dismissed H-1B Case: Computer Science

MATTER OF R-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a ··quality test 
analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(1I)(i)(b). The H-1 B program 
allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires 
both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded: ( 1) that the 
proffered position is not a specialty occupation; and (2) that the Beneficiary is not qualified to 
perform the duties of a specialty occupation. 1 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that both grounds of the Director's decision were reached in error. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 The Director also found that the evidence of record did not indicate that the Beneficiary had maintained valid 
nonimmigrant status. As we do not exercise jurisdiction over maintenance of status issues, this portion of the Director's 
decision will not be discussed. 
(b)(6)
Matter of R-, LLC 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition. but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(J) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position: or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.ff; 484 F.3d 139. 147 (1st Cir. 2007) (describing •·a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384. 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where 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 387-88. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
B. The Proffered Position 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a •·quality test analyst.'' 
Although the Petitioner is located in Virginia. it stated in the petition that the Beneficiary 
would perform her 
duties for (''end-client") in Indiana pursuant to an 
agreement executed between the Petitioner and (''vendor''). 
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Matter of R-, LLC 
The Petitioner stated that the Beneficiary will perform the following job duties:2 
• Provide test execution/coordination with IT resources. 
• Work with other members of the development team to ensure accurate and timely 
communication around and delivery of assigned tasks in order to ensure that end­
products will perform as expected upon release to production[.] 
• Review project goals, current and future state systems and existing test plans, 
artifacts, and ideas. 
• Create and maintain test traceability matrix (R TM). 
• Perform manual test script execution, defect reporting, and create test summary 
report. 
• Ensures effectively communication and logs the Defects as per the defect life 
cycle. Provide testing status on all activities including participating in defect and 
team meetings. 
• Test, Maintain and monitor computer programs and systems. 
• Develop Requirement Traceability Matrix (RTM) to track requirements. 
On the labor condition application (LCA) submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category ""Computer Systems Analysts'' 
corresponding to the Standard Occupational Classification code 15-1121.3 
According to the end-client, the position requires a bachelor's degree ·'in a related field," such as 
·'Pharmacy, Pharmaceutical Science/Pharmaceutical Systems Management/Pharmaceutical 
Manufacturing/Engineering, and/or Regulatory Affairs/Biology/ Biochemistry." 
C. Analysis 
Upon review, we find that the Petitioner has not credibly and sufficiently demonstrated the 
substantive nature of the proffered position and that, consequently, it cannot be found that it is a 
specialty occupation. 
2 The Petitioner submitted documentation to support the H-IB petition, including evidence regarding the protTered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 The "'Prevailing Wage Determination Policy Guidance" issued by the Department of Labor provides a description of 
the wage levels. A prevailing wage determination starts with an entry level wage and progresses to a higher wage level 
after considering the experience, education, and skill requirements of the Petitioner's job opportunity. The Petitioner 
classified the proffered position at a Level II wage (the second-lowest offour assignable wage levels). We will consider 
this selection in our analysis of the position. A Level II wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to perform moderately complex tasks that require limited judgement. For additional 
information, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009). available at http://tlcdatacenter.com/download/ 
NPWHC _Guidance_ Revised _II_ 2009 .pdf. 
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MatterofR-, LLC 
The job description consists of eight job duties listed in bullet-pointed fashion, which we find overly 
broad and generalized. For example, according to the job description, the Beneficiary \Vill 
'"[p ]rovide test execution/ coordination with IT resources." However, this statement provides little 
insight into the Beneficiary's actual tasks with regard to test execution and coordination, nor does it 
identify the ·'IT resources.'' The abstract nature of the proposed duties is further illustrated by the 
statement that the Beneficiary will .. [w]ork with other members of the development team" and 
.. [r]eview project goals," Again, these statements do not explain the Beneficiary"s actual role in 
.. work[ing] with" or .. review[ing].'' The generalized nature of the duties is also exemplified by the 
statements that the Beneficiary will "[ d]evelop, document and revise system design procedures:· 
"[t]est maintain, and monitor computer programs:' and '•[ c ]reate and maintain test traceability 
matrix.'' In short, the overall responsibilities for the proffered position contain general functions 
without providing sufficient information regarding the particular work, and associated educational 
requirements, into which the duties would manifest themselves in their day-to-day performance 
within the end-client's business operations. Nor has the Petitioner described the project upon which 
the Beneficiary would work in sufficient detail. 
