dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8420294 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 3, 2020 
The Petitioner, an information technology consulting services firm, seeks to employ the Beneficiary 
temporarily as a "software developer, applications" under the H-IB nonimmigrant classification for 
specialty occupations .1 The H-IB 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 California Service Center denied the F01m 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish the Petitioner will have an employer-employee 
relationship with the Beneficiary, or that the proffered position was a specialty occupation. On appeal, 
the Petitioner submits additional evidence and asserts that the record sufficiently demonstrates 
eligibility. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the Petitioner has established that it meets the regulatory definition of 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. "2 
A. Legal Framework 
A petitioner seeking to file for an H-IB beneficiary must meet the definition of a "United States 
employer." 3 According to the regulation at 8 C.F.R. § 214 .2(h)(4)(ii) , the term "United States 
1 See Immigration and Nationality Act (the Act) section 101 (a)(l 5)(H)(i)(b ), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b ). 
2 8 C.F.R. § 214 .2(h)(4)(ii) . 
3 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101 (a)(15)(H)(i)(b) of the Immigration and Nation ality Act (the Act) (referring 
to the "intending employer "). 
employer" means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(]) 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. 4 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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." 5 Thus, to interpret these terms, U.S. Citizenship and Immigration Services (USCIS) applies 
common-law agency principles, which focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common-law tests, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; 
the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's 
discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and 
paying assistants; whether the work is part of the petitioner's regular business; the provision of employee 
benefits; and the tax treatment of the beneficiary.6 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 employer's 
claimed right to influence or change that factor, unless specifically provided for by the common-law 
tests. 7 We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
The reference to an employer-employee relationship within the definition of a United States employer 
is merely that: commentary reflecting some indications that might illustrate such a relationship. 
USCIS did not specify that those five elements (hire, pay, fire, supervise, or otherwise control the 
work) were an exhaustive list, nor did it state that any one of those five elements were definitive and 
exclusive factors that individually would establish that an employer-employee relationship existed. 
To illustrate, U.S. employers regularly engage with independent contractors at which time they hire 
and compensate those individuals, as well as terminate those relationships. We would hardly consider 
those elements to establish that such an arrangement with independent contractors constituted an 
employer-employee relationship. It is premature and precipitous to conclude the USCIS regulation 
4 (Emphasis added.) 
5 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) ( quoting Cmty. for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003) (quoting Darden). 
6 Darden, 503 U.S. 318, 322-23. 
7 See Darden, 503 U.S. at 323-24, 327. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining 
that even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true 
employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-IB beneficiaries). 
2 
defining a United States employer simultaneously offers comprehensive and folly considered 
definitions of the terms "employer-employee relationship" or "employee." This creates a genuine 
ambiguity within the regulation for USCIS to interpret. 
First, we consider the text, structure, history, and purpose of this regulation to evaluate whether USCIS 
should be accorded deference to interpret these terms that are not defined within the current regulation. 
The former Immigration and Naturalization Service (INS) proposed a rule implementing the 
provisions of the Immigration Act of 1990, Public Law 101-649, November 29, 1990. 8 Although, that 
proposed rule did not provide a definition of a United States employer, it did state: 
A United States employer seeking to classify an alien as an H-lA, H-1B, H-2A, H-2B, 
or H-3 temporary employee shall file a petition on Form 1-129, Petition for 
Nonimmigrant Worker, only with the Service Center which has jurisdiction in the area 
where the alien will perform services or receive training, even in emergent situations, 
except as provided in this section. 
In response to public comments on the above proposed rule, INS offered the following commentary: 
The proposed rule contains a requirement that only United States employers can file an 
H-1 B petition. Six commenters suggested that foreign employers should also be 
permitted to file H-1B petitions. The labor condition application requires that a 
petitioner post a notice of the filing of a labor condition application at its place of 
employment. This obviously requires the petitioner to have a legal presence in the 
United States. As a result, this requirement will be retained in the final rule. In order 
to provide clarification, the Service has included a definition of the term "United States 
employer" in the final rule. 9 
Within that final rule, INS also presented a definition of a United States employer and promulgated 
the definition currently found at 8 C.F.R. § 214.2(h)(4)(ii). This reveals that the purpose behind the 
former INS' s actions was to preclude foreign employers that did not have a legal presence in the United 
States from filing H-1B petitions. 
Next, USCIS' interpretation appears to fall within the zone of ambiguity, meaning that there is a 
sufficient indistinctness within the regulation and the agency's interpretation is reasonable relating to 
the need and the methodology of defining these terms ("employer-employee relationship" and 
"employee") in accordance with the common-law. 
