dismissed H-1B Case: Healthcare Technology Consulting

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DATE: MAY 1 2 2015 OFFICE: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § I IOI(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-2908) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 1 03.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will 
be dismissed. The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
six-employee "Healthcare Technology Consulting Company" established in In order to 
employ the beneficiary in what it designates as a "Business/Management Analyst" position, the 
petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to establish that it would employ 
the beneficiary in a specialty occupation position. The director also found that the petitioner failed 
to demonstrate that the beneficiary had maintained nonimmigrant status in the United States. On 
appeal, the petitioner asserted that the director's bases for denial were erroneous and contended that 
the petitioner satisfied all evidentiary requirements. 
As a preliminary matter, we observe that we do not have jurisdiction over the issue of whether the 
beneficiary maintained his F-1 (academic student) status. Issues surrounding the beneficiary's 
maintenance of nonimmigrant status are within the sole discretion of the director. Accordingly, we 
will not address this issue. The remaining issue is whether the petitioner has demonstrated that, if 
the visa petition were approved, the petitioner would employ the beneficiary in a specialty 
occupation position. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the specialty occupation issue. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
We base our decision upon our review of the entire record of proceeding, which includes: (I) the 
petitioner's Form I-129 and the supporting documentation filed with it; (2) the service center's 
request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
denial letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
II. THE LAW 
The issue before us is whether the petitioner has demonstrated that the proffered position qualifies as 
a specialty occupation. 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 
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(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2( h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2( h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into acco unt the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp. , 489 U.S. 561 (1989); Matter �f W­
F-, 21 I&N Dec. 503 (BIA 1996) . As such, the criteria stated in 8 C.F. R. § 214. 2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficien t conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4 )(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
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result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h) (4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214. 2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaur eate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that; as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. 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. !d. at 384. 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. 
III. EVIDENCE 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a Business/Management Analyst position, and that it corresponds to Standard 
Occupational Classification (SOC) code and title 13-1111, Management Analysts, from the 
Occupational Information Network (O*NET). The LCA is certified for employment at the 
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petitioner's own location and further states that the proffered position is a wage Level I, entry-level, 
position. 
The visa petition states that the period of employment requested in this case is from October 1, 2014 
to September 12, 2017. With the visa petition, the petitioner submitted evidence that the bene�ciary 
received a bachelor's degree in biotechnology from in India and a master's 
degree in health care administration from the in Connecticut. 
The petitioner also submitted a letter, dated March 27, 2013, from 
petitioner's president and CEO. Mr. stated: 
signing as the 
From time to time, our clients hire us for projects that include but are not limited to 
analysis of the investment that the client wishes to make in a project, management of 
the risk involved in that investment, and the pricing of the list. For such kind of 
projects, we need skills of a person who can understand the project requirements, 
goals, and based on that understanding produce the project deliverables. The 
proposed duties during such kind of projects includes [sic] but are not limited to, 
understanding business and technical requirements, business and technical analyses, 
writing technical specifications for the requirements, designing process for the 
system, writing data flow or network diagrams, tracing the matrices, designing of the 
documents for the requirements of the project, testing of the designs according to the 
plans, and writing training materials for the company personnel. The projects of our 
clients also require tracking and forecasting financial/business parameters, business 
operations including but not limited to determining and analyzing direct and indirect 
expense/costs. Additionally, the clients also request our company to perform cost 
analysis and pricing for business proposals, and identify financial issues and 
implement corrective actions. 
The proposed job with the foregoing duties and responsibilities is a specialty 
occupation and requires a minimwn of Master's degree. The degree should be in the 
field of science with curriculum in health care administration. Additionally, the 
position will require a technical degree especially in computers for understanding of 
the technical requirements of the clients. The technical degree will also be helpful to 
act as a bridge between the business requirement and development of the projects 
technically. Additionally, having an experience will be a plus but is not necessary 
for the job. 
