dismissed H-1B Case: Computer Science

(b)(6)
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 
DATE: 
MAY 0 4 2015 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This ·is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "the director') denied the nonimmigrant visa 
petiti on, and the matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. The petition will be denied. 
On the Petition for a Nonimmigrant Worker (Form 1- 12 9), the petitioner describes itself as a 
computer consulting services company. In order to employ the beneficiary in what it identifies as a 
position in the Computer Programmers occupational category, with "Programmer Analyst" as its job 
title, 1 the petitioner seeks to classify the beneficia ry as a nonimmigrant worker in a specialty 
occupati on pursuant to section 101 (a)(15)(H)(i)(b) of the Immi gration and Nationality Act (the 
Act), 8 U.S.C. § 1101( a)(1 5)( H)(i)(b). 
The director expressly specified two separate and independent grounds for denying the petition, 
namely: (1) that the evidence of record failed to demonstrate the existence of an employer­
employee relationship between the petitioner and the beneficiary; and (2) that the evidence of 
record failed to establish that the proffered position qualifies for classi fication as a specialty 
occupation. In her discussion of the specia lty occupation issue, the director also identified an 
additional aspect of the petition which is itself sufficient for denial of the petition, that is, the 
petition's fail ure to establish that the petitioner had secured the specific type, and claimed duration, 
of work for the beneficiary that the petitioner claimed as the basis for the petition. 
The record of proceeding before us contains the following: (1) the Form I-12 9 and supporting 
documentation; (2) the director's request for additional evidence (RFE) ; (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petiti on; and (5) the 
Form I-290B and supporting documentation. 
For the reasons that we shall discuss in the body of this decision, based upon our review of the 
entire record of proceeding, as expanded by the submissions on appeal, we conclude that the 
director was correct in denying the petition on each of the grounds for denial that she identified in 
her decision. Accordingly, the appeal will be dismissed, and the petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
As a prelimin ary 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, 375-37 6 
(AAO 20 1 0) . 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. 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for the SOC (O*NET/OES) Code 15-1131, the associated Occupational Classification of "Computer 
Programmers," and a Level l prevailing wage rate. 
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!d. 
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NON-PRECEDENT DECISION 
The "preponderance of the evidence" of "truth" 1s made based on the factual 
circumstances of each indivi dual case. 
* * * 
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 individually 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. 42 1, 43 1 (1 987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
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. 
We conduct appellate review on a de novo basis .. See Soltane v. DOJ, 381 F.3d 14 3, 14 5 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support counsel's contentions that the evidence of 
record requires that the petition 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 review of the entire record of 
proceeding, and with close attention and due regard to all of the evidence submitted in support of 
this petition, we find that the record does not contain sufficient relevant, probative, and credible 
evidence to lead us to believe that it is "more likely than not" or "probably" true that (1) the 
beneficiary and the petitioner would be engaged in the employer-employee relationship required to 
provide the petitioner standing to file the petition, or (2) that the proffered position is a specialty 
occupation. 
II. FACTUAL AND PROCE DURAL BACKGROUND 
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, 
of course, (3) the petitioner, which is (to which we shall 
hereafter refer simply as "the petitioner" or ' ). 
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There is no evidence of any direct contractual relationship between the petitioner and 
In the Form I-12 9, the petitioner indicated that it is seeking the beneficia ry's services as a computer 
programm er "programmer analyst" on a full-time basis at a minimum rate of pay of $60,000 per 
year. In its March 31 , 20 14 letter of support, 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." 
Regarding the proffered position, the petitioner stated that the beneficiary will be working onsite at 
the offices of its end-client, Mis souri . The petitioner requested approval of the 
H- lB petition for the beneficiary for the period October 1, 2014 to September 25, 2017. 
As the Labor Condition Application (LCA) required to accompany an H-lB specialty-occu pation 
petition, the petitioner submitted an LCA that had been certified for a job prospect within the 
occupational classification of "Computer Programmers" - SOC (ONET/OES Code) 15 -1 131 , at a 
Level I wage. 
The documents filed with the Form I-12 9 also included: (1) a letter from the petitioner dated March 
31 , 20 14 ; (2) a letter from dated February 20, 20 14 , addressing the nature of its agreement 
with the petitioner; (3) and documentation regarding the beneficiary's credentials. 
In her March 31 , 20 14 letter in support of the petition, the petitioner's Vice Presid ent stated that 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 
• W ark with other programmer analysts to design interfaces between software 
appli cations in order to complete design requir ements 
• 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-su pport tasks involving on-call responsi bilities. 
