dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8099265 
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. 28, 2020 
The Petitioner, a managed services and information technology consulting company, seeks to 
temporarily employ the Beneficiary as a "network engineer" under the H- lB nonimmigrant classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the Petitioner had not 
established: (1) that the proffered position is a specialty occupation; and (2) that the Petitioner will 
maintain an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation and that it will maintain an employer-employee relationship with the Beneficiary. 
Upon de nova review, we will dismiss the appeal. 1 
I. BACKGROUND 
The Petitioner, located in Texas, seeks to deploy the Beneficiary to an end-client location in South 
Carolina pursuant to a series of contractual relationrips be,een the Petitioner and I I 
(mid-vendor), and between the mid-vendor and ( end-client). The contractual path of 
succession between the actors in this case therefore appears to flow as follows: Petitioner ➔ Mid­
Vendor ➔ End-Client. 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation . 2 
Specifically, we conclude that the Petitioner has not established the substantive nature of the work that 
the Beneficiary will perform due to material inconsistencies contained within the record of proceeding 
1 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). 
2 The Petitioner submitted documentation to support the H-lB 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. 
and insufficient evidence regarding the availability of non-speculative work. The failure to establish 
the substantive nature of the work to be performed by the Beneficiary precludes us from determining 
whether the proffered position satisfies any of the regulatory specialty-occupation criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). In addition to this, we also conclude that the Petitioner failed to establish that it 
would engage the Beneficiary in an employer-employee relationship. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered 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. 3 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. 4 
3 8 C.F.R. § 214.2(h)(4)(iii)(A). 
4 See Royal Siam COip. v. Chertof(, 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"). 
2 
B. Substantive Nature Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. In particular, the Petitioner has not established 
the substantive nature of the position, which precludes a determination that the proffered position 
qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
1. Material Inconsistencies 
We cannot ascertain the substantive nature of the proffered position due to material inconsistencies 
within the record. 5 Chief among these concerns is that the duties of the position described throughout 
the record of proceedings do not allow us to understand what role the Beneficiary will have at the end­
client location and what the Beneficiary's day-to-day work involves. 
In its initial filing, the Petitioner provided a twelve-item list of duties, yet within the same initial filing, 
the Petitioner provided a separate and notably different list of thirteen duties, appearing in its itinerary 
of services document. These thirteen duties were farther expanded to include a description for each 
of the thirteen items, along with the percentage of time spent on each item. In response to the 
Director's request for evidence, the Petitioner provided an eleven-item list of duties, which appear 
similar to the thirteen-item list contained in the itinerary of services. The duties in the eleven-item list 
are otherwise the same as the Petitioner's thirteen-item list, but for the removal of duties numbered 
one and two. On appeal, the Petitioner then reverts back to the original twelve-item list of duties, 
which bear only limited similarity to the eleven-item and thirteen-item list. 
Though the Petitioner accounts for the Beneficiary's time when examining the thirteen-item list of 
duties provided in the itinerary of services, we do not know how much time the Beneficiary will spend 
on the duties encapsulated in the twelve-item list of duties. In articulating the duties as such, it is 
unclear whether the Beneficiary will primarily follow the thirteen-item list, the twelve-item list, or 
both, as well as how much time, if any, will be spent on duties appearing in the twelve-item list. 
The confusion concerning the role and day-to-day tasks of the Beneficiary continues when we examine 
the SOC code selected by the Petitioner. We note that on the labor condition application (LCA), the 
Petitioner selected SOC code 15-1143, corresponding to "Computer Network Architects." 6 Many of 
5 The Petitioner references that the Beneficiary will work as a "Network Engineer." However, the record of proceedings 
also refers to the Beneficiary's role as a "Design Network Engineer," "Network Architect/Engineer," and "Network 
Architect." We do not know whether these different titles designate the same or different positions and whether these 
positions have the same or similar duties as the proffered position. The variance in title calls into question the accuracy of 
the supporting documents and undermines the overall credibility of the petition. We also note that the Petitioner primarily 
refers to itself asl khroughout the doc1:ments 'fthin the record, including in its letterhead and domain name, yet it 
filed the petition under the naw.lr and also uses I ~ as a domain name in its letters. The Petitioner 
has not acknowledged or explained the difference. 
