dismissed H-1B Case: Computer Consulting

(b)(6)
DATE: MAY 1 2 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT #: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(H)(15)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110 1(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
log�t'. ·· · - · - �r requirements. Please do not mail any motions directly to the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
70-employee "Computer Consulting Services" business established in In order to employ the 
beneficiary in a position it designates as a "Programmer Analyst (Computer Programmer)" position, 
the petitioner seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101( a )(15)(H)(i)(b ). 
The director denied the petition determining that the petitioner failed to establish (1) the existence of 
an employer-employee relationship between the petitioner and the beneficiary; and (2) that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the petitioner 
asserts that the director's bases for denial of the petition were erroneous and contends that the 
petitioner satisfied all evidentiary requirements. 
The record of proceeding before this office includes the following: (1) the petitioner's Form I-129 
and supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; ( 4) the director's denial letter; and (5) the Notice of Appeal or Motion (Form 
I-290B), a brief, additional and re-submitted documentation. We reviewed the record in its entirety 
before issuing our decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). As a preliminarily matter, we affirm that, in the exercise of our appellate review in this 
matter, as in all matters that come within our purview, we follow the preponderance of the evidence 
standard as specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 
375-376 (AAO 2010). In pertinent part, that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
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/d. 
NON-PRECEDENT DECISION 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individua lly and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occ�rrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
Upon our review of the present matter pursuant to this standard, however, we find that the evidence 
in the record of proceeding does not support the petitioner's contentions that the evidence of record 
requires that the petition at issue be approved. Applying the preponderance of the evidence 
standard as stated in Matter of Chawathe, we find that the director's determinations in this matter 
were correct. Upon our review of the entire record of proceeding, and with close attention and due 
regard to all of the evidence, separately and in the aggregate, submitted in support of this petition, 
we find that the petitioner has not established that its claims are "more likely than not" or 
"probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has not 
submitted relevant, probative, and credible evidence that leads us to believe that the petitioner's 
claims are "more likely than not" or "probably" true. 
II. FACTUAL AND PROCEDURAL BACKGROUND 
On the Form I-129, the petitioner indicated that it is seeking the beneficiary's services as a 
"Programmer Analyst (Computer Programmer)" on a full-time basis at a minimum rate of pay of 
"$60,000+" per year. The petitioner submitted the required Labor Condition Application (LCA) 
certified for a job prospect within the occupational classification of "Computer 
Programmers" - SOC (ONET/OES Code) 15-1131, at a Level I wage. The LCA identifies the 
beneficiary's work locations as County, Missouri and 
County, Missouri. 
Preliminarily, we note that this petition identifies three business entities as involved in providing the 
computer programmer work that the petitioner presents as the basis of the H-1B 
specialty-occupation claim. These are: (1) 
(2) and (3) the petitioner, which is 
1 (hereafter referred to as "the petitioner" or ' ''). The petitioner indicated that 
the beneficiary would be working offsite at the 1 location, in · Missouri, but that 
the beneficiary could also work remotely from its headquarters in Missouri. The 
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petitioner requested approval of the H-1B petition for the beneficiary for the period of October 1, 
20 14 to September 25 , 2017 . 
In its letter in support of the petition, dated March 31, 2014, the petitioner stated that it provides "a 
wide range of software engineering services and consultants ranging from project management, 
system design and development, internet, web services, client/server, mainframes, databases, 
telecommunications, networking and data management." 
In the same letter the petitioner affirmed its desire to employ the beneficiary in a full-time, 
temporary position of "Computer Programmer. " The petitioner also noted the position here 
proffered "is internally titled Programmer Analyst or Software Engine er." 1 The petitioner also 
provided an overview of the beneficiary's duties of the position as follows: 
She will be part of a team that is responsible for the development and support of 
software applications for our client. She will work with a team that is working to 
accomplish aggressive and exciting goals for our client. Programmer analysts will 
be responsible for working with project managers, business analysts, and other 
programmer analysts to combine the functionality of existing applications into one 
new robust application utilizing some of the latest technologies. She will be 
developing prototypes and performing complex application coding and 
programming. She will interpret end-user business requirements to develop and/or 
modify the technical design specifications for off-the-shelf and/or custom-developed 
applications. She will also analyze and review software requirements to determine 
feasibility of design within time and cost restraints. In addition, those in this position 
perform unit integration testing and assist with developing unit test scripts. 
[The beneficiary's] specific duties break down as follows: 
- Code and successfully perform unit and integration testing of software to ensure 
proper and efficient execution as well as compliance with the business and 
technical requirements 
- Work with other programmer analysts to design interfaces between software 
applications in order to complete design requirements 
- Use system traces and debugging tools for problem determination and system 
tuning 
- Participate in the migration of applications to quality assurance and/or the 
production environment 
- Work with managers and team members to develop development standards 
- Perform necessary production-support tasks involving on-call responsibilities 
1 While the petitioner may refer to the proffered position of "computer programmer," internally as a 
"software engineer" and a "programmer analyst," we note that, these are three different occupations and, as 
will be discussed infra, subject to different prevailing wages. 
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The petitioner also indicated that the beneficiary's duties would encompass working with a number 
of programming languages and technology. The petitioner stated: "th is position requires that an 
applicant have a Bachelor's degree in engineering, computer science, information technology or a 
closely related analytic or scientific discipline, or the equivalent there of." The petitioner claimed 
that it required all of its employees in this position to have a bachelor's degree and that it preferred 
that its potential employees also have work experience. 
The documents filed with the Form I-129 also included: (1) a letter from 1 dated February 20, 
2014, addressing the nature of its agreement with the petitioner; and (2) documentation regarding 
the beneficiary's credentials. 