The director found the evidence insufficient to establish eligibility for the benefit sought, and issued 
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an RFE on May 28, 2014 . The petitioner was asked to submit probative evidence to establish that a 
specialty occupation position exists for the beneficia ry, and that the petitioner would maintain the 
requisite employer-employee relationship with the beneficiary. The petiti oner was also asked to 
submit evidence to establish that the proffered position qualified as a specialty occupation, and that 
the beneficia ry met the educational requirements of the proffered position. 
On June 27, 2014 , counsel for the petitio ner responded to the RFE. Counsel clarified that the 
beneficiary would be working onsite for via the petitioner's agreement with . and 
submitted additional documentation in support of this contention. Counsel submitted a copy of a 
"Su pplier Agreement" between and the petitio ner, dated September 12 , 20 12 . The agreement 
was signed by the petitioner and " on September 12 , 20 12 . Counsel also submitted a copy of a 
document entitled "Employment Agreement" between the petitioner and the beneficiary ? 
According to the inferences drawn from the documents and the claims of counsel, the peti tioner 
seeks to employ the beneficia ry onsite at offices through contends that it was 
"selected to provide centralized supplier management services to in connection with 
use of temporary contract workers." 
The director reviewed the information provided by the petitioner and counsel to determine whether 
the petitioner had established eligibility for the benefit sought. On July 11 , 20 14 , the director 
denied the petition. 
On appeal, counsel for the petitioner submits a brief that contends that the director's findings were 
erroneous. In support, the following documentation was provided: 
• A letter from a Mr. signing as a member of "Sourcing & Supplier 
Management" at dated June 9, 20 14 . The letter does not identify Mr. 
particular posit ion, authority, or place in the official hierarchy at 
Sourcing and Supplier Management. The letter identifies a particular, 
Master Services Agreement - not provided in the record - as the contractual 
agreement governing the particulars of the role that . plays with regard to 
"each staffing provider [such as the peti tioner]. " Again, 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, assig nment of duties, and evaluation of work­
product quality and efficiency of workers that might be accepted by for 
assig nment to a particular project. This letter does, however, suggest that 
would be the depository of "any information for the consideration of any 
candidate, including the nature of [a] candida te's employment, assi gnment 
details, and durati ons." We hasten to note that the only documents presented 
from are (1) the aforementioned Supplier Agreement, and (2) 
2 We note that extensive portions of the copy provided by counsel are blurry and unclear and thus, the 
document carries little probative value. 
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NON-PRECEDENT DECISION 
the aforementioned February 20, 2014 letter from Neither document 
establishes that, as of the time of the petition's filing, any definite, non­
speculative work for had been secured for the beneficiary, let alone that 
any work had been secured that would comport with the proffered position as 
described in the petition. 
• A duplicate copy of that February 20, 2014 letter which had been submitted 
prior to the director's decision. 
• A duplicate copy of the "Su pplier Agreement" between and the petitioner, 
dated September 12, 20 12 , which had been previously been submitted by 
counsel. 
• A copy of an excerpt from the U.S. Department of Labor's Occupational 
Outlook Handbook regarding the "Computer Programm er" occupational group. 
• A copy of an academic equivalency evaluation from ' 
_ 
opining that the beneficiary has the educational equivalent of a Bachelor of 
Science degree in Information Technology. 
III. EVIDENTIARY OVERVIEW 
The Form 1- 129 and the accompanying LCA specified that the petition was filed to secure H-lB 
employment for the beneficiary as a Computer Programmer. However, it serves no purpose for us 
to address the petit ioner's description of the duties, as 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 beneficia ry specifically would perform for any period - that is, if he were actually 
submitted by the petitioner to as a candidate for consideration and ultimately accepted to serve 
on one of projects. In this regard, we invite the petitioner to compare its list of duties copied 
above with the content of the . February 20, 2014 letter, which, significa ntly, (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 even establish that it is referring to any 
position that would comport with the computer programm er posi tion and its duties as described in 
the petition. 
Also, with regard to the latter point, we see that the letter does not even 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 prevaili ng-wage position within the 
Computer Programmers occupational group. However, it is as "Senior and Mid-Level Software 
Engineers" that the letter identifies the potential positions that might be staffed by candidates 
that the peti tioner would present once appropriate Job Offers are published. We find no evidentiary 
support anywhere in the record that Senior and Mid- Level Software Engineer positions are 
equivalent to or interchangeable with the proffered position, which the petitio ner has identified as 
that of a Computer Programm �r meriting only a Level I prevailing-wage. We find that these 
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conflicts between the letter and the proffered position as otherwise described in the petition 
materially undermine the credibility of the petition'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 tum, 
assign the beneficiary to It would be that would generate whatever InformatioQ. 
Technology (IT) and computer-related project to which the beneficiary would be assigned. Also 
according to the petitioner, the beneficiary would perform his services at offices in 
Missouri. 
