dismissed H-1B Case: Information Technology

MATTER OF S-, LLP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology business, seeks to temporarily employ the Beneficiary as a 
"programmer analyst" under the ·H-lB nonimmigrant classification. See Immigration and 
Nationality Act (the Act) section 10l(a)(I5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 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, California Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation and that the Petitioner did not establish that it would 
have an employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the proffered position is a specialty occupation and that it is the Beneficiary's actual 
employer. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the Petitioner must establish that the employment it is offering to the 
Beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
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Matter of S-, LLP 
(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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative~ an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 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, 387 (5th Cir. 2000). 
B. The Proffered Position 
The Petitioner identified the proffered position as a "programmer analyst" on the H-lB petition, and 
attested on the required labor condition application (LCA) that the occupational classification for the 
position is "Computer Programmers" (corresponding to Standard Occupational Classification code 
15-1131 ). The Petitioner requested the Beneficiary's employment beginning October 1, 2015, and 
continuing to September 13,2018. 
In its support letter, the Petitioner stated that the Beneficiary "will be deployed to an outside client, 
located in IL." In response to the Director's request for 
evidence (RFE), the Petitioner submitted a "Position Profile" which provided the following list of 
job duties along with the percentage of time spent on each duty: 
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Matter ofS-, LLP 
• Participate in all phases of the software development cycle, which involves 
requirements gathering, requirements analysis, design, development, 
implementation, testing, and enhancement (10%); 
• Build relationships with business clients (I 0%); 
• Collaborate with business partners, vendor/consulting organizations, and peer 
level professionals from other IT disciplines in all aspects of software 
development (I 0% ); 
• Interact with business systems analysts, engineers, programmers and others to 
design system and to obtain information on project limitations and capabilities, 
performance requirements, and interfaces (10%); 
• Prepare high-level design artifacts (5%); 
• Participate in Application Development using Java/J2EE technology (5%); 
• Architect, design, develop, implement, and support large scale software solutions, 
using Java/J2EE (jdkL4 through 1.7) (5%); 
• Provide technology solutions and manage software quality assurance and delivery 
(5%); 
• Develop scalable applications and code optimization (5%); 
• Develop complex, high-volume and performance sensitive web services (5%); 
• Prepare unit test cases for various component layers and perform unit testing 
(5%); 
• Review work product and test plans (5%); 
• Deploy application components and set up the test environment for system testing 
(5%); 
• Deploy code to the test and production environment (5%); 
• Support the production environment and fix the defects (4%); 
• Change request handling and perform impact analysis of change requests (3%); 
and 
• Implement various languages and technologies, including C, C++, Java, 
JavaScript, J2DD, XML, HTML, HTML5, CSS and CSS3 (3%). 
Also in response to the RFE, the Petitioner stated that the minimum educational requirement for this 
position is at least a bachelor's degree in "Engineering, Computer Science, Information Systems, or 
a closely related field." 
The Petitioner also submitted a letter from its vice president summarizing the duties of the proffered 
position and the allocation of time for each duty, as follows: 
• Providing technology solutions and Managing Software Quality Assurance and 
Delivery. 8 hours/week- 20% 
• Developing Scalable applications and code optimization. 6 hours/week - I 5% 
• Developing complex, High Volume and Performance sensitive Web Services[.] 
4 hours/week - 15% 
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Matter of S-, LLP 
• Preparing Unit Test cases for various component layers and perform Unit Testing, 
6 hours/week- 20% 
• Reviewing work products and test plans, 6 hours/week- 15% 
• Quickly master and enjoy learning new technologies, methodologies, and 
responsibilities. 6 hours/week- 15% 
In the same letter, the Petitioner's vice president adds that its programmer analyst "among other 
things, is responsible for developing/testing code and webpages, employing Model View 
Controllers, writing use cases, working in an agile development process, and interacting with 
business users and analysts" and that "[t]hese are significantly more advanced tasks that require an 
extensive knowledge of development/testing skills." The vice president attests that the proffered 
position requires "at least a Bachelor's degree in a related subject [to] Engineering, Computer 
Science, Business Administration, Information Systems, or Mathematics." 
