreement, or letter from Company S specifically 
reference the need for an onsite "software quality assurance tester" position. Notably, the statement 
of work lists the project's "Core Team" as consisting of, inter alia, 1 "quality analyst" position and 
19 "test analyst" positions. But all of these positions are expressly "offshore" (i.e., located in India) 
positions. The statement of work does not state a need for any "onsite" (i.e., located at Company S' 
worksite in Ohio) quality analyst or test analyst positions? The Petitioner has thus not 
credibly demonstrated that the Beneficiary would, in fact, be assigned to Company S as a "software 
quality assurance tester," as claimed. "[G]oing on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter of So.ffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 l&N Dec. 190 
(Reg'l Comm'r 1972)). 
Even if the statement of work were to demonstrate the Beneficiary's assignment to Company S 
(which it does not), this agreement "shall expire upon the later of (i) Company's Final Acceptance of 
all work under this SOW, or (ii) February 28, 2016." On the other hand, the Petitioner has requested 
a validity date ending on September 13, 2018.4 The Petitioner has not adequately explained and 
documented what the Beneficiary would be doing from February 28, 2016, through September 13, 
2 The record contains a letter on the letterhead of Company S confirming the contractual relationship between Company 
R and the Petitioner's sister company. However, this letter does not explain the nature of the relationship between 
Company Rand Company S. And despite this letter's reference to both companies as one entity (through the use of the 
words "we" and "our" in describing the contractual relationship), the submitted statement of work indicates that 
Company S and Company R have separate operations. In particular, in Section II.G listing the contacts "for each 
Company and Service Provider," several representatives of Company S are listed in addition to an "Onsite Program 
Manager" for Company R. 
3 The statement of work does list onsite positions as including a program manager and multiple stream leads. However, 
it is not plausible that any of these onsite positions refer to the proffered position, as the Petitioner classified the 
proffered position as a Level I, entry-level, position. According to the Department of Labor's "Prevailing Wage 
Determination Policy Guidance," a Level I wage rate indicates that the Beneficiary is only required to have a basic 
understanding of the occupation and carries expectations that the Beneficiary perform routine tasks that require limited, 
if any, exercise of judgment; that he would be closely supervised; that his work would be closely monitored and 
reviewed for accuracy; and that he would receive specific instructions on required tasks and expected results. See U.S. 
Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Poliq; Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_2009.pdf Thus, in accordance 
with the relevant DOL explanatory information on wage levels, a Level I wage rate would not be appropriate for any 
"program manager" or "lead" position. 
4 Although on the Form 1-129 the Petitioner requested a validity date ending on September 13, 2018, the Petitioner's 
itinerary states that the Beneficiary's project would end on September 30, 2018. 
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(b)(6)
Matter of A- Inc. 
2018. The record does not demonstrate that the Beneficiary would be assigned to Company S as a 
"software quality assurance tester" for the entire validity period requested, if at all. 
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 )(I). 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).5 
Moreover, the Petitioner has not sufficiently demonstrated the substantive nature of the work the 
Beneficiary would perform for Company S. Without reliable objective evidence from Company S 
confirming the Beneficiary's assignment and the specific duties he would perform for them, the 
Petitioner has not sufficiently demonstrated the substantive nature of the proffered position. 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. Here, the record 
is similarly devoid of information from Company S regarding the specific job duties to be performed 
by the Beneficiary. We note that the critical element is not the title of the position or 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 (or its equivalent) as the minimum for entry into the 
occupation, as gleaned from the particular job duties to be performed. 
While the Petitioner did provide a brief list of job duties for the Beneficiary, such as "[ c ]reate 
detailed test plans" and "[ c ]reate test scenarios and test conditions," these duties are not sufficiently 
described and documented within the context of the Company S' particular operations and its 
For instance, the Petitioner has not demonstrated how the proffered job duties 
5 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B 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-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
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 of A-Inc. 
correlate to the job duties, roles, deliverables, or project phases listed in the submitted statement of 
work. Again, "going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings." Matter of So.ffici, 22 I&N Dec. at 
165. 
Overall, the evidence of record is insufficient to demonstrate the substantive nature of the work to be 
performed by the Beneficiary. The record therefore precludes the finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat 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. 
Additionally, the Petitioner has not articulated which of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) it 
believes the proffered position satisfies. That is, while the Petitioner states that the proffered position 
requires a minimum of a bachelor's degree in computer science, computer information systems, 
information systems engineering, mechanical engineering, computer science and engineering, computer 
engineering, or a related field, or its equivalent, the Petitioner has not specifically pointed to which 
criterion or criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) it believes the proffered position satisfies. 
As the record does not satisfy any ofthe 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. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As detailed above, the record of proceedings lacks sufficient documentation evidencing what exactly 
the Beneficiary would do for the period of time requested or where exactly and for whom the 
Beneficiary would be providing services. Given this specific lack of evidence, the record also does 
not establish 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 
whether it has made a bona fide offer of employment to the Beneficiary based on the evidence of 
record or that the Petitioner, or any other company which it may represent, will have and maintain an 
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-1B nonimmigrant worker). 
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Matter of A- Inc. 
IV. CONCLUSION 
The evidence of record does not demonstrate that the proffered position is a specialty occupation, or 
that the Petitioner will have and maintain an employer-employee relationship with the Beneficiary. 
Consequently, the matter will be remanded to the Director for further review and issuance of a new 
decision to address these and any other issues she may observe. The Director may request additional 
evidence considered pertinent to the new determination. 
ORDER: The decision of the Director, California Service Center, is withdrawn. The matter is 
remanded to the Director, California Service Center, for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of A- Inc., ID# 17726 (AAO Aug. 18, 20 16)