dismissed H-1B Case: Data Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re: 4453051 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 14, 2020 
The Petitioner, an international staffing agency, seeks to temporarily employ the Beneficiary as an 
"aftertreatment warranty & reliability data analyst II" under the H-lB nonimmigrant classification for 
specialty occupations. Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB 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 of the California Service Center denied the petition, concluding that the record did not 
establish that 1) the proffered position qualifies as a specialty occupation, and 2) the Beneficiary will 
be employed in a specialty occupation for the requested period. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.1 
I. ANALYSIS 
In this matter, the Petitioner states that the Beneficiary will work off-site at an end-client location. In 
her decision, the Director explained that, as recognized by the court in Defensor v. Meissner, 201 F.3d 
387-88 (5th Cir. 2000), where the work is to be performed for entities other than the petitioner, 
evidence of the client companies' job requirements is critical. 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 ( emphasis 
added). Id. The Director then addressed the shortcomings in the submitted evidence. For example, 
she explained that "[c]ontractual agreements that merely set forth the general obligations of the parties 
to the agreement, and that do not provide specific information pertaining to the actual work to be 
performed, may be insufficient to establish that the beneficiary will be employed in a specialty 
1We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
occupation." She also stated that the record did not include documented evidence from the end-client 
that provided "a detailed description of the specialized duties the beneficiary will perform" or "the 
qualifications required to perform those duties." As a result of the lack of information directly from 
the end-client, the Director concluded that the Petitioner had not established the substantive nature of 
the Beneficiary's work and, therefore, was unable to demonstrate that it met any of the four criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Upon consideration of the entire record 2, including the arguments made on appeal, we adopt and affirm 
the Director's decision with the comments below. See Matter of P. Singh, Attorney, 26 l&N Dec. 623 
(BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 
F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments 
prescinding from them have been adequately confronted and correctly resolved by a trial judge or 
hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order 
reflects individualized attention to the case). 
As stated by the Director, the Petitioner submitted its "Master Procurement Framework Agreement" 
(MPFA) with the end-client. However, the accompanying work or purchase order was not included, 
and it is, thus, incomplete. The MPFA states that "Work Orders or Purchase Orders agreed to by the 
Parties ... will be incorporated into this Master Agreement upon its execution" and that the "entire 
agreement" includes the "Orders." 
On appeal, the Petitioner argues that in order to provide the requested evidence from the end-client 
"that specifically mentions the position, duties, qualifications, and pay" it "would have needed to 
fabricate a contract to meet USCIS's request as this is not language these two companies have chosen 
to include in their Services Agreement." This statement, however, is contradicted by the MPFA. For 
example, "Exhibit S - Staffing Firm Services" states that the Petitioner is required to provide 1) 
"screening and evaluation appropriate for the job function being filled in accordance with Exhibit A" 
and 2) "[w]orkers with skills, education and experience needed to meet [the end-client's] 
requirements." It further indicates that the Petitioner will "assign Workers in accordance with [the 
end-client's] staffing requirements for all requested job descriptions and corresponding skill sets." 
"Exhibit A - Order Requirements" states that the accompanying work or purchase order must include 
such information as "[a] detailed description of the Products, Services ... , and/or Deliverables, 
including applicable specifications, service level agreements ("SLAs"), and other agreed 
requirements." 
Instead of providing the accompanying work or purchase order, the Petitioner relies on two letters 
from the end-client. First, the authority of the end-client's signatory has not been established. It is 
not readily apparent that the individual, who holds the title "AT Cl & Business Team Lead" and is the 
Beneficiary's supervisor at the end-client's location, would have sufficient knowledge of the 
contractual agreements between the Petitioner and the end-client to sign the statement or that she has 
been authorized by the end-client to represent it in such matters. Second, even if the Petitioner were 
able to establish the authority of the signatory, the letters do not include the minimum requirements of 
the position, contrary to the Petitioner's repeated claims that they do, or a sufficiently descriptive list 
of job duties that would allow us to discern the nature of the position or the educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform the work. Without this 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
information, the Petitioner has not established that the proffered position qualifies as a specialty 
occupation. 
11. Additional Issues 
A. Employer - Employee 
In addition, the Petitioner has not 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). Specifically, the Petitioner has not 
demonstrated 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." 8 C.F.R. § 214.2(h)(4)(ii). 
For purposes of the H-1 B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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 Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, we apply 
common law agency principles which focus on the touchstone of control. 
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. 318, 322-23. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 
445 (2003) (quoting Darden). See also Defensor, 201 F.3d at 388 (even though a medical staffing 
agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" 
because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-1B 
beneficiaries). 
As such, 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 the 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 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
According to the Petitioner's response to the Director's request for evidence: 
• It will not provide the instrumentalities or tools to perform the proffered position 
• The work will be performed at an end-client location 
• The specialty occupation work that the Beneficiary will be providing is not part of the 
Petitioner's regular business 
• It will not supervise the Beneficiary's work on a daily basis 
• The Beneficiary will not report to the Petitioner for daily tasks 
• The Beneficiary will report to a supervisor at the end-client for specific project guidance and 
daily tasks. 
Further, the MPFA states that the end-client "is responsible for the direction, supervision and control 
of day-to-day ask-oriented activities" and the Petitioner will be responsible for "ongoing overall 
administrative supervision."3 It cannot be concluded, therefore, that the Petitioner has satisfied its 
burden and established that it qualifies as a United States employer.4 
In addition, as previously noted, the Petitioner has not sufficiently documented the duration of the 
relationship between the parties.5 "Exhibit A Order Requirements" states that the accompanying work 
or purchase order must include such information as "the implementation schedule with a timetable for 
delivery of Deliverables (if available), ... and the [e]ffective date and expiration date, if applicable, of 
the Work Order (the "Work Order Term")." As a result, the Petitioner has also not established that the 
petition was filed for non-speculative work for the Beneficiary, for the entire period requested, that existed 
as of the time of the petition's filing.6 Thus, even if it were found that the Petitioner would be the 
Beneficiary's United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner 
has not demonstrated that it would maintain such an employer-employee relationship for the duration 
of the period requested.7 
3 With the Petitioner's role limited to essentially the functions of a payroll administrator, the Beneficiary is even paid, in 
the end, by the client end-client. See Defensor, 201 F.3d at 388. 
4 See section 214(c)(l) 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); Temporary Alien Workers Seeking Classification Under the 
Immigration and Nationality Act, 56 Fed. Reg. 61,111, 61,112 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214) 
( explaining that only "United States employers can file an H- lB petition" and adding the definition of the term "United 
States employer" at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). 
5 We acknowledge that one of the letters from the end-client provides an August 2020 end-date, but, as previously 
discussed, the authority of the signatory and their knowledge of the contractual relationship between the end-client and the 
Petitioner has not been established. 
6 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied at the time 
of filing. 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 l&N Dec. 
248 (Reg'l Comm'r 1978). 
7 The agency made clear long ago that speculative employment is not permitted in the H-1B program. For example, a 
1998 proposed rule documented this position as follows: 
B. Labor Condition Application (LCA) 
We also briefly mention that, without the minimum requirements of the proffered position and a more 
detailed job description directly from the end-client, the Petitioner has not established that the LCA 
supports and corresponds to the petition.8 
111. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Historically, the Service has not granted H-1B classification on the basis of speculative, or undetermined, 
prospective employment. The H-1B 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-1B 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-1B 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). 
8 20 C.F.R. § 655.705(b), states, in pertinent part (emphasis added): 
For H-IB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or 
whether the individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements for H-lB visa classification.