dismissed H-1B Case: Computer Software Development

(b)(6)
DATE: 
IN RE: 
PETITION: 
JUN 1 9 2015 
Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. l)epartment of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr ative Appeals Office 
20 Massachusetts Ave. , N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-prec ede nt decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a n1otion requesting us Lo reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form l-290B) within 33 days of the date of this 
decision . The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
lucation , and other requirements. Please do not mail any motions directly to the AAO. 
REV 3/20!5 www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
L PROCEDURAL AND FACTUAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center. In the Form I-129 visa petition and supporting documentation, the petitioner 
describes itself as a computer software development and consulting company that was established in 
In order to employ the beneficiary in what it designates as a software engineer 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 reviewed the information and determined that the pet1t10ner had not established 
eligibility for the benefit sought. The Director denied the petition, finding that the petitioner did not 
establish (1) that it will be a "United States employer" having an employer-employee relationship 
\Vith the beneficiary as an H-lB temporary employee; and (2) that the proffered position qualifies as 
a specialty occupation in accordance with the applicable statutory and regulatory provisions. 
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; and (5) the Notice of Appeal or Motion (Form. I-290B~ and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director's decision that the petitioner 
did not establish eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. THE PROFFERED POSITION 
In the Form I -129 petition, the petitioner indicated that it is seeking the beneficiary's services as a 
software engineer on a full-time basis. In addition, the petitioner stated that the beneficiary would 
work at . which is located at - -
Colorado In the letter of support, the petitioner provided the following description of the 
proffered position: 
rPlerform architectural design and development of [the petitioner's] proprietary 
_ software for data warehousing and data mining, using Microsoft SQL 
Server, SQL Server Integration Services (SSIS), Microsoft SQL Server Analysis 
Services (SSAS), Power View and SharePoint; use knowledge of Microsoft Dynamics 
AX 2012 to develop create reports using SOL Server Reporting Services 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d CiL 2004). 
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NON-PRECEDENT DECISION 
(SSRS); perform research and development tasks; design and develop data 
warehouse; develop ETL and design cube; design and develop dashboards using 
SSRS, Power Pivot, PowerView and SharePoint 2010[.] · 
III. 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)(j)(b) of the Act defines an H-1B nonimmigrant in perUnent 
part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services in a specialty occupation described in section 
214(i)(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)(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 (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; 
(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-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" 
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who will file an LCA with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 8 U.S.C. 
§ 1182(n)(1). The intending employer is described as offering full-time or part-time "employment" 
to the H-lB "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). 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). Final1y, the definition of "United States 
employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the ''employees under this part," i.e., the H-lB beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.F.R. § 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-1B visa classification, even though the regulation describes 
H-lB 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 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 Il)anner 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, PC 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)). 
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In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(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 of the H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 2 
Specifically, the regulatory definition of "United States employer" requires H-lB employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.P.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf. Darden, 503 U.S. at 318-319? 
2 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), ajfd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, ''employment" in section 212(n)(1)(A)(i) of the Act, or "employee'' in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 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)). 
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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 CF.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship'' with a "United States employer'' for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of ''control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 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-lB nurses 
under 8 CF.R. § 214.2(h), even though a medical contract service agency is the actual petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the. determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh .each actual factor itself as it exists or will exist and not the claimed employer's right to 
4 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-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the. employment of unauthorized aliens). 
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influence or change that factor, unle~s 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 of the totality of the evidence. Matter of Chawathe, 25 I&N Dec. 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 of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 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." 
