dismissed H-1B Case: Hardware Engineering

MATTER OF S-HR, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 24,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a recruiting solutions firm, seeks to employ the Beneficiary as a "hardware engineer" 
and to classify him as a nonimmigrant worker in a specialty occupation. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, revoked the approval of the petition. The matter is now before us on 
appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the Director properly revoked the approval of the petition. 
II. REVOCATION AUTHORITY 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1B petition 
pursuant to 8 C.F.R. § 214.2(h)(11)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
(2) The statement of facts contained in the petition or on the application 
for a temporary labor certification was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; 
or 
(4) The petitioner violated requirements of section 101(a)(l5)(H) of the 
Act or paragraph (h) of this section; or 
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Matter ofS-HR, Inc. 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
Upon review of the record, we determine that the Director properly revoked the approval of the 
petition pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(A)(5). 
III. FACTUAL AND PROCEDURAL HISTORY 
In the Form I-129, Petition for a Nonimmigrant Worker, and the supporting documentation , the 
Petitioner indicated that the Beneficiary will work off-site for its client, 
[End Client], located in P A. The Petitioner further indicated that the Beneficiary will be 
employed as a "hardware engineer" from October 1, 2014, to September 12, 2017. The labor 
condition application (LCA) states that the proffered position corresponds to Standard Occupational 
Classification (SOC) code and occupation title " 17-2071, Electrical Engineers," from the 
Occupational Information Network (O*NET) at a Level I (entry) wage level. 
The Director initially approved the petition on May 15, 2014. On October 7, 2014, the Director 
issued a notice of intent to revoke (NOIR), stating that the approval involved gross error. 
Specifically, the Director indicated that the Petitioner and another employer, 
filed H-1B petitions for the same beneficiary, and they appear to be related entities that filed 
multiple H-1B petitions in violation of8 C.P.R.§ 214.2(h)(2)(i)(G). 
We reviewed the record in its entirety, including the H-1B petition filed by , and determine 
that the Director's decision to revoke the petition pursuant to 8 C.P.R. § 214.2(h)(ll)(iii)(A)(5) is 
correct.
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IV. MULTIPLE H-1B FILING 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part, the following:, 
An employer may not file , in the same fiscal year , more than one H-lB petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)(l)(A) of the Act or is exempt from those limitations under section 
214(g)(5)(C) of the Act. If an H-lB petition is denied, on a basis other than fraud or 
misrepresentation, the employer may file a subsequent H-1 B petition on behalf of the 
same alien in the same fiscal year, provided that the numerical limitation has not been 
reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, 
filing more than one H-1 B petition by an employer on behalf of the same alien in the 
1 
The file number for the petition filed by . The Petitioner submitted documentation to 
support the H-1 B petition, including evidence regarding the proffered position and the Petitioner's business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
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Matter of S-HR, Inc. 
same fiscal year will result in the denial or revocation of all such petitions . If USCIS 
believes that related entities (such as a parent company, subsidiary, or affiliate) may 
not have a legitimate business need to file more than one H-1 B petition on behalf of 
the same alien subject to the numerical limitations of section 214(g)(l )(A) of the Act 
or otherwise eligible for an exemption under section 214(g)( 5)(C) of the Act, USC IS 
may issue a request for additional evidence or notice of intent to deny, or notice of 
intent to revoke each petition. If any of the related entities fail to demonstrate a 
legitimate business need to file an H-1 B petition on behalf of the same alien, all 
petitions filed on that alien's behalf by the related entities will be denied or revoked. 
We find that the Petitioner has not provided sufficient evidence to rebut the Director's finding that 
the Petitioner and are related entities. In response to the NOIR, the Petitioner asserted 
that while the two entities "share the same attorneys, building and some clients," they are NOT the 
same company ." The Petitioner emphasized that corporate tax returns indicate that the entities have 
different employer identification numbers (EIN). The Petitioner also submitted documents such as 
articles of incorporation and by-laws to establish that they are separate companies under the law. 
However , while the entities are separately incorporated and have different EINs, both the Petitioner 
and are owned by the same individual. Specifically, the corporate tax returns for both 
entities indicate that has 100% ownership in both companies. Further, the by-laws 
for both entities are verbatim and are signed by 
On appeal, the Petitioner does not claim that the entities are not related but states that both the 
Petitioner and have "legitimate business need" to file an H -1 B visa for the same 
beneficiary. The Petitioner asserts that the Beneficiary has become "a major contributor to [the End 
Client' s] Integrated Control Center Development hardware engineering project" during his optional 
practical training (OPT) period. The Petitioner further asserts that the End Client "wanted to 
continue to benefit from (the Beneficiary]'s services"; therefore , "[the End Client] turned to two 
vendors, with which it had contractual relationships, " the Petitioner and The Petitioner 
claims that the End Client "requested each vendor to file an H -1 B visa petition on behalf of the 
Beneficiary ." 
However, the Petitioner did not submit any documentary evidence to support its assertion that "the 
[End Client] requested each vendor to file an H-1B visa petition on behalf of [the Beneficiary.]" We 
note that "going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings ." In re Soffic i, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter ofTrea sure Craft o_[Cal. , 14 I&N Dec. 190 (Reg'l Comm 'r 1972)). 
