dismissed H-1B Case: Computer Science

(b)(6)
MATTER OF B-S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 2, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a business development and informational services, seeks to employ the Beneficiaty as 
a quality analyst and to classify her as a nonimmigrant worker in a specialty occupation. See 
Immigration and Nationality Act (the Act)§ 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, California Service Center, denied the 
petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director reviewed the information and determined that the- Petitioner had not established 
eligibility for the benefit sought. The Director denied the petition , finding that the Petitioner does 
not establish that it will be a "United States employer " having an employer-employee relationship 
with the Beneficiar y as an H-1B temporary employee. Thereafter , the Petitioner filed a motion to 
reopen , which was dismissed. The matter is now before us on appeal. 
The record of proceeding contains: (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 decision dated August 6, 2014; (5) the Notice of Appeal or Motion (Form I-290B) , 
(6) the Director's decision dated October 15, 2014 ; and (7) the Form I-290B 
and supporting documentation. We reviewed the record in its entirety before issuing 
our decision. 1 
For the reasons that will be discussed below , we agree with the Director ' s decision that the Petitioner 
does not establish eligibility for the benefit sought. Accordingly, the Director ' s decision will not be 
disturbed. The appeal will be dismissed. 
I. THE PROFFERED POSITION 
On the Form I-129, the Petitioner indicated that it is seeking the Beneficiary ' s services as a quality 
analyst on a full-time basis. In addition , the Petitioner stated that the Beneficiary would work at · 
1 We conduct appell ate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
California 
following duties for the proffered position: 
In the letter of support, the Petitioner provided the 
• Analyze the reference documents and create the test plan. 
• Decide on the tools used for testing purposes. 
• Create the test plan . 
• Create the list of devices and browsers to be used for testing. 
• Create test cases. 
• Coordinate testing activities with other teams including off shore teams. 
• Perform functional , perfom1ance , regression, responsive design testing. 
• Create test summary reports. 
The Petitioner also stated that the proffered pos1t10n requires "at least a Bachelor's Degree m 
Computer Science field or a related quantitative technical or business discipline. "3 
In response to the RFE, the Petitioner provided a letter from the claimed end-client , dated July 
16, 2014. In the letter, the end-client provided the Beneficiary's tasks in the proffered position, 
along with the approximate percentage of time and hours the Beneficiary will spend on these duties, 
as follows: 4 
Tasks Products to be Tools to % of 
Developed or Perform the Job Time 
Service to be Spent 
provided per 
Week 
1. Planning activities Test plan Jira 15% 
a. Writing test plan Defect lifecycle MS Office (6 
b. Writing test cases Defect handling hours) 
c. Defining process for process 
defect handling 
2. Testing activities Global website Ghostlab 60% 
2 The Petitioner has provided inconsistent information regarding the Beneficiary 's work site . Specifically , in the Form 
1-129, the Petitioner stated that the Beneficiary would work at in California 
However, in the Labor Condition Application (LCA), the Petitioner indicated that the Beneficiary's places of 
employment would be in California ' and in 
California In its support letter, the Petitioner also stated that the Beneficiary would be working at the end-client ' s 
"site located in California. " No explanation for this inconsistency was provided. 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 l&N Dec . 582 , 591-92 (BIA 1988). In addition , this discrepancy calls into 
que stion the validity of the LCA . 
3 The Petitioner does not indicate that the minimum academic requirement for the proffered position is a bachelor ' s 
degree in a specific specialty, or its equivalent, that directly relates to the duties and requirements of the position . 
4 Notably, the duties do not correspond to the tasks provided by the Petitioner for the proffered position in the letter of 
supp01t . 
2 
a. Sanity testing Browserstack (24 
b. Functional testing Page speed test hours) 
c. Regression testing Jira 
d. Cross browser testing 
e. Generate test reports 
3. Defect handling Global website Jira 25% 
a. Bug triage Mingle (10 
b. Follow up on defect hours) 
fixes with other teams 
c. Validate the bug fixes 
Total 100% 
(40 
hours) 
On appeal, the Petitioner provided a similar letter from the end-client; however, in the letter, the end­
client provided a revised job description and stated that the position requires "a Bachelor's in 
Computer Engineering, Computer Science or a closely related field." 
II. LACK OF STANDING TO FILE THE PETITION 
We will now address whether the Petitioner has established that it meets the regulatory definition of 
a "United States employer" as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). We reviewed the 
record of proceeding to determine 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." !d. 
More specifically, section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent 
part as an alien: 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services in a specialty occupation described in section 
214(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 (emphasis added): 
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; 
3 
(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. 
