dismissed H-1B Case: Computer Science

(b)(6)
DATE: JAN 2 8 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service� 
Adrn.inistrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(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 C.P.R. § 103.5. Do not tile a motion directly with the AAO. 
Th
J
;kyo1t 
� Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center, revoked the previously approved 
nonimmigrant visa petition, and the matter is now before the Administrative Appeals Office on 
appeal. The appeal will be dismissed. The petition's approval will remain revoked. 
On the Form I-129, Petition for a Nonimmigrant Worker, the petitioner claims to be a ten-employee 
"Custom Computer Software Analysis, Programming, Development & Administration" business 
established in In order to continue to employ the beneficiary in a position it designates as a 
"Computer Programmer" position, the petitioner seeks to classify him as a nonimmigrant worker in a 
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The director revoked the petition in accordance with the 
provisions of 8 C.F.R. § 214. 2(h)(ll)(iii)(A) after conducting a site visit at the beneficiary's work 
location as designated on the petition. 
After issuance of a Notice of Intent to Revoke (NOIR) and upon review of the petitioner's 
submissions in response to this notice, the service center director revoked approval of the petition 
on March 28, 2014. The director determined that the petitioner had not overcome the grounds of 
revocation in that the petitioner had not submitted evidence that it was in compliance with the Labor 
Condition Application (LCA) submitted with the petition; and that it maintained an employer­
employee relationship with the beneficiary. 
The record of proceeding before this office contains: (1) the Form I -129 and supporting 
documentation; (2) the director's initial denial of the petition; (3) the petitioner's motion to reopen 
the decision; (4) the director's approval of the petition; (5) the NOIR; (6) the petitioner's response to 
the NOIR; (7) the director's notice of revocation (NOR); and (8) the Form I-290B, Notice of Appeal 
or Motion, the appeal brief, and additional documentation. We reviewed the record in its entirety 
before issuing our decision. 1 
I. GROUNDS FOR REVOCATION 
We turn first to the bases for the director's revocation, and whether these bases provided the director 
with sufficient grounds for revoking the H-1B petition on notice under the language at 8 C.F.R. 
§ 214.2(h)(ll )(iii)( A). 
The regulation at 8 C.F.R . § 214.2( h)(ll)(iii), which governs revocations that must be preceded by 
notice, states: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
1 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(2) The statement of facts contained in the petition or on the application for a 
temporary labor certification was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act 
or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days 
of receipt of the notice. The director shall consider all relevant evidence presented in 
deciding whether to revoke the petition in whole or in part. If the petition is revoked 
in part, the remainder of the petition shall remain approved and a revised approval 
notice shall be sent to the petitioner with the revocation notice. 
We find that the content of the NOIR comported with the regulatory notice requirements, as it 
provided a detailed statement that conveyed grounds for revocation encompassed by the regulation 
at 8 C.F.R. § 214.2(h)(ll)(iii)(A), and allotted the petitioner the required time for the submission of 
evidence in rebuttal that is specified in the regulation at 8 C.F.R. § 214. 2(h)(ll)(iii)(B). As will be 
discussed below, we further find that the director's decision to revoke approval of the petition 
accords with the evidence or lack of evidence in the record of proceeding (ROP), and that neither 
the response to the NOIR nor the submissions on appeal overcome the grounds for revocation 
indicated in the NOIR. Accordingly, we shall not disturb the director's decision to revoke approval 
of the petition. 
A. Failure to Comply with the Requirements Governing the LCA 
We will first address the director's determination that the petitioner failed to comply with the 
requirements governing LCAs as set forth by U.S. Citizenship and Immigration Services (USCIS) 
and the U.S. Department of Labor (DOL). 
In this matter, the petitioner submitted documentation in support of the contention that the 
beneficiarv will work as a computer programmer for the end client, located in 
California. The record includes an August 16, 2012 etter, authored by 
Applications Manager, not on letterhead. 2 Mr. confirms that the 
2 Mr. subsequently submitted a February 19, 2013 letter on letterhead indicatin_g 
that the beneficiary was em loyed by the etitioner, and that had contracted with 
and that had, in turn, contracted with the petitioner for the beneficiary's 
services at , California. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
beneficiary "has been working as a consultant at " The 
record also includes a "S chedule of Assignment" indicating that is the client, 
the petitioner, located in . California, is the consultant, and that the individual providing the 
services is the beneficiary. The document is signed by an individual on behalf of 
and on behalf of a "contractor." The record further included a September 4, 2012 
letter on letterhead indicating that "[the beneficiaryl, an employee of fthe petitioner], .. . IS 
providing services on behalf of our organization, at one 
of our clients as an EBS R12 Senior Business Analyst consultant." 