The director found the evidence insufficient to establish eligibility for the benefit sought, and issued 
an RFE on May 22, 2014. The director requested that the petitioner submit, among other things, 
probative evidence to establish that a specialty occupation position exists for the beneficiary, and 
that the petitioner would maintain the requisite employer-employee relationship with the 
beneficiary. The petitioner was also asked to submit evidence to establish that the proffered 
position qualified as a specialty occupation. 
In a letter dated July 7, 2014, the petitioner responded to the RFE. The petitioner submitted a copy 
of a "Supplier Agreement" between and the petitioner, effective September 12, 2012. The 
petitioner also submitted a copy of an employment agreement, dated March 26, 2014, and signed by 
the beneficiary on March 27, 2014, an organizational chart, a sample copy of an employee 
performance evaluation, an excerpt from the Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) regarding the "Computer Programmers" occupational group, copies of its 
2011 and 2012 federal tax returns, a copy of a company brochure, and documentation referencing 
an "employee leasing agreement" between the petitioner and 
The director reviewed the information provided by the petitioner to determine whether the petitioner 
had established eligibility for the benefit sought. On July 16, 2014, the director denied the petition. 
On appeal, the petitioner contends that the director's findings were erroneous. In support, of this 
contention the following documentation was provided: 
• A letter from a Mr. 
" at 
signing as a member of ": 
dated June 9, 2014. The letter identifies a 
-
particular . Master Services Agreement as the contractual 
agreement governing the particulars of the role that plays with regard to 
"each staffing provider [such as the petitioner]." 2 The letter confirmed that 
is "responsible for providing centralized staffing management services to 
' and that " has agreed to handle for : all 
2 The petitioner has not submitted either the Master Services Agreement or a comprehensive explanation of 
its terms and conditions relevant to the day-to-day control over the day-to-day determination, assignment of 
duties, and evaluation of work-oroduct quality and efficiency of workers that might be accepted by. for 
assignment to a particular: project. 
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• 
NON-PRECEDENT DECISION 
responsibilities related to verifying and administering all matters regarding the 
eligibility of temporary workers who provide services to , including 
the provision of documentation to staffing providers for H-1B candidate 
positions. Accordingly, necessary information for the consideration of any 
candidate, including the nature of the candidate's employment, assignment 
details, and duration will be confirmed solely by [ ]." 
A duplicate copy of 
submitted. 
February 20, 2014 letter which had been previously 
• A duplicate copy of the "Supplier Agreement" between. and the petitioner, 
effective September 12, 2012, which had been previously submitted. 
• A duplicate copy of an excerpt from the Handbook regarding the "Computer 
Programme rs" occupational group and copies of excerpts from the Handbook 
regarding the occupational groups of "Software Developers," "Computer 
Programm ers," and "Mechanical Enginee rs." 
• A copy of an academic equivalency evaluation from ' 
stating that the beneficiary has the educational equivalent of a U.S. Master of 
Science Degree in Computer Information Systems as well as copies of the 
beneficiary's foreign diplomas and transcripts. 
The petitioner asserts that it is the beneficiary's employer and that it has a valid employer-employee 
relationship with the beneficiary and the right to control the beneficiary as established by the above 
documents. The petitioner asserts further that the proffered position is a specialty occupation and 
references the Handbook, in support of this assertion. 
III. EVIDENTIARY OVERVIEW 
The Form I-129 and the accompanying LCA specified that the petition was filed to secure H-1B 
employment for the beneficiary as a Computer Programmer. However, nowhere in the record does 
, or for that matter, confirm, endorse, adopt, or in any way acknowledge those 
duties as comprising the work that the beneficiary specifically would perform for any period. In 
comparing the petitioner's list of duties with the content of the . February 20, 2014 letter, we 
find the letter (1) does not identify any specific duties particular to any project 
that may be the subject of a Job Offer to Staffing Suppliers like the petitioner, and (2) does not 
establish that it is referring to any position that would comport with the computer programmer 
position and its duties as described in the petition. 
Also, the letter does not deal with computer programmers or programmer analysts. Rather the 
letter addresses positions with different occupational titles and higher prevailing-wage levels than 
those that the petitioner has ascribed to the proffered position. The petition was filed for a Level I, 
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entry levee position within the Computer Programmers occupational group. However, the 
letter identifies potential positions that might be staffed by the petitioner's candidates as "Senior and 
Mid- Level Software Engineers." We find there is insufficient evidentiary support in the record that 
Senior and Mid-Level Software Engineer positions are equivalent to or interchangeable with the 
proffered position, which the petitioner has identified as an entry-level computer programmer 
meriting only a Level I prevailing-wage. 4 We find that these conflicts between the letter and 
the proffered position as otherwise described in the petition materially undermine the credibility of 
the petitioner's claim as to the type of work that would engage the beneficiary if this petition were 
approved. We also find that those conflicts are neither addressed nor resolved anywhere in the 
record of proceeding. The petitioner is obligated to clarify inconsistent and conflicting testimony 
by independent and objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
According to the petitioner, it would provide the beneficiary to in order for . to, in turn, 
assign the beneficiary to It then would be that would generate whatever 
Information Technology ( rn and computer-related project to which the beneficiary would be 
assigned at its offices in Missouri. We have reviewed the four following documents and 
find the documents submitted do not assist in establishing eligibility for this visa classification. 
