dismissed H-1B Case: Information Technology

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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 
DATE: FEB 1 9 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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 I-290B) within 33 days of the date of this decision. Please review the Form l-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. § 103.5. Do not file a motion directly with the AAO. 
�h
J�ky oi� 
� 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center 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. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
25-employee "IT industry" business established in In order to employ the beneficiary in what 
it designates as a full-time "Mobile Developer" position at a salary of $75,000 per year, the 
petitioner seeks to classify her 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, concluding that the evidence of record does not demonstrate that: 
(1) the petitioner qualifies as an U.S. employer having an employer-employee relationship with the 
beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the petitioner asserts that the director's basis for denial was erroneous and contends that 
the submitted evidence was sufficient. 
The record of proceeding contains the following: (1) the Form I-129 and supporting documentation; 
(2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; 
(4) the director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B), 
and supporting documentation. We have reviewed the record in its entirety before issuing our 
decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's grounds for denying this petition. We have also identified additional deficiencies 
concerning the initial filing of the Form I-129. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner filed the Form I-129 on January 24, 2014, listing its business address as 
The petitioner indicated that it seeks to employ the beneficiary 
as a mobile developer at the address of California. No 
other addresses of employment were listed on the Form I-129. The petitioner checked the box on 
the Form I-129 at Part 5, Question 5 confirming that the beneficiary will work off-site. The 
petitioner listed the dates of intended employment as January 22, 2014 to January 14, 2017. 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "Mobile Developer/Software Developer" position, and that it corresponds to 
Standard Occupational Classification (SOC) code and title 15-1132, Software Developers, 
Applications, from the Occupational Information Network (O*NET). The LCA further states that 
the proffered position is a Level I, entry-level, position. The petitioner indicated on the LCA that 
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the beneficiary will be working at No other 
places of employment were listed on the LCA. 
In support of the petition, the petitioner submitted a letter dated January 21, 2014 describing itself 
as "an information technology organization" with "about 25 employees in the United States. " With 
respect to the proffered position, the petitioner stated that "the beneficiary is going to be working as 
a Software Developer/Mobile Software Developer with end client " The petitioner stated that 
as part of this assignment, the beneficiary "will join and will 
help drive the successful adoption of cooperate and consumer mobile execution strategies across 
program and coordinate with other departments and teams to evolve alignment with 
company goals and objectives." The petitioner provided a list of job duties for the beneficiary, 
including "[b ]uilding secure coding guidelines around emerging technologies that are lacking 
standards and security practices" and "[a]nalyzing security gaps within existing mobile OS that 
could hinder existing consumer and cooperate mobile solutions." 
With respect to the employer-employee relationship, the petitioner asserted that "the beneficiary is 
an employee of [the petitioner] and petitioner is responsible as employer towards the payment of 
wages, withholding taxes and other related items." Regarding the relationship between the 
petitioner and the petitioner explained that it has an agreement and purchase order with 
which in turn has a supplier agreement with The 
petitioner further explained that is a "Managed Services provider to 
and is responsible for the management of all suppliers to 
As to the minimum requirements of the proffered position, the petitioner stated: "As the skills for 
successfully carrying out the job duties are very sophisticated a minimum of a Bachelors [sic] 
degree in computer science, engineering or other related coursework with substantial experience is a 
reasonable requirement for this job." Then later, the petitioner added "information systems" and 
"business" to the list of degrees that it claims the position requires and specified that at least 5 years 
of experience is a minimum requirement. Specifically, the petitioner stated the following: "This 
position requires a Bachelors [sic] degree or its foreign equivalent in the information systems, 
Computer Science, engineering, business or related fields, and also 5 years of work experience." 
In support of the petition, the petitioner submitted, inter alia, a letter dated August 6, 2013 
addressed to purportedly from 
This letter, which contains numerous typographical errors and inconsistent font sizes 
within the letterhead as well as the body of the letter, states: "This le er is to con rm that 
is a Managed Services Provider ac ng on behalf of and is 
responsible for the management of all suppliers suppor ng the 
_ _ 
The 
letter further states that 1 is a primary agency under the above men oned rela onship 
and has been engaged to provide services in the Inform a on Technology categories [sic]. " The letter 
is ostensibly signed by Ms. 
