MATTER OF C-C- CORP.

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 30. 2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM l-129. PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a technology consulting company, seeks to temporarily employ the Beneficiary as an "associate quality professional" under the H-1 B nonimmigrant classification f(x specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 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 of the California Service Center denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation. The Director also concluded that the Petitioner did not demonstrate that it would have an employer-employee relationship with the Beneficiary. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in her findings.

Upon de novo review. we will dismiss the appeal.

I. 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 non­exhaustive 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:

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(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 have consistently interpreted 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. Cherto.ff; 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"); Defi.msor v. Meissner. 201 F .3d 3 84. 3 87 (5th Cir. 2000 ).

II. PROFFERED POSITION

The Petitioner stated that it is a "global leader of next-generation information technology services and solutions." The Petitioner indicated that the Beneficiary would work off-site for K-P- (client) in

California. In response to the Director's Request for Evidence (RFE). the Petitioner explained that the Beneficiary would work on the • project ... a comprehensive information system that securely connects member records across ambulatory and in-patient settings; integrates billing, scheduling, registration, and provides members with access to personal health records ...

The Petitioner submitted job descriptions with the initial petition and also in response to the RFE. On appeal, the Petitioner submits the following description of the Beneficiary's duties:

PLAN Preparation of Automation Test Plan and 10% Test strategy document by segregating the Mile stone details as per the requirements shared by client.

DESIGN • Designing a new framework based on 25% Node.JS and Javascript

• Incorporate cross browser/functional changes m to automation framework design

VERIFICATION Verifying all the plan and execution 3% details by reviewing as per the schedules

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planned and incorporate the changes as per the client feedback.

DEPLOYMENT Collecting the latest build Tag details. 2% tracking the Deployment status Alerts and managing the Environment co-ordination requests by verifying the Deployer jars according to the Maven Tagged.

TESTING • Authoring Automation Test Scripts 50% AUTOMATION usmg POM (Page Object Model)

framework in Selenium tool. • Modifying Automation framework to

support Cross border browser compatibility and Mobile application testing based on Selenium. Java. testNG.

• Enhancing to the framework and Node.JS for automation angular. testNG

• Execution of Automation test scripts • Reviewing Functional Test Cases • Defect Triaging and Reporting

TRANSFORM Status reporting on test execution 5% TRAINING Training the team on Node.JS, 5%

Javascript, Jenkins

The Petitioner stated that the minimum education required for the performance of the position is '·a Bachelor's degree in Business, Mathematics, Engineering, Management Engineering Systems or a related field.,.

III. SPECIALTY OCCUPATION

The Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. Specifically, the record does not establish that the job duties require an educational background. or its equivalent, commensurate with a specialty occupation. 1

As a preliminary matter, the Petitioner's claim that a bachelor's degree in business is a sufficient minimum requirement for entry into the profTered position 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

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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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 business, without further specification, does not establish the position as a specialty occupation. Cl 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 )(1) of the Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. As discussed supra, we interpret 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 business, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualities for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 14 7.

Again, the Petitioner in this matter claims that the duties of the proffered position can be performed by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business. Without more, this assertion alone indicates that the proffered position is not in fact a specialty occupation. The Director's decision must therefore be atlirmed and the appeal dismissed on this basis alone.

Furthermore, the Petitioner also has not established that specialty occupation work would be available for the Beneficiary at the client's location for the entire employment period requested. On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner requested that the Beneficiary be granted H-1B classification from October 1, 2016, to August 14, 2019. However, the Petitioner has not submitted sufficient supporting documentation to substantiate that the Beneficiary would be engaged at the client location during the entire period of the requested visa. With the Form I -129, while the Petitioner indicated that the Beneficiary will be located off-site, the Petitioner initially did not submit any contractual agreements, statement of work (SOW), or work orders to substantiate the Beneficiary's assignment.