3 See U.S. Dep't of Labor, 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. 
4 Th::�t is, if the occupational classification is for a computer programmer at a Level I wage in 
County, Missouri, the prevailing wage, when the petition was filed is $48,464 annually. For more 
information regarding the prevailing wage for computer programmers in I County, 
Missouri, see the All Industries Database for 7/2013 -6/2014 for Computer Programmers at the Foreign 
Labor Certification Data Center, on the Internet at 
http://www.flcdatacenter.com/OesQuickResults.aspx?• (last 
visited Apr. 22, 2015). If the occupational classification is for a programmer analyst, a subset of the 
occupational classification of computer systems analysts at a Level I wage in County, 
Missouri, the prevailing wage, when the petition was filed is $55,765 annually. For more information 
regarding the prevailing wage for computer systems analysts in County, Missouri, see 
the All Industries Database for 7/2013 - 6/2014 for Computer Systems Analysts at the Foreign Labor 
Certification Data Center on the Internet at http://www.flcdatacenter.com/OesQuickResults.aspx? 
(last visited Apr. 22, 2015). Thus, the petitioner's proffer of an 
annual salary of "$60,000+" would fall within the required prevailing wage for the occupations of computer 
programmer or programmer analyst. If, however, the occupational classification is for a software developer, 
applications at a Level I wage in County, Missouri, the prevailing wage, when the 
petition was filed is $63,294 annually. For more information regarding the prevailing wage for software 
developers (applications) in ' County, Missouri, see the All Industries Database for 
7/2013- 6/2014 for Software Developers (Applications) at the Foreign Labor Certification Data Center on 
the Internet at http://www.flcdatacenter.com/OesQuickResults.aspx?' 
(last visited Apr. 22, 2015). Accordingly, the petitioner's LCA 
would not correspond to the petition. 
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A. The . 'Petitioner Supplier Agreement 
The record of proceedin!! contains a copy of a formal contract-document entitled "Supplier 
Agreement," executed by and the petitioner, with an effective date of September 12, 2012. 
The document was first introduced into the record as part of the petitioner's RFE response. 
It is important to note that this . /petitioner Supplier Agreement provides an umbrella of terms 
and conditions which would apply to any agreement between and the petitioner. Neither the 
Supplier Agreement nor any other docuJPPnt 'Vithin the record of proceeding constitutes an offer -
let alone a contractual acceptance - by or . for the beneficiary to perform any 
particular type of work, for any specific period, as either a computer programmer or in any other 
capacity. Thus, we find that all of the documents submitted into the record are indefinitely 
prospective, or speculative, with regards to the substantive nature and duration of any position that 
the beneficiary might perform. As will be later discussed, this aspect itself is a major obstacle to 
both establishing the requisite employer-employee relationship between the petitioner and the 
beneficiary and also establishing that, by the petition's filing, the petitioner had actually secured 
work for the beneficiary that it claims is specialty occupation work. 
The Supplier Agreement identifies the petitioner's role as that of a "Staffing Supplier" that would 
supply "Contract Workers" to provide "temporary Contract services under the direction of 
." The ;;petitioner Supplier Agreement's introductory paragraph indicates (1) that 
"has been selected to provide centralized management services to ( ) in connection 
with l s use of temporary contract workers", and (2) that . would "engage with 
Staffing Suppliers to provide such temporary contract workers ." 
It is also important to note that the Supplier Agreement refers to a Master Services Agreement 
("MSA") - referenced in the Supplier Agreement as the " Agreement" - "pursuant to 
which will provide centralized supplier management services to " We reiterate 
that the record contains neither a copy nor a comprehensive explanation of the substantive terms of 
th MSA as they would relate to the control of any person accepted from the 
petitioner or other Staffing Suppliers to perform contract work for · While we will not 
speculate as to the particular contents of the MSA, we do find that the content of the Supplier 
Agreement clearly indicates that . in collaboration with would play a substantial 
role in selecting and thereafter managing any candidates proposed by the petitioner or any other 
staffing supplier. That is, the Supplier Agreement soecifically stipulates that will be 
"provid[ing] centralized management services to j ' pursuant to whatever the undisclosed 
terms of the . MSA may be. 
The Supplier Agreement also reveals that, as a "Staffing Supplier," the petitioner may be contacted 
by if so directed by "at 's option and sole discretion," to solicit 
candidates for temporary-staffing positions at . The solicitations would be issued in the 
form of "Job Postings for available contract worker positions" which J would issue to 
. and which, in turn, would publish "in the System managed by . or the designated 
Systems Administrator. " As stated in the Supplier Agreement, as a Staffing Supplier, the petitioner 
would be: "granted access to the System for the purpose of reviewing open Job Postings available to 
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Staffing Supplier, entering information regarding proposed candidates to fill such positions, and 
updating and reviewing information regarding Contract Workers on Assignment with ! " 
According to the Supplier Agreement, neither 1 nor would be obliged to accept any 
candidate that the petitioner might proffer for service as a Contract Worker in response to a Job 
Posting. 
The Supplier Agreement also indicates that, for the petitioner to be responsive to whatever 
substantive requirements might be set forth in any particular Job Offer, the petitioner would have to 
include not only the person's resume and job qualifications and the proposed billing rate, but also 
"such other information as may be required in the Job Posting for such assignment or in the Staffing 
Supplier Manual." As it appears that would be issuing multiple Job Offers during the 
term of the Supplier Agreement, to begin to assess the substantive nature, the associated educational 
requirements, and the lines of day-to-dav management and relative degrees of supervisory control 
over any person to be employed at pursuant to the Supplier Agreement, we would have 
to review the content of the related Job Offer, and at least whatever Staffing Supplier Manual terms, 
procedures, and processes would be incorporated into the contractual obligations of the petitioner 
and 1 • None of those details are provided in this record of proceeding. 
