dismissed H-1B Case: Information Technology

(b)(6)
DATE: t-!AY o· 4 2015 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "the director') denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. The petition will be denied. 
On the Form I-12 9, Petition for a Nonimmigrant Worker, the petitioner describes itself as an 
information technology services company. In order to employ the beneficiary in what the petitioner 
identifies as a position in the Computer Programmers occupational category, with "Computer 
Programmer/Programmer Analyst" as its job title / the petitioner seeks to classify the beneficiary as 
a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15 )(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S .C. § 11 01(a)(15)( H)(i)(b). 
The director denied the petition, concluding that the evidence of record failed to demonstrate the 
existence of an employer-employee relationship between the petitioner and the beneficiary. 
The record of proceeding before us contains the following: (1) the Form I-12 9 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petition; and (5) on appeal, the Form 
I-290B and supporting documentation. 
For the reasons that we shall discuss in the body of this decision, based upon our review of the 
entire record of proceeding as expanded by the submisssions on appeal we conclude that the 
director was correct in denying the petition on the ground for denial that she specified in her 
decision. Accordingly, the appeal will be dismissed, and the petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
As a preliminary matter, we affirm that, in the exercise of our appellate review in this matter, as in 
all matters that come within our purview, we follow the preponderance of the evidence standard as 
specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 375-37 6 
(AAO 2010). In pertinent part, that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for the SOC (O*NET/OES) Code 15-1131, the associated Occupational Classification of "Computer 
Programmers," and a Level I prevailing wage rate. The petitioner identifies the job title as "Computer 
Programmer/Programmer Analyst" in the Form 1�129 and simply as "Programmer Analyst" in the LCA: 
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!d. 
* * * 
NON-PRECEDENT DECISION 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 42 1, 431 (1 987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143 , 145 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support the petitioner's contentions that the 
evidence of record requires that the petition be approved. 
Applying the preponderance of the evidence standard as stated in Matter of Chawathe, we find that 
the director's determinations in this matter were correct. Upon review of the entire record of 
proceeding, and with close attention and due regard to all of the evidence submitted in support of 
this petition, we find that the record does not contain sufficient relevant, probative, and credible 
evidence to lead us to believe that it is "more likely than not" or "probably" true that the beneficiary 
and the petitioner would be engaged in the employer-employee relationship required to provide the 
petitioner standing to file the petition. 
II. LACK OF STANDING TO FILE THE PETITION AS A UNITED STATES EMPLOYER: 
THE EMPLOYER-EMPLOYEE ISSUE 
A. The Law 
The issue presented to us on appeal is whether, contrary to the director's decision, the petitioner has 
established that it has satisfied that part of the regulatory definition of a "United States employer" 
that requires that the entity filing the H-1B petition will have "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" as set out at 8 C.F.R. 
§ 214. 2(h)(4)(ii). 
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Section 101( a)(15 )(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 21 20)(2), who is coming temporarily to the United States to 
perform services. in a specialty occupation described in section 
214 (i)(1) ... , who meets the requirements for the occupation specified in section 
21 4(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: 
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, 
su pervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61 121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have the requisite employer­
employee relationship with the beneficiary. The evidence of record simply is not sufficiently 
comprehensive to bring to light all of the relevant circumstances that pertain to the parties among 
themselves and also with relation to the beneficiary with regard to the U.S. Department of Labor's 
Bureau of Labor Statistics work that the petitioner asserts as the basis of this petition. 
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
lB visa classification. Section 101(a)(15 )(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212 (n)(l) of the 
Act, 8 U.S.C. § 11 82(n)(l) (2012). The intending employer is described as offering full-time or part­
time "employment" to the H-lB "employee." Subsections 212 (n)(l)( A)(i) and 212(n)(2)(C)(vii) of the 
Act, 8 U.S.C. § 11 82(n)(l)( A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-1 29) in order to classify 
aliens as H-lB 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 
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the work of any such employee. " 8 C.P.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-1B visa classification, even though the regulation describes H-1B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." Id. 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 Mutua l Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (199 2) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1 989)). 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. " 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 75 1-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 53 8 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 America, 390 U.S. 254, 258 (1 968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)( H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 21 2(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S171 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H1 2358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
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Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.P.R. § 214 .2(h)(4)( ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214. 2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319 ? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)( H)(i)(b) of the Act, section 21 2(n) of the Act, and 8 C.P.R. § 214.2 (h).4 
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), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 53 8 U.S. at 450; see also 8 
C.F.R. § 214 .2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .. .. " (Emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 53 8 U.S. at 
445 ; see also Restatement (Second) of Agency § 220(2) (19 58). 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, 53 8 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-1B nurses under 8 C.F.R. § 214 .2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
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, 53 8 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 53 8 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 45 1 (quoting Darden, 503 U.S. at 324). 
We shall now discuss why application of the Darden and Clackamas tests to the record of 
proceeding now before us precludes us from concluding that the petitioner has established itself as 
a "United States employer" by virtue of the requisite "employer-employee relationship" with the 
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beneficiary. 
B. Overview of the Record 
The record reflects that the beneficiary is in F1-0 PT status which will expire on November 28, 
2015. Accordingly, we note that this petition was filed to change the petitioner's status from F-1 to 
H-1B. 
The petition presents five business-entities as involved, to one extent or another, in providing the 
particular assignment that the petition presents as its basis. These are (1) the petitioner, 
to whom we shall hereafter refer simply as "the petitioner"; (2) 
' ); (3) ); ( 4) '); and (5) the 
. , the entity for which and at whose 
location it is claimed the beneficiary would directly perform her services if this petition is approved. 
As best we can discern from the record of proceeding, the petitioner asserts that the work claimed as 
the basis of the petition would be generated in the following contractual scenario: 
• has a contract with - the ultimate entity for which the beneficiary's work ---
would be performed; 
for a person to perform work required by its contract with 
• has contracted with 
work; and 
to obtain for a person that can perform the 
• has contracted with the petitioner for the beneficiary, so that 
turn provide the beneficiary to for to supply to 
• would in turn provide the beneficiary to 
can in 
The record of proceeding contains no credible evidence of any direct-communication lines between 
the petitioner and the end-user for whom it is claimed the beneficiary would perform her 
services; and there is no evidence of any contract between the petitioner and let alone 
one in which ensures or allows the petitioner any participation in determining and 
supervising the substantive nature of the beneficiary's work as it would be performed day-to-day, 
pursuant to various specific taskings, during the course of the claimed project. Rather, from the 
body of evidence in the record, it appears that, upon the benficiary's assignment to work, 
the petitioner's relationship with the beneficiary would be rather remote, consisting mostly of 
administrative responsibilities, such as administering the beneficiary's pay and benefits; meeting the 
tax and insurance requirements associated with the beneficiary's employment; and performing 
periodic performance evaluations. 