On appeal, the Petitioner paraphrases the previous descriptions of duties submitted and adds the 
technical tools, operating systems, methodologies and databases the Beneficiary will use. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record (I) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation.2 
I. The Petitioner Has Not Sufficiently Described The Beneficiary's Employment 
The record in this matter includes generic and inconsistent descriptions of the proffered position's 
duties. It is not possible to ascertain from these descriptions what specific job duties the Beneficiary 
will perform and the amount of time spent on each distinct duty. 
For example, the Petitioner vaguely states that the Beneficiary will "[p]articipate in all phases of the 
software development cycle, which involves requirements gathering, requirements analysis, design, 
development, implementation, testing, and enhancement." Similarly, the Petitioner states that the 
Beneficiary will "[ c ]ollaborate with business partners, vendor/consulting organizations, and peer 
level professionals from other IT disciplines in all aspects of software development." The Petitioner 
indicates that the Beneficiary will spend I 0 percent of his time on each set of job duties. However, 
the Petitioner does not specifically explain what tasks the Beneficiary will perform in "all phases" or 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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Matter of S-, LLP 
"all aspects" of the software development cycle, and how much time will be spent on each distinct 
job duty (e.g., what portion of the 10 percent of time will be spent on programming duties, as 
opposed to systems analysis duties, software development duties, and other non-programming 
duties). 3 
The record includes additional, inconsistent descriptions regarding the allocations of time the 
Beneficiary will spend on his job duties. For example, the Jetter from the Petitioner's vice president 
indicates that 6 hours of the Beneficiary's work week is equivalent to 15 percent of his time. Yet in 
the same letter, he also indicates that 4 hours of the Beneficiary's work week is equivalent to 15 
percent of his time. This Jetter also provides different allocations of the Beneficiary's time to the 
same duties described in the "Position Profile" document. To illustrate, the Petitioner's vice 
president states that the Beneficiary will spend 20 percent of his time providing technology solutions 
and managing software quality assurance delivery, while the "Position Profile" indicates that he will 
spend only 5 percent of his time performing the same duty. ·The vice president's letter portrays 
quality assurance duties as constituting a substantial portion of the Beneficiary's duties, whereas the 
"Position Profile" allocates substantial portions oftime to other software development activities. 
Accordingly, based on the broadly described duties and the different allocations of the Beneficiary's 
time to perform these duties, it is not possible to determine what the Beneficiary will be doing in the 
proffered ·position. Although we recognize that certain information technology positions may 
include overlapping duties, we must ensure that the duties of the proffered position correspond to the 
duties of the occupation attested to on the LCA. This safeguards the requirement that the 
Petitioner's payment of wages is commensurate with the highest paying occupation. 4 We note that 
even though the proffered position encompasses duties of the "Computer Systems Analysts" and 
"Software Developers" occupations, among others, the prevailing wages for these occupations are 
higher than the wage listed on the Petitioner's LCA.5 If the Beneficiary will be performing the 
duties of a computer systems analyst and a software developer, the Petitioner's LCA for a position 
3 For an overview of the occupations of a computer systems analyst and a software developer, applications, see U.S. 
Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Computer Systems 
Analysts," http://www.bls.gov/ooh /computer-and-information-technology/computer-systems-analysts.htm#tab-2, (last 
visited May 24, 20 16) and "Software Development, Applications," http://www.bls.gov/ooh/computer-and-information­
technology/software-developers.htm#tab-2, (last visited May 24, 20 16). The information contained in the Occllpational 
Outlook Handbook 's report on these occupations includes a portion of the same or similar duties as the descriptions 
provided by the Petitioner for its position of a "Programmer Analyst" which it attested to as a Level I I "Computer 
Programmer" on the LCA. 
