dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "support engineer" under the H -1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section I Ol(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(l5)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the record 
does not demonstrate that (1) the Petitioner meets the definition of an United States employer as that 
term is defined at 8 C.F.R. § 214.2(h)(4)(ii); and (2) the proffered position qualifies as a specialty 
occupation. 
On appeal, the Petitioner submits a brief and copies of previously provided evidence, and asserts that 
the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
. Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor 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)(l) .... 
Matter ofC- Inc. 
The term "United States employer" is defined at 8 C.F.R. § 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contnictor, 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). 
/ 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the tenns 
"employee" and "employer-employee relationship" are not defined for purposes of the H-lB visa 
classification. The United States Supreme Court has determined that where federal law fails to clearly 
define the term "employee," courts should conclude that the tetm was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. 
Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all ofthe incidents of the relationship must be assessed and 
weighed with no one factorbeing decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 1 
1 
While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S. C. § I 002(6), and did not address the definition of "employer," courts have generally 
2 
Matter of C- Inc. 
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, U.S. Citizenship and 
Immigration Services (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)). 
Such indicia of control include when, wh~re, 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 ofbeneficiaries' services, are 
the "true employers" ofH-18 nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
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 tinder 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, 
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). 
In this matter, the Act does .not exhibit a legislative intent to extend the definition of "employer" in section 
I 01 (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(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-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. Specifically, the regulatory definition of "United States employer" requires H-1 B 
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-1 B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
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. 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 Coundl, Inc.; 467 U.S. 837, 844-45 (1984). 
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(b)(6)
Matter ofC- Inc. 
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). 
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 ofthe relationship ... with no 
one factor being decisive."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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-lB temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
In the instant case, the Petitioner, which is located in North Carolina, indicated that it will assign the 
Beneficiary to work for the end-client, in Missouri, for the 
duration of the validity period requested. The contractual chain through which the Beneficiary's 
assignment has been arranged is as follows: the Petitioner contracted with the mid-vendor, 
which in turn contracted with 
Although the Beneficiary will work in a remote location on another company's project, the 
Petitioner maintains that it will supervise the Beneficiary and have "exclusive right to control [his] 
work." The Petitioner states, for example, that "[t]he beneficiary will be operating at all times under 
[the Petitioner's] management, and all activities, including the ability to hire, fire, pay, and supervise 
the beneficiary, and administer taxes 
and benefits, will be controlled by [the Petitioner] throughout 
the requested validity period." Nevertheless, the evidence of record does not meaningfully 
demonstrate how the Petitioner will provide such claimed supervision and control in this situation. 
For instance, the Petitioner has not identified which of its employees will supervise the Beneficiary's 
substantive work on a daily basis. According to the Beneficiary's two performance evaluations 
(completed in February and July 2016), his supervisor appears to be the Petitioner's human 
resources manager. But the Petitioner has not further explained such aspects as (1) how the human 
resources manager will exercise supervision and control, and (2) the basis of his or her knowledge, 
as a human resources manager, to oversee the substantive work of the Beneficiary in his position as a 
support engineer. 
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(b)(6)
Matter of C- Inc. 
The Petitioner also has not explained in sufficient detail such aspects as the manner and frequency 
with which it communicates with the Beneficiary about his substantive work. The Petitioner stated 
that each of its employees "completes a weekly status sheet," and submitted weekly reports the 
Beneficiary completed about work he performed and has in progress. However, that the Beneficiary 
is the one providi~g the Petitioner with such information, and not the other way around, raises 
additional questions as to how much knowledge and control the Petitioner has over the Beneficiary's 
daily assignments. The Petitioner further stated that it "conduct[ s] monthly and periodic 
performance reviews to ensure satisfactory completion of work," but has not explained the source of 
the information upon which it is able to assess the Beneficiary's work for the end-client. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The evidence of record does not contain reliable, official documentation directly from the end-client 
that is ultimately receiving the Beneficiary's services.2 While the record contains an email from 
identified elsewhere in the record as an application support specialist at IT 
Help Desk, there is insufficient evidence that is authorized to write this letter on behalf of 
His email, which purports to confirm the Beneficiary's assignment to the end-client, states 
at the bottom that "per policy the company doesn't provide client referral 
letter to non-employees." 3 The Petitioner has not sufficiently documented authority to 
write such a confirmation despite company policy, and in light of his position as an application 
support specialist in the IT Help Desk. In any event, only confirms that the Beneficiary 
"has been working as an [sic] Support Engineer through He does not acknowledge or 
mention the Petitioner as the Beneficiary's employer. 
