dismissed H-1B Case: Energy And Finance Consulting

(b)(6)
MAY 2 6 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529·2090 
U.S .. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the 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. § 103.5. 
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. 
erg 
ief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the Form I-129 visa petition and supporting documentation, the petitioner describes itself 
as a consulting firm, established in in the energy and finance industries. In order to employ 
the beneficiary in what it designates as a project coordinator position, the petitioner seeks to classify 
her 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 petitioner had not established 
eligibility for the benefit sought. The Director denied the petition, finding that the petitioner did not 
establish that it will be a "United States employer" having an employer-employee relationship with 
the beneficiary as an H-1B temporary employee. 
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 
Directo-r'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. 
I. THE PROFFERED PO SITION 
In the Form I -129 petition, the petitioner indicated that it is seeking the beneficiary's services as a 
project coordinator on a full-time basis at the rate of $40,000 per year. In addition, the petitioner 
stated that the beneficiary would work at 
and In the letter of support, the 
petitioner provided the following description of the proffered position: 
The project coordinator is required to coordinate all aspects of energy projects, 
including the following: meet with estimator, become familiar with Budget Estimate 
info (scope, assumptions, solution considered, estimated duration, impacted verticals, 
required skill-sets, etc.); meet with project requestor, to better understand 
expectations, project objectives and scope; negotiate with impacted resource 
managers, from all impacted verticals, resource names and their availability (when a 
resource will be available, for how long, etc.); update the project using EPM Self 
Service to replace generic resources by named resources; work with named team to 
1 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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refine Estimate (tasks, # hours/ resource to complete tasks, schedule, and risks) and 
timing of tasks; capture a project schedule baseline using EPM Self Service; capture a 
baseline prior to the Implement Phase; build Project PPM deliverables, according to 
the rigor of the project; keep an effective communication with key stakeholders; 
project team and partners. This includes regular project team meetings and periodic 
status reports; manage project changes through EPM Self Service; ensure all Project 
Team members (including external resources) are meeting time entering expectations 
for the project; monitor and report project progress and status bi-weekly; track actual 
vs. planned work to identify any possible deviation and take corrective actions if 
needed. 
The position requires the minimum of a Bachelor's degree in business, energy trading, 
or IT. 
II. 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.P.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." Id. 
More specifically, section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent 
part as an alien: 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services . in a specialty occupation described in section 
214(i)(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 J 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 (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 
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(3) Has an Internal Revenue Service Tax identification number. 
8 C.P.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.P.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 an LCA with the Secretary of Labor pursuant to section 212(n)(1) 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-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). 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.P.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B 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.P.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-
1B beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H -1B 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 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 
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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)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 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-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition? 
Specifically, the regulatory definition of "United States employer" requires H-1B 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-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
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). 
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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. 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.P.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-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.P.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)(1) (adopting a materially identical test and indicating that said test was based on the Darden 
decision); see also Defensor v. Meissner, 201 P.3d 384, 388 (5th Cir. 2000) (determining that 
hospitals, as the recipients of beneficiaries' services, are the "true employers" of H-1B nurses under 8 
C.P.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 
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)). 
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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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)(1). 
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 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-324. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. · 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship . 
. . with no one factor being decisive."' /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, we find that 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 there are numerous inconsistencies and discrepancies in the 
petition and supporting documents, which undermine the petitioner's credibility with regard to 
several aspects of the beneficiary's claimed employment. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain 
or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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. /d. at 
591. 
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1. The Beneficiary's Work Site 
We find that the petitioner has provided inconsistent information regarding the beneficiary's work 
site. For instance, in the Form I-129 (page 4), the petitioner indicated that the beneficiary will work 
at and 
However, on the same page, the petitioner provided the following 
information: 
Will the beneficiary work off-site? rgj NoD Yes 
The petitioner also stated in its response to the RFE that the beneficiary is "working at a client site 
on an energy project." 
2. The Beneficiary's Salary 
Further, the petitioner has provided inconsistent information regarding the beneficiary's salary. For 
instance, the petitioner initially claimed that the beneficiary's would be paid $40,000 per year. 
However, in response to the Director's RFE, the petitioner stated that the beneficiary's annual salary 
would be $47,000. In addition, the petitioner provided an employment agreement dated February 
14, 2014, which states that the "[e]mployer agrees to pay Employee remuneration in the amounts 
specifically set forth in the attached Project Agreement." Notably, the project agreement indicates 
$20.00 per hour, which equates to $41,600 per year for full-time employment. 
B. Pay Statements and Benefits Summary 
In support of the H-1B petition, the petitioner submitted pay statements that it issued to the 
beneficiary. The petitioner also submitted a document entitled "Su mmary Plan Description" 
regarding its benefits. We acknowledge that the method of payment of wages can be a pertinent 
factor in determining the petitioner's relationship with the beneficiary. However, while items such 
as wages, contributions, federal and state income tax withholdings, and other benefits are relevant 
factors in determining who will control an alien beneficiary, other incidents of the relationship, e.g., 
where will the work be located, who will provide the instrumentalities and tools, who will oversee 
and direct the work of the beneficiary, and who has the right or ability to affect the projects to �hich 
the alien beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the beneficiary's employer. 