As will be evident in the course of the discussion below, the evidence of record does not establish 
that as of the time of the petition's filing the petitioner had secured any definite work that would be 
availa ble for the beneficiary at if the petition were approved. This 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. 
The" !Petitioner Supplier Agreement 
The record of proceeding contains only one copy of a formal contract-document. Entitled "Supplier 
Agreement," it was 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 (acting for ) and the 
petitioner. Neither the Settlement Agreement nor any other document within the record of 
proceeding constitutes even 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 establi shing that, by the petition's filing, the petitioner 
had actually secured for the beneficiary the work that it claims as the basis of the specialty 
occupation claim. 
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 Supplier Agreement also reflects that, in its role interposed between the ultimate end-client 
and the petitioner, . would provide "centralized management services" for to include 
publishing "Job Offers," which would solicit job-candidates from 
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"Staffing Suppliers" like the petitioner; deciding upon and assigning acceptable workers from 
among the candidates provided by Staffing Suppliers; and representing in the course of the 
day-to-day "centralized management" of the projects to which workers from Staff Suppliers would 
be assigned. 
The petitioner Supplier Agreement's introductory paragraph indicates (1) that "has been 
selected to provide centralized management services to I I in connection with _ _ use of 
temporary contract workers", and (2) that would "engage with Staffing Suppliers to provide 
such temporary contract workers." 
It is important to note that the Supplier Agreement refers to a Master Services Agreement ("MSA") 
- referenced in the Supplier Agreement as the ., - "pursua nt to which 
will provide centralized supplier management services to " The record contains neither 
a copy nor a comprehensive explanation of the substantive terms of this 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. After all, the Supplier 
Agreement specifies as "provid[i ng] centralized management services to 
pursuant to whatever the terms of the unprovided MSA may be. 
The Supplier Agreement also reveals that, as a "Staffing Supplier," the petitioner may be contacted 
by , if so directed by "at _ J 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 would issue to and which, in tum, 
would publish "in the System managed by or the desig nated 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 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 nor would be obliged to accept any 
candidate that the petitioner might proffer for service as a Contract Worker in response to a Job 
Postin g. 
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 assi gnment 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 
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requirements, and the lines of day-to-day management and relative degrees of supervisory control 
over any 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 
peti tioner and 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 
assig nment that might approve for him at an project. 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 . would select him to perform for 
• The "Definitions" section of the 
the Manual as follows : 
/petitioner Supplier Agreement defines 
"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 Staf fing Supplier Manual will 
be applicable to all services provided by Staffing Supplier, and 
Staffing Supplier agrees to comply with such policies and procedures. 
• Subparagraph (b), Proposed Candidates, of the Supplier Agreement's clause 
4, Order Process, 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 notice, Staffing Supplier shall undertake the pre­
Assig nment steps set forth in the Staffing Supplier Manual, satisfying 
the standards and any additional standards set forth in the Job 
Posting .... 
Yet it is important to note that the petitioner has not submitted a copy of the aforementioned 
Staffing Supplier Manual, even though the Supplier Agreement indicates that the Manual's contents 
would be relevant to the employer-employee issue. 
The letter, dated Februar y 20, 2014 
The documents submitted with the Form 1- 12 9 on its filing included a two-page, February 20, 20 14 
letter to U.S. Citi zenship and Immigration Services (USCIS) from the Director of Global Operations 
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at writing from _ Maryland. The express purpose of the letter is to confirm that, as 
"the Onsite Vendor Management Company, for " "has a valid current contract 
with [the petitioner, ] to provide Information Technology Services resources for " 
However, 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 beneficia ry 
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 - for this letter is not evidence that the petitioner would be 
providing the work upon which it stakes its claim of an employer-employee relationship - that is, 
Computer Programm er work at for the period of intended employment specified in the Form 
1- 12 9. So, too, neither this letter nor the Supplier Agreement is probative evidence that the petition 
was filed for actual work that the beneficiary would perform if the petition were approved. 
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. In fact, the 
letter speaks only of "recruiting and presenting" endeavors in which the petitioner would 
engage in the future and also of "[ a]work order"' to be "completed at the start for each 
contractor that will be placed at " Further, the fact that the letter states that the 
petitioner's recruitment and candidate-presentation efforts would be directed at "Senior and Mid­
Level Software Engineers" materially conflicts with the type of position specified in the LCA, that 
is, a Level-l (entry level) prevailing -wage position for a Computer Programmer. 
It is also important to note that this letter of February 20, 20 14 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 candidate s. 
Petitioner's "Employee'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 assig nment for it. 