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The petitioner submitted a letter dated January 16, 2014 purportedly electronically signed by 
Contact Program Manager. This letter was not written on company 
letterhead and it contains typographical and formatting errors and inconsistencies. This letter states 
that . . . and have entered into a Supplier 
Agreement where are parties to a Master Services Agreement pursuant to which 
has agreed to provide centralized management services to in connection with its use 
of contract workers." The letter identifies the beneficiary as the "consultant," and the petitioner as 
her "employer." The letter provides the same description and list of job duties for the proffered 
position as found in the petitioner's January 21, 2014 letter. The letter further states that the 
beneficiary's work assignment location will be at the office located at 
Significantly, the letter lists the duration of the beneficiary's 
assignment as follows: "The project is expected to last through 08/29/2014 and has an opportunity 
for an extension subject to continuing business necessity, successful performance evaluations and 
continuation of the terms and conditions of Supplier Agreement between and 
With respect to the employer-employee relationship, the same letter states that it is the "sole 
responsibility" of the petitioner to file the H-1B visa and take care of all immigration-related 
matters, file all tax returns, pay wages, hire, fire, and provide benefits, and comply with worker's 
compensation and other applicable laws. The letter further states that the petitioner "will be 
responsible for the terms of [the beneficiary's] assignment as directed, reviewed and supervised by 
the [petitioner] manager, [the petitioner]," and will "also ha[ve] the ability to assign additional duties 
to [the beneficiary]." No additional details were provided. 
The petitioner submitted a Placement Agency Purchase Order dated January 14, 2014 purportedly 
between and the petitioner, subject to the terms and conditions of the Placement 
Agency Agreement between these companies. This letter is not signed by a representative of 
and contains variations in fonts and font sizes. The letter states that the 
beneficiary's assignment to will start on February 3, 2014 "and it is anticipated that the 
assignment will continue for [sic] 08/29/2014 unless terminated earlier." The petitioner also 
submitted a partial copy (pages 10 of 12) of the corresponding Placement Agency Agreement. 
The petitioner submitted its offer of employment dated January 22, 2014 to the beneficiary as a 
"Mobile Developer/Software Developer." Under "Duties," the letter states: "You shall use your best 
abilities on a full time basis to perform, at locations decided by the company, the employment 
duties assigned to you from time to time." 
The director issued an RFE instructing the petitioner to submit additional documentation 
establishing that an employer-employee relationship will exist between the petitioner and the 
beneficiary, and that the proffered position qualifies as a specialty occupation. In particular, the 
director listed contractual agreements between the petitioner and the ultimate end-client as one of 
the types of evidence that may be submitted. Noting that agency records show that the petitioner 
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has at least 32 active H-1B employees compared to the total of 25 employees claimed on the Form 
I-129, the director also requested evidence clarifying whether the petitioner is H-1B dependent. 
In response to the RFE, the petitioner submitted, inter alia, a letter dated April 30, 2014. In this 
letter, the petitioner affirmed that it will have an employer-employee relationship with the 
beneficiary, in that the petitioner is paying the employee's wages and taxes, has the right to take 
disciplinary action against her, "monitor[s] her work hours and tasks," and 11Supervise[s] the 
beneficiary or otherwise controls his [sic] work." The petitioner stated that the 11[b]eneficiary will 
be reporting to the manager at [the petitioner]," and referred to its newly submitted organizational 
chart. The petitioner further stated that the "[b]eneficiary started working at since early 2014 
and the latest work order extended till August 29, 2014 shows that this is an on going [sic] project 
and is expected to have an extension. 
11 
In the same letter, the petitioner asserted that "initially the LCA was inadvertently marked 'not 
dependent'. This inadvertent error remained unnoticed till [sic] petitioner received the RFE." 
Accompanying this letter was an additional letter from the petitioner, signed on April 30, 2014, in 
which the petitioner made the necessary attestations for H-1B dependent employers. In addition, 
the petitioner submitted a new, "amended" LCA acknowledging that it is an H-1B dependent 
employer. This "amended" LCA was certified on March 5, 2014 for the period of February 27, 
2014 to February 26, 2017. 
The petitioner also submitted the beneficiary's time sheets, which identify the "Buyer" as 
the "Job Posting Owner" as and his or her "Business Unit" as 
,1 
The petitioner submitted "Biweekly Status Reports" listing the beneficiary's name, client, name of 
project ( " ), key accomplishments, major roadblocks, and tasks for next 
week. The reports bear both the signatures of the beneficiary and No further 
information was provided about these status reports. 
