dismissed H-1B Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-I-, INC. 
\ 
APPEAL OF VERMONT SERVICE CENTER DECISION 
r 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 14, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a "database administrator" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal.' 
I. PROFFERED POSITION 
The Petitioner stated that it provides "IT services and solutions, strategy, implementation , and 
support services" for clients in various different industries. The Petitioner indicated that the 
Beneficiary would provide services at F-L-, Inc. (end-client)'s , location in Florida. The 
Petitioner further listed its office location in New Jersey as a secondary work location. In 
response to the Director's request for evidence (RFE), the Petitioner and the end-client both 
described the Beneficiary's duties, in part, as follows: 
• Performs the capacity planning required to create and maintain the databases. 
The DBA works closely with system administration staff because computers 
often have applications or tools on then in addition to the Oracle Databases. 
!_'I We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter ofS-1-, Inc. 
• Performs ongoing tuning of the databases instances. 
• Install new versions of the Oracle RDBMS and its tools and any other tools 
that access the Oracle database. 
• Plans and Implements backup and recovery of the Oracle database. 
• Controls migrations of programs, database changes, reference data changes 
and menu changes through the development lifecycle. 
• Implements and enforces security for all of the Oracle databases.2 
The Petitioner further stated that the position "requires the attainment of at least a Bachelor's degree 
in Computer Science, Engineering, Computer Information Systems, Information Technology, 
Technology or a related quantitative discipline." 
II. SPECIALTY OCCUPATION 
We will first determine whether the Petitioner has demonstrated by a preponderance of the evidence 
that it will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) 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; 
2 We acknowledge that the Petitioner also submitted several additional pages listing the Beneficiary's responsibilities, 
which, for the sake of brevity, have not been included herein. However, these responsibilities have been closely 
reviewed and considered as with all evidence in the record. 
2 
Matter ofS-1-, Inc. 
(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. 
8 C.F .R. § 214.2(h)( 4 )(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.ff, 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"); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000). 
B. Analysis 
For the reasons setout below, we determine that the record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. 
In denying the petition, the Director concluded that the Petitioner did not establish that specialty 
occupation work was available for the duration of the requested period of employment. We concur 
with the Director's finding as to this matter. On the Form I-129, Petition for a Nonimmigrant Worker, 
the Petitioner requested that the Beneficiary be granted H -1 B classification from October 1, 20 16, to 
August 30, 2019. However, the Petitioner has not submitted supporting documentation to 
substantiate that the Beneficiary will be engaged at the end-client location during the entire period of 
the requested visa. 
Specifically, the Petitioner submitted a letter from the end-client stating that the Beneficiary would 
be assigned to its location "to work on Oracle database Servers on contract from 10/3/2016 -
10/30/2017(Extendable)." But the Petitioner has provided no other evidence to substantiate that the 
Beneficiary's services will be required until August 30, 2019, nor how these services would be 
"extendable." 
The Petitioner submits a "Staffing Agreement" between the Petitioner and the end-client; however, 
the agreement contains several discrepancies that undermine the validity and probative value of this 
document. For instance, the agreement states that the end-client has chosen the Petitioner "to 
provide staffing services to [the end-client] pursuant to a Master Services Agreement ("Customer 
Agreement"). However, the agreement and the Petitioner do not explain the nature of the referenced 
master services agreement, leaving question as to whether all relevant contractual documentation 
related to the Beneficiary's proposed assignment has been submitted. In addition, the agreement 
states that "[the Petitioner] shall engage Staffing Suppliers to provide temporary labor services" to 
the end-client. However, the Petitioner is defined in the agreement as the "Staffing Supplier," an 
apparent contradiction reflecting that the Petitioner will engage itself to provide temporary labor 
services. Likewise, Section 4.5 states that the "[Petitioner] will use commercially reasonable efforts 
to give Staffing Supplier advance notice of the end of an Assignment," suggesting that the Petitioner 
3 
Matter ofS-1-, Inc. 
will provide notice to itself. Further, Section 4.6 indicates that the end-client may remove 
Petitioner's personnel when they violate rules and regulations stating that "[the Petitioner] shall 
advise Staffing Supplier and Staffing Supplier shall immediately,take action to correct the situation 
by removing the Contract Worker." Again, the agreement demonstrates that the Petitioner will be 
advising itself as to the removal of its own personnel. The Petitioner must resolve these 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In sum, these discrepancies undermine the 
validity of the provided staffing agreement and that all relevant documents to the Petitioner's 
staffing assignment for the end-client have been disclosed, including supporting contractual 
documentation. Without full disclosure of the terms and conditions of the assignment, we are unable 
determine the substantive nature of the Beneficiary's assignment, such that we can determine if a 
specialty occupation exists for the duration of the validity period. 
