dismissed H-1B Case: Exercise Physiology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-H-S- INC . 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a therapy services company, seeks to temporarily employ the Beneficiary as an "exercise 
physiologist" under the H-lB nonimrnigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 Vermont Service Center denied the petition , concluding that the Petitioner had not 
established it will have an employer-employee relationship with the Beneficiary, and that the 
Petitioner had not submitted an itinerary. On appeal, the Petitioner asse11s that the Director erred and 
the evidence supports an approval of the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. 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 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: 
(1) Engages a person to work within the United States; 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of P-H-S- Inc. 
(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-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)); Clackamas Gastroenterology Assocs., P. C. v. 
Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) 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. 2 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( 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 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that it would be a "United States employer" having an 
2 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. 
2 
Matter of P-H-S- Inc. 
"employer-employee relationship" with the Beneficiary. 3 Specifically, the documents in the record 
do not satisfactorily establish the terms and conditions of the Beneficiary's assignment at the 
end-client location and demonstrate how the Petitioner would control and supervise the Beneficiary's 
work. 
The Petitioner, located in New Jersey, indicated that the Beneficiary will work off site for a client in 
New York. However, the Petitioner has not established the contractual obligations between the parties 
for the employment period requested from October 2018 to September 2021. The record contains a 
staffing agreement executed between the Petitioner and the client. The agreement states that the 
Petitioner will "assign its employees . . . to perform the type of work described in Exhibit A at the 
locations specified on Exhibit A. .. " However, Exhibit A is a rate schedule listing job titles by 
acronym ( such as "PT" or physical therapist, "PT A" or physical therapist assistant but does not include 
"EP" or exercise physiologist), period of services, and rates. It makes no reference to the Beneficiary, 
his proposed period of work, the exercise physiologist job title, or the duties and location of the 
proffered position. 
The record also contains two letters from the client. While the letters name the Beneficiary and provide 
a description of duties, they do not indicate how long the Beneficiary will be assigned to the 
end-client's facility. Further, the letters contain inconsistencies that undermine the Petitioner's claims 
regarding the Beneficiary's assignment. As noted by the Director, in the first letter submitted in 
response to the Director's request for evidence (RFE), the client referred to the Beneficiary as an 
"Exercise Physiologist/Physical Therapist Assistant." On appeal, the Petitioner submits the second 
client letter which correctly refers to the Beneficiary as an "Exercise Physiologist, and asserts that the 
Director "dr[e]w conclusions based on one clerical error not supported by the record." However, as 
noted by the Director, the client's first letter contained another error. Specifically, the client provided 
an additional work location not identified in the petition or the labor condition application (LCA). We 
further note that the Petitioner had originally identified three locations on the LCA but later asserted 
in response to the RFE that the Beneficiary will only work at one location. However, a petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 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 8 C.F.R. § 103.2(b)(l); see also Matter of Michelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 4 
In addition to discrepancies regarding the terms and conditions of the Beneficiary's assignment at the 
end-client location, the record does not sufficiently establish that the Petitioner would have an 
employer-employee relationship with the Beneficiary. The Petitioner has maintained throughout these 
proceedings that it will employ the Beneficiary and has the ability to hire, fire, remunerate, supervise, 
and otherwise control his work. In addition, the end-client contends that the Beneficiary will be under 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
4 The agency made clear long ago that speculative employment is not permitted in the H-IB program. See. e.g.. 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4. 1998). 