While this document is indicative of a level of control that the petitioner would have over the 
beneficia ry if he were to be assig ned to we note again that there is ins ufficient evidence that 
the beneficia ry 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 no evidence anywhere in the record of proceeding that 
or would have to either participate in, review the results of, or abide by the results of the 
petitioner's evaluation process for any purpose. 
Letter from :Sourcing & Supplier Management, dated June 9, 2014 
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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 _. " 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, assi gnment details, and durations." 
This letter also references the aforementioned, not-in-the-record agreement as defining 
the scope of the role, conveying that operates "pursuant to the terms and conditions of 
the Master Services Agreement between and 1 dated April 12 , 201 3." This short, 
two-paragraph letter provides no sub stantive details with regard to those terms and conditions; and 
it also makes no mention of the petitioner, the beneficiary, or any project work that has been 
awarded to the petitioner. 
IV. THE EMPLOYER-EMPLOYEE ISSUE 
We will first discuss the reasons for our conclusions that the petitioner has not established that it 
meets the regulatory definition of a "United States employer" and in particular, 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). 
As already noted in our evidentiary overview, the record contains assertions in the 'petitioner 
Supplier Agreement, in the aforementioned letters from and in the petitioner/beneficia ry 
Employment Agreement with the beneficiary, and in the letter from to the effect 
that the petitioner is the employer and/or sole employer of the whatever persons it would provide as 
a Staff Supplier to work at We have, of course, 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 no indication that they were 
based upon appli cation and analysis of the common-law employer-employee test which governs 
determinations of the employer-employee relationship in the H-IB 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)( 1 5)(H)(i)(b) of the Act defines an H-IB nonimmigrant in pertinent part as an alien: 
subject to section 21 2(j)(2), who is coming temporarily to the United States to 
perform services. . . in a specialty occupation described in section 
21 4(i)(l) ... , 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 )( l) .... 
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: 
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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. 61 111 , 61 121 (Dec. 2, 19 91) . 
The record is not persuasive in establishing that the petitioner will have the requisite employer­
employee relationship with the beneficiary. The evidence of record simp ly 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 "Uni ted States employer" is defmed in the regulations at 8 C.F .R. § 21 4.2( h)( 4 )(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H­
lB visa classi fication. Section 10 l (a)( l 5)(H)(i )(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "i ntending 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. § 11 82(n)( l) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 212(n )(l )(A)(i) and 212 (n)(2)(C)(vii) ofthe 
Act, 8 U.S.C. § 11 82(n)( l )(A)(i), (2)(C)( vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-1B temporary "employees." 8 C.F.R. § 214 .2(h)(l), (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.F.R. § 21 4. 2(h)(4)(ii) (defining the term "United States 
employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" by 
regulation for purposes of the H-l B visa· classific ation, even though the regulation describes H-lB 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." ld. Therefore, for purposes of the H-lB 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 "i ntended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutua/I ns. Co. v. 
Darden, 503 U.S. 318 , 322-323 (1 992) (hereinafter "Darden") (quoting Community for Creative Non-
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Violence v. Reid, 490 U.S. 730 (1 989)). 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 assis tants; 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 75 1-
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 deci sive ." 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 10l( a)( 15 )(H)(i)( b) of the Act, "employment" in section 212(n )(1 )(A)(i) of the Act, or 
"employee" in section 21 2(n)(2)(C)( vii) of the Act beyond the traditional common law definitions. See 
generally 13 6 Cong. Rec. S1 7106 (daily ed. Oct. 26, 19 90); 13 6 Cong. Rec. Hl 2358 (daily ed. Oct. 27, 
19 90). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 3 
3 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), a.ff'd, 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). 
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Specifically, the regulatory definition of "United States employer" requires H-lB 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-IB "employee." 8 C.F.R . § 21 4.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identifi cation 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. § 21 4.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more impo rtantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318 -319. 4 
Accordingly, in the absence of an express congressional intent to im pose 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 101( a)(1 5)(H)(i)(b) .ofthe Act, section 212 (n) ofthe Act, and 8 C.F.R. § 21 4. 2(h).5 
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, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 
C.F.R. § 21 4.2( 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) (1 958 ). 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-III(A)(l ) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
4 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 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
5 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 
214( c )(2)(F) of the Act, 8 U .S.C. § 1184( c )(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-IB 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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also Defensor v. Meissner, 20 1 F.3d 38 4, 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. § 21 4.2(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, USCIS 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 32 3-324. 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."' ld. at 45 1 (quoting Darden, 503 U.S. at 324). 