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C. Discussion and Analysis 
In the Form I-129, signed on March 28, 2014, the petitioner indicated that it is seeking the beneficiary's 
services as a "computer programmer/programmer analyst" on a full-time basis at a minimum rate of pay 
of $60,000 per year. As noted previously, the petitioner submitted an LCA that had been certified for a 
job prospect within the occupational classification of "Computer Programmers" - SOC (ONET/OES 
Code) 15-1 131, at a Level I wage. In its March 28, 2014 letter of support, the petitioner's CEO stated that 
the company is "engaged in the business of computer software development for various large and 
mid-size organizations," and that "in-depth knowledge of various technology areas enables us to provide 
end-to-end solutio ns and services ." 
The petitioner stated that the beneficiary would work at the offices of the end-client, in 
The petitioner requested approval of the H-1B petition for the beneficiary for the 
period of October 1, 2014 to August 31, 2017. The petitioner also stated that, upon completion of her 
assignment, the beneficiary would work at the petitioner's home office. However, the 
petitioner neither identified any in-house project upon which the beneficiary would work as a 
programmer analyst nor did it provide any substantive details to support specialty-occupation 
classification for such any such work. So the petitioner should note that we accord no weight to the 
petitioner's generalized and unsubstantiated assertion about the beneficiary's employment after 
completion of the purported project-work. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of 
facts. See 8 C.F.R. § 103.2(b)(1); Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 19 78). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform 
to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 19 98). 
The "Position" section of the petitioner's March 28, 2014 letter of support includes the foll owing 
paragraphs: 
The Computer Programmer/Programmer Analyst analyzes the data processing 
requirements to determine the computer software, which will best serve those needs. 
Thereafter, she will design a computer system using that software, which will 
process the data in the most timely and inexpensive manner, and implements that 
design by overseeing the installation of the necessary system software and its 
customization to the client's unique requirements. The actual computer 
programming may be performed with the assist ance of the programmers. 
Throughout this process, the Computer Programmer/Programmer Analyst must 
constantly interact with the management, explaining to it each phase of the system 
development process, responding to its questions, comments and criticisms, and 
modify the system so that the concerns raised by the clients are adequately 
addressed. Consequently, the Computer Programmer/Programmer Analyst must 
constantly revise and revamp the system as it is being created to respond to 
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unanticipated software anomalies [heretofore] undiscovered, to the extent that 
occasionally, the system finally created bears seemingly little resembl ance to that 
which was initially proposed. 
The letter's "Position" section also includes a table which briefly describes six phases which the 
petitioner ascribes to "development of the system ." However, no information is provided from the 
end-client or from any of the three business-entities interposed between the petitioner 
and that corroborates that the beneficiary would be employed in those six phases. 
The petitioner should also note, therefore, that we attribute very little weight to the above­
referenced parts of its letter of support, in that there is no evidence of record corroborating that the 
scope of any work to which the beneficiary would be assigned is as broad as the letter describes. 
Going 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 19 98) 
(citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 19 72)). 
The petitioner's support letter also describes "the day-to day responsibilities" of the proffered 
position as follows: 
• Involved in designing, coding, testing and documenting SAS Programs/Macros 
and established a validation Process by the util ization of Procs Compare that 
saved both time and resources. % of Time: 15 
• Developed a system called to get the LDB data and report 
it in the required format and developed UNIX script to automate the process and 
to FrP it to the specified location. % of Time: 20 
• Worked on creating quarterly and annually establishment level reports by 
different categories for job creation with expanding and opening establishments 
and job destruction with contracting and closing establishments. % of time: 20 
• Created scheduled Jobs and alerts for updates and backups. % of time: 20 
• Updated the formats catalog with necessary user-defined formats that are 
required to generate tables and listings. % of time: 15 
• Performed system testing for verification and validation. % of time: 10 
It is noteworthy that all but the first of the duty segments are presented in the past tense, and thus as 
responsibilities already fulfilled, rather than as ones that would attach to the beneficiary if this 
petition were approved. However, it serves no purpose for us to address those duties, as nowhere in 
the record does (the end-client) or even its apparent prime-contractor, ·confirm, 
endorse, adopt, or in any way acknowledge those duties as comprising the work that the beneficiary 
specifically would perform for any period. Consequently, we find that the evidence of record fails 
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to corroborate that the duties which the petitioner ascribes to the proffered position would in fact be 
performed in the course of the project-work asserted to be the core of the petition. 
1. Documentary Evidence5 
Documentation submitted at the petition's filing 
Among other documents enclosed with the Form 1-12 9 on its filing were : 
• A February 23, 2014 "Engagement Confirmation Letter of [the 
Beneficiary]" from the president. It attests that the beneficiary "will be 
providing consulting services" through to (to which the letter 
refers as client). The letter does not mention The letter also 
provides a scenario at odds with the relationship with the beneficiary that the 
petitioner claims for itself: here president attests that the beneficiary 
"will be supervised by her employer, and report directly to 
- president of , on a weekly basis." Moreover, 
the president of states that compensation "will be paid by 
who will be [the beneficiary's] actual employer "; that the beneficiary "will 
operate at all times under the administrative control of 
management"; that "all activities, including managerial supervision, hiring and 
firing decisions are controlled by "; and that [p ]erformance reviews 
are conducted directly by ' Not only is not the petitioner 
here, but the above-quoted assertions by the president conflict with some 
control factors that the petitioner claims for itself . We also note that 
president here attests that "anticipates" that the beneficiary will be 
providing services "for the foreseeable future," because, the letter states, "as the 
project is ongoing, no specific end-date is set. " We count this as an indication 
of the uncertainty about the duration of project-work, and we find that 
this aspect highlights the fact that the record does not establish a definite period 
of emplo yment for the beneficiary. 