8 C.F,R § 214.2(h)(4)(ii); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). In the instant case, 
the record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
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 United States to perform services in a specialty occupation will have an "intending employer" 
who will file an LCA with the Secretary of Labor pursuant to section 212(n)(l) ofthe Act, 8 U.S.C. 
§ 1182(n)(l ). 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) of the Act, 8 U.S.C. 
§ 1182(n)(1)(A)(i), (2)(C)(vii) .. 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-1B 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. § 214.2(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 -1 B visa classification, even though the regulation describes 
H-IB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." I d. Therefore, for purposes of the H -1 B 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 
4 
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 Communityfor 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)(l)(A)(i) of the Act, or 
"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 ofthe 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 -1 B 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 
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. § I002(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 commo~ law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 8IO F. Supp. 522 (S.D.N.Y. 
1992), aff'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 
I 0 I (a)(I5)(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-1 B 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). 
5 
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 101(a)(15)(H)(i)(b) of the Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).7 
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 -1 B nonimmigrant petitions, USCIS 
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-
III(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" of H -1 B 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 
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, I 09 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, 1217,89L.Ed.l700(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 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized aliens). 
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 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, 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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
The Petitioner claims that it will have an employer-employee relationship with the Beneficiary. We 
have considered this assertion within the context of the record of proceeding. We examined each 
piece of evidence for relevance, probative value, and credibility, both individually and within the 
context ofthe totality of the evidence. Matter ofChawathe, 25 I&N Dec. at 375-376. However, as 
will be discussed, there is insufficient probative evidence in the record to support this assertion. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSo.ffzci, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Applying 
the Darden and Clackamas tests to this matter, we find that the Petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the 
Beneficiary as an H-1B temporary "employee." 
As a preliminary matter, we find that there are inconsistencies in the record of proceeding with 
regard to the job title of the proffered position. For instance, in the Form I-129 and LCA, the 
Petitioner refers to the proffered position as "Quality Analyst." However, in the offer letter, the 
Petitioner refers to the proffered position as "Business Systems Analyst." Further, the itinerary, 
submitted in response to the RFE, indicates the Beneficiary's job title as "Senior Quality Analyst." 
Also, as we noted earlier, the Petitioner has provided conflicting information with regard to the 
location at which the Beneficiary would work. No explanation for the variances was provided by the 
petitioner. Again, 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. 
A. Duration of the Relationship between the Parties 
Upon review of the record, we find that the Petitioner has not established the duration of the 
relationship between the parties. The record does not contain a written agreement between the 
petitioner and the end-client, or any other organization, establishing that H-1B caliber work exists 
for the Beneficiary for the duration of the requested period. 
(b)(6)
The Petitioner submitted a Consulting Services Agreement executed between itself and 
on June 24, 2013, which states the following: 
Contractor [the petitioner] agrees to provide programming , systems analysis, 
engineering, technical writing and other specialized services as an independent 
contractor directly to the third party user/client of the Company 
('Client') , which Client has requested the Company to locate specialized 
professional contractors who possess particular skills, abilities, and expenence 
required by the Client in connection with the Client's project(s). 
In addition, the document states that "the Company and Contractor will execute a Work Order on the 
form attached as Exhibit A to this Agreement." The Petitioner provided an "Exhibit A - Work 
Order," dated March 20, 2014. Notably, the work order is not endorsed by the Petitioner. The work 
order states the following: 
The parties agree as follows: 
1) Client Assignment - Quality Assurance 
Name of Client: 
N arne of Contractor: [the beneficiary] 
Description of Services: Quality Assurance 
Start Date: 6/26/2013 
Anticipated End Date: was 3/30/14 now extended to 9/30/2014 
Neither the end-client nor the position of quality analyst is listed on the document. Importantly, the 
document indicates that the project will end prior to the requested H-1B start date. 
In addition, the Petitioner provided two letters from of In 
the letter dated July 8, 2014, states that the Beneficiary "has been working for our client, 
on a project for at CA California." Further, he states 
that the project is "expected to run through September 20 15" and that it "should be extended for 2 
years beyond September 30, 2014." Thus, it appears that the project may be completed in 
September 30, 2016, which is approximately one year prior to the requested H-1B end date of 
September 30, 2017. 