In response to the RFE, the Petitioner submitted a SOW with the client reflecting an end date of December 24, 2016. On appeal, the Petitioner submits another SOW with the client dated after tiling of this petition. This SOW indicates that the agreement has an end date of January 31, 2018: a date prior to the end of the date of requested employment in August 2019. Further, the SOW indicates in Section 3.1 that the Petitioner will be assigned work pursuant to work orders from the client, but the Petitioner only submitted a blank work order. As such, the Petitioner has not demonstrated that specialty occupation work would be available for the Beneficiary. While the Petitioner asserts that the client has been a customer for many years and anticipates that the contractual agreement will continue past the terms of the current agreement 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 tiled. See 8 C.F.R. ~ 103.2(b)(l). A petitioner's unsupported statements are of very limited weight and normally will be insufticient to

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carry its burden of proof. The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of./22, 25 I&N Dec. 369, 376 (AAO 2010).

We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of the petition's filing for the entire period requested. 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 ofMichelin Tire Cm]J., 17 I&N Dec. 248 (Reg'! Comm'r 1978).2

However, assuming that the Petitioner had established non-speculative work for the Beneficiary for the entire requested period, we will nevertheless perform a complete specialty occupation analysis under each ofthe four, alternative criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).

A. First Criterion

We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. 3

2 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) ofthe 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 change in intent through an amended or new petition in accordance with 8 C.F.R. ~ 214.2(h)(2)(i)(E). ] All of our references are to the 2016-2017 edition of the Handhook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handhook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and we regularly review the Handhook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion. however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry.

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Matter of C-C- Corp.

On the labor condition application (LCA)4 submitted in support of the H-1 B petition. the Petitioner designated the proffered position under the occupational category ''Computer Occupations. All Other" corresponding to the Standard Occupational Classification code 15-1199.5

We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. However, there are some occupations tor which occupational profiles have not been developed, such as tor the occupational category "Computer Occupations, All Other."6 Therefore, it is incumbent upon the Petitioner to provide persuasive evidence that the proffered position more likely than not satisfies this or one of the other three criteria.

In response to the RFE, the Petitioner noted that Handbook and Occupational Information Network (O*NET) Summary Reports indicated that a "Bachelor's degree is a minimum requirement tor entry into the position." However, as we have just discussed. the Handbook does not contain sufficient information regarding the occupational category tor ··computer Occupations. All Other." Therefore, the Petitioner's assertion with respect to the Handbook is not persuasive.

In addition, the O*NET Summary Report, referenced by the Petitioner. is also insufficient to establish that the proffered position qualities as a specialty occupation. O*NET OnLine does not state a requirement for a bachelor's degree for this occupation. Rather. it assigns this occupation a Job Zone "Four'' rating, which groups it among occupations tor which "most ... require a four-year bachelor's degree, but some do not.''7 Further, O*NET OnLine does not indicate that four-year bachelor's degrees required by Job Zone Four occupations must be in a specific specialty directly related to the occupation. Therefore, O*NET OnLine information is not probative of the protTered position being a specialty occupation.

4 The Petitioner is required to submit a certified LCA to USCIS 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 experience and qualifications who are performing the same services. See Matter of'Simeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The .. Prevailing Wage Determination Policy Guidance .. issued by the DOL provides a description of the wage levels. 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. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing 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. 6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Employment S'tatistics: Occupational Emplr~rment and Wages, May 2016 Computer Occupations, All Other. https://www.bls.gov/oes/current/oes 151199.htm. 7 O*NET OnLine Summary Report for "15-1199.0 I - Software Quality Assurance Engineers and Testers ... https://www.onetonline.org/link/summary/15-1199.0 I (last visited Aug. 28. 20 17): O*NET OnLine Help - Job Zones. http://www.onetonline.org/help/online/zones (last visited Aug. 28, 20 17).

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Matter of C-C- Corp.