• A copy of a June 15, 2013 "O ffer Letter - Employer-Employee Relationship 
Document, " in the form of a letter from the petitioner to the beneficiary, which 
the beneficiary countersigned. This letter (to which the petitioner refers as its 
employment contract with the beneficiary) does not reference , the 
purported end-client, or any specific assignment. However, this emphasis on 
5 In light of the their volume, we shall not here identify and discuss all of the items introduced into the 
record. Nonetheless, we have reviewed and considered all of the documents submitted into the record, 
examining each one for relevance, probative value, and credibility, both individually and within the context 
of the totality of the evidence, and with due regard to any positive weight it may carry in support of the 
petitioner's claims, as required by the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). 
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NON-PRECEDENT DECISI01 
the beneficiary's readiness to move wherever the petitioner may assign her is 
consistent with the type of limited work-relationship between a beneficiary seen 
as a staffing asset and a petitoner functioning primarily as a staffing pool that 
assigns persons in its pool to other entities to temporarily augment project-work 
teams that are not under the petitoner's control. 
• A copy of an "Addendum to Employment Contract Dated June 15, 2013 
between [the Petitioner] and [the Beneficiary]." This three-page document, 
which appears to be an addendum to the above-described "Offer Letter, " 
notifies the beneficiary of a broad array of "functional areas" for which she "is 
being hired" to handle as her responsibility when assigned to any project of a 
petitioner's client. The document includes statements (1) that the beneficiary 
"will be required to provide her weekly update to our Tech Lead and attend 
weekly calls (twice a week) with our Tech Lead as well ," and (2) that she "is 
also required to alter/modify or take corrective actions as advised by our 
Practice Lead. For successful execution of the project on time and budget. " The 
document also includes two tables, which the document introduces as outlining 
"[h]er Roles, Responsibilities, and Key Activities ." We observe that there is no 
indication in this document, or anywhere else within the record of proceeding, 
that its content has been endorsed, approved, or required by any of the entities 
figuring in this petition's scenario (i.e., 
Nor does the evidence of record substantiate that the document's outlined 
activities, responsibilities, and reporting requirements comport with the content 
of the contractual documents that have been submitted into the record. In 
particular, we see no documentary evidence of any role specified for a "Team 
Lead" of the petitioner in the "real time" management or supervision of the 
work-site operations of any project-work. Accordingly, we find no 
probative value in this document. Simply going on record without supporting 
documentary evidence is not sufficient for the purpose of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comm'r 197 2). 
• Copies of timesheets for January and February of 2014. The time 
sheets pertain to the beneficiary, but they do not identify any end-client for 
which the beneficiary accrued the recorded work-hours. Further, by the entry of 
separate project-numbers, the time sheets specify two projects upon which the 
beneficiary has worked, and they do so by project numbers rather than names. 
In any event, we see nothing in the timesheets that indicate any particular 
element of control that the petitioner would have a right to exercise in the day-
to-day supervision of the beneficiary during assignment to work. 
• Copies of the beneficiary's weekly status reports to the petitioner, for 
January and February of 2014. The reports reflect that the beneficiary 
reported regularly to the petitioner for that two-month period while assigned to 
(b)(6)
Page 13 
NON-PRECEDENT DECISI01 
work in her F-1 OPT status. However, these after-the-fact reporting 
documents do not reflect the extent, if any, that the petitioner had been 
determining or otherwise influencing the task assignments upon which the 
beneficiary reported. Therefore, we accord minimal weight to theses documents 
in balancing commom-law employer-employee factors. 
• A copy of the petitioner's "O rganizational Chart." 
• A copy of the petitioner's "Y ear End Performance Review Form" as 
completed for the beneficiary for 2013. We observe that, while this document 
reflects that the petitioner has maintained a general assessment of the 
beneficiary's work in her F-1 OPT status, there is no evidence in the record that 
the end-user of the beneficiary's services, or any of the other business entities 
identified by the petitioner as playing a role in the beneficiary's assignment to 
work, would either have an interest in, or be in anyway bound, by the 
petitioner's annual performance reviews. As such, this document also carries 
little weight in our employer-employee analysis. s 
• Copies of the petitioner's "Employee Benefits Package" power-point slides. 
We find that the slides are consistent with other evidence in the record that the 
petitioner would pay for any employment-related benefits due the beneficiary, 
distribute the beneficiary's pay to her, and take care of tax, social security, and 
insurance payments arising from the beneficiary's employment - and we have 
weighed that factor in the petitioner's favor. 
• A copy of the petitioner's "P erformance Management" power-point slides. 
We find that the petitioner has not established how any of the information in 
these slides demonstrates that the constellation of contractual terms and 
conditions generating the beneficiary's assignment to work would 
allow the petitioner any latitude of control over how the beneficiary's day-to­
day work activities would be assigned, supervised, or evaluated during their 
performance. 
• A copy of "T he Employer/Employee Relationship Process" power-point 
slides. We view these slides, and the ones just discussed above, as evidence 
that the petitioner has a formalized program for evaluating the performance of 
persons on its payroll - and that is a factor that we have also weighed in the 
petitioner's favor. However, they do not establish themselves as factors 
influencing the beneficiary's day-to-day work while on assignment away from 
the beneficiary. 
• A February 25, 2014 letter from _. which mostly addresses the work that 
the beneficiary has been doing in F-1 OPT status, as a "Software Engineer" 
(b)(6)
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• 
NON-PRECEDENT DECISIOJ 
[(and not as a computer programmer/programmer analyst)]" from March 19 , 
2012. The letter avers that, at the time of its signing, had a contract with 
pursuant to which was providing "information technology 
services " to through a certain "Bridge Contract" for the period 
January 1, 2014 through December 31 , 2014. The lette r also states that the 
beneficiary was providing her services - that is, as a Software Engineer -
pursuant to that contract. also expressed its confidence that it would be 
awarded the follow-on contract, which it was re-competing. The letter also 
asserts that, if is awarded the follow-on contract, as anticipates, the 
contract "could begin at any time between July 1, 2014 and January 1, 2015 ." 