The petitioner submitted the "onboarding email" for the beneficiary's assignment at This 
email appears to have been written by Staffing Specialist at 
to who appears to be an employee of It appears Mr. then 
forwarded the email to email, dated January 31, 2014, states that he will 
"send the service order now" for the beneficiary, and provides the following reporting instructions 
for her: "Start date: 02/03/14," "Time of arrival: 9:00AM, 11 and "Point of contact: 
____ ' No further pertinent information was provided. 
1 These timesheets bear the company logo of ' 
represents. 
The petitioner has not explained what 
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The petitioner submitted a document which purports to give "Details of Manager for 
'' This document simply states the following, without any 
further explanation: 
Contact details of Manager: 
Information Security Specialist -
Project Name: 
The petitioner submitted a screenshot of the beneficiary's email inbox, which shows a forwarded 
email apparently from to the beneficiary entitled "FW: 
' This email identifies one of position titles 
as "Info. Security Specialist Inovant." We note that the petitioner attempted to black out some of 
identifying information, such as his or her name and full position title, as well 
as other information; the petitioner has not submitted an explanation for why and of what it 
attempted to delete. 
The petitioner submitted its organizational chart dated "Feb 2014." This chart lists twenty-seven 
employees, includin,g the beneficiary and four "trainees." The chart depicts the beneficiary as being 
overseen by who is identified elsewhere in the record as the petitioner's Vice 
President. 
The director denied the petition, concluding that the evidence of record does not demonstrate that: 
(1) the petitioner qualifies as an U.S. employer having an employer-employee relationship with the 
beneficiary; and (2) that the proffered position qualifies as a specialty occupation. 
The petitioner subsequently filed an appeal. On appeal, the petitioner asserts that the submitted 
evidence is sufficient to show the petitioner's employer-employee relationship with the beneficiary, 
and that the proffered position qualifies as a specialty occupation. 
In support of the appeal, the petitioner submits, inter alia, a "Complete Itinerary" for the beneficiary 
listing her assignment at and the dates of this assignment as: "Start Date - Feb 2014" and 
"End Date - June 2014." No other assignment, end-client, or work location is listed on this 
itinerary. 
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II. EMPLOYER-EMPLOYEE RELATIONSHIP 
The first issue to be discussed is whether the petitioner will have and maintain an employer­
employee relationship with the beneficiary throughout the entire validity period requested. 
A. The Law 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , 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)(1) .... 
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: 
(1) 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). 
B. Analysis 
In this matter, the director determined that the evidence of record does not establish that the 
petitioner is a "United States employer" who will have "an employer-employee relationship" with 
the beneficiary. 8 C.F.R. § 214.2(h)(4)(ii); Section 101(a)(15)(H)(i)(b) of the Act. 
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 
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Act, 8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form 1-129) in order to classify 
aliens as H-1B 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-1B 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-1B visa classification, even though the regulation describes H-1B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." /d. Therefore, for purposes of the H-1B 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." Nationwide Mutual 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 
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)). 
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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)(l)(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. Hl2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
Specifically, the regulatory definition of "United States employer" requires H-lB 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-lB "employee." 8 C.P.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB 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 318-319.3 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(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. An drew 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 
sec6on 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. Instead, in the context 
of the H-1B 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 Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 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 Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
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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)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h). 4 
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, US CIS 
must 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)(1) 
(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-1B 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 ana lyzin g 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)(1). 
Furthermore, when examining the factors relevant to determining control, US CIS 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. 
4 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. § 11 84(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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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. 11Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship .. . with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we agree with the director 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-1B temporary "employee." 
In the instant matter, the petitioner asserts that the beneficiary will work off-site for the end-client, 
(hereinafter ' , located at 5 
The petitioner does not identify any other end-client or work location on the Form I-129, LCAs, and 
supporting documentation. 
