dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-C- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10, 2015 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT staffing firm, seeks to temporarily employ the Beneficiary as a "software 
developer applications" under the H -1 B nonimmigrant classification. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. ISSUE 
The issue before us is whether the Petitioner meets the regulatory definition of a "United States 
employer" in accordance with the applicable statutory and regulatory provisions.
1 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is corning temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4 )(ii) as follows: 
1 
We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U .S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
I 002 n.9 (2d Cir. 1989). 
Matter of E-C- Inc 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual 
coming to the United States to perform services in a specialty occupation will have an "intending 
employer" who will file a Labor Condition Application with the Secretary of Labor pursuant to 
section 212(n)(l) ofthe Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering 
full-time or part-time "employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations 
indicate that "United States employers" must file a Form I-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(l), 
(2)(i)(A). Finally, the definition of "United States employer" indicates in its second prong that the 
Petitioner must have an "employer-employee relationship" with the "employees under this part," i.e., 
the H-lB beneficiary, and that this relationship be evidenced by the employer's ability to "hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes H-
1B beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-1B visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
2 
Matter of E-C- Inc 
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 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition.2 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
2 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of I974 (ERISA), 29 U.S.C. § I002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA 's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
IOI(a)(I5)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(A)(i) of the Act, or "employee" in section 
2 I 2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
3 
Matter of E-C- Inc 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1 B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular 
definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do 
not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-19. 3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both 
the "conventional master-servant relationship as understood by common-law agency doctrine" and 
the Darden construction test apply to the terms "employee" and "employer-employee relationship" 
as used in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H -1 B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer­
employee relationship with respect to employees under this part, as indicated by the fact that it may 
hire, pay, fire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control 
include when, where, and how a worker performs the job; the continuity of the worker's relationship 
with the employer; the tax treatment of the worker; the provision of employee benefits; and whether 
the work performed by the worker is part of the employer's regular business. See Clackamas, 538 
U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 
(5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries' services, are the "true 
employers" of H-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945)). 
4 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214( c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
Matter of E-C- Inc 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise 
control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to 
influence or change that factor, unless specifically provided for by the common-law test. See 
Darden, 503 U.S. at 323-24. For example, while the assignment of additional projects is dependent 
on who has the right to assign them, it is the actual source of the instrumentalities and tools that 
must be examined, and not who has the right to provide the tools required to complete an assigned 
project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably 
to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the 
answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship 
... with no one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. The Proffered Position 
In the Form I-129 and the Labor Condition Application (LCA), the Petitioner indicates that the 
proffered position is titled "Software Developer Applications." However, in the letter of support 
dated March 31, 2014, the Petitioner states that the Beneficiary will be. employed "in the 
professional occupation of Software Developer, Applications," and also refers to the position title as 
"Computer Software Engineer, Applications." 
The Petitioner also states that the Beneficiary will be responsible for the following duties: "the 
development and maintenance of required system documentation, reports, system tables, and process 
flows within assigned areas of primary responsibility and serve as a support/backup resource for 
other areas as assigned within specified departments." Further, the Petitioner indicated that the 
Beneficiary may also be assigned to perform the following duties (with percentages of time spent on 
each): 
~ Developing and programming computer software applications using various 
software and interface with the technical staff in the complex programming needs 
and document modification concerning the systems software;- 30% 
Matter of E-C- Inc 
~ Responsible for improvements in software computer utilization and determine 
necessity for modifications; - 1 0% 
~ Reviewing software programs for compliance with company standards and 
requirements and assisting in identifying deficiencies of computer runs and 
perform specialized programming assignments;- 5% 
~ Developing and enhancing the software systems for wider applications and 
customize it for specific requirements; - 5% 
~ Using RDBMS to log system change orders and analyze, develop and implement 
new applications with GUI and analyze software requirements to determine 
feasibility of design within time and cost constraints; - 15% 
~ Identifying deficiencies, troubleshooting problems and supporting user needs with 
professional knowledge for test planning, defect tracing and provide assistance in 
use ofRDBMS;- 10% 
~ Analysis and Design of system which includes Preparation of Process Flow 
Diagrams, Entity Relationship Diagrams, File design, Program Specification and 
Design Document; - 10% 
~ Database and application analysis/ design logical and physical database; - 5% 
~ Interacting with other technical staff in researching and interpreting technical 
data; -5% 
~ Assisting as part of the team to resolve technical problems requiring good 
judgment and creativity in developing solutions.- 5% 
In addition, the Petitioner states that the position requires "an advanced theoretical knowledge and 
practical expertise gained through either a Bachelor's or a Master's degree in Computer Science, 
Information Systems, Management Information Systems, Electrical/Electronics Engineering, 
Physics, or a closely related field .... " 
C. Analysis 
The Petitioner claims that it will have an employer-employee relationship with the Beneficiary. We 
have considered this assertion within the context of the record of proceeding. We examined each 
piece of evidence for relevance, probative value, and credibility, both individually and within the 
context of the totality of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
However, as will be discussed, there is insufficient probative evidence in the record to support this 
assertion. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft ofCal?fornia, 14 I&N Dec .. 190 (Reg.'l Comm'r 
1972)). Applying the Darden and Clackamas tests to this matter, we find 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-1B temporary "employee." 
