dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 7268944 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 31, 2020 
The Petitioner, an engineering and design services provider, seeks to temporarily employ the 
Beneficiary as an "engineer" under the H-lB nonimmigrant classification for specialty occupations. 
See 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 evidence of 
record does not establish that ( 1) the Petitioner will have an employer-employee relationship with the 
Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, 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. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the services that the Beneficiary will perform for the end-client. 1 
A crucial aspect of this matter is whether the Petitioner has submitted sufficient evidence describing 
the duties of the proffered position such that we may discern the nature of the position and whether 
the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. We find that the 
Petitioner has not done so. 
1 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 
The Petitioner indicated on the petition and on the certified labor condition application (LCA)2 that 
the Beneficiary will work as an "engineer" for~--------~ ( end-client) in I I 
Michigan, for the requested period of employment from October 2018 to August 2021. The Petitioner 
stated that it has "a direct contract with the end-client." 3 
The Petitioner submitted a document titled "Amendment Number Nine to Master Services 
Agreement" ( emphasis omitted). The Amendment Number Nine lists the dates of the previous 
amendments and states that this amendment extends the terms of the Master Services Agreement 
(Agreement) entered into betweetj I and I I luntil December 31, 2020.4 The amendment further states th~at-,-_a_l_l-te_rm_s_a_n_d_p_r_o_v_is-io_n_s_o_f~ 
the Agreement" other than as provided in the amendment are "ratified and confirmed." We note that 
the Amendment Number Nine was signed by the representatives of I l I l and the 
end-client. 5 The record is ambiguous regarding whether the "direct contract" the Petitioner claims to 
have with the end-client is the Master Services Agreement mentioned in the amendment, or whether 
the Petitioner is referring to a different agreement it may have with the end-client. Nonetheless, the 
record does not contain the referenced Agreement and the Petitioner does not explain the reason for 
not submitting it. The information contained in the amendment is limited in scope and does not 
adequately establish the services to be provided by the Beneficiary such as duties or educational 
requirements for the position. Without additional documents, the Amendment Number Nine has little 
probative weight towards establishing the actual work to be performed by the Beneficiary for the 
end-client for any specific period or location. 
The record also contains a document titled "Amendment No. 16" that lists the dates of the previous 
amendments and states that it extends the term of the "Strategic Services Agreement," which was 
executed in April 2002 by the Petitioner and I J "for another period of [36] months" from 
January 1, 201 7 to December 31, 2019. The Amendment further states that "all other terms and 
conditions of the Agreement shall remain unaltered." However, the record does not contain the 
referenced Strategic Services Agreement, and again, the Petitioner does not explain the reason for not 
submitting it. Similar to the Amendment Number Nine, the information contained in the Amendment 
No. 16 is limited in scope and does not adequately establish the services to be provided by the 
Beneficiary. Therefore, the Amendment No. 16 has little probative weight towards establishing the 
actual work to be performed by the Beneficiary for the end-client for any specific period or location. 
The Petitioner submitted a letter from the end-client in which the end-client stated that it "contracted 
with [the Petitioner], to assist in Occupant Safety Systems projects;" that the Beneficiary has been 
assigned by the Petitioner to work on this project as a "Simulation Specialist;" and that the end-client 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
3 See the Petitioner's letter dated April 1, 2018 submitted in support of the petition. 
4 According to the Amendment Number Nine, the Master Services Agreement was exruted on March 1, 2003. 
5 Ac:arding ta the Petitioner, it is a "50-50 joint venture of its parentl compares I (formerly I I I b based in India and! ! based in ML" See the Petitioner's letter dated 
April 1, 2018 submitted in support of the petition. 
3 
expects the work to continue until December 31, 2021." The end-client stated that the position requires 
"at least a bachelor's degree or equivalent in Mechanical Engineering or a very similar field of study." 
The end-client provided the following duties for the proffered position: 
• Coordinate with Product design team and testing team to discuss project scope, 
inputs required for Seatbelt numerical models. 
• Perform Structural integrities studies through simulation for different Seatbelt 
assembly and propose the design changes & shape modifications to design team. 
• Development of simulation models for different seatbelt assemblies according to 
OEM's specifications for Occupant safety simulations. 
• Development test configurations for Seatbelts components in coordination with 
testing teams. Validation of Seatbelt components numerical models with respect 
to physical tests (both component and sled tests). Perform DOE on validated 
numerical models. 