Despite the director's specific request for evidence such as letters or contractual agreements between 
the petitioner and the end-client, the petitioner failed to submit any documentation from 
Moreover, the petitioner has not explained why it has not submitted documentation from 
While the petitioner has submitted documentation purportedly from the mid-vendors 
·hereinafter '' ) and (hereinafter 1, we must question the 
authenticity and reliability of these documents. 6 Specifically, the letter purportedly from 
of contains numerous typographical errors and inconsistencies. The other letter 
purportedly from signed by also contains numerous typographical and 
formatting errors and inconsistencies, and is not written on company letterhead. The Placement 
Agency Purchase Order between and the petitioner is not signed by a representative of 
and contains typographical inconsistencies as well. The petitioner only submitted a 
partial copy of the corresponding Placement Agency Agreement between itself and 
The petitioner did not submit the actual master services agreements. service orders. and other similar 
contractual agreements between and between nor has the 
petitioner explained why it has not submitted such documentation. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
5 ' 
is also referred to in the record as 1 
6 " is also referred to in the record as 1 
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Notably, the petitioner identifies the beneficiary's "manager" at 
However, the petitioner has not submitted an explanation, corroborated by objective documentary 
evidence, establishing for which company works, and the manner in which he 
or she will act as the beneficiary's manager. 7 For instance, the petitioner submitted a document 
which purports to give "Details of Manager for 
_ 
" 
but this document does not provide meaningful details regarding employment 
and his or her managerial role over the beneficiary. According to this document, 
title is "Information Security Specialist -
' The petitioner has not explained and documented what · 
refers to, e.g., whether it is an internal team or program within or whether it is an external 
team or group assigned to � In addition, the petitioner did not provide any meaningful 
explanation about this document, such as its author, origin, or context in which it was created. 
Significantly, the beneficiary's time sheets identify _ "Business Unit" as 
' Similarly, the screenshot of the beneficiary's email inbox identifies one of 
position titles as "Info. Security Specialist Inovant. "9 As such, it appears that 
is an employee of another company - - whose relationship to the 
petitioner, the mid-vendors, and the end-client in this matter has not been explained and 
documented. Overall, the evidence of record fails to establish who is, what 
company he or she works for, and the manner in which he or she will act as the beneficiary's 
manager, among other important factors. This missing information is highly relevant to the 
question of who will actually control the beneficiary's day-to-day work. 
While the petitioner claims that its Vice President, will monitor, supervise, or 
otherwise control the beneficiary's work, it is not clear how Mr. will exercise day-to-day 
control over her work. For instance, the petitioner has not the sufficiently described the manner in 
which Mr. will exercise control over the beneficiary's day-to-day work at in 
California, especially considering that the petitioner is physically located in New Jersey. 
Furthermore, there is no explanation regarding the nature of the relationship between Mr. 
and with respect to the beneficiary's work at Although the petitioner 
submitted copies of the "Biweekly Status Reports" purportedly sent from the beneficiary to the 
7 
is not listed as an employee on the petitioner's organizational chart. 
8The petitioner stated in its January 21, 2014 letter that the beneficiary "will join 
and will help drive the successful adoption of cooperate and consumer mobile execution strategies 
across program and coordinate with other departments and teams to evolve alignment with 
company goals and objectives." This statement does not sufficiently explain the nature of the rogram 
or team. 
9 We again note that the petitioner attempted to black out some of 
not explain why it attempted to delete this information. 
information, but did 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
petitioner, we cannot find that these reports constitute reliable, probative evidence of the petitioner's 
purported supervision over the beneficiary's work. The petitioner has not provided a sufficient 
explanation of the manner in which these evaluations were conducted, prepared, transmitted, and 
received.10 The petitioner's conclusory statements that it monitors, supervises, or otherwise controls 
the beneficiary's work, without more, are not entitled to evidentiary weight. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Thus, even 
if the petitioner were to establish that it pays for the beneficiary's salary, taxes, and other 
employment benefits, these factors, alone, are insufficient to establish that the petitioner qualifies as 
the beneficiary's employer having an employer-employee relationship with her. Furthermore, we 
are not persuaded by the assertion that the petitioner's actions of paying an attorney to file for the 
instant visa petition, interviewing "dozens of candidates," and making attestations under penalty of 
perjury in connection with this visa petition, are "strong indicator[s]" of the employer-employee 
relationship between the petitioner and the beneficiary. We find that other critical incidents of the 
relationship, such as who will oversee and direct the day-to-day work of the beneficiary and who 
will provide the instrumentalities and tools utilized by the beneficiary at the end-client worksite, 
have not been sufficiently explained here.11 Without full disclosure of all of the relevant factors, we 
are unable to find that the requisite employer-employee relationship will exist between the petitioner 
and the beneficiary. 
The evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.P.R. § 214.2(h)(4)(ii). Merely claiming in conclusory terms that the 
petitioner exercises complete control over the beneficiary, without competent evidence supporting 
the claim, is insufficient to establish eligibility in this matter. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Based on the tests outlined above, the 
petitioner has not established that it qualifies as an "United States employer" having an "employer­
employee relati onship" with the beneficiary as an H-lB temporary " emp loyee ." 8 C.P.R. § 
214.2(h)(4)(ii). 