Finally, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition involving a 
specialty occupation shall be accompanied by [ d]ocumentation ... or any other required evidence 
sufficient to establish ... that the services the beneficiary is to perform are in a specialty occupation." 
Moreover, the regulations at 8 C.F.R. §§ 103.2(b)(8) and 214.2(h)(9)(i) provide USCIS with broad 
discretionary authority to require evidence such as contracts and sufficiently probative material to 
8 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 31553 (July, 
11, 1991). 
9 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 
(Dec. 2, 1991). 
3 
establish that the services to be performed by a beneficiary will be in a specialty occupation in 
accordance with a petitioner's request in the petition. And, USCIS has the authority to administer the 
law that Congress enacted, and to determine whether an organization has sufficiently demonstrated 
that it would have (1) non-speculative work available for a beneficiary, as well as (2) the requisite 
employer-employee relationship with that same foreign worker. 10 
B. Analysis 
The Petitioner, which is located in Georgia, states that the Beneficiary will perform her duties in 
another part of the state foJ I (end-client). The Petitioner and the end-client 
claim that they have a contractual relationship for the petitioning organization to provide services on 
a particular project. 
As a basis for both issues within the Director's decision, she discussed how the record was deficient 
of probative evidence demonstrating that the Petitioner would have sufficient qualifying work for the 
Beneficiary as the petitioning organization requested on the petition. The Director determined that in 
this case, the correspondence and cognate evidence was insufficient to meet the Petitioner's burden of 
proof in demonstrating that it would enjoy the requisite employer-employee relationship with the 
Beneficiary, or that it would have qualifying work available as requested in the petition. The Director 
specifically requested additional evidence to include contractual materials executed between the 
Petitioner and the end-client. However, the Petitioner only offered a letter from the end-client stating 
its company policy did not allow it to share confidential contractual or technical documentation. 
Business needs require companies to regularly amend and change previously stipulated plans. A contract 
provides the structure and expectations that allow all contracted entities to plan accordingly. 11 
Understanding that contracts underlie the reliability of business agreements establishes the importance 
that a petitioner present sufficient claims and evidence to demonstrate the existence of the full chain of 
contracts that includes the end-client. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 12 First, a petitioner must satisfy the burden of production. As the term suggests, 
this burden requires a filing party to produce evidence in the form of documents, testimony, etc. Here, 
the Petitioner has not fully satisfied its burden of production. For instance, it claims the chain of 
contracts flows from itself to the end-client. However, it hasn't offered sufficient material relating to 
the end-client, and as a result, it has not produced sufficient evidence to corroborate its testimonial 
claims. 13 
10 See Kollasofi Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
11 See Fletcher v. Peck, 10 U.S. 87, 133-34, 137-38 (1810) (describing the standard ofadhering to the "obligations binding on 
the parties" within contracts, which if this principle were overturned, the interactions between the involved parties "would be 
very seriously obstructed"). 
12 Matter of Y-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
13 The assertions within the end-client letter, that are not corroborated with probative evidence, are insufficient to satisfy 
the Petitioner's burden of proof in this matter. See Matter ofChawathe, 25 T&N Dec. 369, 371-72 (AAO 2010) (discussing 
4 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince users that the requisite eligibility parameters have 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 14 Whether a 
petitioner is able to show that a particular fact or event is more likely than not to occur is the 
determinant of whether they have met the preponderance of the evidence standard of proof. While a 
petitioner may file an amended petition if a beneficiary's proposed work terminated with a client, the 
fact remains that it should rely on prospective work that is more likely than not to exist. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary-that 
also illustrates it would maintain the requisite employer-employee relationship with the Beneficiary­
appears to be notional and falls short of satisfying the standard of proof. This applies to whether the 
prediction is based on an existing project that a petitioner expects to continue into the future, or on an 
unspecified project. Materially relevant statements made without supporting documentation are of 
limited probative value and are insufficient to satisfy a petitioner's burden of proof. 15 This is 
particularly important in a case such as this where the impetus and existence of the proffered position 
appears dependent entirely upon outside clients to provide it. 
Within the petition, the Petitioner committed to assign the Beneficiary to specific work, at the 
end-client's location, for a particular timeframe. In the same manner that the Petitioner committed to 
compensate the Beneficiary at a particular wage in addition to multiple other factors it attested to, the 
organization must preponderantly demonstrate that all its essential commitments are more likely than 
not to occur. In other words, the Petitioner guaranteed users that it would meet a set of parameters, 
and it is their duty to ensure their case gets to that preponderant apex. 
