remanded H-1B Case: Software Engineering

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-, INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 
I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software company, seeks to temporarily employ the Beneficiary as a "software 
engineer" under the H-lB nonimmigrant classification for specialty occupations. See 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
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 of the California Service Center denied the petition concluding that the Petitioner had 
not established that the Beneficiary is qualified to perform the services of the proffered position. 
In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in 
determining that the Beneficiary is not qualified to perform the services of the software developer 
position. 
We conduct de novo review on appeal, and note that a beneficiary's credentials for the proffered 
position are relevant only when we find the position to be a specialty occupation. As we will discuss 
below, the record does not establish that the proffered position qualifies as a specialty occupation. 
Additionally, the record does not establish that the Petitioner would have an employer-employee 
relationship 
with the Beneficiary. Accordingly, we will remand the matter to the Director for further 
review of the record and to issue a new decision. 
I. PROFFERED POSITION 
The Petitioner stated that it is a "full-service provider of eBusiness solutions for growing 
enterprises." The Petitioner indicated that the Beneficiary would provide services to an end-client, 
Company R (end-client), in Washington. The Petitioner provided the following job 
description for the position: 
• The Oracle functional/Developer position is responsible for developing, 
configuring, implementing and maintaining Financial modules - GL, AP, AR, 
FA,CM. 
Matter ofC-, Inc 
• Design test plans, scenarios, scripts, or procedures. 
• Develop system modifications to prepare for implementation. 
• Develop Oracle programs that address such areas such as business impacts, 
various scenarios, negative testing, error or bug retests, or usability. 
• Document software defects, using a bug tracking system, and report defects to 
software developers. 
• Identify, analyze, and document problems with program function, output, online 
screen, or content. 
• Monitor bug resolution efforts and track successes. 
• Create or maintain databases of known test defects. 
• Plan schedules or strategies in accordance with project scope or delivery dates. 
• Participate in product design reviews to provide input on functional requirements, 
product designs, schedules, or potential problems. 
• Review software documentation to ensure technical accuracy, compliance, or 
completeness, or to mitigate risks. 
The Petitioner stated that the position requires at least "a bachelor's or master's degree [in] 
Computer Science, Information Systems, Mechanical Engineering, Engineering, or [a] related 
[degree]." 
II. SPECIALTY OCCUPATION 
We will first discuss whether the proffered position qualifies as a 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 regulations largely restate this statutory definition, but add a non-exhaustive list of fields of 
endeavor. 8 C.F .R. § 214.2(h)( 4 )(ii). 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 equiyalent is normally the minimum 
requirement for entry into the particular position; 
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Matter ojC-, Inc 
(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 have consistently interpreted the term "degree" in these criteria 
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, 387-88 
(5th Cir. 2000). 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 
201 F.3d at 387-88. 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. !d. 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. 
B. Analysis 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not (1) demonstrate that definite, non-speculative 
H-1B caliber work is available for the Beneficiary; and (2) establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation.' 
The Petitioner has not sufficiently established the Beneficiary's employment with the end-client. In 
support of the petition, the Petitioner provided a "Temporary Labor Agency Services Agreement," 
an accompanying work order related to the Beneficiary, and a letter from the end-client. However, 
the documents contain inconsistencies that undermine the Petitioner's claims regarding the 
Beneficiary's employment. 
1 
The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of C-, Inc 
For example, while the letter from the end-client states that the Beneficiary will be working as a 
contractor at its location, the letter also names another individual stating that this individual "will 
join on 4th of October and will be engaged in one of our long-term commercial projects as a 
software engineer." It follows by stating that "it is our intent to leverage his experience and skills on 
this project for the foreseeable future." Therefore, it is not clear if the letter was written for the 
Beneficiary or another individual. 
Further, the documents do not adequately establish the duration of the assignment. Even if we 
assume that the letter from the end-client was intended for the Beneficiary, it only states that the 
assignment is "for the foreseeable future." On the other hand, the work order indicates that the 
"projected end date" of the project is December 30, 2018. On the Form I-129, Petition for a 
Nonimmigrant Worker, the Petitioner requested that the Beneficiary be granted H-1 B classification 
from October 4, 2016, to September 20, 2019. The Petitioner does not address what the Beneficiary 
would do for the remaining requested period of employment not covered by the work order? 
Without additional documentary evidence, we are not able to ascertain what the Beneficiary would 
do, where the Beneficiary would work, as well as how this would impact circumstances of his 
relationship with the Petitioner. 
Therefore, we find that the Petitioner has not established non-speculative work for the Beneficiary at the 
time of the petition's filing. U.S. Citizenship and Immigration Services regulations affirmatively 
require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is tiled. 
See 8 C.F.R. 103.2(b)(l). 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).3 
2 Moreover, the work order states that it will be effective as of October 5, 2015, but it is not signed until March 2, 2016, 
and the start date is not until October 4, 2016. Therefore, it is not clear if it was properly executed and is valid. 
