dismissed H-1B Case: Education

(b)(6)
DATE: JUL 0 8 2015 
IN RE : Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servi ces 
Administrativ e Appeals Onice 
20 Massachu setts Ave. , N.W .. MS 2090 
Was hington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(I5)(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-precedent decision ofthe Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-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 
location, and other requirements. Please do not mail any motions directly to the AAO . 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
..... . - . ... -------·-- ------------ ·----------- - --
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
education business, with 134 employees, established in In order to employ the beneficiary in 
what it designates as a teacher position, the petitioner seeks to classify her as a nonimmigrant worker 
in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 110l(a)(15)(H)(i)(b). 
The Director denied the petition , concluding that the petitioner did not establish that it meets the 
regulatory definition of a United States employer. On appeal, the petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supp01iing documentation; (2) the 
Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form l-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 1 
For reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed . 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must establish that it meets the regulatory 
definition of a United States employer. 8 C.F .R. § 214.2(h)( 4 )(ii). Specifically, the petitioner must 
establish 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. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent 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 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) . 
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[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214 .2(h)(4)(ii) as follows: 
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). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii) , it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(1)(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." 8 C.F.R. § 214.2(h)(l) , (2)(i)(A). Finally, the definition of "United 
States employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-IB beneficiary , and that this relationship 
be evidenced by the employer's ab'ility to "hire, pay, fire, supervise, or otherwise control the work of any 
such employee." 8 
C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H -1 B visa classification, even though the regulation describes H -1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id. Therefore, for purposes ofthe H-lB visa classification , these terms are undefined . 
The United States Supreme Court has detennined 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 Communityfor Creative Non-
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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 factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. Sl7106 (daily ed. Oct. 26, 1990); 136 Cong. 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? 
2 While the Darden court considered only the definition of "employee" under the E1i1ployee Retirement 
Income Security Act of 1974 ("ERISA") , 29 U.S.C. § I 002(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), a.ffd, 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 IOI(a)(15)(H)(i)(b) ofthe Act, "employment" in section 212(n)(I)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions . Instead , in the context of 
the H-1 B visa classification, the 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, USA ., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 ( 1984) . 
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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-IB "employee." 8 C.F.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 tem1s "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. Cl 
Darden, 503 U.S. at318-319. 3 . 
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).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-IB 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 f~ctors 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; 
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, I 09 S.Ct. 1835, 1850, I 04 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)). 
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-1 B 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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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) (dete1mining that hospitals, as the 
recipients ofbeneficiaries' services, are the "true employers" ofH-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 
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 m~ority 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)(1). 
Furthennore , when examining the factors relevant to dete1mining 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, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas , 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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-lB temporary "employee." We examined each piece of evidence for relevance, probative 
value, and credibility , both individually and within the context of the totality of the evidence , and 
find that the petitioner did not establish the requisite employer-employee relationship with the 
beneficiary. Matter ofChawathe , 25 I&N Dec. 369, 376 (AAO 2010). 
In the Form 
1-129 and its supporting documents, the petitioner indicated that the beneficiary will be 
working as a teacher at three locations during the requested H-1B validity period of October 1, 2014 
to September 10, 2017 : GA 
GA ; and GA 
5 
A search of the Internet indicates that these locations are the petitioner's office , the School 
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In the Form I-129 Addendum , the petitiOner states that the beneficiary will be trained by the 
petitioner for the first three months. The beneficiary would then be placed with 
schools for the first academic year, and then in schools for the second academic year. 
The petitioner submitted an itinerary; however , it does not specify the dates and location of the 
services to be provided. Instead, it only states that after first 3 months of training at its location, "the 
new teachers will then be placed at the respective school systems. "6 Upon review, we find that the 
evidence in the record of proceeding does not substantiate the petitioner's claim regarding the 
location and length of the beneficiary's employment. 
For H-1 B 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 terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.F.R . § 214.2(h)(4)(iv)(A) and (B) . The 
record contains an employment agreement signed by the petitioner and the beneficiary, effective 
March 19, 2014. The agreement states that the "[beneficiary] shall perform the assigned duties, or 
other specialized technical work as he/she is directed to perform by [the petitioner] for [its] Clients ." 
However, the employment agreement does not provide any level of specificity as to the beneficiary's 
position, duties and requirements for the position or the duration of assignment at the client sites. 