The record contains copies of emails between employees and the Beneficiary, his work 
badge, and photographs of his work space at At most this evidence confirms the 
Beneficiary's assignment to the end-client, which is not in question here. This evidence does not, 
however, illuminate the nature of the Beneficiary's work relationship with the Petitioner, which is in 
question here. In other words, this evidence does not answer the question of who, on behalf of the 
Petitioner, oversees, directs, assigns, reviews, affects, supervises, or otherwise controls the 
Beneficiary's day-to-day work, and how such control is exercised. Therefore, the key element in 
this matter, which is whether the Petitioner exercises actual control over the Beneficiary, has n~t 
been substantiated. 
The record additionally contains letters and contracts from or between the Petitioner and the mid­
vendor. But such documentation is not probative towards establishing the terms and conditions of 
2 The Petitioner and mid-vendor both state that confidentiality provisions preclude them from providing copies of any 
contracts or letters from the end-client. Although the Petitioner may always decline to submit confidential information, 
the Petitioner must still satisfy the burden of proof with relevant, probative, and credible evidence. See Chawathe, 25 
l&N Dec. at 376. 
3 
The Petitioner and the mid-vendor similarly reiterated policy of not providing written confirmation letters for 
non-employees. 
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(b)(6)
Matter of C- Inc. 
the Beneficiary's assignment as imposed by the end-client. See Defensor, 201 F.3d at 387-88 
(requiring evidence from the end-client about the proposed position). Nevertheless, we note the 
mid-vendor's letters stating that the Petitioner "provides all day-to-day supervision, overall 
management and training for [the Beneficiary], evaluates his work and is responsible for all 
compensation, tax withholdings, and benefits." The letters lack additional, critical information such 
as who, on behalf of the Petitioner, assigns, reviews, and supervises the Beneficiary's day-to-day 
work, and how such supervision is provided from a remote location. 
Notably, the Beneficiary's time sheets list the ' Manager" as The 
Petitioner has not further explained the relationship between and the Petitioner's 
human resources manager (or another employee) with respect to the Beneficiary's work. We also 
note the master service agreement between the Petitioner and the mid-vendor which states that, to 
the extent requested by the mid-vendor, the Petitioner's "Consultant shall agree to be bound by the 
provisions of any contract between the [mid-vendor] and It also states that the 
Consultant's services "shall be provided ... to the reasonable satisfaction of Company" and "will be 
subject to review and revision, in accordance with the changing needs of Company, and if required, 
End User." Considering this language which indicates some element of shared supervision and 
control between the end-client, mid-vendor, and the Petitioner, we must question the Petitioner's 
claimed "exclusive right to control" the Beneficiary. 
As discussed above, the Petitioner has not demonstrated that it exercises actual control over the 
Beneficiary's work. It appears that the Petitioner's role and responsibilities are essentially limited to 
the administration of the Beneficiary's payroll and other related benefits, including the filing of 
immigration benefits. Accordingly, we are unable to find that the requisite employer-employee 
relationship will exist between the Petitioner and the Beneficiary. See id. at 388 (with the 
Petitioner's role limited to essentially the functions of a payroll administrator, the Beneficiary is 
even paid, in the end, by the client or end client). 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 -1 B temporary "employee." 8 C.F .R. § 214.2(h)( 4 )(ii). 
II. SPECIALTY (')CCUP A TION 
We also find that the record does not sufficiently demonstrate that the proffered position qualifies as 
a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
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(b)(6)
Matter of C- Inc. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the r~gulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equiv~lent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. ' 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor, 201 F .3d at 
387. 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its Jocation(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the beneficiaries in that case would provide services to the end-client hospitals and not to the 
petitioning staffing company, the petitioner-provided job duties and alleged requirements to perform 
those duties were insufficient for a specialty occupation determination. See id. It is the duties 
described by the end-client that control in this situation. 