A. Inconsistencies in the Record 
As will be discussed, we observe numerous inconsistencies and discrepancies in the petition and 
supporting documents, which collectively serve to undermine the petitioner's credibility with regard 
to several aspects of the beneficiary's claimed employment. When a petition includes numerous 
discrepancies, those inconsistencies will raise serious concerns about the veracity of the petitioner's 
assertions. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
1. The Beneficiary's Work Site 
We find that the petitioner has provided inconsistent information regarding the beneficiary's vvork 
site. For instance, in the Form I-129 (page 4 ), the petitioner indicates that the beneficiary will work 
at , which is located at , Colorado 
However, in the letter of support and in the offer of employment letter, the petitioner states 
that the beneficiary "may also be placed at [the petitioner's] headquarters, 
or at [the petitioner's] office, located at _ 
" Further, the petitioner states that the beneficiary "may be placed at 
the. client site of ' In 
addition, the itinerary indicates that the beneficiary will work in Colorado from October 
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1, 2014, to October 1, 2017, and in New Jersey, Rhode Island and 
Pennsylvania, on an as-needed basis. While the petitioner's statement indicating that the beneficiary's 
work location would vary as needed is acknowledged, that statement alone, absent additional 
evidence, is not sufficient. 
2. The Beneficiary's Supervisor 
In addition, we note that there are inconsistencies in the record of proceeding with regard to the 
beneficiary's supervisor. For example, in the letter of support, the petitioner states that the 
beneficiary will report to its Vice President, , However, further in the letter, the 
petitioner states that "[i]f he is placed occasionally at he will report to, 
and be closely supervised by our Senior Vice President, . " In addition, the petitioner 's 
organizational chart, which was submitted with the initial petition, shows that the beneficiary will 
report to Senior Software Engineer. 
B. Itinerary 
According to the petitioner, the beneficiary will work off-site as a software engineer. As previously 
noted, the petitioner has provided inconsistent information regarding the beneficiary's work site. 
The itinerary indicates that the beneficiary will be assigned to work at _ ' 
office in Colorado from October 1, 2014, to October 1, 2017. The itinerary also 
indicates that the beneficiary will work at the petitioner's offices in New Jersey and 
Rhode Island, and Pennsylvania. However, 
the itinerary does not include the start dates and end dates for these locations but, instead, indicates 
"[a]s needed." Thus , the itinerary does not indicate an intention by the petitioner to employ the 
beneficiary at ' facility for the duration of the requested H -1B period. 
C. Offer of Employment Letter 
For H-lB classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary , or if there is no written agreement, a summary of the tem1s 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 
Form I-129 petition, the petitioner submitted an offer of employment letter dated March 26, 2014. 
As previously discussed, the letter indicates that the beneficiary will not serve exclusively on the 
project for for the duration of his employment, bt+t rather that he will be 
assigned to additional projects. 
In addition, the employment letter references "benefits" for the beneficiary, but does not provide any 
description of the benefits or the eligibility requirements to obtain them. We note that the petitioner 
submitted copies of its "Premium Statements" from . However, a substantive 
determination cannot be made or inferred regarding any "benefits" that may or may not be available 
to the beneficiary , as information regarding them , including eligibility requirements, was not 
submitted. While an employment agreement may provide some insights into the relationship of a 
petitioner and a beneficiary, it must be noted again that the "mere existence of a document styled 
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'employment agreement"' shall not lead inexorably to the conclusion that the worker is an employee. 
Clackamas, 538 U.S. at 450. 
D. Duration of the Relationship Between the Parties 
Further, upon review of the record, we note that the petitioner has not established the duration of the 
relationship between the parties. More specifically, on the Form 1-129, the petitioner requested that 
the beneficiary be granted H-1B classification from October 1, 2014, to October 1, 2017 . The record 
does not contain a written agreement between the petitioner and _ or any 
other organization, establishing that H-1B caliber work exists for the beneficiary for the duration of 
the requested period. 
The petitioner submitted Statements of Work (SOW) between itself and 
While the SOWs provide general descriptions as to the work to be performed by the petitioner, the 
documentation does not specify the beneficiary's duties and responsibilities. The petitioner also 
submitted a "Fourth Amendment to Exhibit D of Professional Services Statement of Work" between 
itself and on appeal. However, we observe that neither the beneficiary nor 
the proffered position is listed in the document. The SOWs and the Fourth Amendment document 
do not establish that H-1B caliber work exists for the beneficiary, and the petitioner did not submit 
probative evidence establishing other projects or specific work for the beneficiary. 