The record also includes the certified LCA filed with the Form I-129 which identifies the prevailing 
wage for the occupational category of Computer Programmer- SOC (ONET/OES) code 15-1131, for 
a Level II position in California and also for California, the petitioner's 
location. 
On September 7, 2013, a USCIS investigator visited the location in 
California. On December 26, 2013, USCIS issued the NOIR and informed the petitioner that 
the investigation revealed that the beneficiary was not working at the California 
address full time, but rather he was working from his home in California, over 200 
miles away, at least 30 percent of the time. 
In response to the NOIR, the petitioner, through counsel, indicated that the beneficiary never 
revealed to the petitioner that he was working remotely 30 percent of the time or that he continued 
to do so beyond the 30-day limit for a short-term assignment. Counsel asserts that if the petitioner 
had been aware of the "material change in the employment ... they most certainly would have filed 
a new LCA to cover the new work site." The petitioner also provided a new LCA, certified on 
January 7, 2014, which included the employment location in California, as well as 
the employment location in California. 
The director found the explanations provided insufficient and revoked the petition's approval. 
On appeal, counsel reiterates that the petitioner was unaware of the beneficiary's work remotely at 
his home rather than at the end client. 
In pertinent part, the Act defines an H-1B nonimmigrant worker as: 
[A ]n alien .. . who is coming temporarily to the United States to perform services .. 
. in a specialty occupation described in section 214(i)(1) .. . who meets the 
requirements for the occupation specified in section 214(i)(2) ... and with respect to 
whom the Secretary of Labor determines and certifies to the [Secretary of Homeland 
Security] that the intending employer has filed with the Secretary [of Labor] an 
application under section 212(n) (l) .... 
Section 101(a)(15)(H)(i)(b) of the Act (emphasis added). 3 
3 In accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
In turn, section 212(n)(1)(A) of the Act, 8 U.S.e. § 1182(n)(1)(A) (2012), requires an employer to 
pay an H-1B worker the higher of either the prevailing wage for the occupational classification in 
the "area of employment" or the actual wage paid by the employer to other employees with similar 
experience and qualifications who are performing the same services.4 See 20 C.F.R . § 655. 731(a); 
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 (4th eir. 2005); Michal Vojtise k-Lom & 
Adm'r Wage & Hour Div. v. Clean Air Tech. Int'l, Inc. , No. 07-97, 2009 WL 2371236, at *8 (Dep't 
of Labor Admin. Rev. Bd. July 30, 2p09). 
Implemented through the LeA certification process, section 212(n)(1) is intended to protect U.S. 
workers' wages by eliminating economic incentives or advantages in hiring temporary foreign 
workers. See, e.g. , 65 Fed. Reg. 80,110, 80,110-111, 80,202 (2000). The LeA currently requires 
petitioners to describe, inter alia, the number of workers sought, the pertinent visa classification for 
such workers, their job title and occupational classification, the prevailing wage, the actual rate of 
pay, and the place(s) of employment. 
To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between DOL and the U.S. Department of Homeland Security (DHS), a 
prospective employer must file an LeA and receive certification from DOL before an H-1B petition 
may be submitted to USeiS. 8 C.F.R. § 214.2(h)(4)(i)(B)(1); 20 C.F.R. § 655. 700(b)(2). If an 
employer does not submit the LeA to USei S in support of a new or amended H-1B petition, the 
process is incomplete and the LeA is not certified to the Secretary of Homeland Security. See 
section 101(a)(15)(H)(i)(b) of the Act; 8 C.F.R. § 214. 2(h)(4)(i)(B)(1); 20 C.F.R . § 655. 700(b); see 
also 56 Fed. Reg. 37,175, 37,177 (1991); 57 Fed. Reg. 1316, 1318 (1992) (discussing filing 
sequence). 