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 'employment 
agreement"' shall not lead inexorably to the conclusion that the worker is an employee. Clackamas, 
538 U.S. at 450 . 
In 
response to the RFE, the petitioner asserts that, pursuant to the terms of the employment 
agreement: 
We further assert that [the beneficiary] though will be assigned to work at client locations, 
she is an employee of [the petitioner] , as we will run her pay roll, responsible for her 
insurance, social security, medicare, etc. Only [the petitioner] has complete control of 
[beneficiary's] employment in the U.S. [The petitioner] has the full rights over recruitment, 
transfer , promotion and termination of [the beneficiary]. [The petitioner] reviews the 
District Administrative and Instructional Complex, and Administrative Offices of Schools , 
respectively. It therefore appears that these locations are school district's administrative offices and not the 
actual locations of schools where the beneficiary would teach. 
6 The regulation at 8 C .F.R. § 214.2(h)(2)(i)(B) provides as follows: 
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 USC IS as provided 
in the form instructions. The address that the petitioner specifies as its location on the 1-129 
shall be where the petitioner is located for purposes ofthis paragraph. 
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performance of our employees through periodical site VISits, personal interaction and 
organizes orientations and workshop for their skill improvements. During the entire period 
of their employment , the Teachers report their duties to (the petitioner] and send their lesson 
plans and teaching modules for [the petitioner's] review and [the petitioner] has complete 
control over work schedule outside the School hours. 
However, the assertions made by the petitioner are not suppm1ed by the documents in the record. 
Specifically , the record contains an International Teaching Services Agreement between the 
petitioner and the School District . The agreement was effective for one 
year from August 1, 2011 and had the option to renew for up to two additional one year terms. 7 The 
agreement states that DCSS "shall have the right, but not the obligation, to have [the petitioner] 
provide . . . up to 22 teachers for the 2011-2012 school year, if needed." The agreement further 
defines DCSS' control over the beneficiary's daily work and work schedule , stating: 
Teachers will provide instructional services and will fulfil other duties as 
reasonably assigned by the Principal of the school where Teacher is placed. 
Except for provisions relating to compensation , insurance , retirement , tenure , and 
social security provisions , Teacher(s) will be subject to and required to abide by 
all regular personnel policies of Teachers shall work on a full time basis 
consistent with the normal work schedule of teaching staff. 
The agreement goes on to state, "(a]ll Teachers who did not teach in the previous year must 
participate in monthly professional learning opportunities provided after school hours by at no 
cost to [the petitioner]." Additionally, the agreement indicates that has the right to reject the 
services of any Teacher and that any teacher may be removed by in its sole discretion. 
On appeal, the petitioner submitted a new Teacher Services Agreement with dated June 1, 
2014, along with copies of Vendor Spend Reports showing payments made to the petitioner by 
as evidence of its continuing contractual relationship. The term of the new agreement is from 
the first teacher workday of the 2014-15 school year through the last teacher workday of the 20 14-15 
school year. The agreement does not include a renewal period. 8 The agreement states: 
7 
The agreement would therefore expire on August I, 2014 . As the instant petition is requesting H-1 B status 
from October I, 2014 until September I 0, 2017, this agreement does not establish a relationship between the 
petitioner and during the relevant timeframe. 
8 We note that according to the signature dates on this agreement , it appears that the agreement did not exist at 
the time of filing. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition . 
8 C.F .R. § 103 .2(b )(I). A visa petition may not be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm'r 1978). 
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(The petitioner] shall supply I with Teachers on an "as-needed" basis ... 
The Parties agree that this Agreement does not obligate to accept any 
Teachers and that shall have the right, in its sole discretion , to determine 
which Teacher or Teachers to accept from [the petitioner]. 
Like the previously submitted agreement , this agreement provides that may in its sole 
discretion remove or terminate any teacher. This agreement also stipulates that any contract between 
a teacher and the petitioner include the following terms; any teacher placed by the petitioner in a 
school must comply with and the state's curriculum policies , rules and regulations; 
maintain records in the manner required by for all students served by the teacher; follow the 
same work schedule as required of employees; and abide by all Board of 
Education policies , except those relating to compensation , insmance , retirement, tenure and social 
security. 