10 
In the denial notice, the director specifically mentioned the petitioner's failure to describe the process used 
to evaluate the beneficiary in these biweekly status reports. Nevertheless, the petitioner did not directly 
address this issue on appeal. 
11 
For example, in response to the RFE the petitiOner stated the following about the source of the 
instrumentalities and tools in this case: "the beneficiary qualifies to perform the job duties as an Analyst 
based upon education, and substantial work experience." Not only is this statement non-responsiv e to the 
issue of who provides the source of the beneficiary's instrumentalities and tools, but the proffered position is 
not an Analyst position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Assuming arguendo that the petitioner established an employer-employee relationship with the 
beneficiary during her assignment at the petitioner has nevertheless failed to establish that it 
will have and maintain that employer-employee relationship throughout the entire validity period 
requested, i.e., January 22, 2014 to January 14, 2017. In the instant matter, the evidence in the 
record reflects that the termination date of the beneficiary's assignment at was sometime in 
June or August of 2014. 12 The petitioner submitted insufficient evidence establishing that the 
beneficiary's assignment at has been or will be extended beyond June or August of 2014. 
While the petitioner claims that there is an "opportunity" for extension, the purchase order does not 
corroborate this claim, as it states that the assignment "will continue for 08/29/2014 unless 
terminated earlier." (Emphasis added). 
The petitioner has not identified any assignments, end-clients, and work locations for the 
beneficiary other than her assignment at We note that the petitioner's offer letter to the 
beneficiary indicates that she will be assigned to more than one location, as it states that the 
beneficiary "shall use [her] best abilities on a full time basis to perform, at locations decided by the 
company, the employment duties assigned to you from time to time (emphasis added)." Overall, the 
evidence of record does not establish what the beneficiary will be doing after her assignment at 
terminates in mid-2014 until January 14, 2017. Consequently, the evidence of record fails to 
establish that the petitioner will have and maintain an employer-employee relationship with the 
beneficiary throughout the entire validity period requesteQ. For these reasons, the petition must be 
denied. 
III. SPEC IALTY OCCUPATION 
The material deficiencies in the record regarding the employer-employee relationship between the 
petitioner and the beneficiary preclude the approval of the petition. Nevertheless, we will address 
whether the position proffered here qualifies as a specialty occupation. For an H-1B petition to be 
granted, the petitioner must provide sufficient evidence to establish that it will employ the 
beneficiary in a specialty occupation position. We find here that the evidence of record fails to 
establish that the proffered position is a specialty occupation. 
12 There are discrepancies regarding the termination date of the beneficiary's assignment at For 
instance, the letter from and the purchase order both state that the beneficiary's assignment will 
terminate on August 29, 2014. In contrast, the petitioner's itinerary states that this assignment will end in 
June 2014. The petitioner submitted insufficient explanation and evidence reconciling these inconsistencies. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
(b)(6)
Page 15 
A. The Law 
NON-PRECEDENT DECISION 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
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. 
The term "specialty occupation" is further defined at 8 C.F.R. § 214. 2(h)(4)(ii) as : 
An occupation which requires [(1)] 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 requires [( 2)] 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, the 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 part icular 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
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 21 4(i)(1) 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. See K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) (holding that construction of 
language which takes into account 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 of 
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 sufficient 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 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), 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. Chertoff, 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 -lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not rely 
simply upon a proffered position's title. The specific duties of the 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 beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 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 baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
B. Analysis 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissne r, 201 F.3d at 387-388. In other words, as the nurses in that case 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 were irrelevant to a specialty occupation 
determination. ·See id. 
Here, the record of proceeding in this case is similarly devoid of information from or any other 
end-client(s) regarding the specific job duties to be performed by the beneficiary for their company. 
As stated previously, the petitioner did not submit any documentation from nor did it explain 
why it did not submit such documentation. We cannot rely solely upon the job descriptions found 
in the submitted documentation purportedly from the mid-vendors, particularly considering the 
numerous deficiencies and inconsistencies found therein. Taken as a whole, the record of 
proceeding lacks credible evidence establishing the substantive nature of the proffered position and 
its constituent duties. 
The failure to establish the substantive nature of the work to be performed by the beneficiary 
precludes a finding 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 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. Accordingly, as the evidence of 
record fails to satisfy any of the criteria at 8 C.F.R. § 214. 2(h)(4)(iii)(A), it cannot be found that the 
proffered position qualifies as a specialty occupation. 