This type of general description may be appropriate when defining the range of duties that may be 
performed within an occupational category, but it does not adequately convey the substantive work 
that the Beneficiary will perform within the end-client's business operations and, thus, cannot be 
relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business operations 
(or the end-client's business operations, as in this case), demonstrate that a legitimate need for an 
employee exists. and substantiate that it has H-1B caliber work for the Beneficiary for the period of 
employment requested in the petition. Here, the Petitioner has not done so. 
Nor do the evaluations submitted by the Petitioner as opinion letters establish the proffered position 
as a specialty occupation. First, they do not cure the inadequacy of the job description contained in 
the record of proceedings. To the contrary, the conclusions reached in these evaluations appear to 
have been based on the same broad, general job duty-description listed above. As these stated job 
duties provide little insight into what the Beneficiary would actually be doing, we decline to afford 
significant evidentiary weight to any conclusions based upon those stated duties. Moreover. we note 
that none of the authors discusses the wage-level designated by the Petitioner on the LCA which. as 
discussed above, is appropriate for positions in which the worker would perform moderately 
complex tasks and which require only limited judgement. We consider this a significant omission, 
in that it suggests incomplete reviews of the proffered position by all of the authors. In any event. it 
diminishes even further the evidentiary weight of their evaluations. We may. in our discretion, use 
opinion statements submitted by the Petitioner as advisory. Matter of Caron Int '/, Inc., 19 I&N Dec. 
791, 795 (Comm'r 1988). However. where an opinion is not in accord with other information or is 
in any way questionable, we are not required to accept or may give less weight to that evidence. !d. 
Further problematic is the fact that the evidence of record does not establish the existence of non­
speculative work to be performed by the Beneficiary for the duration of the period of requested 
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Matter of R-. LLC 
employment.4 The Petitioner requested a period of H-1 B approval commencing October L 2015 and 
ending June 30, 2018. The record of proceeding contains two work orders executed between the 
Petitioner and the vendor: (1) the first, executed on March 30, 2015, calls for the Beneficiary to 
provide services to the end-client until October 30, 2015: and (2) the second. executed on July 17. 
2015, calls for the Beneficiary to provide services to the end-client until December 31, 2015. 
As will be discussed below, these work orders do not establish the existence of non-speculative work 
for the Beneficiary during the requested period of H-1 B approval. First the '"General Subcontractor 
Services Agreement" executed between the Petitioner and the vendor specifically limits the legal 
weight of representations made in any work order, stating that '"[a]ll parties acknowledge that the 
period of services is an estimate only and that the period of services may be sh011er or longer than 
that stated in the Work Order[.]" They do not establish the existence of work for the Beneficiary to 
perform until October 30 or December 31, 2015.let alone through June 30,2018. Furthermore, we 
note that the second work order was executed more than three months after the H-1 B petition was 
filed. A petitioner must establish eligibility at the time of filing a nonimmigrant visa petition. 
8 C.P.R.§ 103.2(b)(1). A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of "Michelin Tire CmJJ .. 17 I&N 
Dec. 248 (Reg'l Comm'r 1978). The second work. order. has little evidentiary value for this 
additional reason. 5 
While the general assertions regarding the availability of work for the Beneficiary are 
acknowledged, we do not find them persuasive. First as noted, they are not supported by 
·t The agency made clear long ago that speculative employment is not permitted in the Il-l B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative. or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act'"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover. there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30.419-20 (proposed .June 4. 
1998) (to be codified at 8 C .F.R. pt. 214 ). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location. it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. ~ 214.2(h)(2)(i)(E). 
5 In other words. even if we overlook the statements in the General Subcontractor Services Agreement which discount 
the value of these work orders and accept them at face value. we would note nonetheless that at the time it filed the H-1 B 
petition, the Petitioner had only secured work for the Beneficiary to perform through October 30. 2015 - a date 29 days 
after the requested start date. However, the Petitioner requested far more than 29 days of H-1 B approval. 
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Matter of R-. LLC 
documentary evidence. "l G]oing on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings.'' Matter of S(dfici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). The statement by the end-client that the Beneficiary will work on the project 
until it is complete is also acknowledged. However. given that in July 2015 the parties were only 
willing to execute a work order covering an additional five months it is not clear that enough work 
existed at that time to keep the Beneficiary employed on the project until June 30, 2018. 