4 See generally 8 C.F.R: § 214.2(h); U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov/pdf/N PWHC _Guidance_ Revised _II_ 2009 .pdf 
5 For information on the prevailing wage for "Computer Systems Analysts" and "Software Developers, Applications" in 
Illinois, see the All Industries Database for 7/2014 - 6/2015 at the Foreign Labor Certification Data 
Center's (FLC) Online Wage Library. The FLC lists the Level II wage for "Computer Systems Analysts" as $70,595, 
http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-1121 & &year=l5&source= I, and the Level 11 
wage for "Software Developers, Applications" as $62,795, 
http://www.flcdatacenter.com/OesQuickResults.aspx?code =l5-1132& &year=l5&source=l (last visited May 
24, 2016). Both ofthese wages are higher than the wage attested to on the Petitioner's LCA. 
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Matter of S-, LLP 
under the "Computer Programmers" occupational classification would not correspond to and support 
the instant petition. 6 · · 
Further, the record does not include probative evidence from the end-client for whom the 
Beneficiary will perform work. We note that, 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 a 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. 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. 
Here, the Petitioner submits a letter purportedly from the end-client, This letter is not on 
company letterhead and does not include a signature. The letter also includes a verbatim project and 
position description as found elsewhere in the record. It is not apparent that this letter was prepared 
by an authorized representative of and should be entitled to probative weight. 
Although the Petitioner asserts that the Beneficiary will perform duties associated with the end­
client's ' the record does not include corroborating information from the 
end-client regarding the project or detailing the Beneficiary's actual day-to-day duties for that 
project. The Petitioner's submission of various position descriptions from the claimed mid-vendor is 
insufficient to establish the nature of the position to be performed at the end-client's workplace. The 
Petitioner has not submitted work orders or other documents from the end-client, and has submitted 
insufficient and inconsistent evidence regarding what the Beneficiary will do and the availability of 
work for the Beneficiary for the entire requested period of employment. "[G]oing on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of 
Treasure Craft o_{Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The Petitioner also relies on an advisory opinion from chair of the software 
engineering program at as evidence of the proffered position's duties and . 
requirements. However, bases his opinions upon the Petitioner's descriptions of the 
proffered position, not the end-client's actual job duties and requirements. We again specifically 
note the record's absence of probative documents from the end-client that endorse any of the claims• 
made about either the work to be performed for it by the Beneficiary or the 
educational requirements 
for such work. We therefore 
decline to regard letter as probative evidence. We may, 
in our discretion, use as advisory opinion statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, we are not 
6 
If the Petitioner here is seeking to employ the Beneficiary in two or more distinct occupations rather than a combination 
of occupation, then it should have filed separate petitions requesting concurrent employment for each occupation. 
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Matter ofS-, LLP 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N 
Dec. 791 (Comm'r 1988). 
Upon review of the totality of the record, the Petitioner has not established the substantive nature of 
the work to be performed by the Beneficiary, which therefore precludes a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A), because it is the substantive nature of 
that work that determines (I) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion I; (2) industry positions which are parallel to the proffered 
· position and thus appropriate for review for a common degree requirement, under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the 
focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. As the Petitioner 
has not established that it has satisfied any of the criteria at 8 C.FK § 214.2(h)(4)(iii)(A), we cannot 
find that the proffered position qualities for classification as a specialty occupation. 
2. The Petitioner Does Not Require a Bachelor's Degree in a Specific Specialty 
We further cannot find that the proffered position qualifies as a specialty occupation, as the 
Petitioner has not established that the duties of the proffered position require the attainment of at 
least a bachelor's degree in a specific specialty, or its equivalent 
Again, as recognized by the court in Defensor, 201 F3d 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 Petitioner has not submitted documentation from the end-client which specifies the 
minimum educational requirement for the proffered position. 