In the event of a material change to the terms and conditions of employment specified in the 
original petition, the petitioner must file an amended or new petition with USeiS with a 
corresponding LeA. Specifically, the pertinent regulation requires: 
107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions 
which were transferred from the Attorney General or other Department of Justice official to DHS by the 
HSA "shall be deemed to refer to the Secretary" of Homeland Security. See 6 U.S.C. § 557 (2003) 
(codifying HSA, tit. XV,§ 1517); 6 U.S.C. § 542 note; 8 U.S.C. § 1551 note. 
4 The prevailing wage may be determined based on the arithmetic mean of the wages of workers similarly 
employed in the area of intended employment. 20 C.F.R. § 655. 731(a)(2)(ii). 
5 Upon receiving DOL's certification, the prospective employer then submits the certified LCA to USCIS 
with an H-1B petition on behalf of a specific worker. 8 C.P.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(l). 
DOL reviews LCAs "for completeness and obvious inaccuracies," and will certify the LCA absent a 
determination that the application is incomplete or obviously inaccurate. Section 212(n)(1)(G)(ii) of the Act. 
In contrast, USCIS must determine whether the attestations and content of an LCA correspond to and support 
the H-l B visa petition, including the specific place of employment. 20 C.P.R. § 655.705(b); see generally 
8 C.P.R. § 214.2(h)(4)(i)(B). 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
The petitioner shall file an amended or new petition, with fee, with the Service 
Center where the original petition was filed to reflect any material changes in the 
terms and conditions of employment or training or the alien's eligibility as specified 
in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H- 2B 
petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-JB petition, this requirement includes a new 
labor condition application. 
8 C.F.R. § 214. 2(h)(2)(i)(E) (emphasis added). Furthermore, petitioners must "immediately notify 
the Service of any changes in the terms and conditions of employment of a beneficiary which may 
affect eligibility" for H -1B status and, if they will continue to employ the beneficiary, file an 
amended petition. 8 C.F.R. § 214.2( h)(ll)(i)(A). 
A change in the place of employment of a beneficiary to a geographical area requmng a 
corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for 
H-1B status and is, therefore, a material change for purposes of 8 C.F.R. § 214. 2(h)(2)(i)(E) and 
(ll)(i)(A). 6 When there is a material change in the terms and conditions of employment, the 
petitioner must file an amended or new H-1B petition with the corresponding LCA. 8 C.F.R. 
§ 214. 2(h)(2)(i)(E). 
The Form I-129 and section G of the LCA state that the beneficiary's intended work sites are 
_ California CA Metropolitan Statistical Area) and 
California CA Metropolitan Statistical Area) as 
set forth above. The petitioner acknowledges that the beneficiary worked in 
California , . , CA Metropolitan Division) at least 30 percent 
of the time. 
Here, the Form I-129 and the originally submitted LCA identified the California 
and California locations as the places of employment. The LCA did not cover the 
home of the beneficiary noted in response to the NOIR. In addition, the petitioner 
6 This interpretation of the regulations clarifies but does not depart from the agency's past policy 
pronouncements that "the mere transfer of the beneficiary to another work site, in the same occupation, does 
not require the filing of an amended petition provided the initial petitioner remains the alien's employer and, 
provided further, the supporting labor condition application remains valid." See, e.g., Memorandum from T. 
Alexander Aleinikoff, Exec. Assoc. Comm'r, Office of Programs, Immigration and Naturalization Serv., 
Amended H-1B Petitions 1-2 (Aug. 22, 1996), 73 Interpreter Releases No. 35, 1222, 1231-32 (Sept. 16, 
1996); see also 63 Fed. Reg. 30,419, 30,420 (1998) (stating in pertinent part that the "proposed regulation 
would not relieve the petitioner of its responsibility to file an amended petition when required, for example, 
when the beneficiary's transfer to a new work site necessitates the filing of a new labor condition 
application"). To the extent any previous agency statements may be construed as contrary to this decision, 
see, e.g., Letter from Efren Hernandez III, Dir., Bus. and Trade Branch, USCIS to Lynn Shotwell, Am. 