Finally, the record contains a copy of the referenced agreement executed between the Petitioner and 
the vendor, which provided the authority for the work orders submitted by the Petitioner. I Iowever. 
the record does not contain a corresponding agreement executed between the vendor and the end­
client, or between the end-client and the Petitioner. Absent such documentation, it is not clear that 
there is any binding obligation on the part of the end-client to provide any work for the Beneficiary, 
which further undermines the Petitioner's claim that there exists work for the Beneficiary to 
perform. While the record contains a letter from the end-client stating that it did not submit a copy 
of the agreement between itself and the vendor due to its '·policy not to share documents related to 
contract with third party/agency," such policy does not excuse the Petitioner from meeting its 
burden. 
While a petitioner should always disclose when a submission contains confidential commercial 
information, the claim does not provide a blanket excuse for a petitioner not providing such a 
document if that document is material to the requested benefit. 6 Although a petitioner may always 
refuse to submit confidential commercial information if it is deemed too sensitive. the Petitioner 
must also satisfy the burden of proof and runs the risk of a denial. Cf Matter (~l Marques. 16 I&N 
Dec. 314 (BIA 1977) (holding the .. respondent had every right to assert his claim under the Fifth 
Amendment[; however], in so doing he runs the risk that he may fail to carry his burden of 
persuasion with respect to his application. 'l 
For all of these reasons, we find that when considered as a whole, the evidence of record lacks a 
sufficient, detailed explanation of what the Beneficiary would actually be doing during the entire 
requested validity period. The tasks as described do not communicate (1) the actual work that the 
Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the tasks. and/or 
(3) the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
The record therefore does not establish the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
6 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally. the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600. "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
Matter of R-, LLC 
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 the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2: ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
For the reasons related in the preceding discussion. the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore. it cannot be found that 
the proffered position qualifies as a specialty occupation. 
II. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision. the proffered position does not require a 
baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore. we need not and 
will not address the Beneficiary's qualifications further. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 7 
Specifically, the record does not currently demonstrate that the Petitioner will be a .. United States 
employer'' having .. 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.'' 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) ofthe Act defines an H-lB nonimmigrant in pertinent part as an foreign 
national: 
7 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, I 043 (E. D. Cal. 200 I), aft'd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
Matter of R-, LLC 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(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 tenn ·'United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm. corporation, contractor, or other 
association. or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship lVith re.spect 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 Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
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-18 visa classification. Section 101(a)(15)(H)(i)(b) ofthe Act indicates that a foreign national coming 
to the United States to perform services in a specialty occupation will have an .. intending employer" 
who will file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)( 1) 
of the Act 8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-18 .. employee.'' Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(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 
foreign nationals as H-18 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-1 B beneficiary. and 
that this relationship be evidenced by the employer's ability to "hire, pay, tire, 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-18 visa classification, even though the regulation describes H-18 
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Matter of R-, LLC 
beneficiaries as being ''employees'' who must have an "employer-employee relationship" with a 
''United States employer.'' ld. Therefore, for purposes of the H-1B visa classification, these terms arc 
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. ( 'o. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter .. Darden") (quoting Community .fi>r Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party" s role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits: and 
the tax treatment of the hired party." 
ld; see also Clackamas Gastroenterology Assocs .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of .. employer" in 
section 101(a)(l5)(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. II12358 (daily ed. Oct. 27. 
1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.8 
8 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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
10 l(a)( 15)(H)(i)(b) of the Act, "employment'' in section 212(n)(I )(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 tenn "United States employer" was defined in the regulations to be even more restrictive than the 
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Matter of R-, LLC 
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-lB ''employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly. 
the term "United States employer" not only requires H-1 B employers and employees to have an 
"'employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "'employee·· or 
"'employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond ''the traditional common law definition" or, more importantly. that 
construing these terms in this manner would thwart congressional design or lead to absurd results. (l 
Darden, 503 U.S. at 318-19.9 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).10 
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-1B 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, tire, 
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 323-24: Clackamas. 538 U.S. at 
445: see also Restatement (Second) (?f 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 ofthe employer's regular business. See Clackamas, 538 U.S. at 445: 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
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 Res. Def Council. 