6 For more infonnation, visit Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, "Computer 
Network Architects," https://www.bls.gov/ooh/computer-and-information-technology/computer-network-architects.htm 
3 
the proffered position duties, to the extent that we can ascertain which list of duties to follow, feature 
significant work from other non-specialty occupation categories including 15-1152, corresponding to 
"Computer Network and Support Specialists" 7 and 15-1142, corresponding to "Network and 
Computer Systems Administrators." 8 Questions arise as to the specialty-occupation nature of the 
proffered position when viewing the typical duties described in the aforementioned non-specialty 
occupation categories. The Petitioner has not sufficiently established how the work of the proffered 
position most appropriately falls within the occupational category it selected on the certified LCA. 
In addition to our concerns about the duties, the Petitioner also inconsistently describes its minimum 
education requirement for entry into the position. The Petitioner originally stated that it required "a 
Bachelor's degree in Electrical Engineering, Computer Science or a very closely related field." In 
response to the RFE, the Petitioner also stated that "a candidate must have completed course work and 
training in Network Engineering, Electrical Engineering, or a related area at the undergraduate level." 
The Petitioner does not clarify whether the "undergraduate level" means that a bachelor's degree is 
required or whether some relevant coursework would suffice, nor do we know whether the required 
"training" is academic training learned in such coursework or whether this forms an additional 
requirement that the Petitioner did not previously articulate. 9 Within the same RFE response, the 
Petitioner also stated that a bachelor's degree in a field related to computer engineering is the minimum 
requirement for the position. On appeal, the Petitioner states that the knowledge required for the 
position can only be gained through "a higher level of education in a specific area of study" and that 
the specific "area of study is Computer Engineering such as Computer Science, Electrical Engineering, 
etc." Articulated with such variation, we do not know what educational requirements are required for 
entry into the position. It farther seems apparent that the Petitioner views electrical engineering to be 
a subset of the study of computer engineering, an assertion which is not adequately supported by the 
record. 
and the O*NET summary report available at https://www.onetonline.org/link/summary/15-l 143.00 (last visited Apr. 27, 
2020). 
7 For more information, visit Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, "Computer 
Support Specialists," at https://www.bls.gov/ooh/computer-and-information-technology/computer-support­
specialists.htm and the O*NET summary report for "Computer Network Support Specialists" available at 
https://www.onetonline.org/link/summary/15-1152.00 (last visited Apr. 27, 2020). 
8 For more information, visit Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, "Network 
and Computer Systems Administrators," https://www.bls.gov/ooh/computer-and-information-technology/network-and­
computer-systems-administrators.htm and the O*NET summary report available at 
https://www.onetonline.org/link/summary/15-1142.00 (last visited Apr. 27, 2020). 
9 The Petitioner references that the Beneficiary obtained various networking certifications and that these certifications 
contributed to her knowledge and skill. The Petitioner does not state whether it requires such certifications as part of the 
"training" that it references, nor do we know whether such certifications are a minimum qualification for the position. If 
the Petitioner does require additional certifications and training, this could indicate a required wage level increase. At 
minimum, this raises questions as to the accuracy of the Petitioner's stated minimum educational qualifications, as well as 
to whether the LCA corresponds to and supports the petition as required. Additional wage questions arise within the Form 
I-129 itself The Petitioner stated on the LCA and on page five of the F01m I-129 that the Beneficiary will receive the 
prevailing wage of $65,187. However, on page nineteen of the Form T-129, the Petitioner also states that it will pay the 
Beneficiary $70,000. These discrepancies undermine the credibility of the petition as a whole and indicate that the 
Petitioner has not clearly defined its position. 