1. Work Assignment 
6 
(b)(6)
Matter of E-C- Inc 
We find that the Petitioner has provided inconsistent information regarding the Beneficiary's work 
assignment. For example, the Petitioner provided inconsistent job title for the proffered position. As 
mentioned, although the Petitioner stated in the Form 1-129 and LCA that the Beneficiary would 
work as a "Software Developer Applications," the Petitioner alternated between the titles "Software 
Developer Applications" and "Computer Software Engineer, Applications" in the support letter. 
Further, in response to the Director's Notice oflntent to Deny, the Petitioner submitted a letter from 
its client, which stated that the Beneficiary would work as a "Business Systems Analyst." 
The Petitioner also submitted a letter from the end client, which stated that the 
Beneficiary 
would work as a "Business Analyst." 
Moreover, the Petitioner submitted job descriptions from multiple parties that vary from its job 
description provided in the support letter. For example, letter stated that the Beneficiary 
would work "with [its] client, v1a performing the following duties: 
• Understanding and documenting business processes and workflows. 
• Defining use cases to articulate functional software needs and the roles of classes 
of application user. 
• Analyzing the impact of change requests. 
• Supporting traceability from requirements through to QA. 
• Assisting in the definition of test plans and testing strategies and in the creation of 
test cases. 
• Coach and mentor team members. 
The letter from the end client, stated that the Beneficiary would work as a 
"Business Analyst," performing the following duties: 
Understanding and documenting the business requirements, processes and 
workflows. Ensuring the requirements meet the current business needs. 
Documenting use cases and change requests to articulate project needs as per the 
application workflows 
Liaison between Business team and IT teams in delivering the stake holder's 
requirements. 
Supporting writing user stories. 
Supporting QA in traceability and mapping the requirements to Test plan and test 
cases. 
Assisting in the definition of test plans and testing strategies and in the creation of 
test plan. 
These duties differ significantly from the duties provided by the Petitioner in the support letter, 
which include developing and programming computer software applications (30% ), responsible for 
improvements in software utilization (10%), and using RDBMS to log system change orders and 
analyze, develop and implement new applications with GUI (15%). "[I]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N 
(b)(6)
Matter of E-C-lnc 
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. Without further information, we are not able to determine the nature of the Beneficiary's 
assignment and her actual duties. 
2. Supervision 
A key element in this matter is who would have the ability to hire, fire, supervise, or otherwise 
control the work of the Beneficiary for the duration of the H-1B petition. Upon review, we find that 
the Petitioner has provided inconsistent information regarding the Beneficiary's supervisor. For 
instance, in the offer letter, the Petitioner stated that the Beneficiary will be "reporting to the 
Director, Consulting Services of the Company." The record does not identify this individual. 
However, in another document titled "[the Petitioner]'s Right of Control over (the Beneficiary]," it 
stated that "[the Petitioner]'s supervisor, to whom [the Beneficiary] will report, is named 
' Notably , position is described as "President and CEO" in other 
documents. No explanation for this inconsistency was provided by the Petitioner. Again, it is 
incumbent upon the Petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. at 592. 
3. Relationship Between the Parties and Duration of the Project 
Upon review of the record, we also find that the Petitioner has not established the relationship and 
duration of the relationship between the parties. Specifically, the letter from stated that 
"[the Petitioner]. . . has assigned [the Beneficiary] to work as a Business Systems Analyst with 
client "5 However, the record does not contain any 
information or documents regarding The Petitioner has not indicated that the Beneficiary 
would work on any other projects besides the one for Because the Petitioner did 
not provide copies of the contracts with or we cannot determine 
the contractual relationship between these parties and if the Beneficiary's services would be required 
for the duration of the requested H-1 B validity period. Moreover , the letter from stated, 
"[The Petitioner] reserves the right to the assignment of their employee , [the Beneficiary], to any 
other project or employer. . . . By this letter, makes no representation of guaranteed 
employment or compensation through any particular date." Therefore, there is no supporting 
evidence for the Petitioner's claim that the project would last through the duration of the requested 
H-lB validity period. 