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 of fices in 
Missouri; and we considered 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 the existence of any project work that would definitely be awarded to the beneficiary, 
or any other worker that the petitioner might, in response to an 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 1petitioner Supplier 
Agreement had even produced any Job Offers for which the beneficiary has been proposed as a 
candidate for selection to work at Certainly the record of proceeding includes no copy of any 
such Job Offer and no copy of any or document confirming the acceptance, and 
associated terms and conditions, of the beneficiary or any other candidate proposed by the petitioner 
for work at 
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Page 16 
In addition, 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- lB employment period. More specifically, on the Form 
1- 12 9, the petitioner requested that the beneficiary be granted H- 1B classification from October 1, 
20 14 to September 25, 20 17 . However, the February 20, 2014 letter from indicates that "the 
projects can be up to two years." 
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 
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 ( 1 of the existence of, or details regarding, 
any particular project to which the beneficiary would be assigned in the United States. 
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. 
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 esta blish the petitioner as a United State s employer in accordance 
with the provision at 8 C.F .R. § 21 4.2( h)(4)(ii)( l). 
We make the following findings regarding the record's indicia of the petitioner's control with regard 
to the beneficiary and his work - that is, if the beneficiary should he ever be accepted by 
for work at 
1. 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. 
2. Of course, through its 
_ _ _ 
'), 
, the petitioner would distribute pay to the beneficiary. (However, there 
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will be no work and no pay absent an express agreement by , acting for 
to accept and pay for services from the beneficiary.) 
3. As we noted, under certain circumstances, the petitioner could unilaterally transfer or 
remove the beneficia ry after assignment to an project, and it would retain the 
authority to fire the beneficia ry. (However, the record establishes that and 
would always retain the power to insist - with the prospect of contract cancellation 
for non-compl iance - that the petitioner remove any assigned worker.) 
' 
4. There does exist an Employment Agreement between the petitioner and the 
benefic iary, although the document does not reference any particular project-work as 
already secured for the beneficiary. 
We will now note numerous factors that we find weigh against a favorable determination on the 
petitioner's claim that it satisfies the employer-employee requirement. We find the following: 
1. The record indicates that, if in fact the benefic iary were selec ted for a particular 
project pursuant to the candidate- selection process, he would be assigned to a 
location ( Missou ri) other than the petitioner's office address (in 
, Missouri). 
2. There is no evidence that the petitioner would maintain any supervisory presence at 
the work-location. In contrast, we see that, as noted in the February 20, 20 14 
letter, would serve as "Onsite Management Company," with the 
reasonable implication being that -rather than the petitioner or any other 
Staffing Provider - would provide whatever general management would be required 
for projects temporally staffed by Staffing Suppliers. 
3. We note the petitioner's Evaluation Review forms that it has submitted into the 
record, and recognize that there does not appear to be any proscription against the 
petitioner evaluating the benefic iary or any other person that it may assign to 
temporarily staff projects. However, there is no evidence that the petitioner's 
evaluations are binding upon or . Also, there is no indication that, solely 
on the basis of its performance evaluations, the petitioner could unilaterally keep 
anyone at the project site regardless of contrary performance determina tions by 
or In fact, 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 be always remain both subject to evaluation and 
removal. 
4. We 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 
subje ct to the continuing approval of If at any time 
in its reasonable judgment, determines that a Contract 
Worker is inadequate, unsatisfactory, or has failed to comply with 
or 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. 
5. We also find that the record of proceeding does not contain 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 perf orm 
in the day-to-day work associated with such assignment. Countervailing evidence 
indicating that such a role would not be likely includes the letter's 
desc riptions of as the provider of "centralized management services for 
and the self-description as "the Onsite Vendor Management 
Company." Moreover, we fmd that the record of proceeding contains no 
documentary evidence from or either allocating any immediate 
supervisory duties to the petitioner or including the petitioner in day-to-day 
determinations and evaluations of tasks to be perf ormed by workers assigned to 
6. The evidence of record reflects that would 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. 
7. With regard to the petitioner's claim of the right to manage and evaluate its 
workers, we have already 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 desig nating the beneficia ry's day-to-day tasks, evaluating the quality 
and efficiency of the benefic iary's work, and providing guidance on immedia te­
work issues as needed (again, if were ever to accept the beneficia ry for 
assignment to ) 
8. There is no evidence that any work to which the beneficia ry 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 
(b)(6)
Page 19 
guiding the beneficiary's work at 
accepted by 
NON-PRECEDENT DECISION 
- that is, of course, if he were ever to be 
9. The totality of the evidence reflects that the beneficiary's work would inherently 
require access to and use ofthe end-client's IT instrumentalities (such as its own 
IT systems, computer programs, and software applications). 
10 . 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 distri bution/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-clie nt use and 
benefit and would have to conform to requirements - not the petition er's. 
11 . The petitio ner has provided no detailed information from either the 
MSA or the Staffing Supplier Manual, which are 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 work. 