4 
We acknowledge the opinion letter provided by;I ,I Professor in the Electrical and Computer 
Engineering ECE and Physics Departments atl !university. I ts letter starts with his 
qualifications to opine on the matter, followed by an overview of the Petitioner's organization and the 
proffered position. He then lists the duties that were already provided to us by the Petitioner and 
provides conclusions as to the educational requirements of the position. The letter also contains 
statements concerning an industry standard and that the position is important for the overall success 
of the Petitioner. I ts letter, however, does not resolve the inconsistencies described above. 
Though he lists many duties, he fails to provide meaningful analysis of those duties so that we may 
understand how he reached his conclusions concerning the educational requirements for the position 
and an overall industry standard. 10 
2. Speculative Work 
We conclude that the Petitioner has not established the existence of definitive, non-speculative 11 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of the end-client to 
provide it. It follows that if we cannot determine whether the proffered position as described in this 
petition would actually exist, then we cannot ascertain its substantive nature, let alone determine 
whether it is a specialty occupation. 
As previously stated, the contractual chain is as follows: Petitioner ➔ Mid-Vendor ➔ End-Client. 12 
The Petitioner filed this petition in April 2019 and claimed that the Beneficiary would work at the end­
client's location from October 2019 to August 2022. To support this claim, the Petitioner submitted 
a vendor agreement that it executed with the mid-vendor and a work order printout. The work order 
printout appears to be more of a receipt for work during the period of March 2019 to March 2020 than 
a contractual document, but it does contain the Beneficiary's name and states that the site location is 
in South Carolina. The printout does not contain the end-client's name or the Petitioner's name, and 
it only indicates 'I [" which appears similar but is not the same as the mid-vendor's 
name. In addition to this, the Petitioner provided a heavily redacted staffing services agreement 
executed between the mid-vendor and an entit called whereby the mid-
vendor supplies temporary personnel to...._ __________ ~......,.t is important to note that the 
documents of record do not establish tha ~----------~ is part of or the same as the 
end-client,! I and we do not know what relationship the two differently titled entities have, if 
any. 
We acknowledge the informational letters from the mid-vendor and end-client, however, these letters 
merely reiterate the duties and minimum educational requirement previously articulated by the 
10 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'/, Inc., 
19 T&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Id. Here, the opinion presented 
does not offer a cogent analysis of the duties and why the duties require a bachelor's degree in a specific specialty. 
11 Speculative employment is generally not permitted in the H-1 B program. See, e.g., 63 Fed. Reg. 30419 (proposed June 
4, 1998). 
12 In its initial filing. the Petitioner referenced the contractual chain as also involvi11g las the mid-vendor and~I -~ 
as the end-client. In its RFE response. the Petitioner clarified that this was an error due to the use of templated language. 
The Petitioner's documentation also occasionally references the Beneficiary using the wrong gender pronoun. These errors 
suggest that the petition may have been prepared for another Beneficiary or position. 
5 
Petitioner, state that the Beneficiary will work at the end-client's site in South Carolina, and maintain 
that the Beneficiary will remain an employee of the Petitioner. Though we have some contractual 
documentation, much of the documentation that would establish a contractual obligation between the 
three parties is missing. 
The absence of complete contractual documentation weighs heavily here because the existence of the 
proffered position appears dependent entirely upon the willingness of the end-client to provide it. 
Absent copies of purchase orders, statements of work, work orders (rather than mere receipts), or other 
contractual agreements, the record lacks evidence of any legal obligation on the part of the end-client 
to provide the position described by the Petitioner in this petition. 13 At minimum, these gaps in the 
contractual chain, including a lack of clarity on the names of the entities, raise questions as to the 
actual, substantive nature of the proffered position. If we cannot determine whether the proffered 
position as described will actually exist, then we cannot ascertain its substantive nature so as to 
determine whether it is a specialty occupation. 