Also, the letter states that "retains [the beneficiary's] services via a 
contract with [ ]." Significantly, mentions no connection at all with 
the petitioner. It is also significant that the documentation states that the 
beneficiary is working as a Software Engineer at and that the related 
contract would not extend beyond December 2014 . (As earlier noted, the 
petition was filed for the period October 1, 2014 to August 31, 2017). At no 
time does reference the job-title provided by the petitioner for the 
proffered position, namely, Computer Programmer/Programmer Analyst. Also, 
the letter indicates that as late as February 25, 2014, had not secured 
any follow-on contract for work spanning the employment period 
requested in the petition. Notably, the letter does not speak in terms of what 
roles, if any, the petitioner would play in controlling the beneficiary once the 
petitioner dispatches her to a assignment. 
A copy of the beneficiary's identification badge . 
• A copy· of a March 10, 2014 confirmation-of-employment letter from 
president. This letter's content materially conflicts with the 
aforementioned February 23, 20 14 "Engagement Confirmation Letter" from 
; president. Here states that the beneficiary is working for 
the end-client, but not as an employee of The letter 
asserts that the petitioner is the beneficiary's employer and is responsible for 
"full and ultimate control over" the beneficiary, including salary, hiring and 
firing, and performance review "among other things." Also, as duties that the 
beneficiary "will be performing" the letter lists eight duty-components, all of 
which are stated in the past tense as if they had already been completed. 
• A copy of a "S ubcontractor Services Agreement" (" SSA" ) between 
and the petitioner, identified as "Subcontractor." The SSA's 
effective date is October 17, 2013. This document provides terms and 
conditions that are to be deemed automatically incorporated into any follow-on 
contractual request by to the petitioner to "provide temporary 
workers for services to be performed by � J client[ s] at client 
sites." According to procedural provisions in the SSA, the petitioner would, 
(b)(6)
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NON-PRECEDENT DECISI01 
upon request, provide job candidates for to interview as 
candidates for particular work assignments. The SSA also provides that, upon 
finding a suitable candidate, would assign him or her to work at one 
of its clients' sites by issuing a "Project Notification Form," which the SSA 
identifies as an attachment. The petitioner has not submitted a copy of that 
form into the record. 
• A copy of a March 6, 2013 "S tatement of Work (SOW)" between 
and the petitioner. This SOW ident ifies (l) the beneficiary, by 
name, as "Consultant"; (2) the job title as "Programmer A.nalyst"; and (3) as the 
"Client Address," what we recognize as the headquarters address in 
The SOW's "Client" section reads as follows: 
These requested services shall be provided to 
vendor [ and its end client . J. The services shall 
be provided for the period beginning on Janua ry 6, 2014. 
As "Contract Duration" the SOW specifjes "12+Months with possibility of 
extension." In terestingly, the document describes the petitiOner as 
"Subcontractor,'' but does not identi fy the terms "company" and ''contractor," 
although the document states (1) that "[t]or authorized work performed, 
Contractor shall submit written, signed monthly invoices detailing the nature 
of the work performed in renderin g services hereunder vvitb appropriate signed 
and approved timesheets"; and (2) that "[t]he company will pay such 
contractor's monthly invoices upon receipt of the payment from the same from 
the Client." The SOW expressly incorporates the "term[s] referenced in" the 
Agreement executed by and the petitioner on "07/05/2013" - but a 
copy of that document is not provided. The SO\V also states that its details 
"are agreed to be supplemental to the terms and conditions of the Professional 
Services Agreemen t at all times." The record of proceeding does not establish 
whether this "Professional Services Agreement" is the same as the previously 
referenced 07/05/2013 "Agreement." HoH'ever, we see no copy of any 
07/05!2013 "Professional Services Agreement" in the record, either. 
• A copy of a June 10, 2013 " Statement of Work" (SO\V) between 
and the petitioner. Much of this SOW's form and content is the same as the 
earlier, March 6, 2013 SOW that we have just discussed. This later SOW also 
identifies (1) the beneficiary, by name, as "Consultant"; (2) the job title as 
"Programmer Analyst"; and (3) the headquarters address in 
as the Client's Address. This SOW's "Client'' section reads 
the same as the earlier SOW except for the new start-date (June 15, 2013): 
(b)(6)
Page 16 
NON-PRECEDENT DECIS!01 
These requested ser vices shall be provided to 
vendor 1 and its end cl ient l ]. The services shall 
be provided for the period beginn ing on June 15, 2013[.] 
As "Contract Duration" the SOW also specifies "1 2+Months with possibility of 
extensi on." Interestingly, the document describes the petitioner as 
" Subcon tractor, " but does not identify the te rms "compa ny" and "cont racto r," 
although the document states (1) that "[f]or authorized work performed, 
Contractor shall submit written, signed monthly invoices detail ing the nature 
of the work performed in rendering services hereunder w ith appropriate signed 
and approved timesheets "; and (2) that "[t]he cornpany will pay such 
contractor's monthly invoices up on rece ipt of the payment from the same from 
the Client." The divisi on of responsib ilities and exercise of control over the 
beneficiary and his work is further clo uded by the fact that the SOW expre ssl y 
incorporates the "term [s] referenced in" the Agreement executed by 
and the petitioner on the same clay as the SOW - but a copy of that document 
is not provided. The SOW also states that its details "are agreed to be 
supplemen tal to the terms and conditions of the Professional Servic es 
Agreemen t at all times" - but a copy of the Agreement is not provided. 
• A copy of a June 15, 2013 "Contractor Services Agreement " (" CSA") 
signed by and . Here signs as "the Contractor" in 
"the business of providing consulting services." This agreement notes that 
has entered into a contract ("the Prime Contract") with , and that it is 
pursuant to that contract that "has agreed to furnish certain 
consulting services relating to 1 Contract with [the] 
I·" The CSA refers to this 
contract as "the Project" to which the CSA will apply; and it 
outlines terms and conditions that will be deemed to be automatically 
incorporated into any " Statement of Acceptance" or "other written 
document mutually agreed to" by and . When signed by both 
parties, such an " Statement of Acceptance," or acceptable substitute, will 
set the particular services which is to perform, as well as the 
compensation to be paid for those services. Significantly, the CSA expressly 
incorporates by reference, as part of its own terms, "[a]ll Prime Contract [(i.e., 
contract)] terms which are applicable to the services provided 
by 1 ) hereunder." However, the record contains no copy of the 
prime contract. 