5 Notably , in another letter dated January 6, 2014 , stated that it employed the Beneficiary "on a contract basis as 
a Quality Assurance /Business Systems Analyst with client ' Therefore , it appears 
that is a party to its contractual relationship with 
0 
(b)(6)
Matter of E-C- Inc 
Although the Petitioner requested that the Beneficiary be granted H-1B classification from October 
1, 2014 to September 12, 201 7, there is a lack of consistent documentation to substantiate work for 
the duration of the requested period. Rather than providing evidentiary documentation to establish 
definitive, non-speculative employment for the Beneficiary for the entire period requested, the 
Petitioner asserts that the Beneficiary would be work at during the requested 
validity dates. 
Therefore, we find that the Petitioner has not established that the petitiOn was filed for non­
speculative work for the Beneficiary, for the entire period requested, that existed at the time of the 
petition's filing. USCIS regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.F .R. 103 .2(b )(1 ). Merely claiming that 
the Beneficiary would be assigned to for the duration of requested employment 
period, without sufficient corroborating evidence supporting the claim, such as copies of the client 
contracts, does not establish eligibility in this matter. The Petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(1). A visa petition may not be 
approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Thus, even 
if it were found that the Petitioner would be the Beneficiary's United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would maintain such 
an employer-employee relationship for the duration of the period requested.6 
4. Lack of Evidence 
As previously noted, when making a determination of whether the Petitioner has established that it 
will have an employer-employee relationship with the Beneficiary, we look at a number of factors, 
including who will provide the instrumentalities and tools required to perform the duties; whether 
the Petitioner has the right to assign additional work to the Beneficiary; the method of payment of 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). 
9 
Matter of E-C- Inc 
the Beneficiary's salary; whether the specialty occupation work is part of the Petitioner's regular 
business; and whether the Petitioner actually supervises the Beneficiary's work. In the instant case, 
the Director specifically noted these factors in the NOID and requested that the Petitioner provide a 
number of documents, including copies of contracts it may have with end clients. Thus, while the 
Petitioner was given an opportunity to clarify the source of instrumentalities and tools and who 
actually supervises the Beneficiary's work, it did not provide sufficient information. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(14). Without full disclosure of all of the relevant factors, we are 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
5. Conclusion 
The evidence, therefore, 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 that the Petitioner exercises 
control over the Beneficiary, without evidence supporting the claim, or indeed, as is the case here, 
while providing contradictory evidence, does not establish eligibility in this matter. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Soj]ici, 22 I&N Dec. at 165. 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). 
Moreover, there is a lack of probative evidence to support the Petitioner's assertions. It cannot be 
concluded, therefore, that the Petitioner has satisfied its burden and established that it qualifies as a 
United States employer with standing to file the instant petition in this matter. See section 214( c )(1) 
of the 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-lB petition" and adding the definition 
of that term at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). Accordingly, the petition must be denied 
on this basis. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.7 
7 As the identified ground of ineligibility is dispositive of the appeal, we will not discuss any additional deficiencies we 
observe in the record of proceeding. 
However, we will briefly note that 8 C.F.R. §214.2(h)(2)(i)(G) states, "[a]n employer may not file, in the same fiscal 
year, more than one H-1 B petition on behalf of the same alien if the alien is subject to the numerical limitations of 
10 
Matter of E-C- Inc 
ORDER: The appeal is dismissed. 
Cite as Matter of E-C- Inc, ID# 14285 (AAO Nov. 10, 2015) 
section 214(g)(l )(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act." (Emphasis 
added). Therefore, the determination of whether the present petition should be denied under 8 C.F.R. §214.2(h)(2)(i)(G) 
is relevant only when the Petitioner meets the regulatory definition of a "United States employer" as that term is defined 
at 8 C.F.R. § 214.2(h)(4)(ii). In the instant case, the record of proceeding does not establish that the Petitioner will have 
an employer-employee relationship with the Beneficiary; therefore, so we do not need to consider whether or not the 
petition should be denied under 8 C.F.R. §214.2(h)(2)(i)(G). 
11