3. Summary of Substantive Nature Issues 
We cannot determine the substantive nature of the position due to (1) inconsistent evidence regarding 
the duties and role of the proffered position; (2) inconsistent claims as to the educational requirements 
of the position; and (3) concerns about the availability of non-speculative work for the Beneficiary to 
perform. A crucial aspect of this matter overall is whether the Petitioner has sufficiently described the 
proffered position and its duties such that we may discern the nature of the position, and whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. We conclude that 
the Petitioner has not done so here. Because we cannot determine the substantive nature of the position 
or whether it exists, we are unable to determine whether the proffered position is a specialty 
occupation. 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 1; (2) industry positions 
which are parallel to the proffered position and thus appropriate for review for a common degree 
requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the focus 
of criterion 4. The petition therefore cannot be approved. 
III. EMPLOYER - EMPLOYEE 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 14 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States 
13 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30. 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
14 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring 
to the "intending employer"). 
6 
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. 
(Emphasis added.) 
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." 15 Thus, to interpret these terms, USCIS will apply 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 test, 16 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. 17 We will assess and weigh 
all of the factors of the relationship, with no one factor being decisive. 
B. Analysis 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability to hire, fire, remunerate, supervise, and otherwise control her work. The Petitioner 
further claims it will perform numerous administrative functions pertaining to the Beneficiary's 
employment. Social security, health insurance, worker's compensation, and unemployment insurance 
contributions, as well as federal and state income tax withholdings, and the provision of other 
employment benefits, are relevant factors in determining who will control a beneficiary. While such 
factors might appear to satisfy a cursory review that a petitioning entity could be an individual's 
15 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). 
16 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it 
exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for 
by the common-law test. See Darden, 503 U.S. at 323-24. 
17 Darden, 503 U.S. at 324; Clackamas. U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (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). 
7 
employer, these elements are not necessarily sufficient to provide a foll appraisal of the relationship 
between the parties. We must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we 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 will be assigned, among other factors. A 
petitioner must sufficiently address all of the relevant factors to enable us to evaluate whether the 
requisite employer-employee relationship will exist between a petitioner and a beneficiary. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. The mid-vendor and end-client claim that the Beneficiary would be employed 
by the Petitioner, and while the Petitioner does appear to retain the right to hire, fire, supervise, or 
otherwise control the Beneficiary's work, the Petitioner has not sufficiently explained the actual 
manner in which it provides such instructions and oversight. The Petitioner is located in Texas and 
states that the Beneficiary will work at an end-client site in South Carolina. 
Among the documentation submitted to evidence its employer relationship with the Beneficiary, the 
Petitioner included several performance appraisals. We note that the performance appraisals do not 
provide a narrative description of the Beneficiary's work so as to evidence actual knowledge on the 
part of the Petitioner concerning the performance areas. Rather, it contains a perfunctory numbering 
system, which could easily be completed by anyone regardless of personal knowledge of the 
Beneficiary's work. The Petitioner provides little information on how it would come to know many 
of the details for which it rates the Beneficiary's performance, particularly given the physical distance 
between the two entities. When examining the rating period and handwriting on the various appraisals, 
we note that the appraisals are identical but for a "whited-out" date. As it would be unusual to receive 
two ratings from the same person for the same rating period, we question whether the Petitioner 
submitted the same performance appraisal several times in an attempt to make it seem as if additional 
evidence had been provided. 
Though the Petitioner submitted an employee agreement, portions of the document are missing as 
evidenced by the incomplete sentence and section of the page prior to the signature page. The 
Beneficiary's time sheets are on mid-vendor letterhead with mid-vendor managers as the final 
approvers. The Petitioner's employee offer letter contains language offering the Beneficiary a 
different position, an internship, and is dated over two years prior to the filing of this petition. These 
documents, even taken together, do not signify an employer-employee relationship. 
The record contains some information regarding the type of work the Beneficiary will engage in at the 
end-client site, but we have little information concerning specific projects or whether the work will be 
conducted on the end-client's systems. There is little information regarding any ongoing role for the 
Petitioner's involvement in the work at the end-client site and in fact, we conclude there is inconsistent 
information concerning how the Petitioner will maintain an employer-employee relationship with the 
Beneficiary. 