The Petitioner also submitted two letters from of states 
that the Beneficiary "will perform the services for on a contractor basis." Upon review, we 
find that does not provide any specific information establishing the Beneficiary 's 
place of employment. Further, in the March 24, 2014 letter, refers to the 
Beneficiary's role as "Quality Analyst"; however, in the August 29, 2014 letter, she refers to the 
position as "Senior Associate QA Ll." 8 No explanation for the variance was provided by the 
Petitioner or by Notably, in the August 29, 2014 letter, states that 
8 Although identified the position as "Senior Associate QA L I," we note that the Petitioner submitted an 
LCA certified for a Level I, entry-level , position. 
(b)(6)
"[ w ]e anticipate that [the Beneficiary] will be engaged by until at least September 30, 20 14," 
which again indicates that the Beneficiary 's services will end prior to the requested H-1B start date. 
In addition, in the August 29, 2014 letter, she states that the Beneficiary 's services will be engaged 
by until at least December 31, 2014, which is only two months after the requested H-1 B start 
date. Thus, the letters do not establish that the Beneficiary will work in California 
until at least September 30, 2017. 
The Petitioner submitted four letters from the end-client. In the three of them, the end-client does 
not describe the proffered position of quality analyst but rather a "Senior Quality Analyst."9 No 
explanation for the variance was provided by the Petitioner or by the end-client. The letters state 
that the Beneficiary's services will be required until at least September 2014 and/or December 2014. 
Thus, the end-client's letters also state that the Beneficiary's services will end either 
prior to the 
requested H-1B start date or approximately two months after the requested H-1B start date. 
In addition, the Petitioner provided copy of a Master Contractor Staffing Agreement, dated March 
12, 2010, and an Amendment and Extension to the Master Contractor Staffing Agreement , dated 
April 1, 2014, executed between and _ Upon review, we find that neither 
the Beneficiary nor the proffered position is listed in the agreements . Therefore, the agreements do 
not provide any specific information establishing the Beneficiary 's place of employment nor the 
duration ofthe Beneficiary's work on the project. 
The Petitioner also submitted a document entitled "Contractor Extension" between and 
executed on September 30, 2014. The document states the following: 
Personnel Provided: 
Name [the beneficiary] 
Extension Agreement: 
Consultant _ and • are parties to a Master Contractor 
Staffing Agreement (the 'Agreement') dated 1st April, 2010, and a Schedule A to the 
Agreement for the period dated 26th June, 2013 to 15th November, 2013 (the 
'Schedule A' ) and extensions to the agreement through 16th November , 2013 to 31st 
March 2014; 1st April, 2104 [sic] through 30th September, 2014. The parties agree 
that Consultant 's Services under the Schedule are extended from 1st October, 2014 to 
31st December , 2014. 
Neither the end-client nor the position of quality analyst is listed on the document. In addition, the 
document states that the Beneficiary's services will end on December 31 , 2014, which is only two 
months after the requested H -1 B start date. 
9 Again, the Petitioner submitted a certified LCA for a L evel I, entry-level , position. The addition of the "Senior " 
descriptor to the title of the proffered position subsequent to the LCA 's certification raises questions as to whether the 
LCA corresponds to the petition . 
9 
(b)(6)
The Petitioner does not submit probative evidence establishing any additional projects or specific 
work for the Beneficiary. Although the Petitioner requested the Beneficiary be granted H-1 B 
classification from October 1, 2014, to September 30, 2017, there is a lack of substantive 
documentation regarding any work for the duration of the requested period. Rather than establish 
definitive, non-speculative employment for the Beneficiary for the entire period requested, the 
Petitioner claims in the itinerary that the Beneficiary would be working on the _ project through 
September 30, 2017. However, the Petitioner did not submit probative evidence in support of its 
claim. Moreover, the Petitioner's statement is not corroborated by documentation indicating that an 
ongoing project exists that will generate employment for the Beneficiary's services (e.g., 
documentary evidence regarding the project scope, staging, time and resource requirements; 
supporting contract negotiations; documentation regarding the business analysis and planning for 
specific work; statement of work; work order). On motion, the Petitioner submitted articles 
regarding project; however, according to the articles, the project has been completed. Thus, 
the record does not contain 
evidence that the Beneficiary would be employed by the Petitioner in the. 
capacity specified in the petition. 
B. Pay Statements 
In support of the H -1 B pet1t10n, the Petitioner submitted pay statements that it issued to the 
Beneficiary. We acknowledge that the method of payment of wages can be a pertinent factor to 
determining the petitioner's relationship with the beneficiary. However, while such items such as 
wages, social security contributions, federal and state income tax withholdings, and other benefits 
are relevant factors in determining who will control an alien beneficiary, other incidents of the 
relationship, e.g., where will the work be located, who will provide the instrumentalities and tools, 
who will oversee and direct the work of the beneficiary, 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. 