3 
Matter of P-H-S- Inc. 
the control and supervision of the Petitioner, they will pay him and provide benefits, conduct his 
performance reviews, and they have the sole authority to hire, fire, or change his work site. The 
Petitioner asserts that it will be in frequent touch with Beneficiary, a daily email will be sent with a 
list of duties, an updated task list will be sent at the end of the day, and it will direct the Beneficiary 
on the priority of task completion. The Petitioner also asserts that it has many in-person meetings to 
ensure project demands are met. The Petitioner asserts that its site manager will supervise the 
Beneficiary's work. However, the record does not include corroborating evidence of many of the 
Petitioner's claims. For instance, the record does not include email records to verify their daily 
correspondence, evidence of their in-person meetings, or evidence of its site manager supervising his 
work. Notably, the Petitioner claimed that the site manager "will also provide guidance, knowledge 
on troubleshooting and join the team to discuss strategies to ensure the success of the project." 
However, the record does not establish what would be considered "troubleshooting" for "exercise 
physiologist" positions or identify what "projects" the Beneficiary would engage in. Furthermore, the 
performance evaluation form submitted as a sample is blank. We also note that the end-client states 
that the Beneficiary is required to follow its standard workplace policies and its rehabilitation director 
will review his day-to-day project deliverables. 
Though we acknowledge the Petitioner's claims of an employer-employee relationship, we must 
weigh them against the evidence contained in the record. The Petitioner has not demonstrated that it 
supervises and controls the Beneficiary and his work. To the contrary, the Petitioner's role appears 
limited to the provision of the Beneficiary's services with little room for actual direction of his 
activities. Furthermore, the Petitioner has not established it is the source of the instrumentalities. For 
instance, it is not clear who provides the items mentioned by the Petitioner to perform the job such as 
exercise equipment, electrocardiograph machines, and spirometers. We also note the location of the 
work is at the end-client's site. 
The evidence, 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 Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
II. ITINERARY 
The Director also denied the petition on the basis that the Petitioner did not submit an itinerary as 
required under 8 C.F.R. § 214.2(h)(2)(i)(B). As discussed, the record contains inconsistencies that 
undermine the Petitioner's claims regarding the Beneficiary's assignment. On appeal, the Petitioner 
acknowledges that at the time of filing the Beneficiary was "anticipated to work" at three locations. 
However, the Petitioner also states that "at the time of submitting the response to the RFE, the 
Beneficiary was assigned to work solely" at the client's location. The Petitioner asserts that its 
"response to the RFE does not identify services to be performed ... at other locations "because the 
Beneficiary will not be working at those locations." However, as noted, the Petitioner must establish 
eligibility at the time of filing and must continue to be eligible for the benefit through adjudication. 
4 
Matter of P-H-S- Inc. 
8 C.F.R. § 103.2(b)(l). Notably, the Petitioner initially did not submit any documents to substantiate 
the Beneficiary's assignment. It was only in response to the RFE that the Petitioner submitted a 
staffing agreement with the client and the first client letter. Further, as discussed, those documents 
do not sufficiently establish the dates and locations of the services to be performed. Therefore, we 
conclude that the Petitioner has not established that it has complied with the itinerary requirement at 
8 C.F .R. § 214.2(h)(2)(i)(B). 5 
III. CONCLUSION 
The record does not establish that the Petitioner will have an employer-employee relationship with the 
Beneficiary or that the Petitioner complied with the itinerary requirement. 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. 
Cite as Matter of P-H-S- Inc., ID# 4778225 (AAO Sept. 16, 2019) 
5 Since the identified basis for denial is dispositive of the Petitioner's appeal, we will not address additional issues of 
ineligibility in the record including whether the proffered position qualifies as a specialty occupation. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 T&N Dec. 516. 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). For instance, we note 
that the record does not establish that the proffered position requires at a bachelor's degree in a specific specialty, or its 
equivalent. We further note that on appeal, the Petitioner provides a new job description which requires the Beneficiary, 
in part, to "evaluate Physical Therapist's treatment on the patient to ensure proper and effective treatment," "ensures that 
all Physical Therapists are trained in the latest treatment techniques," and "maintain licenses records to ensure that all 
licenses for Physical Therapists are current and up to date." The record does not establish how these new duties relate to 
the proffered position and raise questions regarding the substantive nature of the proffered position. 
5