We also observe that the Petitioner presents different minimum educational requirements for the 
proffered position. The Petitioner's vice president clearly stated initially and in response to the 
Director's RFE that "at least a Bachelor's degree in Engineering, Computer Science, Business 
Administration, Information Systems or a related field and relevant work experience" is required to 
perform the duties of the proffered position. The Petitioner's human resources manager attested in 
response to the Director's RFE that the position requires "a minimum of a Bachelor's degree in 
Engineering, Computer Science, Information Systems or a closely related field or its foreign 
equivalent and relevant work experience." The Petitioner does not explain why the vice president of 
the company believes that the proffered position could be performed by someone with a business 
administration degree, while the human resources manager does not include this tield of study in his 
description of the educational requirement for the proffered position. "[I]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. /d. at 
591-92. 
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Matter o[S-, LLP 
In the Petitioner's vice president's estimation, a bachelor's degree in business administration is 
sufficient to perform the duties of the proffered position. However, even if established by the 
evidence of record, the requirement ·of a bachelor's degree in business administration is inadequate 
to establish that a position qualifies as a specialty occupation. 7 A petitioner must demonstrate that 
the proffered position requires a precise and specific course of study that relates directly and closely 
to the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as business 
administration, without further specification, does not establish the position as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147 (recognizing a business 
administration degree as a general-purpose degree); cf Matter of Michael Hertz Assocs. ·, 19 I&N 
Dec. 558, 560 (Comm'r 1988) (the mere requirement of a degree, without further specification, does 
not establish the position as a specialty occupation). The Petitioner has not demonstrated that the job 
duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 
For all of the above reasons, the Petitioner has not demonstrated that the proffered position qualities 
as a specialty occupation. Accordingly, the Director's decision is affirmed and the appeal dismissed. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will now address the issue of whether or not the Petitioner qualifies as an H-1B employer. 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, m pertinent part, as an 
individual: 
[S]ubject to section 212G)(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 determine's 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: 
7 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher ·degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is .equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Cherto!J, 484 F.3d at 147. 
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Matter ofS-. LLP 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise contra/the work ofany 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, Ill, 61,121 (Dec. 2, I 991) (to be codified at 8 C.F.R. pt. 214). 
The United States Supreme Court 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. 
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." 
!d.; 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 (I 968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withboldings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents 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. 
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Matter ofS-, LLP 
B. Analysis 
The Petitioner, located in New Jersey, indicates that the Beneficiary will be working for the end­
client, located in Illinois, for the duration of the requested employment period. However, the 
evidence in the record of proceedings does not support its claims. The record contains inconsistent 
and misleading information that undermine the Petitioner's claims regarding the terms and 
conditions of the Beneficiary's assignment at the end-client's premises. 
The initial record in this matter included a signed master service agreement between the Petitioner 
and a mid-vendor, The initial record also included a work order 
and verification letter specifically confirming the Beneficiary's assignment to the end-client, 
However, the work order and verification letter were issued by another mid-vendor, 
and did not match the submitted master service agreement. 
In response to the RFE, the Petitioner submitted a copy of a staffing services supplier agreement 
with to provide staffing services to "client," The 
Petitioner explained that it and now utilize as "their mutual managed service 
provider." However, the Petitioner did not provide copies of any contracts that may exist between 
and We note that this staffing agreement and its exhibits are signed on behalf of the 
Petitioner by Operations Manager. The Petitioner's organizational charts do not 
identify an operations manager position, nor do they identify as an employee. 
And as previously highlighted, the record does not include any probative evidence directly from the 
end-client, such as a signed letter on official letterhead or a contract signed by the 
end-client's authorized representative. To establish the employer-employee relationship, we must 
review the evidence to determine whether the Petitioner retains the right to control the Beneficiary's 
work, supervise and direct the Beneficiary's work, and most importantly, require that the work 
remain within the context of the occupation as described in the H-lB petition. As there is no 
probative evidence from the end-client, it is not possible to ascertain the end-client's restrictions, if 
any, for personnel working on its projects. Without more, we are unable to properly assess whether 
the Petitioner has retained the right to control the Beneficiary's work. 