3 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). 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 
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Matter ofC-, Inc 
Moreover, the record of proceedings does not contain sufficient information from the end-client 
regarding the specific job duties to be performed by the Beneficiary. As recognized in Defensor, it 
is necessary for the end-client to provide sufficient information regarding the proposed job duties to 
be performed at its location(s), as well as any hiring requirements that it may have specified, in order 
to properly ascertain the minimum educational requirements necessary to perform those duties. 
Defensor, 201 F.3d at 387-88. In other words, as the nurses in that .case would provide services to 
the end-client hospitals and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. Here, the documents from the end-client do not sufficiently describe the 
Beneficiary's job duties or convey the requirements for the proffered position. 
For example, the end-client letter states that the Beneficiary will be responsible for "developing, 
configuring, implementing and maintaining financial modules- GL, AP, AR, FA, CM," but the 
specifics of these systems and the nature of this work is not discussed. Likewise, the work order 
contains vague tasks including responsibility to "develop, design, and modify Oracle applications for 
[the end-client] internal application" and "participate in process community of best practice." The 
end-client did not provide a more detailed description explaining what particular duties tlie 
Beneficiary will perform on a day-to-day basis, nor is there a detailed explanation regarding the 
demands, level of responsibility, complexity, or requirements necessary for the performance of these 
duties (e.g., what the nature of the referenced financial modules are, what its internal applications 
are, and what body of knowledge is required to perform the duties). 
Further, the documents from the end-client do not sufficiently establish the minimum education and 
experience requirements for the proffered position. The work order only requires "knowledge of 
agile development methodologies" and does not specify educational requirements. The letter from 
the end-client states that "5+ years of experience working in Oracle Apps in financial modules" and 
a "Bachelor Degree in Computer Science or equivalent Engineering Degree" are required for the 
position. However, it is not clear if the experience requirement is in addition to the degree 
requirement or if work experience alone would be sufficient to qualify for the position.4 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
4 If the end-client requires work experience in addition to the degree, it appears to be inconsistent with the wage level 
designated by the Petitioner. The Petitioner classified the proffered position at a Level I wage (the lowest of four 
assignable wage levels) on the labor condition application (LCA). The "Prevailing Wage Determination Policy 
Guidance" issued by the DOL indicates that a Level I wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the 
Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be 
closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific 
instructions on required tasks and expected results. DOL, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta 
.gov/pdf/NPWHC_Guidance_ Revised_11_2009.pdf A wage determination starts with an entry level wage and 
progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's 
job opportunity. !d. 
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Matter of C-, Inc 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from finding that the protiered 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 protiered 
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 requiri~g 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 has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualities for classification as a 
specialty occupation. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will also briefly address the issue of whether or not the Petitioner would qualify 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 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)). 
Matter ofC-, Inc 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner would be a "United States employer" having an 
"employer-employee relationship" with the Beneficiary as an H-1B temporary "employee." 
Specifically, we find that the record of proceedings does not contain sufficient, consistent, and 
credible documentation substantiating and describing who would exercise control over the 
Beneficiary. 
For instance, the Petitioner does not identify the Beneficiary's supervisor, or how it will supervise 
the Beneficiary. In contrast, the work order identifies an end-client supervisor for the Beneficiary. 
Further, s~ction 7.2 of the "Temporary Labor Agency Services Agreement" indicates that the [end­
client] will "supervise, direct and control the day-to-day work and/or tasks performed by the Temps5 
while assigned to [the end-client]." This evidence leaves question as to whether the Petitioner will 
control the Beneficiary while assigned to the end-client location. Further, section 6 of this 
agreement states that the Petitioner must remove any "Temp" from an assignment upon the end­
client's request. Moreover, this agreement appears to be a staffing placement contract as it states in 
section 1 that the Petitioner "will use its best efforts to furnish to [the end-client], upon request, 
employees or independent contractors of [the Petitioner] with skills and qualifications to perform 
various job positions for [the end-client]." The Petitioner has not resolved thes~ inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
While payroll, tax withholdings, and other employment benefits are relevant factors in determining 
who will control the Beneficiary, other aspects of the relationship, e.g., who will oversee and direct 
the work ofthe 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. Without full disclosure of all of the relevant factors, we are unable to find 
that the requisite employer-employee relationship will exist between the Petitioner and the 
Beneficiary. 
The evidence, 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). 
IV. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the 
record regarding the specialty occupation nature of the proffered position and the employer­
employee relationship, we will remand the record for further review of these issues. The Director 
may request any additional evidence considered pertinent to the new determination. 
5 The agreement defines "Temps" as the Petitioner's employees or independent contractors. 
7 
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Matter of C-. Inc 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofC-, Inc., ID# 494649 (AAO Aug. 23, 2017) 
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