Council on Int'l Pers., Inc. (Oct. 23, 2003), those statements are hereby superseded. We need not decide here 
whether, for purposes of 8 C.F.R. § 214.2(h)(2)(i)(E), there may be material changes in terms and conditions 
of employment that do not affect the alien's eligibility for H-1B status but nonetheless require the filing of an 
amended or new petition. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
attested on the Form r-129 that it would pay the beneficiary a salary approximately $14,282 less 
than would be required for the subsequently-identified place of employment, contrary 
to sections 10l(a)(15)(H)(i)(b) and 212(n)(1) of the Act. 7 Such changes in the terms and conditions 
of the beneficiary's employment may, and in this case did, affect eligibility under section 
101(a)(15)(H) of the Act. 
Having materially changed the beneficiary's authorized place of employment to a geographical area 
not covered by the original LeA, the petitioner was required to immediately notify USers and file 
an amended or new H-1B petition, along with a corresponding LeA certified by DOL, with both 
documents indicating the relevant change. 8 8 e.F.R . § 214.2(h)(2)(i)(E), (h)(ll)(i)(A). By failing 
to file an amended petition with a new LeA, a petitioner may impede efforts to verify wages and 
working conditions. Full compliance with the LeA and H-1B petition process, including adhering 
to the proper sequence of submissions to DOL and users, is critical to the U.S. worker protection 
scheme established in the Act and necessary for H-1B visa petition approval. The petitioner failed 
to comply with the requirements governing LeAs; therefore, the approval of the petition must be 
revoked. 
B. The Employer-Employee Relationship 
Next we will address the director's determination that the petitioner failed to maintain an 
employer-employee relationship with the beneficiary at the end-client location. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B 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)(1) .. . , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , and 
with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) .... 
7 The LCAs list the prevailing wage for the designated occupational category at a Level II wage as $48,235 
per year in California CA Metropolitan Statistical Area); 
$67,850 per year in . California CA Metropolitan Statistical 
Area); and $84,282 per year in , California CA 
Metropolitan Division). The petitioner identified the source of the prevailing wage as the DOL Office of 
Foreign Labor Certification's Occupational Employment Statistics. 
8 Here the petitioner submitted a new LCA certified for the beneficiary's place of employment in 
in response to the NOIR. This LCA was not previously certified to USCIS with respect to the 
beneficiary and, therefore, it had to be submitted to USCIS as part of an amended or new petition before the 
beneficiary would be permitted to begin working in those places of employment. See 8 C.F.R. 
§ 214.2(h)(2)(i)(E). 
(b)(6)
Page 8 
NON-PRECEDENT DECISION 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) .. . . 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2( h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such employee: and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner had or 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
lB 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 a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the 
Act, 8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 1182(n)(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." See 8 C.P.R.§ 214.2(h)(1), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the petitioner must have an "employer­
employee relationship" with the "employees under this part," i.e., the H-lB beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." See 8 C.F.R. § 214.2(h )(4)(ii) (defining the term "United States 
employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H-1B visa 
classification, even though the regulation describes H-1B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." !d. Therefore, for 
purposes of the H -lB visa classification, these terms are undefined. 
The United States Supreme Court, however, has determined that where federal law fails to clearly 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
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 
Mutuallns. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 
for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in 
hiring and paying assistants; whether the work is part of the regular business of the 
hiring party; whether the hiring party is in business; the provision of employee benefits; 
and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one fa<?tor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254, 258 (1968)). 
The Act does not exhibit a legislative intent to extend the definition of "employer" in section 
101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See generally 136 
Con g. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Con g. Rec. H12358 (daily ed. Oct. 27, 1990). On 
the contrary, in the context of the H-1B visa classification, the regulations define the term "United 
States employer" to be even more restrictive than the common law agency definition.9 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
9 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
There are also 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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
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." See 8 C.P.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.P.R. § 214. 2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319. 10 
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) of the Act, and 8 C.F.R. § 214. 2(h). 
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, 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-1B 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 
10 
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)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
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-II I(A)(1). 
Moreover, 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. "' Jd. at 451 (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-1B temporary "employee." The petitioner indicated that the beneficiary wilJ 
work offsite in _ California, over 300 miles away from its office. The petitioner 
initially stated that it monitored its employees closely from its office in , California through 
weekly status reports and weekly regular communications. Mr. , in his February 19, 2013 
letter, stated that the beneficiary would report to the petitioner's technical resource manager. In 
response to the NOIR, counsel noted the difficulty of monitoring an employee working from afar, as 
well as acknowledging that the petitioner had no mechanism in place when its end client allowed 
the beneficiary to work remotely, to inform the petitioner. Counsel explained that the petitioner 
does not have a contract with the end client but rather witl a 
staffing company. Counsel also indicated that the end user in this matter, had 
issued the beneficiary his laptop, essentially allowing the beneficiary to work anywhere. 