On appeal, the Petitioner submits opmwn letters from

Assistant Professor and Director of

a professor at the and

The Petitioner asserts that these opm1ons demonstrate that the proffered position is a specialty occupation position. However, we note

letter is an evaluation of the Beneficiary's credentials. and does not opine on the requirements for the proffered position. On the other hand, concludes that the profTered position requires a bachelor's degree in management information systems or a "closely related field," without specifying what would be considered ·'a closely related field.'' Further,

determination contradicts the Petitioner's assertion that the position requires a bachelor's degree in business, mathematics, engineering, management engineering systems. or a related field. The Petitioner has not resolved these inconsistencies with independent. objective evidence pointing to where the truth lies. Matter oj"Ho, 19 I&N Dec. 582,591-92 (BIA 1988).

Further, opinion does not demonstrate in-depth knowledge ofthe Petitioner's specific business operations, and what duties the Beneficiary would perform in the context of the client's business. generally discusses the duties and responsibilities of the proffered position as presented in the Petitioner's support letters and reiterates the duties provided in this document. but does not discuss the specifics of the profiered position. As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Maller of" Caron Int "1. Inc .. 19 I&N Dec. 791, 795 (Corum 'r 1988). However, we will reject an opinion or give it less weight if it is not in accord with other information in the record or if it is in any way questionable. !d. In this instance, the opinion letters do not offer sutlicient probative value in establishing the protlered position as a specialty occupation.

The Petitioner has not provided sufficient documentation from a probative source to substantiate its assertion regarding the minimum baccalaureate degrees in a specific specialty required for entry into this particular position. The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(J).

B. Second Criterion

The second criterion presents two alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

Matter of C-C- Corp.

1. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the .. degree requirement" (i.e., a requirement of a bachelor's or higher degree in a speciiic specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree: whether the industry's professional association has made a degree a minimum entry requirement: and whether letters or affidavits from firms or individuals in the industry establish that such firms ''routinely employ and recruit only degreed individuals." See Shanti. Inc. v. Reno, 36 F. Supp. 2d 115 L 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the matter.

In support of this criteria, the Petitioner provided two job advertisements for quality assurance specialist positions with other companies.8 However. similar to the proffered position, both of these job announcements reflect that a bachelor's degree in business would be sufticient for minimum entry into these positions. As we have noted, the requirement of a degree with a generalized title. such as business, without further specification, does not establish the position as a specialty occupation. (f Michael Hertz Assoc.~·., 19 l&N Dec. at 560. Further, the provided job announcements require significant experience, including more than three years with respect to one announcement while another posting requires a candidate qualifying as an .. expert" or "experienced." This is in contrast to the proffered position, designated at the Level I wage in the LCA, indicating that it is a position involving routine tasks that require limited judgement and work that is closely monitored. The Petitioner also does not articulate how the provided job announcements and companies are similar to the proffered position. Therefore. we are unable to determine that these companies are similar to the Petitioner or that the submitted positions are parallel to the proffered position. In sum, the job advertisements do not establish that organizations similar to the Petitioner routinely employ individuals with degrees in a specific specialty. in parallel positions in the Petitioner's industry.9

8 The Petitioner did not provide any independent evidence of how representative the job postings are of the patiicular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 9 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common educational requirements for entry into parallel positions in similar organizations. See general~\' Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were

Matter of C-C- Corp.

As the record does not include probative evidence that a ""degree requirement"' (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations, the Petitioner has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty. or its equivalent.

The record does not sufficiently develop relative complexity or uniqueness as an aspect of the proffered position. Specifically, it is unclear how the proffered position, as described. necessitates the theoretical and practical application of a body of highly specialized knowledge such that a person who has attained a bachelor's or higher degree in a specific specialty. or its equivalent, is required to perform them.

