dismissed H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 6057160 
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. 22, 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. 1 
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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
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. Chertojf, 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. 2 
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 
2 The Petitioner submitted documentation in support of the H-IB 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 
knowledge attained through at least a baccalaureate degree in a specific discipline. We find that the 
Petitioner has not done so. 
The Petitioner indicated on the petition and on the certified labor condition application (LCA) 3 that 
the Beneficiary will work as an "engineer" for 
Corp. (end-client) in I I Mich~ig_a_n_, _f_o_r_t_h_e_r_e-qu-es-t-ed_p_e_n_· o_d_o_f_e_m_p_l_o_yrn_e_n_t _f_ro-m~ 
October 2018 to September 2021. The Petitioner stated that it has "a direct contract with the 
end-client." 4 However, the Petitioner also stated that the end-client "do[ es] not have a work order or 
contract that lists each detail of the working relationship." 
In support of the claimed contractual relationship, the Petitioner submitted two documents, both 
entitled "Confidentiality and Non-Disclosure Agreement" (Confidentiality Agreement). One of these 
documents was signed by the parties (the Petitioner and the end-client) in 2014 and the other was 
signed in 2018. The record is ambiguous regarding whether the "direct contract" the Petitioner claims 
to have with the end-client is the Confidentiality Agreements it submitted, or whether the Petitioner is 
referring to a different agreement it may have with the end-client. However, the information contained 
in the Confidentiality Agreements is limited in scope and does not adequately establish the terms and 
conditions of the services to be provided by the Petitioner. Nor do they establish the services to be 
provided by the Beneficiary such as duties or educational requirements for the position. The record 
does not contain any other agreement executed by the Petitioner and the end-client. Without additional 
documents, the Confidentiality Agreements have 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 it stated that it "has engaged [the 
Petitioner] for various Automotive Products." The end-client further stated that the Beneficiary "has 
been assigned by [the Petitioner] to work on this project ... " and that it expects the project to continue 
until "September, 2021, with the strong possibility of extension." The end-client listed the following 
duties for the proffered position: 
• Detail study of locksets, keys, brackets, Car door handles and tailgate latches and 
garnishes. 
• Participating in Design reviews with OEM for different programs. 
• Designing the different types of Fixtures for checking designed products with 
respect to Vehicle Sheet Metal data. 
• Create final 3D and 2D Design Parts[.] 
• Releasing Models and 2D drawings in Team Center. 
• Co-Ordination with plants for Manufacturing of various products. 
The end-client stated that the position requires "a minimum of a bachelor's degree or equivalent in 
Mechanical Engineering." 
3 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 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
4 See the Petitioner's letter dated April 1, 2018 submitted in support of the petition. 
3 
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 stated that it has contracted the Petitioner "for various Automotive 
Products," the record contains insufficient evidence detailing what the project entails 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 "[p ]articipating in Design reviews with 
OEM for different programs," "[d]esigning the different types of Fixtures for checking designed 
products with respect to Vehicle Sheet Metal data," "[ c ]reate final 3D and 2D Design Parts," and 
"[d]etail study of locksets, keys, brackets, [c]ar door handles and tailgate latches and garnishes" 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. 
On appeal, the Petitioner states that the "letter from the end[- ]client addressed the relevant details for 
determination of specialty occupation (the job duties and the educational requirement)" and further 
states that "the client (in the letter) clearly confirmed, '[t]his position is one that requires an individual 
to possess a minimum of a Bachelor's degree or equivalent in Mechanical Engineering."' As we noted 
above, the end-client did not provide a detailed information of its project. Therefore, 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. Furthermore, the record must establish 
that the stated degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated instead by performance requirements of the position. See Defensor v. Meissner, 201 F.3d 
at 387. With the broadly described duties, and insufficient evidence regarding work specific to a 
particular 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 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 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. 
4 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(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: 
(I) 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.) 
For purposes of the H-1B 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." 
5 
Darden, 503 U.S. 318, 322-23. 5 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- lB 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. 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 Petitioner also stated that the 
end-client does not issue work orders. Therefore, the record does not sufficiently establish the terms 
and conditions of the Beneficiary's assignment. 
On appeal, the Petitioner states that its "ability to provide a plethora of evidence of employer-employee 
relationship was limited because the beneficiary is not yet in the [United States] to work." We 
understand that the Beneficiary is abroad. However, it is the Petitioner's burden to establish eligibility 
for the immigration benefit sought. 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 [B]eneficiary through status reports, timesheet and ongoing 
written and oral communication," it has not explained and documented in detail how it would 
supervise and otherwise control the Beneficiary's day-to-day activities. The end-client's letter states 
that the Beneficiary will be supervised by the end-client's design manager while the Beneficiary is on 
the end-client's premises, but his work will be "controlled and supervised by his employer." 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. 
In its letter, the end-client also states that the Petitioner is "responsible for [the Beneficiary's] salary, 
benefits and all other aspects of the employment relationship, including training, supervising, and 
controlling [the Beneficiary's] work." First, we note that administrative functions such as 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 
5 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 
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 foll 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 and who will provide them. In its initial support letter, the Petitioner 
stated that it will provide the "necessary equipment to the [B]eneficiary to perform the job," but 
provided no details regarding what equipment the Beneficiary would need to perform his duties. In 
response to the Director's request for evidence, the Petitioner stated that it will provide "resources to 
the [B]eneficiary to perform his job," but farther stated that "[t]he end-client also provides some 
resources including the workspace." Again, the Petitioner did not elaborate on what resources the 
Beneficiary would need to perform his job and which resources the end-client would provide. On 
appeal, however, the Petitioner states that "both the [B]eneficiary and the end[-]client will provide 
tools and instruments to perform the duties. The Petitioner must resolve these inconsistencies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). On appeal, the Petitioner acknowledges that the end-client's letter did 
not provide information regarding the source of instrumentalities and tools needed to perform the 
duties. The record contains insufficient and inconsistent information regarding respective 
responsibilities of the Petitioner and the end-client in providing the necessary tools and instruments 
for the Beneficiary to perform his duties. 
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 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. 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. 6 
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 
6 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. 
7 
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