The Supplier Agreement indicates that the contents of the aforementioned Staffing Supplier Manual 
would likely have information relevant to the question of the actual extent of control, if any, that the 
petitioner would be allowed to exercise during the beneficiary's day-to-day work pursuant to any 
assignment that might approve for her at a This is a 
reasonable conclusion based upon the following indications that the Manual contains binding 
policies and procedures that would regulate whatever role the petitioner might have with regard to 
its assigning the beneficiary to any Job Offer work for which 1 would select her to 
perform for 
• The "Definitions" section of the , 
Manual as follows : 
/petitioner Supplier Agreement defines the 
"Staffing Supplier Manual" means the document detailing the required 
operational procedures which may be updated from time to time by 
setting forth policies and procedures to be followed by the Staffing Supplier 
in using the System and providing Contract Workers or potential Contract 
Workers under this Agreement. The policies and procedures set forth in the 
Staffing Supplier Manual will be applicable to all services provided by 
Staffing Supplier, and Staffing Supplier agrees to comply with such policies 
and procedures. 
• The Supplier Agreement's clause 4, Order Process, at subparagraph (b), 
Proposed Candidates, includes the following language: 
will notify Staffing Supplier if Staffing Supplier's candidate has been 
preliminarily selected to fill an available Job Posting. Upon receipt of such 
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NON-PRECEDENT DECISION 
notice, Staffing Supplier shall undertake the pre-Assignment steps set forth in 
the Staffing Supplier Manual, satisfying the ;;tandards and any 
additional standards set forth in the Job Posting .... 
Notably, the petitioner has not submitted a copy of the aforementioned Staffing Supplier Manual for 
our review, even though the Supplier Agreement indicates that the Manual's contents would be 
relevant to the employer-employee and potentially the specialty occupation issues. 
B. The February 20, 2014 Letter 
The initial documents submitted with the Form I-129 included a two-page, February 20, 2014 letter 
to U.S. Citizenship and Immigration Services (USCIS) from the Director of Global Operations at 
. writing from , Maryland. The express purpose of the letter is to confirm that, as "the 
Onsite Vendor Management Company, for " "h as a valid current contract with 
[the petitioner] to provide Information Technology Services resources for " However, a 
review of the document reveals nothing by which we can conclude that the "valid current contract" 
to which the letter alludes is other than the above-discussed 'petitioner Supplier Agreement. 
Like that Agreement, the letter does not refer to any contract by which or had 
awarded any particular project-work for the beneficiary to perform, whether as a computer 
programmer or otherwise. Like the Supplier Agreement, this document does not indicate that by the 
date of its signing the petitioner had secured any definite, non-speculative work for the beneficiary 
with regard to any project. Thus, like the Supplier Agreement, this letter also is 
not probative evidence that the petitioner and the beneficiary would have the employer-employee 
relationship claimed in the petition or that the potential work to be performed by the beneficiary 
would be specialty occupation work. 
In fact, the letter reflects that there was no binding agreement by . or : to definitely 
employ the beneficiary or any other person that the petitioner might propose for · work. 
The letter speaks only of "recruiting and presenting" endeavors in which the petitioner would 
engage in the future and also of "ral work order" to be "completed at the start for each 
contractor that will be placed at 1 
" 
Further, the letter states that the petitioner's 
recruitment and candidate-presentation etlor s would be directed at "Senior and Mid-Level Software 
Engineers" which materially conflicts with the type of position specified in the LCA, that is, a 
Level-l (entry) prevailing-wage position for a Computer Programmer. 
It is also important to note that this letter, dated February 20, 2014, does not mention any 
degree or objective degree-equivalency requirement for any of the Senior and Mid-Level Software 
Engineer positions for which it foresees the petitioner would provide candidates. 
C. The Petitioner's "E mployee's Performance Appraisal and Development Program" Form 
Submitted in the RFE response as evidence of the petitioner's claimed right to control the 
beneficiary, this eight-page document reflects that the beneficiary would be subject to the 
petitioner's appraisal during periods when the beneficiary would be working on assignment. While 
this document is indicative of a level of control that the petitioner would have over the beneficiary if 
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Page 11 
she were to be assigned to : we note again that there is insufficient evidence that the 
beneficiary would in fact be assigned to for the period specified in the petition, so as to 
make this appraisal form relevant to the petition now before us on appeal. Moreover, even if the 
petitioner had established some relevance, the evidentiary weight of the form would be reduced to 
little or no probative value because there is insufficient evidence in the record of proceeding that 
)r would have to either participate in, review the results of, or abide by the results 
of the petitioner's evaluation process for any purpose. 
D. Letter from l 's Sourcing & Supplier Management, dated June 9, 2014 
This one-page letter, which was first introduced into the record at the appeal stage, is the record of 
proceeding's only document from : It confirms the role of , which the letter 
describes as "responsible for providing centralized staffing management services to l " 
The letter also identifies as the sole party for confirming "necessary information for the 
consideration of any candidate, including the nature of [a] candidate's employment, assignment 
details, and durations." This letter also references the . agreement as defining the 
scope of the role, conveying that . · �- operates "pursuant to the terms and conditions of the 
Master Services Agreement hetween r ] and[, I dated April 26, 2012." However, the 
record does not include the . MSA and this short, two-paragraph letter provides no 
substantive details with regard to the terms and conditions in that MSA. Moreover, this letter 
makes no mention of the petitioner, the beneficiary, or any project work that has been awarded to 
the petitioner. 
E. Conclusion Regarding the Above Documents 
As is evident from the discussion of the four documents above, the evidence of record does not 
establish that as of the time of the petition's filing, the petitioner had secured definite work that 
would be available for the beneficiary at if the petition were approved. This finding 
alone is a material flaw that fatally undermines the petitioner's efforts both to establish the requisite 
employer-employee relationship and to qualify the proffered position as a specialty occupation. 