Although the petitioner requested the beneficiary be granted H-1B classification from October 1, 
2014, to October 1, 2017, there is a lack of substantive documentation regarding any work for the 
duration of the requested period. Rather than establish non-speculative employment for the 
beneficiary for the entire period requested, the petitioner claims that "[ e ]ven if the project with 
should end the petitioner has more than enough work for the beneficiary." 
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). 
E. 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. In its letter of support and in response to the Director's RFE, the 
petitioner stated that it "will provide the beneficiary [the beneficiary] with an assigned office space, 
a laptop, a cell phone, and downloads of [the petitioner's] proprietary software applications and 
systems, as well as updates and 24/7support from the Offshore Lab." The petitioner did not provide 
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any further information on this matter. The petitioner did not fully address or submit probative 
evidence on the issue. 
F. Supervision 
In addition, 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. As previously 
discussed, the petitioner has provided inconsistent information as to who will supervise the 
beneficiary. We incorporate by reference the prior discussion on the matter. In the letter of support, 
the petitioner claims that the beneficiary will be supervised by Mr. while at _ 
and by Mr. while at The petitioner further claims that 
Mr. and Mr. visit the work sites on a regular basis, and when they are not there, they 
will keep in touch with the beneficiary via telephone and email. Aside from the itinerary and offer 
of employment letter, the petitioner has not provided any evidence corroborating its claims. 
G. Lack of Evidence 
In the RFE, the Director also asked the petitioner to provide information regarding the beneficiary's 
role in hiring and paying assistants. The petitioner elected not to address this issue or provide any 
information in response to this material request for evidence. While the petitioner was given an 
opportunity to clarify the beneficiary's role in hiring and paying assistants, it chose not to submit any 
probative evidence on the issue. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.P.R.§ 103.2(b)(14). 
H. Conclusion 
We find that, while the petitioner may be able to eventually locate some workfor the beneficiary, it 
did 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. 5 There is insufficient documentary evidence in the record 
5 The agency made clear long ago that speculative employment is not permitted in the H-lB program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-lB classification on the basis of speculative, or 
undetermined, prospective employment. The H-lB 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-lB 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 speculttive employment, 
the Service is unable to perform either part of this two-prong analysis 1 and, therefore, is 
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corroborating the availability of work for the beneficiary for the requested pedod of employment 
and, consequently, what the beneficiary would do, where the beneficiary would work, as well as how 
this would impact the circumstances of his relationship with the petitioner. users 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornrn'r 1978). Moreover, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act. The petitioner did not establish that, at the time the petition was submitted, it had located 
H-1B caliber work for the beneficiary that would entail performing the duties as described in the 
petition, and that was reserved for the beneficiary for the duration of the period requested. 
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. 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 will be a "United States employer" having an 
"employer-employee relationship" with the beneficiary as an H-1B temporary "employee." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
Moreover, there is a lack of probative evidence to support the petitioner's assertions. 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-lB petition" and adding the definition 
of that term at8 C.F.R. § 214.2(h)(4)(ii) as clarification). Accordingly, the petition must be denied 
on this basis. 
IV. SPECIALTY OCCUPATION 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient 
information regarding the proposedjob duties to be performed at its location(s) in order to properly 
unable to adjudicate properly a request for H-1B classifkation. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
?3 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). 
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ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d 384 (5th Cir. 2000). In other words, as the employees in that case would provide 
services to the end-client and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. 
Here, the record of proceeding in this case is similarly devoid of sufficient information regarding the 
specific job duties to be performed by the beneficiary. The petitioner's failure to establish the 
substantive nature of the work to be performed by the beneficiary, therefore, precludes a finding that 
the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
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. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. Therefore, the Director's decision is affirmed and the petition must be denied for this 
reason. 
V. BEYOND THE DIRECTOR'S DECISION 
Moreover, we will now address another basis for denial of the petition. More specifically, 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.P.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 -lB petition involving employment at mulbple 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 software 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
engineer at facility for the period sought in the petition. Although the 
petitioner requested the beneficiary be granted H-1B classification until October 1, 2017, the 
petitioner did not substantiate the proposed employment at 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. 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. 
VI. CONCLUSION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 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 multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the petitioner's burden to establish eligibility for the 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.