Further, we find that the Petitioner provided conflicting information regarding the relationship 
between the parties. As mentioned , on appeal, the Petitioner indicated that "[the End Client] turned 
to two vendors with which it had contractual relationships (emphasis added)." The Petitioner 
further claimed that withdraw its petition because "the [End Client] preferred to deal with 
[the Petitioner] because of a longer history of dealing with it." However, the contracts submitted for 
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Matter of S-HR, Inc. 
both petitions are between the Petitioner and the End Client, and the documents in the record do not 
establish that had a contractual relationship directly with the End Client? "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
Here, the Petitioner did not submit sufficient evidence to substantiate its claim that the End Client 
requested multiple filings for its business need. Therefore, we find that the Petitioner did not 
establish a legitimate business need for filing multiple H-1B petitions. 
V. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. However, we will briefly 
address the issue of whether or not the Petitioner qualifies as a United States employer. 
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." 
!d.; 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 
2 
The Purchase Order with the End Client also specifically states that "[the Petitioner] shall not assign this order without 
the prior written consent of the [End Client] . . . . Any assignment by the [Petitioner] without such written consent shall 
be null and void." The Petitioner has not submitted evidence to establish that it obtained written consent of the End 
Client to assign its order to 
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Matter of S-HR, Inc. 
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. Without full disclosure of all of the 
relevant factors, the Director would be unable to properly assess whether the requisite employer­
employee relationship will exist between the Petitioner and the Beneficiary. 
For H -1 B 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). With the Form I-129 petition, the Petitioner submitted an employment agreement dated 
November 1, 2013. However, the agreement states that the Beneficiary will be employed as a 
"wayside engineer" and does not provide any level of specificity as to the Beneficiary's duties and 
the requirements for the position. The agreement also does not list the length of employment or any 
specific projects to be assigned. 
Further, 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 -1 B petition. On appeal, the 
Petitioner emphasized that both petitions "contained the 'verbatim cover letter' and 'identical job 
description,"' essentially claiming that the petitions were filed for the Beneficiary to work in the 
same position for the same end client as the one proffered here. However, in the offer letter from 
it states that "any overtime should be pre-authorized by your manager at [the End 
Client]" suggesting that it is the End Client that supervises the Beneficiary's day-to-day work. 
Further, as mentioned, the Petitioner claimed that "[the End Client] requested each vendor to file an 
H-lB visa petition on behalf of [the Beneficiary]." Therefore, the present petition was filed at the 
request of the Petitioner's client, and it appears that it is primarily the End Client, and not the 
Petitioner, that controls the Beneficiary's employment. 
Moreover, the Petitioner has not established the duration of the relationship with the End Client. 
Although the Petitioner requested that the Beneficiary be granted H -1 B classification from October 
1, 2014, to September 12, 2017, there is a lack of consistent documentation to substantiate work for 
the duration of the requested period. 
For example, the Petitioner submitted a supply contract with the End Client, executed on June 1, 
2012, nearly two years prior to the date the End Client first employed the Beneficiary in OPT status. 
Notably, it is a general contract for providing personnel services and does not mention the proffered 
job title, duties, nor the project on which the Beneficiary would allegedly work. The Petitioner also 
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Matter of S-HR, Inc. 
submitted a purchase order from the End Client, which lists the Beneficiary's name, but the contract 
is from January 1, 2014, to December 31, 2014, a duration covering only three months of the total 
requested H-1B validity period. Further, the purchase order does not list the job title, duties, or the 
requirements for the position. We note that the record also contains a letter from the End Client 
which states that the Beneficiary is working as a "hardware engineer" through the Petitioner 
"starting 11118/2013 and continuation of this contract employment at [the End Client] is expected 
through December 2016." Notably, this does not cover the duration of the Beneficiary's intended 
employment dates. Further, other documents in the record do not support the information provided 
in this letter. Specifically, this letter contradicts the purchase order which states that the contract was 
from January 1, 2014 to December 31, 2014. "[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. at 591. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Id. at 591-92. 
As stated in the Form 1-129 and the LCA, the Petitioner has indicated that the Beneficiary would 
work at the offices of its End Client, as a hardware engineer for the duration of the petition. The 
Petitioner did not list its own, or any other, office location as a worksite in the petition. Therefore, 
the Beneficiary's work is solely based on the existence of sufficient work to be performed for the 
End Client. 
Therefore, we find that the Petitioner has not established that the petition was filed for non­
speculative work for the Beneficiary, for the entire period requested, that existed at the time of the 
petition's filing. 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 at a future date after the Petitioner or Beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Thus, 
even if it were found that the Petitioner would be the Beneficiary's United States employer as that 
term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would 
maintain such an employer-employee relationship for the duration of the period requested. 3 
3 
The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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-1 8 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-1 8 classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Matter ofS-HR, Inc. 
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 that the Petitioner is an 
employer, without evidence supporting 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 -1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, approving the petition was a gross error, and the Director properly revoked the petition 
under 8 C.F.R. § 214.2(h)(11)(iii)(A)(5). 
VI. CONCLUSION 
The Director properly revoked the approval of the petition. The petition will remain revoked and the 
appeal will be dismissed for the above stated reasons. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-HR, Inc., ID# 15028 (AAO Feb. 24, 2016) 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998).