• Interact with OEM's Occupant's safety teams to discuss the system simulation 
results, analysis of components of interest & propose proper design changes to 
design team accordingly. 
• Development of new methods and macros for Seatbelt assembly analysis and 
simulation. 
Notably, the end-client did not provide a detailed information of its project. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the particular 
employer. Although the end-client states that it has contracted the Petitioner "to assist in Occupant 
Safety systems projects," the record contains insufficient evidence detailing what the projects entail 
and to what specific aspect of the project the Beneficiary will be assigned. Without information 
regarding assignments that the Beneficiary would engage in, the description of the duties does not 
provide sufficient basis to conclude that the position requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in 
the specific specialty, or its equivalent. For example, the duties such as "[c]oordinate with Product 
design team and testing team to discuss project scope," "[d]evelopment of simulation models for 
different seatbelt assemblies," "[i]nteract with OEM's Occupant's safety teams to discuss the system 
simulation results," and "[ d]evelopment of new methods and macros for Seatbelt assembly analysis 
and simulation" do not meaningfully establish a need for a particular level of education, or its 
equivalency, in a body of highly specialized knowledge in a specific specialty. With the broadly 
described duties and insufficient evidence regarding the end-client's project, the record lacks evidence 
to demonstrate that the proffered position requires a bachelor's degree level of knowledge in a specific 
specialty. That is, the record does not adequately communicate (1) the actual day-to-day work that 
the Beneficiary will perform; (2) the complexity, uniqueness, or specialization of the tasks; and (3) the 
correlation between that work and a need for a particular level of education and knowledge. 
The Petitioner also submitted a job announcement by the end-client for a "Design Engineer" position. 
However, the announced position appears to be a different position than the one proffered to the 
Beneficiary. First, the job titles are different. The end-client stated that the Beneficiary would be 
assigned as a "Simulation Specialist." Second, the job announcement appears to be for a more senior 
4 
pos1t10n. Unlike the proffered pos1t10n, the announced pos1t10n requires "[ a ]t least 3 years of 
experience working in Product Engineering or related environment" along with a degree requirement, 
and also states that the candidate will "lead" various aspects of a project. For example, according to 
the announcement, the candidate will "[l]ead the CAD Design and Product Engineering efforts" and 
"[l]ead the development of CAD 3D concepts and 'hand over' packages for the CAD department." 
The proffered position does not include responsibilities such as leading projects. The announced 
position does not appear to relate to the proffered position. Therefore, the end-client's job 
announcement has little probative value in establishing the duties and responsibilities of the proffered 
positon. 
The record contains insufficient evidence regarding the proffered position; therefore, we are unable to 
determine the substantive nature of the Beneficiary's work as it will be performed for the end-client. 
Consequently, we are unable to evaluate whether 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 entry into 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 ofcriterion 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. 6 
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 for classification as a 
specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(]) 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 
6 As the lack of probative evidence in the record precludes a conclusion that the proffered position is a specialty occupation 
and is dispositive of the appeal, we will not further discuss the Petitioner's asse1iions on appeal regarding the criteria under 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB 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, U.S. Citizenship 
and Immigration Services will 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. 7 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-1 B beneficiaries). 
We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas factors to this matter, we conclude 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-lB temporary "employee." Specifically, we conclude that the Petitioner 
has not submitted sufficient documentation regarding relevant aspects of the Beneficiary's 
employment. 
The Petitioner asserts that it will have an employer-employee relationship with the Beneficiary while 
he performs his duties at the end-client's location inl I Michigan. The end-client states that 
7 When examining the factors relevant to determining control, we 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 323-24. 
6 
the Beneficiary "has been assigned to perform services onsite at [the end-client] in accordance with 
[their] master agreement with [the Petitioner]. As discussed above, the record does not contain an 
agreement between the Petitioner and the end-client detailing the nature and scope of the Beneficiary's 
assignment at the client's location. The record is also vague about whether a work order was issued 
by the end-client for a specific work request. Therefore, the record does not sufficiently establish the 
terms and conditions of the Beneficiary's assignment. 
On appeal, the Petitioner resubmits its response to the Director's request for evidence and states that 
it has provided explanation for "the factors relevant in evaluation an employer-employee relationship." 