Regardless, even if we are to accept that the submitted staffing agreement is probative and 
controlling despite its noted inconsistencies, the agreement indicates that the end-client advertises 
job postings in its system to which the Petitioner may respond with qualified applicants, subject to 
the end-client's acceptance. However, there is, no indication in this document that any contractual 
arrangement exists between the parties obligating the end-client to utilize the Beneficiary's services 
throughout the requested period. For instance, Section 4.1 of the agreement states that "[the end­
client]" is under no obligation to select a candidate presented to it by [the Petitioner]." Section 4.5 
of the agreement demonstrates that the end-client may end any staffing assignment at its discretion, 
while Section 4.6 states that these assignments are subject to the end-client's "continuing approval." 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. users regulations affirmatively require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. 103.2(b)(1). A visa petition may not be approved based on speculation of future eligibility 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Thus, the Petitioner has not 
demonstrated that specialty occupation work would be available for the duration of the period 
requested. 3 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, ~ 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 8 nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) ofthe Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
4 
Matter of S-1-, Inc. 
Furthermore, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies'job requirements is 
critical. The court held that the former Immigration and Naturalization Service had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered 
position qualifies as a specialty occupation on the basis of the requirements imposed by the entities 
using the beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the 
type and educational level of highly specialized knowledge in a specific discipline that is necessary 
to perform that particular work. 
The Petitioner submits a letter from the end-client that does not demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. First, the end-client letter questionably indicates that the Beneficiary's position is 
both a "Database Administrator" and a "Programmer Analyst." Further, the letter does not articulate 
the specific bachelor's degree and type of specialized knowledge required for the position. 
Therefore, given these inadequacies in the end-client letter, the Petitioner has not established that 
that the proffered position qualifies as a specialty occupation. 
Therefore, the Petitioner has not established that the proffered position qualifies as a specialty 
occupation or that specialty occupation work would be available for the entire requested period. 
I 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Beyond the decision of the Director, we find that the Petitioner has not established that it will be a 
"United States employer" having "an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the 
work of any such employee." 8 C.F.R. § 214.2(h)( 4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject 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 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
5 
Matter ofS-1-, Inc. 
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 at 8 C.P.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 Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.P.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.P.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 individual 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)(l) ofthe Act, 
8 U.S.C. § 1182(n)(1). The intending employer is described as offering full-time or part-time 
"employment'' to the H-1B "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). Further, the regulations indicate that "United States employers" 
must file a Form I-129, in order to classifY individuals as H-1B temporary "employees." 8 C.P.R. § 
214.2(h)(l ), (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-lB 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." Id Therefore, for purposes of the H -1 B 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 Mut. Ins. Co. v. 
6 
Matter ofS-1-, Inc. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
ld; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
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. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-IB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.4 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB employers and employees to have an 
4 
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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
10 I (a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(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-1 B 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 Res. De.f Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
7 
Matter of S-1-. Inc. 
"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. C.f 
Darden, 503 U.S. at 318-19.5 
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). 6 
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-1 B nonimmigrant petitions, we 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 323-24; 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 EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor, 201 F.3d at 384, 388 (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 petitioner, because the hospitals 
ultimately hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
5 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 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
6 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-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
8 
Matter of S-1-, Inc. 
It is important to note, however, that the fa~tors 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 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, we must assess and weigh 
each actual factor itself as it exists or will exist and not the claimed employer's right to influence or 
change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. 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 art 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). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-1 B temporary "employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation confirming and describing who will exercise control over the Beneficiary. 
As noted, the Petitioner states that the Beneficiary will work for the end-client in Doral, Florida. 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary. 
However, the Petitioner has not submitted sufficient documentation to corroborate its control over 
the Beneficiary at the end-client's location. First, it is noteworthy that the Petitioner has provided no 
supporting evidence to substantiate that the Beneficiary will be under its supervision and control. 
For instance, the Petitioner does not specifically articulate who will supervise the Beneficiary on a 
daily basis while assigned to the end-client location. The Petitioner provides a non-specific 
organizational chart vaguely indicating that "junior IT and business consultants" are overseen by 
"senior IT & business consults" but the Petitioner does not identify or substantiate the Beneficiary's 
supervisor with documentary evidence. In contrast, the Petitioner submitted an "itinerary" 
identifying an end-client contact as the Beneficiary's "supervisor" and otherwise only lists the 
president of the Petitioner as a contact. This suggests that there is no on-site Petitioner manager or 
supervisor assigned to the Beneficiary as asserted. 
9 
Matter ofS-1-, Inc. 
Further, the Petitioner makes conflicting statements as to the nature of the Beneficiary's daily 
supervision. For instance, in its response to the RFE, the Petitioner first indicated that an onsite 
manager would oversee the Beneficiary, but later stated that it would stay in contact with the 
Beneficiary regularly by email and phone. Further, the duties of the proffered position reference 
regular contact with unidentified staff, including programmer analysts, project managers, a 
technology team, system administration staff, and database and multimedia programmers. The 
Petitioner vaguely references both "daily" and "weekly" task lists assigned by Petitioner 
management. However, there is no mention of the' Beneficiary's regular coordination with onsite or 
offsite Petitioner managers. Absent supporting evidence, it appears more likely that the Beneficiary 
will regularly coordinate and take direction from Petitioner stafi and not be supervised by Petitioner 
management. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Chawathe, 25 I&N Dec. at 376. 