• A copy of a June 15, 2013 "Statement of Acceptance" signed by and 
. Interestingly, here the two signatories (i.e., the president of , 
and the president of ) each agree to characterizing [rather 
than the the petitioner] as the beneficiary's employer. This document states 
that " Consulting agrees to accept [the beneficiary][,] an employee of 
(b)(6)
NON-PRECEDENT DECISIOJ 
Page 17 
] [(not of the petitioner)] to provide SAS programming services to the 
" 
-
This document's specific terms read as follows : 
JOB DESCRIPTION: SAS PROGRAMMING SERVICES 
START DATE: June 15 th, 2013 
STAFF QUALIFICATION REQUIRED: _____ _ 
BILLING RATE: $4 8 per hour 
EXPENSE: NONE 
CONDITIONS AND REVISIONS: -------
• A copy of a June 15, 2013 "Work Order" signed by and 
This document opens with a statement that it "is made pursuant to the [CSA], 
date[d] 15 th of June 2013, by and between [ _ and [ � 
("Subcontractor"). " As with the just discussed . Statement of 
Acceptance, this document also identifies the beneficiary as a 
employee, stating that agrees "to accept [the beneficiary] an employee of 
Subcontractor [(i.e., )]." This document provides as the 
work location; and it specifies June 15, 2013 as the projected start-date and June 
30, 2014 as the projected end-date. The document identifies "the Project" as 
"SAS Development Services for the " and it states the Scope of Work as 
"Provide SAS Development Services for the " The billing rate remains the 
same as in the Statement of Acceptance that we just summarized above. This 
document also does not mention the petitioner. 
• A copy of a January 1, 2014 "Work Order" signed by and 
(again as "Subcontractor"). This Work Order also identifies the beneficiary 
as "an employee of Subcontractor [( )]," and it agrees to accept her to 
perform work for the same Project and the same Scope of Work as were 
identified in the Work Order that we discussed immediately 
above. This document further details a new projected start-date (January 6, 
2014 ) and a new projected end-date (December 31, 2014). The Work Order 
specifies the same work-loc ation as the earlier . Work 
Order, discussed immediately above; but it increases the billing rate by $2 per 
hour. This document also does not mention the petitioner. 
• Copies of e-mails between the beneficiary and numerous individuals at 
. We find the e-mails significant not just because they corroborate 
that the beneficiary has been working at during her F-1 OPT period, 
(b)(6)
Page 18 
• 
• 
NON-PRECEDENT DECISION 
but because they reflect that the beneficiary has been working as part of a team, 
rather than as an independent asset under the petitioner's immediate control, and 
that she has been receiving direction from personnel. 
Photographs of the 
at 
Copies of checks issued by 
January 2014. 
offices, including the beneficiary's work location 
to between November 2013 and 
• Copies of documentation regarding the beneficiary's credential s and 
nonim migrant status in the United States. 
Documentation submitted in Response to the RFE 
The director found the evidence insufficient to establish eligibility for the benefit sought, and issued 
an RFE on May 2, 2014. The petitioner was asked to submit probative evidence to establish the 
requisite employer-employee relationship with the beneficiary. The petitioner was also asked to 
submit evidence to establish that the beneficiary was maintaining valid nonimmigrant status. 
The petitioner responded to the RFE by a six-page letter of reply, dated June 4, 2014, which was 
accompanied by a number of documents submitted to support the petitioner's contention that it 
based the petition upon H-lB specialty- occupation work that the beneficiary would perform at 
in We observe that it appears that the petitioner mistakenly believes 
that, if this petition were approved, the petitioner could keep the beneficiary in H-lB status on the 
basis of work that the petitioner did not establish as secured for the beneficiary as of the time the 
petition was filed. We base this observation on the following segment of the RFE-reply letter: 
Location of the work 
[The address in I Once she completes her assignment at 
the current place, she is going to report [to] work at our location .... 
As we noted earlier, we accord no weight to the petitioner's unsubstantiated suggestion that, upon 
completion of the asserted work-assignment, it would engage the beneficiary in H-lB­
caliber work that has not been yet specified. As we also noted earlier, H-lB specialty-oc cupation 
classification may only be approved on the basis of definite, non-speculative work that the evidence 
of record establishes as having been secured for the beneficiary as of the time of the petition's 
filing. 
The petitioner's RFE-reply included the following documents: 
• An additional copy of the February 25, 2014 letter from 
already discussed. 
, which we have 
(b)(6)
NON-PRECEDENT DECISI01 
Page 19 
• Another copy of the beneficiary's identification badge . 
• Apparently original copy of June 4, 2014 confirmation-of­
employment letter, which we have already discussed. 
• Apparently original copy of the June 10, 2013 SOW between 
the petitioner, which we have already discussed. 
and 
• Another copy of the October 17, 2013 "S ubcontractor Services Agreement" 
(" SSA ") between and the petitioner, identified as 
"S ubcontractor." 
• Another copy of the June 15, 2013 "C ontractor Services Agreeme nt " 
( "C SA ") si.gned by and which we have already discussed. 
• Another copy of the June 15, 2013 "S tatement of Acceptance" signed by 
• 
• 
and , which we have already discussed. 
An additional copy of the June 15, 2013 "W ork Order" signed by 
. which we have already discussed. 
An additional copy of the January 1, 2014 Work Order signed by 
, which we have already discussed. 
and 
and 
• Resubmission of the copies of emails between the beneficiary and numerous 
• 
individuals at which we have already discussed. 
Resubmission of the photographs which we have already discussed . 
• Resubmission of documentation regarding the beneficiary's credentials and 
nonimmigrant status, which we have already discussed. 
• A copy of a June 10, 2013 "O ffer Letter - Employer-Employee Relationship 
Document, " in the form of a letter from the petitioner to the beneficiary, which 
the beneficiary countersigned. Except for the date and a difference in the 
signatures, this appears to be identical to the June 15, 2013 letter of the same 
title, which we have already discusse d. 
• An additional copy of the "A ddendum to Employment Contract Dated June 
15, 2013 between [the Petitioner] and [the Beneficiary]," which we have 
already discusse d. 
• An additional copy of the petitioner's Organizational Chart, which we have 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
already discussed. 
• An additional copy of the petitioner's completed Performance Review Form 
that we have already discussed. 
• An additional copy of the petitioner's "Employee Benefits Package " power­
point slides, which we have already discusse d. 
• An additional copy of the petitioner's "Performance Managem ent " power­
point slides, which we have already discusse d. 
• An additional copy of "T he Employer/Employee Relationship Process" 
power-point slides, which we have already discussed. 