Moreover, inherent with employing foreign nationals are additional burdens a U.S. employer must 
satisfy when compared to hiring U.S. workers. Part of that burden in the H-lB context is to 
demonstrate not only the existence of the proposed work, but also that it will maintain an 
employer-employee relationship with a beneficiary. One method to meet this burden is to provide 
evidence of the full chain of contracts between all the associated parties; the lack of which can create 
material gaps within the evidence. The scenario in the present case is one in which the chain of 
contracts was not established, and the petitioning organization's claims are supported by evidence that 
is inadequate to satisfy its burden of proof. 
Such a scenario is generally one that can be prohibitive for a petitioner attempting to demonstrate that 
it would maintain an employer-employee relationship with a beneficiary while they would work offsite 
at an end-client location. The Petitioner's failure to provide all of the contracts governing the 
relationships between the corporate entities in the chain results in insufficient evidence concerning the 
organization's right to control and supervise the Beneficiary's work at the end-client worksite. 16 In 
assertions that are not supported by probative material will not meet a filing party's burden of proof). 
14 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
15 MatterofSoffici, 22 l&NDec. 158,165 (Comm'r 1998). 
16 See Galaxy So(iware Sols., Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) (finding 
that an absence of evidence establishing the full chain of contracts-particularly including the end-client-calls into 
question the existence of a requisite employer-employee relationship). 
5 
other words, the record does not establish a binding obligation on the part of the end-client to provide 
work for the Beneficiary as requested on the petition. Considering the record as a whole, the absence 
of any contractual material executed between the Petitioner and the end-client diminishes the 
petitioning organization's claims that it would maintain an employer-employee relationship with the 
Beneficiary. 
Companies that outsource their personnel to projects lacking in-person supervision, by their very 
nature, oftentimes relinquish some level of control over their employees. In the context of applying 
the Darden and Clackamas tests to this matter, we conclude 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-lB temporary "employee." Several elements appear to weigh against the 
Petitioner's claim that it will maintain a qualifying employer-employee relationship with the 
Beneficiary. The Petitioner claims it will control the Beneficiary and her work, but only supports 
these assertions with flawed, insufficient, or contradicting evidence. Specifically, we conclude that 
the Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant 
aspects of the Beneficiary's employment. Therefore, the Petitioner has not substantiated the key 
element in this matter, which is who exercises control over the Beneficiary. 
Throughout the proceedings, the Petitioner has maintained that it would employ the Beneficiary and 
exercise control over its right to compensate, assign additional work, supervise, and otherwise control 
her work. The Petitioner further claims it would perform numerous administrative functions 
pertaining to the Beneficiary's employment. Social security, worker's compensation, unemployment 
insurance contributions, as well as federal and state income tax withholdings, and providing other 
employment benefits are relevant factors in determining who will control a beneficiary. Such factors 
may appear to satisfy a cursory review that a petitioning entity might be an individual's employer; 
however, meeting these more simplistic administrative elements does not extinguish a petitioner's 
requirement to illustrate control over a foreign national and over her work at an end-client worksite. 
We must also assess and weigh other intricate factors to determine who will be a beneficiary's 
employer. For example, we must consider who will oversee and direct a beneficiary's work, who will 
provide the instrumentalities and tools, where the work will be located, and who has the right or ability 
to affect the projects to which a beneficiary is assigned, among other factors. A petitioner must 
sufficiently address these relevant factors to enable us to evaluate whether the requisite 
employer-employee relationship will exist between a petitioner and a beneficiary. 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary; 
however, it has presented an inchoate explanation and submitted little supporting documentation to 
corroborate that it will have control over the Beneficiary while assigned to the end-client. We note 
that the Petitioner did not directly address the lack of contractual material issue before the Director or 
on appeal. This is a significant shortcoming it relates to the Petitioner's basis for the appeal, as it was 
a prominent issue within the Director's decision. 
Although we recognize the statement within the end-client letter that due to its company policy it does 
not share confidential contractual or other documents, this does not absolve the Petitioner from 
demonstrating eligibility by a preponderance of the evidence. We acknowledge the assertion that this 
evidence is confidential. While a petitioner should always disclose when a submission contains 
6 
confidential commercial information, the claim does not excuse the Petitioner from providing a 
requested document if that document is material to the requested benefit. 
Although a petitioner may always refuse to submit confidential commercial information if it is deemed 
too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. 17 Such 
a "burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule 
would foreclose meaningful inquiry into the existence of the relationship, and any specious claims 
could never be exposed. 18 
Instead of offering other probative evidence with the appeal, the Petitioner restates several of its 
arguments it presented before the Director. For instance, the Petitioner argues that the Employment 
Contract executed between itself and the Beneficiary, in addition to other similar materials sufficiently 
establish that it would possess the requisite relationship with the Beneficiary. Item 15 of the 
Employment Contract reflected that the Beneficiary's employment under this contract "shall be for an 
unspecified term .... " Were we to accept the Petitioner's reasoning that this document demonstrates 
the requisite relationship, it could perpetually rely on this document to demonstrate eligibility 
regardless of any changes in the employment scenario. We do not find this as a persuasive argument 
meeting the Petitioner's burdens under this H-lB requirement. 