We also find that the petitioner has undermined the credibil ity of the petition by its statements, 
made in its March 31, 20 14 letter of support and repeated on appeal, that " [a ]11 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 inconsist ent with information presented in that Supplier Agreement as well as in the 
letters from and Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofjici, 22 
I&N Dec. 15 8, 16 5 (Comm. 19 98) (citing Matter of Treasure Craft of California, 14 I&N Dec. 19 0 
(Reg. Comm. 19 72)) . It is further noted that the petitioner provided no explanation for the 
inconsist encies. 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. I d. 
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 with regard to the actual supervisory and management framework that would 
determine, direct, and supervise the beneficia ry's day-to-day work at if he were ever 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 does not 
(b)(6)
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Page 20 
support a finding that 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 such employer-employee relationship exists, the appeal will be dismissed 
and the petition will be denied. 
We will not speculate about relevant indicia of control in a case, as here, where the essential facts 
regarding the actual work to be performed have not been established. Without full disclosure of all 
of the relevant factors relating to the end-client, including evidence corroborating the beneficiary's 
actual work assig nment, we are unable to find that the requisite employer-employee relationship 
will exist between the petitioner and the beneficiary; and, of course, such disclosu re is necessarily 
precluded where, as here, there is no definite employment. 
The evidence of record, therefore, is insufficient to establish that the peti tioner qualifies as a 
"United States employer," as defined by 8 C.F.R. § 21 4. 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 he performs. Nor do clauses 
in overarching agreements such as the /petitioner Supplier Agreement or the letters from 
or carry probative weight in the absence, as here, of detailed information from specific 
documents that would likely include terms bearing on how that Supplier Agreement would come 
into play, that is, documents such as the MSA, the Staffing Supplier Manual, and, of 
course, an enf orceable contractual agreement by which would be bound to accept the 
beneficiary for the type and scope of work upon which the petitioner based its specialty occupation 
claim. 
The petitioner's reliance on claims that it would pay the beneficiary's salary, set wages, control work 
locations, and manage and evaluate performance is misplaced. First of all, as we have noted, the 
existence of actual work for the beneficiary has not been established. As 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, 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. 
We will not speculate where those indicia would lie. 
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 located H- IB 
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 "Importing Employer"); 8 C.F.R . § 214 .2(h)(2)(i) (A) (stating that the "United 
(b)(6)
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Page 21 
States employer ... must file" the petition); 56 Fed. Reg. 61 11 1, 61 11 2 (Dec. 2, 19 91) (explaining 
that only "United States employers can file an H- 1B petition" and adding the definition of that term 
at 8 C.F .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, ess entially (1) a staffing firm 
that locates suitable candidates for available positions and which (2) filed the petition in anticipation 
of a Job Offer that had not yet been but for which it intended to proffer the beneficia ry as a 
candidate for to accept as a temporary member of its staff. 
For the abo ve-discussed failure of the evidence of record to establish the requisite employer­
employee relationship between the petitioner and the benefic iary, the appeal will be dismissed and 
the petition will be denied. 
V. THE SPECI ALTY OCCUPATION IS SUE 
A. Statutory and Regulatory Framework 
To meet its burden of proof with regard to the specialty occupation issue, the petitioner must 
establish that the employment it is offering to the beneficiary meets the applicable statutory and 
regulatory requirements. 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84(i)(l), defines the term "specia lty 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 spec ialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R . § 21 4. 2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation 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 
specialtie s, 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. 
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 
(b)(6)
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Page 22 
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 du ties 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 21 4(i)( l) of the Act and 8 C.F .R. § 21 4.2 (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 Corp. v. Cartier, Inc. , 486 U.S. 28 1, 29 1 (1 988 ) (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. 56 1 (1 989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F .R. § 
21 4.2( h)( 4)(iii)(A) should logically be read as being neces sary but not necessarily sufficient to meet 
the statutory and regulatory definition of specialty occupation. To otherwise interpret this section as 
stating the neces sary 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, 20 1 F.3d at 38 7. 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 )( l) of the Act and the regulation at 8 C.F .R. § 
214 .2(h)(4)(ii), USCIS consi stently interprets the term "degree" in the criteria at 8 C. F. R. 
§ 21 4.2( h)( 4)(iii)( A) to mean not just any baccalaureate or higher degree, but one in a specific 
speci alty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 
F.3d 13 9, 14 7 (1s t Cir. 2007) (desc ribing "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- lB petitions for qualified aliens who are to be employed as engineers, 
computer scienti sts, certified public accountants, college professors, and other such occupations. 
These prof essions, 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 
represent the types of specialty occupations that Congress contemplated when it created the H -1 B 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCI S does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
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the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a speci alty 
occupation. See generally Defensor v. Meissner, 20 1 F. 3d 38 4. 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 speci alty as the minimum for entry 
into the occupation, as required by the Act. 