• Copies of miscellaneous documents related to the beneficiary's employment 
history. 
• A copy of an IRS Form W-2, Wage and Tax Statement, specifying wages and 
taxes that the petitioner paid for the beneficiary in 2013S. 
• A promotional brochure published by the petitioner. 
The director reviewed the information provided by the petitioner to determine whether the petitioner 
had established eligibility for the benefit sought. On June 16, 2014, the director denied the petition. 
On appeal, the petitioner submits a letter that contends that the director's findings were erroneous. 
Documentation submitted with the letter includes: 
• A July 8, 2014 document entitled "Employment Letter and Job Duties of the 
Beneficiary, " which was produced by the petitioner. We accord little weight to the 
petitioner's statements about the scope and responsibilities of the beneficiary's work, 
as they have not been endorsed by the end-client for whom the work was performed. 
• A copy of a July 1, 2014 "Contractor Services Agreement" (CSA) entered by 
and the petitioner. This agreement notes that has entered into a 
contract with pursuant to which "has agreed to furnish certain consulting 
services relating to _ J Contract with 
_ 
). The Agreement enlists the petitioner to provide 
consulting services as a subcontractor "in connection with performance of 
services in connection with" contract with In the attached 
"Statement of Acceptance," , agrees to accept the beneficiary to provide "SAS 
programming services" to Critical aspects of this contractual document is 
that it both postdates the director's decision of June 16, 2014 and, more importantly, 
was executed and became effective after the filing of the petition. Consequently, we 
(b)(6)
NON-PRECEDENT DECISI01 
Page 21 
find that it and the related Work Order (the next document in line) are beyond the 
zone of consideration as evidence for this appeal as they do not constitute evidence 
of definite, non-speculative project work that was secured for the beneficiary by the 
time the petition was filed. Again, the petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. 8 C.P.R. § 103.2(b )(1 ). A visa petition may 
not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See 8 C.F.R. § 103.2(b )(1); 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 . A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izu mmi, 22 I&N Dec. at 176. 
• A copy of the July 1, 2014 "Work Order" signed by and the petitioner. 
• 
Executed pursuant to the /Petitioner CSA just discusse d, this document 
confirms agreement to accept the beneficiary to provide "SAS programming 
services" to We also note that it identifies the beneficiary as an employee 
of the petitioner. As we have just indicated in our discussion of the related CSA, 
we find that this document is irrelevant, as it evidences an agreement not in existence 
at the time the petition was filed . Further still we find that the document itself is not 
evidence of definite, non-speculative work for the beneficiary, anyway: it only 
speaks in terms of a "Projected " start-date and a "Projected" end-date, and it is not 
buttressed by any evidence from or its prime contractor . , confirming 
the actual need for the stated project-work services from the beneficiary for any 
period within the period covered by the projected start and end dates. 
A duplicate copy of 
discussed. 
February 25, 2014 le tter, which we have previously 
• Two affidavits from the beneficiary's co-workers at confirming that 
the beneficiary is working at and outlining her duties. Neither co-worker 
references the petitioner, and neither provides any substantive details about 
supervision and management of the related project. 
• A July 17, 2014 letter from the president confirming that the beneficiary 
will be providing consulting services through to a particular client of 
that is, The letter further confirms that the ben eficiary "will be supervised 
by her employer, [the petitioning company] and report directly to 
President of [the petitioning company], on a weekly basis." 
• A copy of a "Purchase Order" between and The document does not 
reference the petitioner, the beneficiary or the end-client, Further, the 
matters to which this document refers are not expressed in terms that are 
understandable on their face. 
• Copies of pay stubs and Forms W-2 issued to the beneficiary by the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
• Weekly status reports from the beneficiary to the petitioner for June and early 
July 2014. 
• A copy of the "Year End Performance Review Form" for the petitioner and the 
beneficiary, signed in July 2014. 
• A copy of the beneficiary's health insurance card from United Healthcare and 
proof of its payment by the petitioner. 
• A copy of the petitioner's "Employee Handbook. " 
• Duplicate copies of other documents submitted with the initial H-lB submission and 
in response to the director's RFE, which we have also discussed. 
2. Additional Comments and Findings 
As reflected in our earlier discussion of the common-law touchstone of control, in determining 
whether a petitioner has established the requisite employer-employee relationship for standing to 
file as an H-lB specialty occupation petitioner, we evaluate the totality of the record's evidence 
relevant to the relationship between the petitioner and the beneficiary as it would operate within the 
specific factual context of the beneficiary's work situation that the petitioner identifies as the basis 
of the petition. In doing so, we consider not just the volume but also the quality and weight of the 
evidence and also the extensiveness of the evidence, that is, the extent to which it addresses all of 
the indicia of control over the beneficiary and the beneficiary's work during his or her assignment 
away from the petitioner. Such evidence would include, but not be limited to, contractual terms and 
conditions whose implementation would be relevant to control over the beneficiary and the 
beneficiary's day-to-day performance. Thus, part of the petitioner's burden is to ensure that it 
provides evidence that is sufficiently comprehensive to surface all of the factors of control operating 
in the particular factual context of the petition, and, as necessary, to also resolve any issues with 
regard to any of those factors. The range of relevant evidence in this record of proceeding does not 
reach that level. 
We will now note numerous aspects of the evidence of record that we regard as factors weighing 
against a favorable determination on the petitioner's claim that it satisfies the employer-employee 
requirement. In this regard, we find that the evidence of record: 
1. Indicates that the beneficiary would be assigned to a location (in 
that is distant from the petitioner's (which is in Illinois). 
2. Does not indicate that the petitioner has placed any supervisory person at the 
· beneficiary's work site, or that the petitioner otherwise maintains an ongoing role 
in determining the methods and means by which the beneficiary's would perform 
his day-to-day work as it would unfold during the beneficiary's assignment away 
(b)(6)
Page 23 
NON-PRECEDENT DECISION 
from the petitioner. Likewise, as voluminous as it is, the record's documentary 
evidence does not establish that or its prime-contractor have 
allocated the petitioner any substantive role in project-work, i.e., 
aside from serving as a pool from which the beneficiary could be drawn, making 
the beneficiary available to work at and taking care of work-related 
administrative functions such as pay, social security contributions, worker's 
compensation contributions, unemployment insurance contributions, federal and 
state income tax withholdings, and any work-related benefits. 