B. Analysis 
Because it is necessary for the end-client to provide sufficient information regarding the proposed 
job duties to be performed, it is the end-client's position description that controls in this situation. 
See id. But as discussed above, the Petitioner has not provided reliable documentation directly from 
the end-client. We incorporate our previous discussion on the deficiencies of letter. 
(b)(6)
Matter of C- Inc. 
Even if we were to consider letter, we note that it does not state the end-client's 
minimum educational requirement for the proffered position. Furthermore, it provides the following 
list of job duties for the Beneficiary (verbatim):4 
• Business requirements analysis using Oracle Order Service Management. 
• Resolve Production Support issues for provisioning Customer Services. 
• Provide technical and functional support to business users. 
• Data Analysis for reports, forms and interfaces in Oracle OSM for various business 
needs. 
• Perform testing of various business processes and associated system supporting 
interfaces, forms and perform data analysis. 
• Resolve Oracle OSM related data problems impacting customer's service and 
satisfaction. 
• Working closely with other teams of the project for pre and post development 
(business teams/Functional team). 
In contrast, the Petitioner listed the proffered job duties as follows (verbatim):5 
• Provide support on development and production support engineering. This includes 
a) Resolve Production Support issues for provisioning client's services as well as 
Oracle Order Service Management (OSM) related data problems. b) Work on tools 
developed by client for provisioning services. c) Work on Client's data billing 
application 
(50%) 
• Work on developing, maintaining applications and databases used by client (20%) 
• Work in product testing environment ( 10%) 
• Present ideas for application and database system improvements and work m 
migration of legacy to systems ( 10%) 
• Business requirement analysis using Oracle Order Service Management that requires 
Data Analysis for reports, forms and interfaces in Oracle Order Service Management 
(OSM) (10%). 
The Petitioner's description appears to have the Beneficiary performing application development duties, 
consistent with certified labor condition application (LCA) for a position under the "Software 
Developers, Applications" occupational category.6 However, description does not contain 
any application development duties. The Petitioner must resolve inconsistencies with independent, 
4 The mid-vendor's letters contain virtually the same I ist of job duties for the Beneficiary. 
5 While Petitioner-provided job duties and requirements are generally outside the scope of consideration for establishing 
whether the position qualifies as a specialty occupation in cases such as this (i.e., in cases where the Petitioner is not the 
entity ultimately receiving the Beneficiary's services), we are nevertheless addressing the Petitioner's job description for 
purposes of comparison. 
6 The Standard Occupational Classification code for the "Software Developers, Applications" occupational category is 
15-1132. 
8 
(b)(6)
Matter ofC- Inc. 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 
1988). 
The duties that attributes to the proffered position are vague and could apply to many 
different computer-related positions. For example, states that the Beneficiary will 
resolve production support "issues" and provide technical and functional "support." But he does not 
further explain what types of "issues" are involved, and what particular tasks the Beneficiary will 
perform when providing such "support." By itself, this vague description does not adequately 
communicate the substantive nature of the Beneficiary's work, and whether such work is consistent 
with the "Software Developers, Applications" occupational classification selected on the LCA. It 
also does not convey the complexity, uniqueness and/or specialization of his work, and the 
correlation between that work and a need for a particular level of education and knowledge in a 
specific specialty. 
On a more fundamental level, the record lacks a detailed explanation about the particular end-client 
project(s) to which the Beneficiary will be assigned. Some of the Beneficiary's time sheets identify 
the client project as while others identify the project as 
The record does not contain an explanation, whether in the letters 
provided by the mid-vendor, and the Petitioner, about these particular projects or even 
what type of company the end-client is. 
For all of the above reasons, we find the record of proceedings insufficient to demonstrate the 
substantive nature of the proffered position. We are therefore precluded from finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the. 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
entry into the particular position, which is the focus of criterion 1; (2) industry positions which are 
parallel to the proffered position and thus appropriate for review for a common degree requirement, 
under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion 2; (4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
9 
Matter ofC- Inc. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC- Inc., ID# 154450 (AAO Feb. 27, 2017) 
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