dismissed H-1B Case: Information Technology

(b)(6)
JUL 1 7 2015 
DATE : 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr atio n Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorr ectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5 . 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest inform ation on fee, filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rose nberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
18-employee "IT Consulting & Software Development" firm established in In order to 
employ the beneficiary in what it designates as an "IT Analyst - Middleware Administrator" 
position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 110l(a)(15)(H)(i)(b). 
The Director denied the petition, finding the evidence insufficient to establish that the proffered 
position qualifies for classification as a specialty occupation position. On appeal, the petitioner 
asserts that the Director's basis for denial was erroneous and contends that the petitioner satisfied all 
evidentiary requirements. 
The record of proceeding includes: (1) the Form I-129 and the supporting documentation filed with 
it; (2) the service center's request for additional evidence (RFE); (3) the petitioner's response to the 
RFE; (4) the Director's denial letter; and (5) the Form I-290B and the petitioner's submissions on 
appeal. We reviewed the record in its entirety before issuing our decision.
1 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition on the specialty occupation issue. In addition, beyond the decision of the Director, we 
also find that the evidence of record does not establish that the petitioner will have the requisite 
employer-employee relationship with the beneficiary. Accordingly, the Director's decision will not 
be disturbed. The appeal will be dismissed, and the petition will be denied. 
II. THE PROFFERED POSITION AND THE LOCATION OF EMPLOYMENT 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is an IT Analyst- Middleware Administrator position, and that it corresponds to 
Standard Occupational Classification (SOC) code and title 15-1199, Computer Occupations, All 
Other from the Occupational Information Network (O*NET). The LCA further states that the 
proffered position is a wage Level II position. The Form I-129 requests employment beginning on 
October 
1, 2014 and ending on August 15, 2017. 
The record contai!!§., inter alia: (1) a vendor agreement, dated November 30, 2012, between the 
petitioner and (2) a work order dated November 30, 2012; 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(3) a letter, dated March 13, 2014, from signing as _ CIO; (4) a letter, 
dated March 21, 2014, from signing as the petitioner's H.R. Manager; (5) an 
undated letter from signing as Software Development and Engineering Manager of 
(6) a letter, dated July 2, 2014, from signing as Regional Manager of 
· - ·· -·· (7) an e-mail dated July 10, 2014, from whose signature 
indicates he is in the Event Management & Mediation section; (8) an e-mail, dated August 27, 2014, 
from delivery manager of to the beneficiary; 
(9) a letter, dated September 11, 2014, from signing as business relationship manager 
and (10) a brief. 
The vendor agreement between the petitioner and was signed by a representative of the 
petitioner, but not by any representative of It states that it has an initial term of two years, 
through December 10, 2014, but will automatically renew so long as a work order is in effect. 
The work order is signed by both parties. In it, and the petitioner agree that the petitioner 
will provide the beneficiary to work as a weblogic Unix operational analyst performing weblogic 
and Unix operations for at Colorado, beginning on 
December 10, 2012 and continuing "6-12 months+ extension months." 
In his March 13, 2014 letter , of reiterates that has agreed that the 
beneficiary will work for at its Colorado location. He states that 
expects the beneficiary's contract to be renewed for "the next several years." In her March 21, 2014 
letter, also states that the beneficiary will provide services to the end-client at the 
Colorado address. 
The undated letter from states that the beneficiary was then working at 
Colorado location. He describes the duties the beneficiary performed , including 
middleware installation, and states that the performance of those duties requires a bachelor's or 
master's degree in computer science of a closely-related field. 
In his July 2, 2014 letter , 
benefici ary, through 
Colorado location. 
In his July 10, 2014 e-mail, 
the location in 
provided. 
of states that the petitioner would assign the 
to work on a project for at their 
of again states that the beneficiary is working at 
Colorado and reiterates the duty description previously 
In his August 27, 2014 e-mail, of states, "A request has been forwarded to 
to certify that [the beneficiary] is working in a project [for at its location] and it 
might take 10-15 business days for it to process. "2 
No such certi fication appears in the record . 
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In his September 11, 2014 letter, of ' asserts that the petitioner will assign the 
beneficiary to , which will assign him to which will assign him to work on the project 
of states that has an agreement with to provide services to it, which 
services include those of the beneficiary. 3 
III. SPECIALTY OCCUPATION 
The issue is whether the petitioner has provided sufficient evidence to establish 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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and practical 
application of a body of highly specialized knowledge in fields of human endeavor 
including, but not limited to, architecture, engineering, mathematics, physical sciences, 
social sciences, medicine and health, education, business specialties, accounting, law, 
theology, and the arts, and which [(2)] requires the attainment of a bachelor's degree or 
higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in 
the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the mmnnum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
3 That agreement does not appear in the evidence of record. 
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(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words , this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. 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); Matt er 
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), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertojj; 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-lB 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 equiv alent 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 simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
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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. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner , evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. at 384. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work . 