Upon review of the four documents analyzed in this section, we find that the petitioner has not 
established that it had specialty occupation work available for the beneficiary to perform as the 
beneficiary's employer when the petition was filed. The petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(1). A visa petition may not be 
approved at a future date 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. Comm'r 1978). 
IV. EMPLOYER-EMPLOYEE 
Continuing with our analysis of this petition, we will next discuss in further detail whether the 
petitioner has established that it meets the regulatory definition of a "United States employer" and 
whether the petitioner has established that it will have "an employer-employee relationship with 
respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or 
otherwise control the work of any such employee" as set out at 8 C. F.R. § 214.2(h)(4)(ii). 
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Page 12 
As already noted in our evidentiary overview, the record contains assertions in the 'petitioner 
Supplier Agreement, in the aforementioned letters from : and iP thP 
petitioner/beneficiary Employment Agreement with the beneficiary, and in the letter from 
_ to the effect that the petitioner is the emolover and/or sole employer of whatever 
persons it would provide as a Staff Supplier to work at We have considered all such 
assertions both individually and as part of the totality of evidence bearing on the employer­
employee issue. However, while those statements are factors to be considered, there is insufficient 
indication that they were based upon application and analysis of the common-law employer­
employee test which governs determinations of the employer-employee relationship in the H-1B 
specialty-occupation context. Thus, those assertions regarding the petitioner as employer merit 
little to no probative weight towards resolving the employer-employee issue before us. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services. . . in a specialty occupation described in section 
214(i)(1) .. . , who meets the requirements for the occupation specified in section 
214(i)(2) ... , and with respect to whom the Secretary of Labor determines and 
certifies to the [Secretary of Homeland Security] that the intending employer has 
filed with the Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C. F.R. 
§ 214.2( h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have the requisite 
employer-employee relationship with the beneficiary. The evidence of record is not sufficiently 
comprehensive to bring to light all of the relevant circumstances that pertain to the parties among 
themselves and also with relation to the beneficiary with regard to the project. 
Although "United States employer" is defined in the regulations at 8 C. F.R. § 214.2 (h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
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United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) 
of the Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that 
"United States employers" must file a Form I-129 in order to classify aliens as H-1B temporary 
"employees." 8 C.P.R . § 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States employer" 
indicates in its second prong that the petitioner must have an "employer-employee relationship" with 
the "employees under this part," i. e., the H-lB beneficiary, and that this relationship be evidenced by 
the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C. P.R. § 214.2 (h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H-1B visa 
classification, even though the regulation describes H-1B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." /d. Therefore, for 
purposes of the H -1B visa classification, these terms are undefined. 
The United States Supreme Court has 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 Mutual Ins. 
Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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. " 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
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"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.5 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319. 6 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 10l(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h). 7 
5 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and -did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844�845 (1984). 
6 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 35 1 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
7 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
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Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCrS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .. .. " (Emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-IIr(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" ofH-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III( A)(l). 
Furthermore, when examining the factors relevant to determining control, USCrS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
beneficiary as an H-lB temporary "employee." 
We note the petitioner's assertion that the beneficiary will work at the offices of in 
Missouri; and we further note the petitioner's contentions that at all times it will maintain 
an employer-employee relationship with the beneficiary. However, the record of proceeding does 
not establish what project(s) would require the beneficiary to perform the duties and responsibilities 
that the petitioner ascribed to the proffered position. 
First, the record of proceeding does not establish the existence of any work that would 
definitely be awarded to the beneficiary, or any other worker that the petitioner might, in response 
to a Job Offer not yet made, propose to as a candidate for assignment at 
In this regard we hereby incorporate our earlier comments and findings with regard to 
the documentary evidence that the petitioner submitted as indicia of its business relationships with 
various companies. As there reflected, the record of proceeding does not contain persuasive 
evidence that the . 'petition�r Supplier Agreement had even produced any Job Offers for which 
the beneficiary has been proposed as a candidate for selection to work at • Certain! y the 
record of proceeding includes no copy of any such Job Offer and no copy of any or 
document confirming the acceptance, and associated term� :mel conditions, of the beneficiary 
or any other candidate proposed by the petitioner for work at . Additionally, as noted 
above, the evidence of record fails to establish that the petitioner or any of its staff would determine, 
assign, and evaluate the beneficiary's day-to-day work during any assignment at 
Absent a Job Offer or other , document, delineating the contractual terms and 
conditions relevant to the employer-employee common law touchstone of control - we are unable to 
determine that balancing all of the relevant indicia of control would favor the petitioner - rather 
than one of the other parties - so as to establish the requisite employer-employee relationship. 
Further, the petitioner has provided inconsistent information with respect to the duration of the 
relationship between the parties and the location(s) where the beneficiary will work for the duration of 
the requested H-1B employment period. More specifically, on the Form 
I-129, the petitioner requested that the beneficiary be granted H-1B classification from October 1, 
20 14 to September 25, 201 7. However, the February 20, 2014 letter from indicates that "the 
projects can be up to two years." 
We find, therefore, that the evidence of record does not establish that, by the date of the filing of the 
petition, the petitioner had yet secured definite, non-speculative work for the beneficiary for the 
period of employment specified in the petition. In this respect, we also find that the record does not 
support a finding that the beneficiary's services would be required for the previously quoted duties 
that the petitioner claimed for the proffered position. The record of proceeding simply lacks 
documentary evidence from the asserted end-client (J 1 of the existence of, or details 
regarding, any particular project to which the beneficiary would be assigned in the United States. 