The Petitioner states that it pays the Beneficiary's salary, withholds and reports employee taxes, 
provides employee benefits including health insurance, vacation, etc. The Petitioner also states that 
"the letter from the end[-]client corroborated [its] information regarding the employer-employee 
relationship between petitioner and beneficiary." In its letter, the end-client stated the following: 
While he is onsite at [its] location, [the Beneficiary] will be supported and managed by 
his employer, [the Petitioner] in all material respects. [The Beneficiary's] employment 
will be completely governed by his employer and they will be responsible for paying, 
performance evaluation, terminating, disciplinary actions, supervising, and otherwise 
controlling the employment of [the Beneficiary]. [The end-client] does not have the 
right to assign [the Beneficiary] to a different employer, a different project or otherwise 
change any aspect of his employment. 
First, we note that administrative functions such as paying wages, social security, worker's 
compensation, and unemployment insurance contributions, as well as federal and state income tax 
withholdings, and providing other employment benefits are relevant factors in determining who will 
control a beneficiary. Such factors may appear to satisfy a cursory review that a petitioning entity 
might be an individual's employer; however, these elements are not sufficient to provide a full 
appraisal of the requisite relationship. We must also assess and weigh other factors to determine who 
will be a beneficiary's employer. For example, we must consider who will oversee and direct a 
beneficiary's work, who will provide the instrumentalities and tools, where the work will be located, 
and who has the right or ability to affect the projects to which a beneficiary is assigned, among other 
factors. A petitioner must sufficiently address the relevant factors to enable us to evaluate whether the 
requisite employer-employee relationship will exist between a petitioner and a beneficiary. 
Next, the Petitioner does not provide any details as to what tools and instruments are needed for the 
Beneficiary to perform his duties. In its letter submitted in support of the petition, the Petitioner stated 
that it will provide the necessary equipment to the Beneficiary to perform the job. However, on appeal, 
the Petitioner states that "[t]he end client also provides some resources including the workspace." But, 
the Petitioner does not elaborate on respective responsibilities in providing necessary tools and 
instruments for the Beneficiary to perform his duties. 
Moreover, despite the repetitive assertions, the Petitioner has not provided the particulars of the means 
of communication, supervision, assignment of work, and the performance evaluation that it will 
conduct while the Beneficiary will be at the end-client's location. While the Petitioner asserts that it 
"will supervise the beneficiary through status reports, timesheets and ongoing written and oral 
communication," it has not explained and documented in detail how it would supervise and otherwise 
7 
control the Beneficiary's day-to-day activities. The Petitioner asserts that it has a "long-standing 
employment relationship whereby the beneficiary has been working in the India office." 8 Despite the 
Petitioner's assertion regarding a "long-standing employment relationship" with the Beneficiary, the 
record contains insufficient documentary evidence demonstrating the means and methods of the 
Petitioner's established practices in supervising him. 
The end-client's letter states that the Beneficiary's employment will be "completely governed by his 
employer" and that the Petitioner will be "supervising, and otherwise controlling" the Beneficiary's 
employment, but the letter does not explain in detail what such control and supervision will entail. 
Generalized statements contained in the record regarding supervision and control are insufficient to 
meet the Petitioner's burden to demonstrate that it will have an employer-employee relationship with 
the Beneficiary while he works at the end-client's location. 
Overall, the evidence of record provides insufficient insight into how the Petitioner would direct and 
control the Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. While the 
Petitioner repeatedly asserts that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with the 
Beneficiary while he will be working at the end-client's location. The Petitioner's generalized 
assertions regarding control lack specificity and probative detail of the degree of supervision, 
direction, or control that the Beneficiary would receive from the Petitioner. As we noted earlier, the 
Petitioner did not submit the "direct contract" it claims to have with the end-client or the Master 
Services Agreement that is mentioned in the Amendment Number Nine. Therefore, we are unable to 
evaluate the terms and conditions set by the client for the project. The record contains insufficient 
evidence to demonstrate that the requisite employer-employee relationship will exist between the 
Petitioner and the Beneficiary. Therefore, the appeal is also dismissed for this reason. 9 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
8 According to the Beneficiary's resume, he has been working for the Petitioner since 2012. 
9 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter. we will 
not further address whether the Petitioner has established non-speculative employment for the Beneficiary. 
8