Based on a review of the foregoing , it is evident that the beneficiary , if actually placed with 
would be subject to the policies and procedure of and that , not the petitioner, would 
determine the type and length of assignment of teachers and provide day-to-day supervision. It is 
also apparent that the agreement between and the petitioner would govern the terms of any 
contract or agreement made between the beneficiary and the petitioner regarding the beneficiary's 
employment. As such, these documents do not establish that the petitioner would be the 
beneficiary's United States employer, as expressed in the pertinent regulations, during the 
beneficiary's proposed placement with 
Similarly, the petitioner submitted a Teaching Services Agreement with the School 
System 1 1. The agreement states that the initial term of the agreement would "commence at 
the beginning of August 2005, and shall terminate on the last teacher workday of the SCHOOL 
SYSTEM for the year 2005 - 2006 school year. The agreement also states that the agreement will 
automatically renew for one additional school year unless either party gives notice of its intent not to 
renew. In the RFE, the Director noted that it would appear that this agreement was no longer valid 
as the initial term and one year renewal term had lapsed. In response, the petitioner explains that 
"although the contract is dated it is automatically renewed every year under Clause 1 of the 
agreement with the same terms as such it is renewed every year." To support the assertion that the 
agreement is still in force at the time of filing, the petitioner submitted "Schedule A" work orders for 
the 2014 -2015 school year showing placement of teachers in , however, the work orders do 
not reference an underlying agreement or contract between the petitioner and 
The agreement details the relationship between the petitioner and stating: 
Dming the initial and any renewal term of this Agreement, [the petitioner] shall 
supply the SCHOOL SYSTEM with teachers on an "as-needed" basis. [The 
petitioner] understands and agrees that this Agreement does not obligate the 
SCHOOL SYSTEM to accept any [of its] teachers and the SCHOOL SYSTEM 
shall have the right, in its sole discretion, to determine whether it needs any [of] 
[the petitioner's] teachers. 
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The agreement further states that the petitioner must have a contract with each teacher and to include 
the following provisions for the teachers: 
1. Comply with the SCHOOL SYSTEM and the State's applicable curriculum 
policies, rules and regulations , including but not limited to those relating to in­
field certification; 
u. Maintain adequate and current records in the manner required by the 
SCHOOL SYSTEM 
for all students served by the teacher; 
111. Follow the same work schedule as required by the School System's teachers; 
1v. Abide by all personnel policies of the SCHOOL SYSTEM except those 
relating to compensation , insurance, retirement, tenure and social security 
prOVlSlOnS. 
v. Provide notice of absences in the manner required of the SCHOOL 
SYSTEM'S teachers . 
Given that this agreement states that the teachers are placed and retained at the discretion of 
that governs the terms of the contract between the teacher and the petitioner , and that the 
teachers must follow policies regarding curriculum , hours, training, record keeping, 
attendance etc.; this document does not establish that the petitioner would be the beneficiary's United 
States employer, as expressed in the pertinent regulations , during the beneficiary 's proposed 
placement with 
In addition to the documents discussed above, the petitioner also submitted copies of site visit 
reports/performance reviews conducted for similarly placed teachers, a chart showing the 
beneficiary's supervisory chain with the petitioner, and its quarterly tax returns showing the tax 
treatment of similarly placed teachers. However, the site visit reports/performance reviews and 
organizational chart do not demonstrate that the petitioner has influence on or oversight of the 
teachers' activities or performance. Rather, these reports appear to be based on a single visit and the 
petitioner does not indicate how often the teachers are evaluated. On appeal, petitioner asserts that 
the teachers are required to send in their lesson plans for its review and approval ; however, there is 
no documentary evidence to substantiate its claims. Therefore , we cannot conclude that the 
petitioner is overseeing or providing day-to-day supervision on a continuous basis. 
Furthermore, while the petitioner contends that it would pay the beneficiary's wages and would be 
responsible for the requisite taxes and insurance; this alone does not establish that the requisite 
employer-employee relationship will exist between the petitioner and the beneficiary. We 
acknowledge that the method of payment of wages can be a pertinent factor to determining the 
petitioner's relationship with the beneficiary . 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 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 will the work be located, and 
who has the right or ability to affect the projects to which the alien beneficiary is assigned, must also 
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be assessed and weighed in order to make a detetmination as to who will be the beneficiary's 
employer. 
Additionally , a review of the documents in the record reveals that the petitioner did not submit any 
document which outlines in detail the nature and scope of the beneficiary's employment from the end 
client school districts Specifically, while the petitioner asserts that the beneficiary will be placed at 
the end client sites pursuant to the service agreements discussed earlier, these service agreements do 
not contain information about the types of positions that will be filled (subject matter, grade level 
etc.), when the positions will be filled or where the positions will be located. Furthermore , the 
petitioner did not submit any work orders or schedules to indicate that the end clients, and 
intend to place the beneficiary in a position pursuant to the agreements submitted. 
On appeal, the petitioner asserts that it cannot provide information specific to the beneficiary 
because the end clients in question require fingerprinting, background checks and licensing prior to 
confirming placement and that these processes can only take place once the beneficiary is in the 
United States. Despite the director's specific request for evidence such as a letter from the end 
clients, the petitioner did not submit such evidence . Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103 .2(b )(14 ). The petitioner has not provided evidence that either of the purported end-clients 
intends to place the beneficiary in a specialty occupation position for any period of time. Without 
full disclosure of all of the relevant factors, we are unable to find that the requisite employer­
employee relationship will exist between the petitioner and the beneficiary. 