B. Analysis 
The evidence , considered as a whole, indicates that the beneficiary was assigned to work for 
at its Colorado location, worked there for an unknown period of time, and may 
continue to work there. 
However, the letter and e-mail from do not indicate that has agreed that the 
beneficiary will continue to work at location during any portion of the period of requested 
employment. No evidence from the asserted end-user of the beneficiary's services, shows 
that it agreed to utilize the beneficiary's services during any portion of the qualifying period. As 
such, the evidence does not demonstrate the duties the beneficiary would allegedly perform for 
during that period. Therefore, the evidence does not establish the substantive nature of the 
duties the benefici ary would perform if the visa petition were approved. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
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 
4 
We note that title in the undated letter states that he is the Manager of Software 
Development and Engineering for while the July 10, 2014 e-mail states that he is in "Event 
Management & Mediation." 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. Matt er ofHo , 19 
I&N Dec. 582, 591-92 (BIA 1988). 
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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. 
Also, at a more basic level, as reflected in this decision's discussion of the evidentiary deficiencies, 
the record lacks credible evidence that when the petitioner filed the petition, the petitioner had 
secured work of any type for the beneficiary to perform during the requested period of employment. 
users regulations require a petitioner to establish eligibility for the benefit it is seeking at the time 
the petition is filed. See 8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). For this reason also, the appeal will be 
dismissed and the petition denied. 
The petitioner has failed to establish that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason . 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
The record suggests an additional issue that was not addressed in the decision of denial but that, 
nonetheless, also precludes approval of this visa petition. Beyond the decision of the Director , the 
evidence of record does not establish that the petitioner meets the regulatory definition of a United 
States employer as that term is defined at 8 C.P.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 alien: 
subject to section 212U)(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)(l) ... . 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
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(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). 
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 10l(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(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 I-129) in order to classify aliens as 
H-1B temporary "employees." 8 C.P.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 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 
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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 "Clackama s"). 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 (quotingNLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 5 
Specifically, the regulatory definition of "United States employer" requires H-1B 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-1B 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 
5 Whil e 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 'employe e, ' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andr ew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), aff'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
Howev er, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act , or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead , in the context of 
the H-1B visa classification, the term "United States employer" was defi ned in the regul ations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whos e 
administration is e ntrusted 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). 
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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. 6 
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). 7 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
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 material! y identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
However, 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 
6 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)). 
7 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-1B 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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the determination of whether an employer-employee relationship exists. Furthermore, not all or even a 
majority of the listed criteria need be met; however, the fact finder must weigh and compare a 
combination of the factors in analyzing the facts of each individual case. The determination must be 
based on all of the circumstances in the relationship between the parties, regardless of whether the 
parties refer to it as an employee or as an independent contractor relationship. See Clackamas, 538 
U.S. at 448-449; New Compliance Manual at§ 2-III(A)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the right 
to assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the beneficiary 
as an H-1B temporary "employee." 
The petitioner, of Virginia, has asserted that the beneficiary would be assigned to work 
on a project for an end-user. If the project to which he would be assigned is the project of 
m Colorado, then the beneficiary would apparently be assigned through (1) of 
Colorado, (2) of Virginia, (3) of New Jersey, and possibly 
other intermediate vendors, to work for on that project. The petitioner has not submitted 
sufficient evidence demonstrating that it would assign the beneficiary's duties and supervise his 
performance of them while he works in Colorado on a project that is apparently managed by another 
entity. 
Moreover, as noted above, no evidence from the asserted end-user of the beneficiary's 
services, shows that it agreed to utilize the beneficiary during any portion of the qualifying period. 
The evidence of record does not contain further information to establish that the petitioner has 
additional projects for the validity of the requested employment period. Therefore, the evidence of 
record does not establish that the petition was filed for non-speculative work for the beneficiary, for the 
entire period requested, that existed as of the time of the petition's filing. USCIS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 103.2(b)(1). A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
(b)(6)
NON-PRECEDENT DECISiON 
Page 12 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. Thus, even if it were found that 
the petitioner would be the beneficiary's United States employer as that term is defined at 8 C.F.R. § 
214.2(h)(4)(ii), the petitioner did not demonstrate that it would maintain such an employer-employee 
relationship for the duration of the period requested. 8 
The evidence of record fails to show that if the visa petition were approved, the petitioner would 
have an employer-employee relationship with the beneficiary. Based on the tests outlined above, 
the petitioner has not established that it will be a "United States employer" having an "employer­
employee relationship" with the beneficiary as an H-1B temporary "employee." 8 C.F.R. § 
214.2(h)( 4)(ii). The petition must be denied for this additional reason. 
V. CONCLUSION 
An application or petition that does not 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), aff'd, 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 
~> The agency made clear long ago that speculative employment is not permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically , the Service has not granted H-lB classification on the basis of speculative , or 
undetermined, prospective employment. The H-1B 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-lB nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act") . The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment , 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-lB classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. _Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
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. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.