3. Indicates that the petitioner's management and evaluation actions regarding the 
beneficiary's work (a) are not provided at the workplace, and (b) are neither 
continuously issued nor based upon daily or other regular observation of the 
beneficiary by the petitioner in the regular course of the beneficiary's work for 
Further, there is no evidence of record that the petitioner's 
performance evaluations are binding upon the end-client or upon any intermediate 
vendor. Also, there is no indication that, based upon its performance evaluations, 
the petitioner could unilaterally keep the beneficiary at the project site regardless 
of contrary performance determinations by the end-client or an intermediate 
vendor. 
4. Does not indicate that the petitioner plays any subst antial role in determining the 
particular, concrete duties and tasks that the beneficiary would be assigned, day-
to-day, to the beneficiary during the course of her assignment to work. 
5. Nowhere indicates that the work to which the beneficiary would be assigned 
would require the petitioner to provide its own proprietary information or 
technology. 
6. Does not indicate that the beneficiary would be used to produce an end-product 
for the petitioner's own use. Rather, the totality of the evidence indicates that 
whatever might be produced by the beneficiary is solely for the use and benefit of 
the end-client, , and must conform to requirements - not the 
petitioner's. 
We recognize that some of the evidence indicates that the petitioner would likely handle social 
security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and any petitioner-provided benefits 
related to the beneficiary's assignment to project-work; and we have weighed that 
evidence among relevant factors for determining who will control an alien beneficiary in the sense 
of the common-law employer-employee concept. However, other incidents of control, 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 
alien beneficiary is assigned, must also be assessed and weighed in order to make a determination as 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
to who will be the beneficiary's employer within the context of the U.S. Employer requirements at 
8 C.F.R. § 214. 2(h)(4)(ii) . 
However, we find that, as reflected in our earlier descriptions and comments with regard to the 
individual pieces of documentary evidence in the record, the totality of the evidence . about the 
petitioner focuses upon the petitioner as a source and supplier of a person that and 
would easily assimilate into a team doing project-work. It does not, however, focus upon 
or provide comprehensive and consistent information about either (1) the management and 
supervisory operations into which the beneficiary would be inserted at or (2) what 
latitude of action, if any, the petitioner would have with regard to the beneficiary and the 
beneficiary's work as it would actually be performed day-to-day during the progress of any 
project-work to which the beneficiary would be assigned. Nor does the record of 
proceeding, even with all of its submissions and all of the petitioner's assertions, fully illuminate 
whatever aspects of control each of the four entities other than the petitioner may have over the 
beneficiary and his work, as functions of all of the contractual documents which are in play but 
have not been fully disclosed in the record. We shall not speculate about undisclosed contractual 
terms and conditions that may affect various levels of work relationships with the beneficiary, but 
we do find that the extent of the evidence presented is not sufficiently comprehensive to persuade us 
as to how the petitioner would retain any practical control over the beneficiary when on an 
assignment that has been generated by the cascade of contracts claimed to be operative here. 
Thus, we conclude, that, notwithstanding its volume, the scope of the record's documentary 
evidence is not expansive enough to capture many relevant indicia of control that should be 
considered for a conclusive determination on the employer-employee issue. This is partly a 
function of the petitioner's not providing copies of the full range of contractual documents pertinent 
to the contractual landscape in which the beneficiary would operate. Further, the petitioner has not 
taken the opportunity to provide information from appropriate, knowledgeable officials from 
and that would disclose the management and supervisory framework 
and operational procedures that would determine what the beneficiary would do day-to-day, how 
she would be supervised, and how the quality and pace of her work would be evaluated as it was 
being performed. 
Aside from the deficiency of the evidentiary scope of the record - which in itself precludes approval 
of the petition - as our earlier review of the documentary evidence reflects, there is a fault line of 
apparently conflicting information running through the documentary record, and it undermines the 
credibility of the petition. 
A prominent example resides in documents regarding and In the June 15, 2013 
and the January 1, 2014 Work Orders executed by and and filed with the Form I-
129, noted that the beneficiary is an employee of Likewise, the June 15, 2013 
"Statement of Acceptance" executed by and and submitted by the petitioner in 
response to the director's RFE noted again that the beneficiary is an employee of 
Further, in the February 23, 2014 letter from the president submitted by the petitioner with the 
initial H-1B petition, noted that the beneficiary "will be supervised by her employer, 
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Inc., and report directly to -President of on a weekly basis." 
Moreover, the president of . stated that compensation "will be paid by who will be 
[the beneficiary's] actual employer "; that the be neficiary "will operate at all times under the 
administrative control of management"; that "all activities, including managerial 
supervision, hiring and firing decisions are controlled by '; and that "[p]erformance 
reviews are conducted directly by '' The above-quoted statements from the president of 
are materially inconsistent with statements made by the petitioner with regard to particular 
aspects of its claimed control over the beneficiary and his work. Yet, by submitting these 
documents without stating any reservations about their content, the petitioner presented them as 
representative of the operational context in which the beneficiary would work. 
We have taken into consideration that, on appeal, the petitioner submits (1) a July 1, 2014 
"Statement of Acceptance" executed by and the petitioner which stated that the beneficiary is 
an employee of the petitioning company, and (2) another letter from the president of . , dated 
July 7, 2014, stating that the beneficiary "will be supervised by her employer, [the petitioning 
company] and report directly to ·President of [the petitioning company], on a weekl y 
basis." However we note that neither the petitioner nor have explained the reasons for the 
apparently contrary information in the previous documents. Material inconsistencies must be 
resolved by relevant, objective evidence showing the truth of matter. See Matter of Ho, 19 I&N 
Dec. at 591 -92. 
We also refer the petitioner to the discrepancies between the duty descriptions as presented in the 
petitioner's support letter and as presented on appeal in the petitioner's "Employment Letter and Job 
Duties." We also refer the petitioner to the discrepancies between both of those documents, on the 
one hand, and the letter, on the other, in their descriptions of the specific duties or 
responsibilities of the proffered position. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suf fice. Matter of Ho, 19 I&N Dec. 58 2, 
591- 92 (BIA 19 88). 