On April 30, 2014, the service center issued an RFE in this matter. The service center noted that the 
visa petition and the LCA indicate that the beneficiary will work at the petitioner's location and 
requested, inter alia, evidence that the petitioner has specialty occupation work available for the 
entire requested H-1B validity period. The service center provided a non-exha ustive list of items 
that might be used to satisfy the specialty occupation requirements. 
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In response, the petitioner submitted, inter alia: (1) a Purchase Order, dated January 22, 2013, 
between the petitioner and . (2) an unsigned agreement, dated 
December 15, 2013, between the petitioner and (3) an 
unsigned Work Order, also dated December 15, 2013, that purports to have been issued to the 
petitioner by and (4) a letter, dated July 16, 2014, from counsel. 
The January 22, 2013 purchase order indicates that the petitioner would provide the beneficiary, 
through to perform work for from February 13, 2013 to 
February 13, 2014. 
The December 15, 2013 agreement between the petitioner and states that wishes to 
provide workers to its client, beginning on July 16, 2012 and continuing for an estimated 
duration of six months. It provides general terms pursuant to which the petitioner might provide 
unidentified workers to perform unidentified services at an unidentified location. As was noted 
above, that agreement is unsigned. 
The December 15, 2013 Work Order indicates that the petitioner would provide the beneficiary, 
through to work on a project of beginning on January 1, 2014 and continuing for an 
estimated duration of one year, performing unspecified services at an unspecified location. As was 
noted, that work order is unsigned. 
In his July 16, 2014 letter, counsel stated: 
The job duties of a Business/Management Analyst includes [sic], but is [sic] not 
limited to, analyzing the business processes to identify areas of inefficiency, 
analyzing business requirements, developing a solution through analysis, providing 
recommendations to beef up productivity and business enhancement. The role of a 
Business/Management Analyst can also expand to gathering of the business/user 
requirements through interaction and research, preparing a business/user requirements 
document, preparing an estimate of costs and efforts involved completing the project, 
creating various analysis models such as business models, process models, data 
models and workflow models, developing end-user support and implementing it. 
According to the industry norm, the role of a Business/Management Analyst is broad 
to encompass specialized skills obtained through education, and experience. 
The director denied the petition on July 31, 2014, finding, inter alia, as was noted above, that the 
petitioner had not demonstrated that it would employ the beneficiary in a specialty occupation 
position. 
On appeal, the petitioner provided, inter alia: (1) vacancy announcements; (2) evidence pertinent to 
some of the petitioner's other employees; (3) a copy of an agreement, dated September 12, 2014, 
between and the petitioner; (4) a work order, dated September 12, 2014; and (5) a brief. 
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The September 12, 2014 agreement between and the petitioner states that has a 
temporary position with its client, , in which it wishes to place the beneficiary, "beginning on 
or about September 15, 2014, " and continuing "for an estimated duration of 36 months." 
The September 12, 2014 work order indicates that the petitioner would provide the beneficiary, 
through and , to work on a project of for an estimated 36 months from 
September 15, 2014 to September 14, 2017. 
In the brief, the petitioner asserted that the evidence submitted is sufficient to show that the proffered 
position is a specialty occupation position. 
IV. ANALYSIS 
The petitioner has asserted that the beneficiary would perform various duties, including investment 
analysis of undescribed projects, risk manage ment of those projects, production of otherwise 
undescribed "project deliverables," business and technical analysis, designing process for the system, 
writing data flow or network diagrams, tracing the matrices, etc. However, although the petitioner 
provided documentation from , none of that evidence contains any description at all of the 
work the beneficiary would perform. Further, the evidence suggests that the end-user of the 
beneficiary's services would be either or However, the record contains no evidence 
from or describing the work the beneficiary would perform, or the period of time 
during which it will use the beneficiary's services, or even stating that it will use the beneficiary's 
services at all. 