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Also, because the evidence of record does not establish either an actual offer-and-acceptance by 
related to the beneficiary for any work at the actual scope of any services 
to be performed remains merely speculative and, therefore, not a sufficient basis to support a 
determination that the petitioner would be engaging the beneficiary for actual work in the United 
States, as would be required to establish the petitioner as a United States employer in accordance 
with the provision at 8 C.F.R. § 214.2(h)(4)(ii). 
Next, we note that 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 an alien 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 alien beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. 
We make several findings regarding the record's indicia of the petitioner's control with regard to the 
beneficiary and her work - that is, if the beneficiary should be accepted by . for 
work at It appears that the petitioner would be responsible for paying for liability 
insurance, social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings. Also, through its Professional 
Employment Organization (or "PEO"), the petitioner would distribute pay to the 
beneficiary. Howew�r thP-rP-will be no work and no pay absent an express agreement 
by . acting for , to accept and pay for services from the beneficiary. Under certain 
circumstances, the petitioner could unilaterally transfer or remove the beneficiary after assignment 
to a : project, and it would retain the authority to fire the beneficiary. However, the 
record establishes that and would always retain the power to insist - with the 
prospect of contract cancellation for non-compliance - that the petitioner remove any assigned 
worker. We also find that an Employment Agreement between the petitioner and the beneficiary 
exists, although the document does not reference any particular project-work as already secured for 
the beneficiary. 
We now note numerous aspects of the evidence of record that are factors which we igh a gainst a 
favorable determination on the petitioner's claim that it satisfies the employer-employee 
requirement. The record indicates that, if in fact the beneficiary were selected for a particular 
project pursuant to the candidate-selection process, she would be assigned to a location 
( at , Missouri) other than the petitioner's office address (in 
Missouri). There is insufficient evidence that the petitioner would maintain any supervisory 
presence at the 1 work-location. In contrast, we see that, as noted in the February 20, 
20 14 letter, would serve as 's "Onsite Management Company, " with the 
reasonable implication being that 1 - rather than the petitioner or any other Staffing Provider ­
would provide whatever general management would be required for projects 
temporarily staffed by Staffing Suppliers. We also note that the Supplier Agreement appears to 
allow the petitioner, as a Staffing Supplier, to reassign workers that it supplied, under certain 
conditions (i.e., in accordance with the terms at paragraph 4(g), Assignment Rule). However, it is 
clear that ) retains the absolute right to fire any assigned worker and to do so at its sole 
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discretion. In particular, the paragraph 4(f), Removal of Contract Workers, includes the following 
language: 
Staffing Supplier acknowledges that the Contract Workers shall be subject to the 
continuing approval of If at any time , in its reasonable 
ju dgment, determines that a Contract Worker is inadequate, unsatisfactory, or has 
failed to comply with )r J rules, regulations, or policies, will 
so advise Staffing Supplier and Staffing Supplier shall immediately take action to 
correct the situation by removing the Contract Worker. Failure by Staffing Supplier 
to remove an unsatisfactory Contract Worker shall be a breach of this agreement 
and, in such event[,] will have the right to terminate this Agreement upon 
written notice to the Staffing Supplier. 
Although the petitioner's Evaluation Review form that it has submitted into the record does not 
appear to include any proscription against the netitioner evaluating the beneficiary or any other 
person that it may assign to temporarily staff projects, there is insufficient evidence that 
the petitioner's evaluations are binding upon or : Also, there is insufficient 
indication that, solely on the basis of its performance evaluations, the petitioner could unilaterally 
keep anyone at the proje ct site regardless of contrary performance determinations by . or 
Again, paragraph 4(f), Removal of Contract Workers, in the aforementioned 
petitioner/ Supplier Agreement indicates that workers whose services are accepted by 
from the petitioner, or any supplied by any Staffing Supplier, would always remain 
both subj ect to 's evaluation and l s removal. 
The record of proceeding does not contain sufficient probative evidence that the petitioner would 
play any substantial role in determining the particular duties and tasks that any worker accepted for 
assignment at would perform in the day-to-day work associated with such assignment. 
Evidence indicating that such a role would not be likely includes the letter's 
descriptions of , as the provider of "centralized management services for : " and the 
self-description as "the Onsite Vendor Management Company. " Moreover, we tmd that the 
record of proceeding contains insufficient documentary evidence from or :i ther 
allocating any immedia te supervisory duties to the petitioner or including the petitioner in day-to­
day determinations and evaluations of tasks to be performed by workers assigned to : 
The evidence of record reflects that : would, more likely than not, ultimately generate 
and determine the substantive scope and duration of any work of the type that the petitioner asserts 
as the basis of the petition. 
With regard to the petitioner's claim of the right to manage and evaluate its workers, we have 
alreadv noted the evidence of performance evaluation forms. However, neither the petitioner, 
nor identify any specific management authorities and responsibilities that have been 
reserved for the petitioner to exercise over designating the beneficiary's day-to-day tasks, evaluating 
the quality and efficiency of the beneficiary's work, and providing guidance on immediate-work 
issues as needed (again, if accepted the beneficiary for assignment to 
) 
(b)(6)
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There is insufficient evidence that any work to which the beneficiary might be assigned would 
require the petitioner to provide its own proprietary information or technology, or that the petitioner 
would play any active role in supervising and guiding the beneficiary's work at - that 
is, if she were accepted by for assignment to 
The totality of the evidence reflects that the beneficiary's work would inherently require access to 
and use of the end-client's IT instrumentalities (such as the end-client's own IT systems, computer 
programs, and software applications). 