Even if the petitioner were able to establish the substantive nature of the work to be performed by 
the beneficiary, the petitioner's statement that the minimum requirements for the proffered position 
include a bachelor's degree in "engineering, business or related fields" is inadequate to establish that 
the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the acceptance of a degree with a generalized title, such as business or 
engineering, without further specification, does not establish the position as a specialty occupation. 
Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 21 4(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.P.R. § 
214 .2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree, such as a degree in business or 
engineering, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 13 
For the above reasons, it cannot be found that the proffered position qualifies as a specialty 
occupation. The petition must be denied for this additional reason. 
IV. ADDITIONAL ISS UES 
We will briefly address the petitioner's deficient filing of the instant Form I-129 petition and LCA. 
We first note that the petitioner indicated on the Form 1-129 and the original certified LCA that it is 
not an H-lB dependent employer. However, in response to the director's RFE, the petitioner stated 
that it was a dependent employer and that it had made an "inadvertent error" on the initial 
submission. With the RFE response, the petitioner submitted a new LCA that was certified after the 
date of filing of the Form I-129. 
It has been concluded by the agency that the only available evidence of a petitioner's intent is the 
petition itself, e.g., the Form 1-12 9 and the evidence submitted in support of the petition. The 
petitioner's bare assertion that it committed an "inadvertent error" is insufficient. Furthermore, the 
petitioner's attempt to remedy the LCA deficiency by submitting an "amended" LCA certified after 
13 Specifically, the Uni ted States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-lB specialty occupation visa. See, e.g., Tapis Int'l v. INS , 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164 -66; cf Matter of 
Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
(b)(6)
NON -PRECEDENT DECISION 
Page 19 
the filing of the petition is ineffective.14 Instead, the petitioner should have filed an amended or 
new petition with the appropriate fees, new LCA, and supporting documentation. See 8 C.P.R. § 
214.2(h)(2)(i)(E). 
We also note that the petitioner failed to establish that it has met its full obligation with regard to 
paying the appropriate fee mandated by the American Competitiveness and Workforce 
Improvement Act (ACWIA) of 1998. 15 The fee is currently $750 for petitioners who employ a total 
of 25 or fewer full-time workers in the United States, and $1,500 for petitioners who employ 26 or 
more full-time workers in the United States. 
In the instant case, the petitioner reported on the Form I-129 petition that it employed 25 full-time 
workers and that it was subject to the lower ACWIA fee of $750. However, the director noted in 
the RFE that the petitioner has at least 32 active H-1B employees compared to the total of 25 
employees claimed on the Form I-129. The petitioner's RFE response did not address the size of its 
workforce. We observe that the petitioner's organizational chart lists a total of twenty-seven 
employees, and that the petitioner's January 21, 2014 letter dated January 21, 2014 ambiguously 
states that it has "about 25 employees in the United States." Thus, we must question whether the 
information provided on the H-1B petition accurately reflects the size of the petitioner's workforce 
and whether it has met its full obligation with regard to the ACWIA fee. 
Nevertheless, because the director's grounds for denying the petition are dispositive for the reasons 
already discussed above, we need not and will not further discuss these issues. 
V. CONCLUSION AND ORDER 
As set forth above, we agree with the director's findings that the evidence of record does not 
establish an employer-employee relationship between the petitioner and the beneficiary. We also 
14 It is factually impossible for an LCA certified by DOL after the filing of an initial H-1B petition to 
establish eligibility at the time the initial petition was filed. A petitioner must establish eligibility at the time 
of filing a nonimmigrant visa petition. 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. Matter of Michelin 
Tire Corp. , 17 I&N Dec. 248 (Reg. Comm'r 1978). 
15 ACWIA was enacted to, among other things, provide protections in the H-lB process against the 
displacement of United States workers. ACWIA requires that every petitioner pay a "training" fee for each 
H-lB petition that it files. The collected fees are used to provide education, training and job placement 
assistance to United States workers in job areas that petitioners traditionally use H-lB workers. The 
programs that are funded by ACWIA are part of the government's efforts to help ensure that United States 
workers are trained in new and emerging fields by raising the technical skill levels of these workers, and that 
growing businesses have access to the skilled American workforce they need in order to reduce the need to 
use the H-1B program. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
agree with the director that the evidence of record does not establish that the proffered position 
qualifies for classification as a specialty occupation. "Accordingly, the petition will be denied. 
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. DOl, 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 petition will be denied and the appeal dismissed 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. § 13 61; 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.