The record in this matter does not include probative evidence establishing the Petitioner's 
mechanism to control and direct the Beneficiary's work while offsite. We have reviewed the 
Petitioner's offer letter and employment agreement with the Beneficiary, as well as blank templates 
for monthly status reports and yearly performance reviews. However, these documents do not 
sufficiently explain the manner through which the Petitioner will control and direct the Beneficiary's 
offsite work. In fact, the record does not consistently identify which of the Petitioner 's employees, if 
any, will directly supervise the Beneficiary. For instance, letter and other documents state 
that the Petitioner's "HR manager," will supervise the Beneficiary. None of the 
Petitioner's organizational charts depicts or a human resources manager as directly 
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Matter ofS-, LLP 
supervising the Beneficiary and thus controlling the Beneficiary's work.8 Further, the Petitioner 
stated in its initial support letter, and again on appeal, that the Beneficiary will be supervised by an 
unidentified "Project Manager." The Petitioner has not explained whether this "Project Manager" is 
the same person as the "HR manager," and if so, whether a human resources manager would have 
the technical expertise to serve as a project manager and substantively control the Beneficiary's 
work. These factors cast doubt on whether the Petitioner has or will have the ability to actually 
control and direct the Beneficiary's work so that it would remain within the context of the 
occupation approved for H-IB classification. 
Also casting doubt on the Petitioner's employer-employee relationship with the Beneficiary is the 
evidence in the record indicating that the mid-vendor, will have the ability to control the 
Beneficiary's work. According to the statement of work between the Petitioner and 
responsibilities include designating a project management "who will be the focal point for [the 
Petitioner's] communications relative to the project," and providing the Petitioner with "workspace, 
computing and office facilities for onsite resource(s) with appropriate access rights." According to 
the staffing services supplier agreement between the Petitioner and "[the Petitioner] will 
assign certain employees ('CLRs') with the skills Client requests, to perform Client's work." 
Importantly, the Exhibit A (accompanying the staffing agreement) defines the term "CLR" as 
referring to "individuals [who] provide Contingent Labor Services on a temporary basis for 
and take day to day direct instruction from their manager." The Exhibit A-7 (also 
accompanying the staffing agreement) similarly states that "CLRs shall work under the direct 
supervision and control of a project manager, as designated by in the Purchase Order." It also 
states that "CLRs may be required to work in any of the cities listed in the Purchase Order," and 
"[w]hen a CLR is working under a Purchase Order, the project manager identified in the 
Purchase Order shall take delivery ofthe Deliverables ofthat Purchase Order." From this evidence, 
it appears that the mid-vendor will supervise the Beneficiary's work on a day-to-day basis. 
We find that the Petitioner has not provided sufficient evidence establishing how the Petitioner 
remotely controls the manner and means by which the Beneficiary's services are provided. We 
cannot conclude, therefore, that the Petitioner has satisfied its burden and established that it qualifies 
as a United States employer with standing to tile the instant petition in this matter. See section 
214(c)(1) ofthe Act (requiring an "Importing Employer"); 8 C.F.R. § 214.2(h)(2)(i)(A) (stating that 
the "United States employer ... must file" the petition); 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) 
(explaining that only "United States employers can file an H-1 B petition" and adding the definition 
of that term at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). The Director's decision is affirmed and 
the appeal is dismissed for this additional reason. 
8 The Petitioner's first organizational chart does not depict as an employee, nor does it depict a human 
resources manager position. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition 
and must continue to be eligible for the benefit through adjudication. 8 C.F.R. § I 03.2(b)( I). A visa petition may not be 
approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 
II 
Matter ofS-, LLP 
IlL CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 J&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met9 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, LLP, ID# 17000 (AAO May 31, 2016) 
9 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any additional 
grounds of ineligibility we observe in the record of proceedings, including whether the Petitioner has complied with the 
LCA requirements. 
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