B. Analysis 
Again, in her March 31, 20 14 letter in support of the petition, the petitioner's Vice Presi dent stated 
that the "beneficiary's specific duties break down as follows": 
• Code and successfully perform unit and integration testing of software to ensu re 
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 necessa ry production- support tasks involving on-call responsibilit ies. 
As we remarked earlier, it serves no purpose for us to address those duties, as 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 - that is, if he 
were actually submitted by the petitioner to as a candidate for consideration and ultimately 
accepted to serve on one of proje cts. In this regard, we again invite the petitioner to compare 
its list of duties copied above with the content of the February 20, 20 14 letter, which, 
significantly, (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 even establish that it 
is referring to any position that would comport with the computer programm er position and its 
duties as described in the petition. 
Also, with regard to the latter point, we see that the letter does not even deal with computer 
programmers (the type of position for which the petition was filed). Rather, the letter 
addresses positions with different occupational titles and higher prevailing-wage levels than those 
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that the petitioner has ascribed to the prof fered position. That is, while the petition was filed for a 
Level I prevailing-wage position within the Computer Programm ers occupational group, the 
letter addre sses only "Se nior and Mid-Level Software Engineers" - and neither Computer 
Programmers nor Computer Programmers meriting only a Level I prevailing-wage, the level 
asserted by the petitioner for the proffered positon by the LCA that it submitted to support the 
petition. We find that these conflicts between the letter and the proffered position as 
otherwise described in the petition materially undermine the credibility of the petition's claim as to 
the type of work that would engage the benefic iary 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 obj ective 
evidence. Matter ofHo, 19 I&N Dec. at 59 1 -92. 
With regard to the documentation from we note that the aforementioned February 20, 20 14 
letter did not identify the beneficia ry by name, did not identify any particular project that had yet 
been, or ever would be, the subje ct of a Job Offer on the aforementioned System to solicit 
Staffing Suppliers' candidate-proposals, and did not specify any agreement that had been formalized 
by which the beneficia ry would be assured any project-work at Thus, the specific nature of 
any position in which the benefic iary would serve, and the specific goals and time-period of any 
project in which the benefic iary would definitely be involved, have not been established - let alone 
any assurance that would actually select the beneficia ry to perform the proffered position 
at We ref er the petitioner in particular to the future focus of the . letter, as reflected in its 
statement that the petitioner "will be recruiting and presenting up to 50 Senior and Mid-Level 
Software Engineers for calendar year 2014 and 20 15 ." (Emphasis added.) 
As recognized by the court in Defensor, supra, where, as here, the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 38 7-3 88. The court held that the former INS had reasonably 
interprete d the statute and regulations as requiring the petitioner to produce evidence that a 
proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficia ry's services. ld. at 38 4. Such evidence must be sufficiently detailed 
to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is neces sary to perform that particular work. 
Here, then, the petition'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 is 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 -i n compliance with the "s pec ialty occupation" 
definition at section 21 4(i )(1 ) of the Act and the regulation at 8 C.F.R . § 214. 2(h) (4)(ii). Further, 
the petitioner must establish that the petition was filed on the basis of definite, non-spec ulative 
employment that had been secured for the beneficia ry by the time the petition was filed. USCIS 
regulations affirmatively require a petitioner to establish eligibili ty for the benefit it is seeking at the 
time the petition is filed. See 8 C.F .R. 10 3.2 (b)( l). A visa petition may not be approved based on 
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speculation of future eligibi lity or after the petitioner or benefi ciary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 19 78). A 
petitioner may not make material changes to a petition in an effort to make a deficie nt petition 
conform to USCIS requiremen ts. See Matter of lzummi, 22 I&N Dec. 16 9, 17 6 (Assoc. Comm'r 
19 98). For the reasons we shall now discuss, the evidence of record is insufficient to meet either of 
these requirements. 
As previously noted, the petitioner indicated on the Form I- 12 9 and in supporting documen tation 
that it seeks the beneficia ry's services in a position which would be within the Computer 
Programmers occupational group, a position to which it assigned the job title "Programm er 
Analyst," for work on a full-time basis at a minimum salary of $60,000 per year.6 
One consideration that is necessarily preliminary to, and logically even more foundational and 
fundamental than the issue of whether a proffered position qualifies as a specia lty occupation, is 
whether the petitioner has provided substantive information and supportive documentation 
sufficient to establish that, in fact, the beneficia ry would be performing services for the type of 
position for which the petition was filed (here, a "programm er analyst" computer programmer) . 
Another such fundamental prelimin ary conside ration is whether the petitioner has established that, 
at the time of the petition's filing, it had secured non- speculative work for the beneficia ry that 
corresponds with the petitioner's claims about the nature of the work that the benefi ciary would 
perform in the proffered position. We find that the petition does not succeed in either regard. 