C. Employment Agreement 
For H-1B 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). In 
response to the Director's RFE, the petitioner submitted an employment agreement dated February 
14, 2014, along with a project agreement, and a second employment agreement dated July 28, 2014. 
We observe that the second employment agreement was executed after the Director's RFE and does 
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not pre-date the filing of the petition. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 8 C.P.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 id; Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). Therefore, 
the July 28, 2014 employment agreement is not probative evidence as it did not exist prior to the 
filing of the instant petition on April 1, 2014. 
Upon review of the February14, 2014 employment agreement and project agreement, we find that 
the documents do not support the petitioner's claims within the record of proceeding with regard to 
the beneficiary's employment. More specifically, the employment agreement states that "[t]he 
services performed by Employee under this Agreement are for Employer's client ('Client') and will 
be outlined in the Project Agreement attached to this Agreement ('Project Agreement')." Upon 
review of the project agreement, we note that it indicates the beneficiary will be providing services 
to beginning on approximately February 24, 2014 and ending on approximately June 30, 
2014. Notably, it appears that the project will end prior to the requested H-1B start date. Thus, the 
project agreement does not indicate that the beneficiary will serve as a project coordinator in 
Texas for the duration of the requested H-1B period.5 
Moreover, the employment agreement and project agreement do not provide any level of specificity 
as to the beneficiary's duties and the requirements for the position. Further, the employment 
agreement states that the beneficiary will report to the petitioner. However, the petitioner does not 
provide specific information regarding the beneficiary's supervisor (e.g., name, job title, role, 
location). 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. 
D. Information Technology Services Agreement 
In its initial submission with the Form I-129, the petitioner provided a document entitled ' 
Information Technology Services Agreement," dated October 28, 2008, executed between itself and 
The agreement states that the petitioner, "from to time to time during the term of this 
Agreement and at request, agrees to provide various services for ' Notably, the 
agreement specifically states that the services will be provided "from time to time" suggesting that 
the services will be sporadic. 
Further, the agreement states that "[a]ll Services performed by Contractor [the petitioner] shall be in 
accordance with the terms, conditions or requirements contained in any Statement of Work [SOW] 
and this Agreement." Upon review of the record, we observe that the petitioner has not provided any 
SOWs establishing any projects or specific work for the beneficiary. The Information 
5 i\ccording to the 
Director's RFE, 
Information Technology Services i\greement, submitted m response to the 
is located in Minnesota. 
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Technology Services Agreement therefore does not establish that the petitioner had secured any 
work for the beneficiary for the duration of the period requested. 
E. 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. 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. 
Although the petitioner requested the beneficiary be granted H-1B classification from October 1, 
2014, to September 16, 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 "[w]hen the project is complete, 
she will return to [the petitioner's] offices and work on other projects." 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). Again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
F. Lack of Evidence 
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. However, upon review of the record of proceeding, the petitioner did not 
provide any information on this matter. Here, the petitioner was given an opportunity to clarify the 
source of instrumentalities and tools to be used by the beneficiary, but it failed to address or 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). 
G. 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-1B petition. On appeal, the 
petitioner states that the beneficiary "reports directly to Practice Director, and she 
reviews and evaluates her work quality and performance." However, the petitioner submitted an 
organizational chart, which shows the beneficiary reporting to the functional lead, 
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In addition, the petitioner provided copies of the beneficiary's weekly status reports, which indicate 
"Client Supervisor/Manager _ 
No explanation for the discrepancies regarding the beneficiary's supervisor was provided. 
Again, it is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 582. 
H. Electronic Mail Correspondence 
On appeal, the petitioner submitted electronic mail (email) correspondence between itself and the 
beneficiary. Notably, the email correspondence between and the beneficiary, 
indicates that the local-portion of the beneficiary's email address is ' · and that the domain 
name is "gmail." In addition, the email correspondence between and the beneficiary, 
indicates the local-portion of the beneficiary's email address is the username for the beneficiary (her 
first name and last name), and the domain name is ' The 
beneficiary's email domain names do not establish an employer-employee relationship with the 
petitioner. 
I. Conclusion 
We find that, while the petitioner may be able to eventually locate some work for 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.6 There is insufficient documentary evidence in the record 
6 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-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. 
63 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
corroborating the availability of work for the beneficiary for the requested period 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. USCIS 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. at 248. 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. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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-1B petition" and adding the definition 
of that term at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). Accordingly, the petition must be denied 
on this basis. 
III. ITINERARY REQUIREMENT 
Beyond the decision of the Director, the petition must also be denied due to the failure of the 
petitioner to comply with the itinerary requirement at 8 C.F.R. § 214.2(h)(2)(i)(B). 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
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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NON-PRECEDENT DECISION 
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-1B petition involving employment at multiple 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 project 
coordinator at facility for the period sought in the petition. Although the petitioner 
requested the beneficiary be granted H-1B classification until September 16, 2017, the petitioner did 
not provide consistent information substantiating 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 and the petitioner did not provide an 
itinerary reflecting the multiple locations when it filed the Form I-129 in this matter. Accordingly, 
the petition must also be denied on this additional basis. 
IV. 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, affd, 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.7 In visa petition proceedings, it 
7 As the identified grounds for denial are dispositive of the petitioner's eligibility, we need not address the 
additional issues in the record of proceeding including whether the petitioner has established that the 
proffered position qualifies as a specialty occupation. 
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Page 14 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.