We will not speculate as to the full constellation of material terms and conditions that pertinent but 
unprovided contractual documents (such as, for instance, the "prime" contract between and 
that would likely shed light on factors of control operating in this petition's 
project-work scenario) However, we do find that the record of proceeding lacks probative evidence 
of the actual supervisory and management framework that would determine, direct, and supervise 
the beneficiary's day-to-day work at Based upon this fact and upon all of the aspects of 
the record that we have discussed as bearing on the employer-employee issue, we conclude that the 
evidence of record is inconclusive on the issue of whether it is more likely than not that the 
petitioner and the beneficiary would have the requisit e employer-employee relationship in the 
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context of the work claimed as the basis of this petition. We reach this conclusion based upon the 
application of the above-discussed common law principles to the totality of the evidence of record. 
As the record of proceeding before us does not document the full array of 
employer/employee-related contractual terms and conditions, or on-the-job lines of supervision and 
management that would control the beneficiary's day-to-day work, we do not have before us a 
sufficient! y comprehensive record to identify and weigh all of the indicia of control that should be 
assessed to resolve the employer-employee issue under the above discussed common law 
touchstone of control. We will not speculate where those indicia would lie. It is the petitioner's 
burden to provide sufficient evidence to establish that the claimed employer -employee relationship 
exists. 
We have reviewed the full array of indicia of control that the petitioner lists in its letter on appeal. 
However, as reflected in our decision's comments and findings, the petitioner has not substantiated 
sufficient indicia to show that it would have the requisite employer-employee relationship with the 
beneficiary. Going 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 of Calif ornia, 14 I&N Dec. 19 0 (Reg. Comm'r 
19 72)). Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 53 3, 534 (BIA 19 88); Matter of Laur eano, 19 I&N 
Dec. 1 (BIA 19 83); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 19 80). 
As the evidence of record is insufficient to establish that the petitioner qualifies as a "United States 
employer" as defined by 8 C.P.R. § 214.2 (h)(4)(ii), the appeal will be dismissed, and the petition 
will be denied. 
Additionally, as also reflected in our earlier discussion of the documentary evidence, the evidence 
of record does not establish the petitioner as performing the essential U.S. Employer function of 
engaging the beneficiary to come to the United States for definite, non-speculative H-1B-caliber 
work that had been secured for the beneficiary by the time of the petition's filing. 
Beyond the decision of the director, we have identified another aspect of the record of proceeding 
that precludes approval of the petition, namely, the failure of the evidence of record to establish the 
proffered position as a specialty occupation. We review the record of proceeding de novo (see 
Soltane v. DOl, 381 P.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review 
on a de novo basis), and it was in the course of review that this material defect surfaced. 
As our decision on the employer-employee issue is dispositive of this appeal, we shall not now 
discuss in detail the petition's failure to establish the proffered position as a specialty occupation. 
We shall, however, provide a general discussion that should be sufficient to alert the petitioner to 
the major evidentiary flaws that preclude us from recognizing the proffered position as a specialty 
occupation as described by the statutory and regulatory framework at Section 21 4(i)(l) of the Act 
(8 U.S .C. § 11 84(i)(l)), 8 C.P.R. § 214. 2(h)(4)(ii), and the supplementary criteria at 8 C.P.R. 
§ 214. 2(h)(4)(ii i)(A). 
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The petitioner has not cited any information from the Occu pational Outlook Handbook, O*NET, or 
any other authoritative source as supportive evidence that entry into the Computer Programmers 
occupational classification, i.e., the occupational group specified in the LCA, normally requires at 
least a U.S. bachelor's degree, or equivalent, in a specific specialty. Thus, as the petitioner has not 
established that the proffered position's inclusion in the Computer Programmers occupational group 
is sufficient to establish the position as one that normally requires at least a bachelor's degree, or 
equivalent, in a specific specialty, it is incumbent upon the petitioner to provide sufficiently 
substantive evidence that the proffered position satisfies the overarching degree/degr ee-equivalency 
by virtue of the position either (1) being one for which there is a common requirement for a 
bachelor's degree or the equivalent, in a specific specialty, in positions that are parallel to the 
proffered position and within organizations in the petitioner's industry that are similar to the 
petitioner; (2) being so complex or unique as to require the services of a person with at least a 
bachelor's degree, or the equivalent, in a specific specialty; (3) being one whose performance 
requirements generated a history of the petitioner's exclusively recruiting and hiring for the position 
only persons with at least a bachelor's degree or the equivalent in a specific specialty; or (4) being 
comprised of specific duties so complex and specialized that their performance would require the 
application of knowledge usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty. The evidence of record also fails to meet any of those specialty-oc cupation 
thresholds. Consequently, the evidence of record fails to establish the proffered position as a 
specialty occupation. 
In the above regard, we also find that documentation in the record of proceeding casts substantial 
doubt not only upon the levels of complexity and specialization that would actually be involved in 
any project-work that would be assigned to the beneficiary, but also upon the extent of 
the duties that the beneficiary would actually perform. We draw the petitioner's attention to the 
significant differences among the petitioner's letter of support, the February 25, 2014 • letter, 
and the petitioner's "Employment and Job Duties" document submitted on appeal in how they 
describe the duties of the proffered position. As distinctly different as those documents are in their 
reporting of the proposed duties, it was incumbent upon the petitioner to address and resolve that 
apparently conflicting information about a factor so fundamental to an H-1B petition as the specific 
duties that would comprise the proffered position. This the petitioner has not done. This doubt cast 
by the conflicting information about the proffered position's specific duties materially undermines 
the credibility of the petition, as the petitioner has not resolved the inconsistencies by independent, 
objective evidence pointing to where the truth, in fact, lies. See Matter of Ho, 19 I&N Dec. at 591-
92. 
Additionally, we refer the petitioner to our earlier finding that the petitioner failed to establish that, 
by the petition's filing, it had secured definite, non-speculative employment for the beneficiary for 
the H-1B classification period requested in the petition. This aspect of the petition also precludes its 
approval. 
As the petitioner has not presented credible, probative evidence sufficient to establish the 
substantive nature and associated educational requirements of specific services that the beneficiary 
would actually provide during the employment period sought in the petition, it has not satisfied any 
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of the criteria at 8 C.P.R. § 214. 2(h)(4) (iii)(A) and, therefore, it cannot be found that the proffered 
position qualifies as a specialty occupation. For this reason also, the petition must be denied. 
V. CONCL USION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025 , 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 35 1 F.3d 11 77, 118 3 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility fo r the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 12 7, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.