As discussed earlier, the record does not establish that, by the petition's filing, the petitioner had 
secured any work that would require the beneficia ry 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 its agreement with . The fact that the petitioner may in fact have had 
its own direct agreement in the past with the third-party, ultimate end-clie nt client here, is 
irrelevant, since the ultimate terms and scope of the beneficia ry's emplo yment and placement onsite 
at would be governed by procedures and requirements set in place pursuant to the 
aforementioned Master Services Agreem ent between and (which has not been provided 
in the record) . 
As reflected in the preceding section's discussion and findings, a materially determinative aspect of 
the evidence of record is its failure to establish that, at the time of the petition's filing, the petitioner 
had secured definite, non-spec ulative employment for the benefici ary. Thus, we concur with the 
director's determination that the evidence submitted fails to establish non- speculative employment 
for the benefi ciary for the period specified in the petition. 
6 While the petitioner and counsel seem to use "computer programmer," "software engineer" and 
"programmer analyst" interchangeably, we note that, as evidenced in the LCA's designation of Computer 
Programmers as the pertinent occupational classification, the petition presents the proffered position as being 
within the Computer Programmers occupational group and thus subject to its prevailing-wage levels. 
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This feature of the evidence of record is also a determinative factor in our concluding that the 
evidence of record fails to establish the proffered position as a specialty occupation. 
We find that, while the documentary evidence indicates that the petitioner has a business 
relationship with , which in turn has an agreement with that evidence does 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 proff ered position 
in the petition. Accordingly, as the petitioner has not provided documentary evidence substantiating 
specific work that would be actually available for the beneficiary if this petition were approved, we 
cannot conclude that the petitioner established that it would employ the beneficiary in a specialty 
occupation. 
Again, to determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS 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 38 4. 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. 
Pursuant to 8 C.F.R. § 214 .2(h)(9)(i), the director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently 
require to assist his or her adjudication. However, the regulation at 8 C.F .R. § 214 .2(h)(4)(iv) 
provides that "[a]n H- lB petition involving a specialty occupation shall be accompanied by 
[ d]documentation ... or any other required evidence sufficient to establish ... that the services the 
beneficiary is to perform are in a specialty occupation." The petitioner has not met that burden. 
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. 
Here, as previously discussed, the petitioner has not established that the petition was filed for definite, 
non -speculative work for the beneficiary that existed as of the time the H -1 B 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 that for the requested employment period the petitioner had secured definite, non­
speculative work for the beneficiary that would conform with the proposed position and its duties as 
they were described in the petition. There is insufficient documentary evidence corroborating the 
petitioner's claims as to what the beneficiary would do, where the beneficiary would work, and the 
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availability of work for the beneficia ry for the requested period of employment. For an H- 1B 
petition to be granted, the petitioner must provide suf fici ent evidence to establish that it will employ 
the beneficia ry in a specialty occupation posi tion. 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 16 5 (citing Matter of Treasure Craft of California, 
14 I&N Dec. at 19 0). US CIS regulations affirmatively require a petitioner to establish eligibi lity for 
the benefit it is seeking at the time the petition is filed. See 8 C.F.R . § 10 3.2(b)( l). 
Also, the petitioner's fail ure to establis h the substantive nature of the work to be performed by the 
beneficia ry precludes a finding that the proffered position is a specia lty occupation under any 
criterion at 8 C.F.R. § 214 .2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the 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 ju stification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of special ization and 
complexity of the specific duti es, which is the focus of criterion 4. Thus, the petitioner has failed to 
establish that the proffered position is a specialty occupation under the applicable provisions. 
Based upon a complete review of the record of proceeding, we conclude that the evidence fails to 
establish that the posi tion 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. 
Accordingly, the appeal will be dismissed and the petition will be denied on this ground also. 
As the petitioner premi sed its specialty occupation claim on an . assi gnment to Computer 
Programmer work for the record's failure to substantiate that such an assig nment had been 
ensured for the beneficia ry is dispositive of the specialty occupati on issue. Therefore, we need not 
address additional evi dentiary deficiencies which we have observed in the record that would 
preclude recognition of the proffered position as a specia lty occupation if the petitioner had 
established that the beneficiary would be working as a computer programm er for 
VI. CONCLU SION 
An application or petition that fails to 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 10 25, 10 43 (E.D. Cal. 
2001) , a.ff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 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 plaintif f can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 10 43 , a.ff'd. 345 F.3d 
683. 
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The petition will be denied and the appeal dismissed for the above stated reasons, with each 
consid ered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibili ty for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 12 7, 128 (BIA 201 3). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petiti on is denied.