C. Offer Letter and Employment Agreement 
For H-1 B classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, or ifthere is no written agreement, a summary of the terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and (B). With the 
initial petition, the Petitioner provided an unsigned offer of employment letter and an employment 
agreement for the Beneficiary, which was not dated. We note that the documents fail to adequately 
establish several critical aspects of the Beneficiary's employment. For example, the offer of 
employment letter and employment agreement do not provide specific information regarding where 
she will work. Notably, the employment agreement states that "[t]he employee agrees to be assigned 
in any facility/client sites as Company deems it necessary" and the "[ e ]mployee is required to travel 
or relocate to various client sites throughout the United States for both short and long term projects." 
10 
(b)(6)
According to the agreement, the Beneficiary may be placed at various locations and not necessarily 
m California as indicated on the H -1 B petition. 10 
The employment agreement also states that the Petitioner offers employee benefits. The Petitioner 
submitted a copy of its Policy and Procedural Handbook to USCIS. 11 Upon review of the handbook, 
we note that the vacation benefits are only available to full-time regular employees. The Petitioner 
did not, however, define the term "regular employees" or clarify whether the Beneficiary would be 
designated as a regular or temporary employee. Accordingly , a substantive determination cannot be 
made or inferred regarding these "benefits," as further information regarding them, including 
eligibility requirements , was not provided to users. 
Moreover, the offer of employment letter and employment agreement do not provide any level of 
specificity as to the Beneficiary's duties and the requirements for the position. While an offer of 
employment letter and employment agreement may provide some insight into the relationship of a 
petitioner and a beneficiary , it must be noted again that 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. 
D. Instrumentalities and Tools 
As previously noted, when making a determination of whether the petitioner has established that it 
has or will have an employer-employee relationship with the beneficiary, we look at a number of 
factors, including who will provide the instrumentalities and tools required to perform the specialty 
occupation. In the instant case, the Director specifically noted this factor in the RFE. Moreover, the 
Director provided examples of evidence for the Petitioner to submit to establish eligibility for the 
benefit sought, which included documentation regarding the source of the instrumentalities and tools 
needed to perform the job . On motion, the Petitioner states that "[ d]ue to the nature of IT consulting , 
the tools and instrumentalities are provided by the end-client due to network and data security 
issues." Thus, the end-client will be providing the instrumentalities and tools for the beneficiary. 
E. Supervisor 
Further, a key element in this matter is who would have the ability to hire, fire, supervise, or 
otherwise control the work of the beneficiary for the duration of the H-lB petition. Notably, the 
Petitioner has provided inconsistent information regarding the Beneficiary's supervisor. With the 
initial petition , the Petitioner submitted a letter from Project Manager for the 
Petitioner. In the letter, states that he has "ultimate control and authority over [the 
beneficiary's] day-to-day activities." However, in response to the RFE, the Petitioner submitted a 
letter from Business Development Analyst for the Petitioner, which states that he will 
10 As previously noted , the petitioner has provided incon sistent information regardin g the beneficiary 's work site . 
11 The Policy and Procedur es Handbook ' s table of cont ents page numbers do not align with those in the docum ent. For 
instance, the table of content s indicate s that the " Benefit s" section is located on page 16; however , that section is located 
on page 18. Thus , we must question the accurac y and completeness of the document ation submitted to USCIS with 
regard to the handbook . 
1 I 
(b)(6)
be the one to supervise the Beneficiary's day-to-day activities. also states that he "will 
work with [the Beneficiary] as Project Manager." In addition, the Petitioner submitted an itinerary 
and a Performance Evaluation, which identify as the Beneficiary's manager. The 
Petitioner did not provide an explanation for the variation in job titles. The Petitioner 
also submitted an organizational chart, which shows the Beneficiary reporting to the project 
manager. However, the project manager is not identified on the organizational chart. No 
explanation for the discrepancies regarding the Beneficiary's supervisor was provided. 
In the RFE, the Director specifically requested that the Petitioner provide documentation to clarify 
its employer-employee relationship with the Beneficiary. The Director provided a list of the types of 
evidence to be submitted, which included a request that the Petitioner provide such documentation as 
a brief description of who will supervise the Beneficiary, along with the person's duties and/or other 
similarly probative documents. However, the Petitioner did not clarify basic aspects of the 
supervisor's role (e.g., the supervisor's job title, a brief description of the supervisor's job duties, or 
specific work location). 