Furthermore, the Petitioner contended in response to the RFE that it would maintain the right to 
assign the Beneficiary work, reassign him to other projects, fire him at its discretion, and set the 
rules, regulations, and parameters of his work. As we have noted, the Petitioner submits a staffing 
agreement with several discrepancies that undermine its validity and probative value and whether it 
has disclosed all contractual documentation relevant to the Beneficiary's proposed assignment to the 
end-client. However, if we accept that the staffing agreement controls the assignment of Petitioner 
personnel to the end-client as asserted, this document does not support the Petitioner's contention 
that it would maintain control over the Beneficiary while assigned to the end-client. 
As a preliminary matter, it is noteworthy that the agreement between the parties is a staffing 
agreement, through which the end-client requests and dictates the nature, duties, and qualifications 
of required personnel. The agreement includes various requirements promulgated by the end-client, 
including a manual and background requirements that must be understood and met by each staff 
member before they are assigned. Section 4.3 reflects that the end-client selects candidates proposed 
by the Petitioner, and Section 6.1 shows that it conducts interviews of any proposed staff prior to 
selection. As previously discussed, Section 4.5 indicates that the end-client may cancel any staffing 
assignments at its discretion, while Section 4.6 states that the end-client may replace any assigned 
worker "at any time," indicating that the assigned staff are "subject to the continuing approval of 
[the end-client]." Further, Section 4.10 reflects that the Petitioner may not, contrary to its assertions, 
reassign its staff without the prior permission of the end-client and Section 4.11 states that the end­
client may hire Petitioner's staff at its own discretion. In addition, the agreement indicates that the 
Petitioner's employees must submit weekly timesheets in the end-client's system subject to the end­
client's approval. In sum, the staffing agreement appears to significantly contradict the Petitioner's 
assertion that it will maintain the right to assign the Beneficiary work, reassign him, fire him, or set 
the requirements and parameters of his work. 
Further, Section 1.4 states that "in no event shall any Contract Worker be regarded as an employee 
of Customer or [the Petitioner]." This statement leaves uncertainty as to who the Beneficiary's 
employer would be when assigned at the end-client location and suggests that there may be other 
parties involved in his proposed assignment to the end-client. 
10 
Matter of S-1-, Inc. 
The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing 
to where the truth lies. Ho, 19 I&N Dec. at 591-92. 
Likewise, the Petitioner provides little evidence to indicate who will provide the tools and 
instrumentalities necessary for the Beneficiary's work. In response to the RFE, the Petitioner 
emphasized the Beneficiary's experience and knowledge when addressing the issue of tools and 
instrumentalities necessary to complete the work, but did not explain who would provide the 
equipment and software likely necessary to complete the Beneficiary's assignments. The only 
mention on the record relative to tools and instrumentalities is set forth in Section 9.3 of the staffing 
agreement dictating that the Petitioner will return all of the end-client's property following the 
performance of the work. Therefore, there is no evidence to suggest that the Petitioner will be 
responsible for supplying the Beneficiary's tools and instrumentalities. 
Although we acknowledge that the Petitioner will likely pay the Beneficiary and administer his 
benefits, the preponderance of the evidence app~ars to indicate that the Beneficiary will primarily be 
under the direction of the end-client and that he will only occasionally check in with the Petitioner as 
to his progress. While payroll, tax withholdings, and other employment benefits are relevant factors 
in determining who will control the Beneficiary, other aspects of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Here, we find that the preponderance of the evidence 
demonstrates that the Beneficiary will be primarily under the control of the end-client and not the 
Petitioner. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). As such, the petition is denied on this additional basis. 
IV. ITINERARY REQUIREMENT 
Finally, we also find that the Petitioner did not comply with the itinerary requirement at 8 C.F.R. 
§ 214.2(h)(2)(i)(B). 
The regulation at 8 C.F .R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form I-129 shall be where the petitioner is located for purposes 
of this paragraph. 
II 
.
Matter ofS-1-, Inc. 
The itinerary language at 8 C.F.R. § 214.2(h)(2)(i)(B), with its use of the mandatory "must" and its 
inclusion irt the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
material and necessary document for an H-IB petition involving employment at multiple locations, 
and that such a petition may not be approved for any employment period for which there is not 
submitted at least the employment dates and locations. Here, the Petitioner indicates that the 
Beneficiary will be primarily assigned to the end-client's location in Florida, but also offers 
its location in New Jersey as a "secondary" place of employment. Although the Petitioner 
provides a document titled "itinerary," this gives no indication as to when the Beneficiary will work 
at either the end-client or its location, but merely lists contact information for it and the end-client. 
As the Petitioner did not provide this initial required evidence when it filed the Form I -129 in this 
matter, the petition must also be denied on this additional basis. 
V. CONCLUSION 
The Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-1-, Inc., ID# 447640 (AAO July 14, 2017) 
12