The evidence in the record, therefore, is insufficient to establish that the petitioner qualifies as a 
United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that 
the petitioner exercises complete control over the beneficiary, without supporting evidence , 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 So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal(fornia, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). The evidence of record did not establish that the petitioner would act as the 
beneficiary's employer in that it will hire, pay, fire, or otherwise control the work of the beneficiary. 
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-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii) . 
Further, we find the record does not establish that the petitioner has available non-speculative work 
for the beneficiary in a specialty occupation. The Form I-129 states that the petitioner intends to 
employ the beneficiary as a teacher from October 1, 2014 to September 10, 2017. As noted above, 
the agreement with is valid through August 2015 and the agreement with is valid 
through the end of the 2014-2015 school year (assuming we accept the assertion that the original 
agreement was renewable and is currently valid based on the submitted work orders). Therefore, at 
most, the petitioner has submitted evidence to establish that there may be work available with these 
end clients through August 2015. While the petitioner maintains that the submitted agreements can 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
be renewed on a yearly basis, the petitioner did not submit evidence that any of the agreements had 
been renewed for the entire validity period, at the time of filing the instant petition. 9 The petitioner 
has not submitted any other agreements, contracts or work orders that cover the remainder of the 
requested validity period. 
Therefore , we find that the petitioner has not established that the petition was. filed for non-speculative 
work for the beneficiary, for the entire period requested, that existed at the time of filing this petition. 
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 l&N Dec. 248. 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. 10 
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-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). · 
III. SPECIALTY OCCUPATION 
9 
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 ((citing Matter of Treasure Craft 
ofCalifornia, 14 I&N Dec. 190)). 
10 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program . For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative , or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1 B nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree . See section 214(i) of the 
Immigration and Nationality Act (the "Act") . The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore , is 
unable to adjudicate properly a request for H-1 B classification. Moreover , there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). 
(b)(6)
NON-PRECEDENTDEC§!ON 
Page 13 
Additionally, we find that the record does not establish that the beneficiary would be employed in a 
specialty occupation, as defined by applicable statues and regulations, for the duration of the 
requested H -1 B validity period . 
In the LCA, the petitioner states that the proffered position corresponds to the Standard Occupational 
Classification (SOC) code and occupation title "25-2054 Special Education Teachers, Secondary 
School" from the Occupational Information Network (O*NET). Throughout the record of 
proceeding, the petitioner describes the proposed duties as a special education teacher in broad and 
general terms. For example, in the itinerary, the petitioner indicates that the beneficiary is required 
to "maintain records for such things as student attendance, evaluations, and discipline" and "use 
appropriate techniques to improve suitable behavior of the students." The petitioner's description is 
generalized and generic in that the petitioner does not convey either the substantive nature of the 
work that the beneficiary would actually perform, any particular body of highly specialized 
knowledge that would have to be theoretically and practically applied to perform it, or the 
educational level of any such knowledge that may be necessary. The responsibilities for the 
proffered position contain generalized functions without providing sufficient information regarding 
the particular work, and associated educational requirements, into which the duties would manifest 
themselves in their day-to-day performance. The abstract, speculative level of information regarding 
the proffered position and the duties comprising it is exemplified by the phrases "develop and 
maintain long range and daily instructional plans for students" and "use a variety of assignment and 
assessment strategies." 
Furthermore, as recognized in Defensor v. Meissner, it is necessary for the end client to provide 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. See 
Defensor v. Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide 
services to the end-client hospitals 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. 
In this matter, the petitioner did not submit documentation from the end clients, 
that outline the nature and scope of the beneficiary's proposed employment. Specifically, the 
agreements with the end clients do not provide substantive information on the duties or requirements 
for the proffered position. Therefore, the petitioner has not established the substantive nature of the 
work to be performed by the beneficiary, which therefore precludes a finding that the proffered 
position satisfies any criterion at 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Because the record does not contain information from the end client regarding the work to be 
performed, we cannot conclude that the beneficiary will be employed in a specialty occupation. 
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. 
For this additional reason, the appeal will be dismissed and the petition denied. 
IV. BENEFICIARY QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. 
As discussed in this decision, the petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the beneficiary possesses that degree or its equivalent. 
V. CONCLUSION AND ORDER 
An application or petition that fails to 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. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct 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 our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 
683. 
We will dismiss the appeal for the above stated reasons. 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, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.