In addition, the Petitioner states on motion that it supervises the Beneficiary through weekly reports, 
which are provided to her project manager. Although the Petitioner claims that the Beneficiary has 
been an employee of the Petitioner and working on the project since June 2013, it did not 
provide any weekly reports for the Beneficiary. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter o[So.ffici, 22 I&N Dec. at 165. 
F. Performance Evaluation 
Upon review of the Performance Evaluation for the Beneficiary, we note that although it states 
"Review Period: 10/1/2013," it was not signed by the Beneficiary until July 15, 2014, after the 
Director issued the RFE. No explanation for this discrepancy was provided by the Petitioner. 
Further, the record does not contain any information from the Petitioner regarding the purpose of the 
performance report; the methods used for accessing and evaluating the Beneficiary's performance; 
how work and performance standards are established; and the criteria for determining bonuses and 
salary adjustments. Although the Petitioner provided a Policy and Procedure Handbook, it lacks 
information regarding how the Petitioner determines and rates an employee on these criteria
, as well 
as whether the Petitioner measures the details of how the work is perf01med or the end result. 
G. Conclusion 
While the Petitioner may be able to eventually locate some work for the Beneficiary, it does not 
establish that the petition was filed for non-speculative work for the Beneficiary that existed as of the 
time of the petition's filing. 12 There is insufficient documentary evidence in the record corroborating 
12 The agency made clear long ago that speculative employment is not permitted in the H-1 B program . For example, a 
1998 proposed rule documented this position as follows : 
12 
the availability of work for the Beneficiary for the requested period of employment and, 
consequently, what the Beneficiary would do, where the Beneficiary would work, as well as how 
this would impact the circumstances of her relationship with the Petitioner. USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F .R. § 103 .2(b )(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 Afatter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Moreover, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act. The Petitioner has not established that, at the time the petition was submitted, it had 
located H -1 B 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. 
Upon complete review of the record of proceeding, we find that the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F .R. § 214.2(h)( 4 )(ii). Merely claiming that the Petitioner exercises control over the 
Beneficiary, without evidence supporting the claim, does not establish eligibility in this matter. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Afatter of So.ffici, 22 I&N Dec. at 165. Based on 
the tests outlined above, it cannot be concluded, therefore, 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 States employer ... must file" the petition); 56 Fed. 
Reg. 61111, 61112 (Dec. 2, 1991) (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). 
Accordingly, the petition cannot be approved, and the appeal must be dismissed. 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). While a petitioner is certainly permitted to change its intent with 
regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a 
material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
13 
(b)(6)
III. BEYOND THE DECISION OF THE DIRECTOR 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. Nevertheless, we will briefly 
note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ 
the Beneficiary or another individual as an H-1 B employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any 
future filing. 
Beyond the decision of the Director, we find that the Petitioner did not comply with the itinerary 
requirement at 8 C.F.R. § 214.2(h)(2)(i)(B). 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form I-129 shall be where the petitioner is located for purposes 
of this paragraph. 
The itinerary language at 8 C.F.R. § 214.2(h)(2)(i)(B), with its use of the mandatory "must" and its 
inclusion in the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
material and necessary document for an H-1B petition involving employment at multiple locations, 
and that such a petition may not be approved for any employment period for which there is not 
submitted at least the employment dates and locations . Here, there is a lack of documentary 
evidence sufficient to corroborate the claim that the Beneficiary would be serving as a quality 
analyst at facility for the period sought in the petition. Although the Petitioner requested the 
Beneficiary be granted H-lB classification until September 30, 2017, the Petitioner did not 
substantiate the proposed employment at Sony for the duration of the period requested. Thus, it 
appears that the Beneficiary will work at multiple locations at some point during the requested 
period of employment. 13 Although the Petitioner provided an itinerary with the Form I-129 petition, 
the itinerary did not include the dates of the Beneficiary's services at the multiple locations. Thus, 
the petition must also be denied on this additional basis. 
IV. CONCLUSION AND ORDER 
We may deny an application or petition that does not comply with the technical requirements of the 
law 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. 
13 Again, we note that the "Employer-Employee Agreement" specifically states that "(e)mployee is required to travel or 
relocate to various client sites throughout the United States for both short and long term projects ." 
14 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004).(noting that the AAO conducts 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 mtJltiple 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 immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 14 
ORDER: The appeal is dismissed. 
Cite as Matter of B-S-S-, INC, ID# 12592 (AAO Sept. 2, 20 15) 
14 As the identified grounds for denial are dispositive of the Petitioner's continued eligibility, we need not address any 
additional issues in the record of proceeding. 
15