On appeal, counsel reiterates the above and acknowledges that the petitioner was unaware that the 
beneficiary took it upon himself, with the approval of to work from his home a 
significant amount of time. Counsel also concedes that the petitioner is not in position to command 
or direct in any great detail because the duties are being performed at a location where the petitioner 
is not physically present. 
Although the petitioner repeatedly claims that the beneficiary will be in its direct employ and that it 
will maintain control over the beneficiary, the petitioner, through its counsel, acknowledges that it 
was surprised that the beneficiary was working from his home over 200 miles from the end user's 
location. Similarly, the petitioner, through counsel, notes the difficulty of monitoring an employee 
from afar. These admissions are tantamount to an acknowledgement that the petitioner, in fact, 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
does not actually exercise direct control over the beneficiary. That is, a petitioner who maintains 
direct control over a beneficiary would have known that the beneficiary was not working at the 
location designated on the petition. 
While social security contributions, worker's compensation contributions, unemployment insurance 
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., who will 
oversee and direct the work of the beneficiary, who will provide the instrumentalities and tools, 
where the work will 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. In this matter the petitioner has no obvious control over 
where the beneficiary will work. The end client in this matter is the entity that provides the 
instrumentalities and tools for the beneficiary's work. The record lacks probative evidence that the 
petitioner actually manages or otherwise exercises control over the beneficiary's daily work. 
The evidence 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). The petitioner's claim that it exercises complete 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. Matter of Soffici, 22 I&N Dec. at 165. Based on 
the tests outlined above, the petitioner has not established that it has maintained or will be a "United 
States employer" having an "employer-employee relationship" with the beneficiary as an H-1B 
temporary "employee." See 8 C.F.R. § 214. 2(h)(4)(ii). The approval of the petition must be 
revoked for this additional reason. 
II. SUBSEQUENTLY APPROV ED PETITIONS 
We will now address an issue regarding an additional petition submitted on behalf of the beneficiary 
after the revocation of the instant petition. Specifically, a review of USCIS records indicates that on 
April 25, 2014, a date subsequent to the revocation of the instant petition, the petitioner filed a Form 
I-129 petition seeking to continue the employment of the beneficiary as an 
H-1B nonim migra nt. USCIS re cords also indicate that the petit ioner stated on the Form I-129 that 
the basis for H-1B classification was "[c]ontinuation of previously approved employment without 
change with the same employer." The petition was approved on May 6, 2014. However, pursuant 
to 8 C.F.R. § 214.2(h)(14), a petition extension may be filed only if the validity of the original 
petition has not expired. In the instant case, the petition that the petitioner sought to extend 
was revoked on March 28, 2014. 11 Thus, the petition extension was filed after the 
original petition had expired. Accordingly, we will further order that the director review the 
11 
We also observe that the instant petition . was originally approved with validity dates 
from November 1, 2012 to July 31, 2014. The extension petition was submitted on 
April 25, 2014- a month after the original petition's revocation. Thus, for this reason also, we request that the 
director review the extension petition and consider whether initiation of revocation action 
on the affected petition is appropriate. 
(b)(6)
NON-PRECEDENT DECJSTON 
Page 13 
extension petition and consider whether initiation of revocation action on the 
affected petition is appropriate. 
III. CONCLUSION AND ORDER 
Based upon a complete review of the appeal and the record of proceeding, the petitioner has failed to 
overcome the revocation grounds specified in the NOIR and the subsequent revocation decision. The 
petitioner has not established that it has complied with the requirements governing LCA validity, nor 
has the petitioner demonstrated that it maintained an employer-employee relationship with the 
beneficiary. Accordingly, the appeal is dismissed. The approval of the petition remains revoked. 
The appeal will be dismissed and the approval of the petition revoked for the above stated reasons, 
with each considered as an independent and alternative basis for the decision. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. The approval of the petition remains revoked. 
FURTHER ORDERED: The service center director shall review the approval of the H-lB 
petition with receipt number for possible revocation consistent with the 
eligibility issues identified in this decision.