Again, the Petitioner has designated the profTered position as a Level I position on the LCA, indicating that the Beneficiary will perform routine tasks that require limited exercise of judgment and that his work will be closely supervised, monitored, and reviewed for accuracy. See U.S. Dep't of Labor, Emp't & Training Admin., supra. Therefore, it does not appear that the position is one with complex or unique duties relative to other quality assurance specialist positions requiring a significantly higher prevailing wage, as such a Level III (experienced) or Level IV (fully competent) wage level. 10

We note that while a few related courses may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of such courses leading

sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process fof probability sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for estimates of population parameters and estimates of error").

The Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 10 The Petitioner's designation of this position as a Levell, entry-level position undermines its claim that the position is particularly complex, unique, and specialized compared to other positions within the same occupation. Nevertheless. a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers). a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty. or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214( i)( I) of the Act.

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Matter of C-C- Corp.

to a baccalaureate or higher degree in a specific specialty. or its equivalent. is required to perform the duties of the proffered position. Upon review, the record lacks sufficiently detailed information to distinguish the proffered position as more complex or unique.

The Petitioner claims that the Beneficiary is well-qualified for the positiOn, and references his education and experience as evidence that the proffered position is a specialty occupation. However. the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor" s degree in a speci tic specialty, or its equivalent. Here, the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that arc so complex or unique that only a specifically degreed individual could perform them. Thus, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

C. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent. for the position.

The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing the Petitioner"s claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the Petitioner created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limited to. documentation regarding the Petitioner's past recruitment and hiring practices. as well as information regarding employees who previously held the position.

In response to the Director's RFE, the Petitioner submitted its job advertisements for "Professional[ s]: Quality" positions and indicated that these postings demonstrate that it normally requires a bachelor's degree for these positions. However, like the proffered position. the job advertisements reflect that a bachelor's degree in business is sutlicient for minimum entry into the position. Once again, the requirement of a degree with a generalized title, such as business. without further specification, does not establish the position as a specialty occupation. C( Michael Hertz Assocs., 19 I&N Dec. at 560. In addition, one of these positions is a ""senior .. position requiring more than five years of experience, while the other states that three to five years of experience is needed. As such, it does not appear that these quality assurance positions are similar to the proffered position, which we have noted, has been designated as an entry-level position. Furthermore. the submittal of two internally generated job announcements for similar positions does not establish that the Petitioner normally requires a bachelor's degree in a specific specialty. or its equivalent. for the position. The Petitioner does not articulate how many such individuals it employs in the proffered position to give the evidence it submits with respect to two such employees probative value.

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Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

D. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent.

The Petitioner states that it has submitted adequate evidence to demonstrate that the duties of the position are specialized and complex. However, it is not clear from the Petitioner's asse1tions how the duties of the position are specialized or complex in comparison to other similarly placed professionals. The Petitioner has not sufficiently explained how these duties require the theoretical and practical application of a body of highly specialized knowledge, and the 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.

In addition, we refer to our earlier comments and findings with regard to the implication of the Petitioner's designation of the proffered position in the LCA as a Level I wage, and hence one not likely distinguishable by relatively specialized and complex duties. The Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently specialized and complex to satisfY 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualities as a specialty occupation. The appeal will be dismissed for this reason.

IV. EMPLOYER-EMPLOYEE RELA TIQNSHIP

Finally, we will briefly address the issue of whether or not the Petitioner qualities 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. fhr Crealh'e Non­Violence 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

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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 GastroenterologyAssocs .. 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. ofAm., 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. While the Petitioner asserts that it will have an employer-employee relationship with the Beneficiary, as discussed. the record does not sufficiently substantiate the Beneficiary's assignment at the client's location. Without full disclosure of all of the relevant factors, we are unable to properly assess whether the requisite employer­employee relationship will exist between the Petitioner and the Beneficiary. Therefore, the appeal is dismissed for this additional reason.

V. CONCLUSION

Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualities as a specialty occupation. Further. the Petitioner has not established that it would have an employer-employee with the Beneficiary.

ORDER: The appeal is dismissed.

Cite as Matter o{C-C- Corp., ID# 422035 (AAO Aug. 30. 2017)

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