Additionally, although we acknowledge the presence of this agreement, this type of documentation is 
required by the regulation and is expected to be included in any H-1 B petition. 19 In other words, every 
H-1 B petition requires this type of evidence, so the presence of such a document is common within 
these filings. We note that the "mere existence of a document styled 'employment agreement"' shall 
not inexorably lead to the conclusion that the worker is an employee. 20 "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. "'21 Overall, the Petitioner has not demonstrated that this agreement, or the 
employment offer letter, sufficiently supports its eligibility claims. 
Regarding the Beneficiary's supervision, the Petitioner's appeal brief provides the same assertions it 
detailed within its response to the Director's request for evidence (RFE). The Petitioner claims that 
the Beneficiary is "required to tele-connect with [the petitioning organization to receive] guidance, 
17 Cf United States v. Rylander, 460 U.S. 752, 758 (1983) (The exercise of Fifth Amendment privilege has never been 
thought to be in itself a substitute for evidence that would assist in meeting a burden of production.); Matter of Marques. 
16 T&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth Amendment 
[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his application."). 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. Sec 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, a 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
Additionally, it goes without saying that the burden is on a party claiming the protection of a privilege to establish those 
facts that are the essential elements of the privileged relationship. In re Grand Jwy Subpoena Dated Jan. 4. 1984, 750 
F.2d 223, 224-25 (2d Cir. 1984) (citing to United States v. Stern, 511 F.2d 1364, 1367 (2d Cir. 1975); United States v. 
Kovel, 296 F.2d 918. 923 (2d Cir. 1961)). 
18 In re Bonanno. 344 F.2d 830. 833 (2d Cir. 1965). 
19 See 8 C.F.R. § 214.2(h)(4)(iv)(B). 
2° Clackamas. 538 U.S. at 450. 
21 Id. at 451 (quoting Darden. 503 U.S. at 324). 
7 
supervision, evaluation of her work performance, review, testing, report project stage details and get 
technology guidance." The Petitioner also states that the Beneficiary relies on two of the petitioning 
organization's personnel to ensure she performs her tasks to the client's satisfaction. 
First, the Petitioner did not specify or offer evidence of the frequency or methods in which the 
Beneficiary would "tele-connect" with the organization. The absence of such evidence is a relevant 
aspect since the end-client's letter submitted with the RFE response reflected the Beneficiary had 
already been working at the end-client site. As a result, the Petitioner did not offer probative evidence 
to corroborate its claims of how it would supervise the Beneficiary at the client site. Statements made 
without supporting documentation are of limited probative value and are insufficient to satisfy a 
petitioner's burden of proof 22 
Relating to the Petitioner's personnel to which the Beneficiary would report, not only did the Petitioner 
fail to offer evidence to corroborate such reporting, but it also did not establish whether those 
supervising individuals were located at the end-client's worksite or at the petitioning organization's 
location. It appears that the petitioning organization learns of the Beneficiary's work performance 
through her own statements. The Petitioner has not demonstrated that the Beneficiary's self-assessment 
would result in an accurate representation of her work performance. The Petitioner's reliance on the 
Beneficiary's self-reporting, without an alternate method to verify the accuracy of her assessment, is not 
sufficient to demonstrate that it will objectively monitor and evaluate personnel it places with end-clients. 
These circumstances are not indicative of an employer-employee relationship, and actually weigh against 
the Petitioner's claims of control. 
Although the Employee Performance Review Summary does contain some detail, as described above, a 
lack of an established means to observe, record, and report the Beneficiary's actual conduct significantly 
reduces the evidentiary value of this evidence. We conclude that the Petitioner has not provided adequate 
evidence to support its contention that it exercises sufficient control over the Beneficiary as it relates to 
her performance reviews. The Petitioner has not documented that a adequate process exists allowing it 
to objectively monitor and evaluate personnel it places with end-clients. Whether and to what extent an 
organization supervises a foreign national's work, and whether he or she reports to a senior employee of 
the petitioning organization are important factors in the analysis. 23 
The Petitioner also relies on the claims as presented within the letters from the end-client. The 
end-client letters indicated that the Petitioner would supervise the Beneficiary as well as control her 
performance and compensation. However, this claim lacks a sufficient explanation of the manner in 
which the Petitioner will achieve these functions. For example, the absence of an on-site 
Petitioner-supplied manager, or an established means to monitor the Beneficiary's work in a firsthand 
manner undermines the end-client's assertions. In consonance with the analysis above relating to 
supervision, the assertions within the end-client letters that are not corroborated are of insufficient 