As indicated in the letter, any worker supplied for within the scope of the duties 
described in that letter would not be used to produce an end-product for the petitioner's own use or 
distribution/sale to the public or any of its clients. Rather, the totality of the evidence indicates that 
whatever work-products might be produced by any such worker would be solely for the end-client 
petitioner's. 
s use and benefit and would have to conform to requirements - not the 
The petitioner has not provided detailed information from either the , MSA or the 
Staffing Supplier Manual for our review, documents which information in the record of proceeding 
suggests as likely having content bearing upon the extent of the petitioner's role and authority with 
regard to any person accepted by for temporary contract work. 
We also find that the petitioner has undermined the credibility of the petition by its statements, 
made in its March 31, 2014 letter of support and repeated on appeal, that "[ a]ll activities, including 
managerial supervision and hiring and firing decisions as well as performance evaluations are 
controlled by [the petitioner]" and that "[the petitioner's] clients have no managerial authority over 
our employees and our employees do not fill positions at client sites." If, as the context suggests, 
the petitioner includes within the scope of its "employees" any persons whom it would assign to 
pursuant to the , 'petitioner Supplier Agreement, then the petitioner's statements are 
materially inconsistent with information presented in that Supplier Agreement as well as in the 
letters from 1 and : Going on record without supporting documentary evidence is 
not sufficient tor purposes of meeting the burden of proof in these proceedings. Matter of Sotfici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). It is further noted that the petitioner provided no explanation for the 
inconsistencies. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. !d. 
We fully considered all of the submissions from the entities involved, including the letters 
submitted by representatives of and Based upon our review, we reiterate our 
finding that the only contract-document submitted into the record is the /petitioner Supplier 
Agreement and that, neither it or any other documentary evidence provides specific information 
(b)(6)
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with regard to the actual supervisory and management framework that would determine, direct, and 
supervise the beneficiary's day-to-day work at if she were selected to work there. Based 
upon this fact and upon all of the aspects of the record that we have discussed as bearing on the 
employer-employee issue, we conclude that the evidence of record is inconclusive on the issue of 
whether it is more likely than not that the petitioner and the beneficiary would have the requisite 
employer-employee relationship in the context of the work to be performed if this petition were 
approved. We reach this conclusion based upon the application of the above-discussed common 
law principles to the totality of the evidence of record. As it is the petitioner's burden to establish 
that an employer-employee relationship exists, and the petitioner has not met this burden, the appeal 
will be dismissed and the petition will be denied. 
Without full disclosure of all of the relevant factors relating to the end-client, including evidence 
corroborating the beneficiary's actual work assignment, we are unable to find that the requisite 
employer-employee relationship will exist between the petitioner and the beneficiary; and, of 
course, such disclosure is necessarily precluded where, as here, there is no definite employment. 
The evidence of record, therefore, is insufficient to establish that the petitioner qualifies as a 
"United States employer," as defined by 8 C. P.R. § 214. 2(h)(4)(ii). Merely claiming in its letters 
that the beneficiary is the petitioner's employee does not establish that the petitioner exercises any 
substantial control over the beneficiary and the substantive work that she performs. Nor do clauses 
in overarching agreements such as the letters from or carry probative weight in 
the absence, as here, of specific contractual documents that bring such agreements into play with 
regard to work for which it is shown that the beneficiary would be employed. 
The petitioner's reliance on claims that it would set the beneficiary's wages, control the beneficiary's 
work locations, and manage and evaluate the beneficiary's performance is misplaced. As we have 
noted, the existence of actual work for the beneficiary has not been established. The record of 
proceeding before us does not document the full panoply of employer-employee related terms and 
conditions that would control the beneficiary's day-to-day work; therefore, we do not have before us 
a sufficiently comprehensive record to identify and weigh all of the indicia of control that should be 
assessed to resolve the employer-employee issue under the above discussed common law 
touchstone of control. 
Additionally, as we already noted, the evidence of record does not establish the petitioner as 
performing the essential U.S. employer function of engaging the beneficiary to come to the United 
States for actual work established for the beneficiary at the time of the petition's filing. 
The petitioner has not established that, at the time the petition was submitted, it had H-1B caliber work 
for the beneficiary that would entail performing the duties as described in the petition, and that was 
reserved for the beneficiary for the duration of the period requested. We therefore cannot conclude 
that the petitioner has satisfied its burden and established that it qualifies as a United States 
employer with standing to file the instant petition in this matter. See section 214(c)(1) of the Act 
(requiring an "Imp orting Employer"); 8 C.P.R. § 214. 2(h)(2)(i)(A) (stating that the "United States 
employer ... must file" the petition); 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) (explaining that 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
only "United States employers can file an H-1B petition" and adding the definition of that term at 
8 C.P.R .§ 214.2( h)(4)(ii) as clarification). 
Full consideration of the totality of the evidence leads us to conclude that the petitioner has 
established no more than, at least in the factual context of this petition, (1) that it is a staffing firm 
that locates suitable candidates for available positions and (2) that it filed the petition in anticipation 
of a Job Offer that had not yet been extended but for which it intended to proffer the beneficiary as 
a candidate for 1 :o accept as a temporary contract worker for 
As discussed above, the petitioner has not established the requisite employer-employee relationship 
between the petitioner and the beneficiary. For this reason the petition must be denied. 
V. SPECIALTY OCCUPATION 
Next we will address whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. Based upon a complete review of the 
record of proceeding, including the evidence submitted on appeal, and for the specific reasons 
described below, we agree with the director and find that the evidence fails to establish that the 
position as described constitutes a specialty occupation. 