As was observed above, pursuant to Defensor, supra, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. In the instant 
case, no evidence from or was provided of the nature of the work it would require of 
the beneficiary. ' As such, the petitioner has submitted insufficient evidence to establish the 
substantive nature of the work the beneficiary would perform if the visa petition were approved. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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 
1 We observe, further, that either or , but not both, would be the end-user of the beneficiary's 
services. In order to demonstrate that the end-user of the beneficiary's services would assign him to perform 
services in a specialty occupation, the petitioner would be obliged to demonstrate, first, whether it is or 
that would be that end-user, that is, the entity that would assign the beneficiary's tasks and directly 
supervise the results of his work. Second, the petitioner would be obliged to provide evidence from that 
particular entity. 
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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. 
The petitioner has failed to establish that it has satisfied any of the criteria at 8 C.F. R. 
§ 214.2 (h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
V. ADDITIONAL BASIS 
The record suggests an additional issue that was not addressed in the decision of denial but that, 
nonetheless, also precludes approval of this visa petition. 2 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)( l) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .. .. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F. R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization 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); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
2 We conduct appellate review on a de novo basis. See So ltane v. DOJ, 38 I F.3d 143, I 45 (3d Cir. 2004). 
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Although "United States employer" is defined in the regulations at 8 C.F. R. § 214. 2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C . § 1182(n)(l) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S. C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that ''United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens as 
H-lB temporary "employees." 8 C.F. R. § 214. 2(h)(1), (2)(i)(A). Finally, the definition of "United 
States employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-IB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F. R. § 214. 2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H -1 B visa classification, even though the regulation describes H -1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-IB visa classification, these terms are undefined. 
The United States Supreme Court has 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." Nationvvide 1\futual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community.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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 
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weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the tem1 
"United States employer" to be even more restrictive than the common law agency definition.3 
Specifically, the regulatory definition of "United States employer" requires H-IB employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319. 4 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1 002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(A)(i) ofthe Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1 8 visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Co uncil, Inc., 467 U.S. 837, 844-845 (1984). 
4 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless "'plainly 
erroneous or inconsistent with the regulation.'" Auer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson 
v. Methow Valley Citizens Co uncil, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
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Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(l5) (H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
m1:1st focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .. .. " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958) . Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties relevant 
to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(l) . 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U:S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
5 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1 B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DEC§ION 
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Furthermore, when examining the factors relevant to determining control, USCIS 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 323-324. For example, while the assignment of additional projects is dependent on who has the right 
to assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship .. . with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, 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." 
In the instant case, according to the petitioner's evidence, the petitioner would provide the 
beneficiary, through and , and possibly other intermediaries, to work on a project for 
However, the details of that arrangement and how it will be executed have not been 
adequately explained by the petitioner. The petitioner has stated that the beneficiary would work 
exclusively at the petitioner's , New Jersey location,6 it does not appear feasible that, in 
this situation, with the petitioner assigning the beneficiary, through , and possibly 
other intermediaries, to work on a project for that the work would be performed at the 
petitioner's New Jersey location. 7 Further, the record contains insufficient evidence to 
show that the petitioner would maintain any supervisory presence at the remote location where the 
work would be performed. 
Under these circumstances, it is not feasible that the petitioner would assign the beneficiary's duties 
and supervise his performance of them. We further find that, under these circumstances, where an 
employee of another company would apparently assign the beneficiary's duties and supervise his 
performance, the petitioner would not be the beneficiary's U.S. employer as that term is defined at 
8 C.F. R. § 214. 2(h)(4)(ii). We find that 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." The visa petition must be denied for this 
additional reason. 
VI. CONCLUSION 
6 Both the visa petition and the LCA state that the beneficiary would work at 
New Jersey. 
7 Further, in the Form l-2908 appeal, the petitioner provided a new address in 
is unclear whether the petitioner now has an location in , New Jersey. 
New Jersey. It 
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An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F. 3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 
683. 
The director's decision will be affirmed and the petition will be denied for the above stated reasons, 
with each considered as 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.