evidentiary value. 24 
22 Sofjici, 22 T&N Dec. at 165. 
23 Cf Clackamas, 538 U.S. at 449-50. 
24 See Sofjici, 22 l&N Dec. at 165 (finding that "going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof ... "). 
8 
Finally, within the Petitioner's appeal brief: it identifies the company's organizational chart and the 
fact that it offered a certified labor condition application (LCA) with the petition as proof that it would 
have an employer-employee relationship with the Beneficiary. The organizational chart represents the 
petitioning organization's structure but falls short of aiding the Petitioner in demonstrating it would 
enjoy the requisite relationship. It does not delineate a semblance of the manner in which the 
petitioning organization would exercise its right to control the Beneficiary while that employee is 
working at another organization's facility. Although the organizational chart does not conflict with 
other information in the record, it is wholly insufficient to lend any noteworthy support to the 
Petitioner's employer-employee relationship claims. 
On the issue of a certified LCA, such material does not establish the existence of an 
employer-employee relationship with a foreign worker. This material is simply intended to illustrate 
that a U.S. employer has complied with a wage requirement "to protect U.S. workers' wages and 
eliminate any economic incentive or advantage in hiring temporary foreign workers." 25 The Act 
further prescribes Department of Labor's (DOL) limited role in reviewing LCAs stating that "[u]nless 
the [DOL] Secretary finds that the application is incomplete or obviously inaccurate, the Secretary 
shall provide the certification .... "26 A report further indicated that when DOL certifies an LCA, it 
does not perform any meritorious review of an employer's claims to ensure the information is true. 27 
In fact, after reviewing the material the Petitioner obtained from the end-client relating to its position 
prerequisites for positions such as the one in the petition, it appears that the wage level designated on 
the LCA may be lower than required. It appears the wage level should have been at a Level III or 
Level IV designation based on the years of experience that the end-client requires. 
Maintaining a sufficient level of control over a worker is a paramount aspect within an 
employer-employee setting. An employer that claims it will achieve this level of control over an 
employee while supporting such statements with conflicting, inconsistent, or flawed evidentiary 
material falls far short of the Petitioner's burden of proof That is the situation we have in the present 
case and the Petitioner's counter arguments do not sway the results. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary 
"employee." 28 
II. SPECIALTY OCCUPATION 
Since the identified basis for dismissal is dispositive of the Petitioner's appeal, it is unnecessary that we 
address additional issues we observe in the record of proceeding. Nevertheless, in a similar manner that 
25 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-IB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
26 Section 212(n)(l)(G)(ii) ofthe Act. 
27 DO L's Office oflnspector General, 06-03-007-03-321, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs 1 (2003). 
28 8 C.F.R. § 2 l 4.2(h)( 4 )(ii). 
9 
the lack of sufficiently probative evidence adversely affects the Petitioner's ability to demonstrate the 
requisite relationship with the Beneficiary, we also conclude that the it has not established the 
availability of specialty occupation work as requested on the petition. This shortcoming precludes a 
determination that the proffered position qualifies as a specialty occupation under any of the regulatory 
criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
The Petitioner has not met its burden of persuasion demonstrating that it is more likely than not that 
the end-client would provide qualifying work for the Beneficiary for the requested timeframe. Without 
greater detail relating to the projects and the Beneficiary's role in the projects, the Petitioner has not 
demonstrated how her role in future assignments requires "attainment of a bachelor's or higher degree 
in the specific specialty." 29 The record is insufficient to establish that, at the time of filing, the 
Petitioner had secured the Beneficiary's assignment on any particular project that would likely last for 
the requested duration, which is insufficient to demonstrate eligibility. 3° For the reasons discussed 
above, the Petitioner has not demonstrated that the petition was filed for non-speculative employment. If 
it is not preponderant that a position would exist as requested, then we cannot determine the substantive 
nature of its associated duties. 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that identifies the essence and duration of the project. Therefore, based upon our review of the record, 
we conclude that the Petitioner has not established the substantive nature of the work the Beneficiary 
will perform. 
This precludes a conclusion that the proffered pos1t10n 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 entry into the particular position, which is the focus of criterion 
one; (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 two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and ( 5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
29 Section 214(i)(l )(B) of the Act. 
30 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249. 
10 
ORDER: The appeal is dismissed. 
11