dismissed H-1B Case: Fuel Cell Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 4631762 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 28, 2020 
The Petitioner, an international staffing company, seeks to temporarily employ the Beneficiary as a "test 
engineer-fuel cells" under the H-lB nonimmigrant classification for specialty occupations. 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 Petitioner did 
not establish that the proffered position is a specialty occupation or that the Beneficiary will perform 
services in a specialty occupation for the validity period requested. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
Upon review of the record in its totality, 2 we agree with the Director's conclusions. 
In this matter, the record indicates that the Beneficiary will be placed at an end-client location via a 
mid-vendor. As noted in the Director's decision and request for evidence and recognized by the court 
in Defensor 3, 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 ( emphasis added) . 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. 
1 We follow the preponderance of the evidence standard. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
2 While we may not discuss every document the Petitioner submitted, we have reviewed and considered each one. 
3 Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) 
Here, the Petitioner relies on a letter from the mid-vendor that was also signed by an individual at the 
end-client. However, the letter is on the mid-vendor's letterhead, not the end-client's, and it is 
reasonable to assume that the mid-vendor, and not the end-client, prepared the letter. Further, the 
authority of the end-client's signatory has not been established. It is not readily apparent that D D, who holds the title "Fuel Cell Systems Research Supervisor," and is "the individual supervising 
this position," would have sufficient knowledge of the contractual agreements between the mid-vendor 
and the end-client or the Petitioner and mid-vendor to sign the statement or that he has been authorized 
by the end-client to represent it in such matters. Additionally, the letter's statement that the Petitioner 
will make "any hiring/firing decisions" appears to be at odds with the submitted "Terms of Business 
for Supplying Contract Personnel," 4 which states that the mid-vendor will "review the competitive 
bids" and "may select or reject [the Petitioner's] bids at [their] discretion and may fill open contract 
personnel positions with [their] own employees or those of other suppliers." It also states that if the 
mid-vendor or end-client "are not satisfied with the performance of one of'' the contract personnel, the 
Petitioner must "remove that person." Regardless, even if the Petitioner were able to establish that the 
end-client provided the duties and the authority of the signatory, the letter does not include the 
minimum education and/or experience requirements of the position. 
As the record does not contain sufficient evidence from the end-client regarding the duties and 
requirements of the proffered position, the Petitioner has not established the substantive nature of the 
work to be performed by the Beneficiary 5. As a result, we are precluded from reaching a conclusion 
that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for entry 
into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to 
the proflered 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. In addition, as the record is devoid of evidence from the end-client, the Petitioner 
has not established the availability of specialty occupation work for the requested period. 
4 According to the contract, it '"should be read in conjunction with ... the relevant Project Schedule(s) or Purchase 
Order(s)," but neither document was submitted. This is especially concerning given that the contract repeatedly references 
both documents. . 
5 As the nurses in Defensor would provide services to the end-client hospitals and not to the petitioning staffing company, 
the Petitioner-provided job duties and alleged requirements to perform those duties, when not corroborated by the end­
client, were not sufficient for a specialty occupation determination. See Defensor, 201 F.3d at 387-88. 
2 
II. ADDITIONAL ISSUE 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note 
an additional issue below. 
The Petitioner has not established that it meets the regulatory definition of a United States employer 
as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the Petitioner has not demonstrated 
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." 8 C.F.R. § 214.2(h)(4)(ii). 
The United States Supreme Court 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 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)). 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." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). 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 Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still relevant 
factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who 
will be the Beneficiary's employer. 
As previously noted, the only documentation in the record from the end-client is the letter on the mid­
vendor's letterhead and we discussed its shortcomings In addition, the Beneficiary will not work at 
the Petitioner's location and, absent evidence to the contrary, it also follows that the Beneficiary will 
3 
not use the tools and instrumentalities of the Petitioner. Further, according to the Petitioner, ~I---~ 
an employee of the end-client, will supervise the Beneficiary. The Petitioner's role appears to be 
limited to invoicing and proper payment for the hours worked by the Beneficiary. 6 
Without full disclosure of all of the relevant factors, including the contractual relationships between 
all of the parties, the Petitioner has not established that the requisite employer-employee relationship 
will exist with the Beneficiary. 
III. CONCLUSION 
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 here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
6 With the Petitioner's role limited to essentially the functions of a payroll administrator, the Beneficiary is even paid. in 
the end, by the client or end client. See Defensor, 201 F.3d at 388. 
4