The emails evidencing the Petitioner's work assignments indicate that the end-client assigns the 
Beneficiary work with no apparent need to consult the Petitioner. The Petitioner acknowledges that 
the end-client assigns the Beneficiary work when it explicitly states in its list of proffered position 
duties that the Beneficiary is "[r ]esponsible for individual projects assigned by Client." If the 
8 
Petitioner has little to no role to play in the end-client's activities, then it is unclear how it could 
feasibly direct the Beneficiary's day-to-day duties as they relate to this position. The Petitioner 
submitted a June 27, 2019 letter to explain the method and manner that it maintains an employer 
relationship with the Beneficiary. The letter includes a statement that the Petitioner's "trained and 
competent staff remains available onsite and remotely to take calls, emails, video chats, etc.; to answer 
questions, help troubleshoot and/or walk the Beneficiary through any issues or questions," which 
suggests that the Petitioner maintains a presence at the end-client site ("onsite") as well as at its own 
site ("remotely"). However, on appeal, the Petitioner states that it is not allowed to directly contact 
the end-client, but rather must communicate through the mid-vendor only. Without farther 
clarification, this apparent inconsistency suggests that the Petitioner's role is limited to the provision 
of the Beneficiary's services with little room for actual direction of her activities. 
Further questions arise concerning the Beneficiary's work when we examine the emails submitted to 
evidence the Beneficiary's work product. One such email references a member of the end-client's 
team assigning the Beneficiary work for another client, presumably I • IAt minimum, these 
emails suggest that other parties, such as I I may have contracted with the end-client for 
the Beneficiary's services. We question whether the Beneficiary will then be contracted out by the 
end-client as part of a provision of managed services for other entities and end-clients not formally 
identified in this petition. 
Additionally, the mid-vendor and end-client letters and contracts in the record do not reflect an active 
ongoing role for the Petitioner in the work performed by the Beneficiary. In fact, the staffinr services 
agreement between the mid-vendor and the entity known as I does not 
mention the Petitioner at all, even though it does mention the contracted employees of the Petitioner, 
which would presumably include the Beneficiary. This agreement primarily sets forth the rights of 
the mid-vendor and does not contain information relating to any specific person or project. In turning 
to the services agreement between the Petitioner and the mid-vendor, we read that the mid-vendor's 
clients approve the time entries of Petitioner's personnel in order for the Petitioner to receive payment. 
Further, if the end-client does not pay the mid-vendor, the Petitioner will not be paid. Finally, the 
mid-vendor can terminate the contract and remove the Petitioner's workers, of whom the Beneficiary 
would presumably be one, from the end-client's site. In summary, it appears as if the mid-vendor and 
end-client have decision-making authority, but that the Petitioner has little contractual power in this 
regard. 
If there is no provision for the Petitioner's input, then we question whether it actually controls the 
Beneficiary, as claimed. Having the foll set of contracts executed between the actors might have shed 
light on this question, but they were not submitted. From the documentation we have to review, the 
contractual arrangement is a staff augmentation scheme with little provision for input by the Petitioner 
on the Beneficiary's daily tasks. 
The record appears to indicate that the Petitioner acts merely as a conduit for administrative and 
personnel logistics, thereby relieving the burden of such responsibilities from the other entities. Our 
review of the four comers of this H-1 B petition leads us to conclude that the Petitioner would not 
operate as the Beneficiary's employer in the common law sense, but that it would instead act as a 
supplier of personnel to temporarily supplement the staff of organizations, such as the end-client or 
the end-client's clients, who would then control the content, means, and methods of those individuals' 
9 
work. In this regard, we observe that not only would the end-client determine and assign the 
Beneficiary's day-to-day work, but that it may also control the Beneficiary's access to the systems, 
without which, the Beneficiary's work could not be done. 
C. Summary of Employer-Employee Issues 
The evidence of record is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
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." 8 C.F.R. § 214.2(h)(4)(ii). 
IV. 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 the 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. 
ORDER: The appeal is dismissed. 
10