A. The Law 
For an H -1B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occu pation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor 's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
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Pursuant to 8 C.F.R. § 214.2( h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. See K Mart Cor p. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d at 387. To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as 
providing supplemental criteria that must be met in accordance with, and not as alternatives to, the 
statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), USCIS consistently interprets 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 proffered position. See Royal Siam Corp. v. Chertoff, 
484 F.3d at 147 (describing "a degree requirement in a specific specialty" as "one that relates 
directly to the duties and responsibilities of a particular position"). Applying this standard, USCIS 
regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, 
computer scientists, certified public accountants, college professors, and other such occupations. 
These professions, for which petitioners have regularly been able to establish a minimum entry 
requirement in the United States of a baccalaureate or higher degree in a specific specialty or its 
equivalent directly related to the duties and responsibilities of the particular position, fairly 
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represent the types of specialty occupations that Congress contemplated when it created the H-1B 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCrS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generall y Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor 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 as the minimum for entry 
into the occupation, as required by the Act. 
B. Analysis 
The petitioner's specialty-occupation claim resides in the work that the petitioner asserts the 
beneficiary will provide per contractual agreement between the petitioner and another entity, or 
entities. Thus, to meet its burden of proof, it is incumbent upon the petitioner to provide evidence 
of the pertinent contractual requirements that is sufficient to show that their actual performance 
would require the theoretical and practical application of at least a bachelor's degree level of a body 
of highly specialized knowledge in a specific specialty - in compliance with the "specialty 
occupation" definition at section 214(i)(1) of the Act and the regulation at 8 C.P.R. 
§ 214. 2(h)(4)(ii). Additionally, the petitioner must establish that the petition was filed on the basis 
of definite, non-speculative employment that had been secured for the beneficiary by the time the 
petition was filed. Again, USCrS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.P.R. 103. 2(b)(1). A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 r&N 
Dec. 248 (Reg. Comm'r 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCrS requirements. See Matter of Izummi, 22 r&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
That is, when determining whether a proffered position qualifies as a specialty occupation, USCIS 
must determine, inter alia, whether the petitioner has (1) provided sufficient evidence to establish 
that the beneficiary will perform the duties of the proffered position as stated in the petition; and (2) 
established that, at the time of filing, it had secured non-speculative work for the beneficiary that is 
in accordance with the petitioner's claims about the nature of the work that the beneficiary would 
perform in the proffered position. For the reasons we shall now discuss, the evidence of record is 
insufficient to meet either of these requirements. 
The record does not establish that, by the petition's filing, the petitioner had secured any work that 
would require the beneficiary to perform the duties of the proffered position for the period specified 
in the petition. Although the petitioner has established a contractual relationship with , the 
claim in this petition is that the beneficiary will work for a third-party employer through that 
agreement with . However, the agreement between . and the end-client, , has 
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not been provided. 
That is to say that, without follow-on contractual commitments for specific work in such forms as 
Statements of Work, Work Authorizations, Schedules, Job Offers, or Purchase Orders, as 
confirmed it would have in its February 20, 2014 letter, the documents in the record do not indicate 
that the petitioner has secured any definite work to be performed for any particular period. We find 
that, while the documents discussed above indicate that the petitioner has a business relationship 
with , who in turn has an agreement with , again, they do not establish that those 
relationships actually had generated work that the beneficiary would perform in accordance with the 
duties and responsibilities that the petitioner ascribed to the proffered position. The record is also 
devoid of any documentation establishing in-house work that would require the beneficiary to 
perform the duties and responsibilities that the petitioner has attributed to the proffered position. 
Thus, as discussed in the previous section of this decision, the petitioner has not established that the 
petition was filed for non-speculative work for the beneficiary that existed as of the time the H-lB 
petition was filed. The petitioner did not submit sufficient, probative evidence corroborating that, 
when the petition was filed, the beneficiary would be assigned to perform services pursuant to any 
specific contract(s), work order(s), and/or statement(s) of work (or other probative evidence) for the 
requested validity period and/or that the petitioner had a need for the beneficiary's services during 
the requested validity dates. There is insufficient documentary evidence in the record corroborating 
what the beneficiary would do, where the beneficiary would work, and the availability of work for 
the beneficiary for the requested period of employment. For an H-lB petition to be granted, the 
petitioner must provide sufficient evidence to establish that it will employ the beneficiary in a 
specialty occupation position. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). 
As recognized in Defensor v. Meissner, 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. See Defensor v. 
Meissner, 201 F.3d at 387-388. 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 record of proceeding in this case is similarly devoid of sufficient information from the 
end-client, regarding the specific job duties to be performed by the beneficiary for that 
company. The petitioner has not established the substantive nature of the work to be performed by 
the beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion 
at 8 C.P.R. § 21 4. 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 
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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. 
Based upon a complete review of the record of proceeding, we conclude that the evidence fails to 
establish that the position as described more likely than not constitutes a specialty occupation. The 
petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 21 4. 2(h)(4)(iii)(A) 
and, therefore, it cannot be found that the proffered position qualifies as a specialty occupation. For 
this additional reason, the appeal will be dismissed. 
As the petitioner premised its specialtv occuoation claim on an assignment for 
computer programmer work for the record's failure to substantiate that such an 
assignment had been secured for the beneficiary is dispositive of the specialty occupation issue. 
Therefore, we need not address additional evidentiary deficiencies which we have observed in the 
record that would preclude recognition of the proffered position as a specialty occupation if the 
oetitioner had established that the beneficiary would be working as a computer programmer for 
VI. CONCLUSION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 38 1 F.3d 143, 14 5 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigratio n benefit sought. Section 291 of 
the Act, 8 U. S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 201 3). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.