Inc., 467 U.S. 837, 844-45 (1984). 
9 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 Citi~ens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
10 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 foreign nationals). 
10 
Matter of R-. LLC 
said test was based on the Darden decision); Defensor r. 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 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 tinder 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 pmties. 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas. 538 U.S. at 448-49: EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to detennining 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 
323-24. 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 ofthe incidents ofthe relationship ... with no 
one factor being decisive.'" ld at 451 (quoting Darden, 503 U.S. at 324 ). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does not 
establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship'' with the Beneficiary as an H-1B temporary "'employee ... Specifically. we find that the 
record of proceeding does not contain sufficient, consistent and credible documentation confirming and 
describing the circumstances of the Beneficiary's claimed assignment to the Petitioner's end-client. 
We preliminarily incorporate the findings made above with regard to the Petitioner not 
substantiating the existence of the work to be performed by the Beneficiary at the site of the claimed 
end-client for the duration of the period of requested H-1 B employment. Consequently. we are 
unable to ascertain whether the Petitioner would in fact engage the Beneficiary in an employer­
employee relationship while working there 
However. even if we were to ignore this foundational deficiency we would still find the evidence of 
record insufficient to establish the requisite employer-employee relationship between the Petitioner 
and the Beneficiary. This is because the Petitioner. which is located in Virginia. has not sufficiently 
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Matter of R-, LLC 
explained and documented how it would supervise and otherwise control the Beneficiary's day-to­
day activities while he works for the claimed end-client in Indiana. 
We acknowledge the Petitioner's claims that it will maintain control over the Beneficiary and remain 
the Beneficiary's employer. However. the evidence of record does not establish that the Petitioner 
would supervise and otherwise exercise control over the Beneficiary's employment. The evidence 
of record provides little insight into how, from a remote location, the Petitioner would control the 
Beneficiary's work on a daily basis. Nor did the Petitioner explain how, as the Beneficiary's 
employer. it would evaluate the Beneficiary's performance from Virginia. While the performance 
evaluation forms are acknowledged, it is unclear how the evaluator was able to obtain the 
information upon which the evaluation was based. 
Further, while the General Subcontractor Services Agreement addresses the issue of the employment 
relationship between the Petitioner and the Beneficiary, it does so only by noting that the Petitioner 
will be responsible for taxes and other compensations required by law. 11 However, it provides 
insufficient insight into the specifics of the claimed control that the Petitioner would have over the 
Beneficiary. In other words, the general assertions regarding control contained in the record of 
proceedings lack the necessary degree of specificity, and they do not specifically discuss. in 
probative detail, the degree of supervision, direction, or control that the Beneficiary would receive 
from a long-distance employer. They are not sufficient to establish that the Petitioner would 
supervise or otherwise control the work of the Beneficiary. ''[ G ]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." Matter of So.ffici, 22 I&N Dec. at 165. 
For all of these reasons. the evidence of record does not demonstrate the reqms1te employer­
employee relationship between the Petitioner and the Beneficiary. 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 a foreign national 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 foreign 
national Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
11 The Petitioner's claims that it would pay the Beneficiary's salary are noted, and the method of payment is a factor to 
be considered. However, in some instances, a petitioner's role is limited to invoicing and proper payment for the hours 
worked by a beneficiary. In such cases, with a petitioner's role limited to essentially the functions of a payroll 
administrator, a beneficiary is even paid, in the end, by the end-client. See Defensor v. Meissner, 20 I F.3d at 388. It is 
necessary to weigh and compare on all of the circumstances in the relationship between the parties in analyzing the facts 
of each individual case. 
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Matter of R-, LLC 
The evidence of record, therefore. is insufficient to establish that the Petitioner qualifies as a United 
States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the 
Petitioner exercises complete control over the Beneficiary. without evidence supporting the claim. 
does not establish eligibility in this matter. 
Therefore, the Petitioner has not established that it will be a ''United States employer" having an 
.. employer-employee relationship" with the Beneficiary as an H-1 B temporary .. employee." 
8 C.F.R. § 214.2(h)(4)(ii). For this additional reason, the petition may not be approved. 
IV. CONCLUSION 
The burden is on the Petitioner to show 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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofR-. LLC, ID# 16310 (AAO May 4, 2016) 
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