dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 12,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"big data analyst/Hadoop developer" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established a valid employer-employee relationship between the Petitioner and the 
Beneficiary such that the Petitioner could meet the definition of a United States employer as that 
term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , 
who ~eets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212( n )( 1 ). 
Matter ofT- Inc 
The Code of Federal Regulations defines the term "United States employer" 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, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
8 C.F.R. § 214.2(h)(4)(ii) (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), notably 
the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-1 B 
visa classification. Section 101 ( a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) ofthe Act, 
8 U.S.C. § 1182(n)(l ). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S.C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-lB 
temporary "employees." 8 C.F .R. § 214.2(h)( 1 ), (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-1 B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 2142(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1 B visa classification, even though the regulation describes H-1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 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: 
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Matter ofT- Inc 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. . ) 
of Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Cong. Rec. S171 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 
27, 1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the 
term "United States employer" 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-18 "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
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. § 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 employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See. e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(I5)(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. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A .. Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
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additidnal 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. C.'l 
Darden, 503 U.S. at 318-19? 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether a person is an "employee" in an "employer-employee relationship" 
with a "United States employer" for purposes of H-1 B nonimmigrant petitions, USC IS must focus on 
the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. § 
214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee." (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
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). 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship,'' 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332,359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,414 (1945)). 
3 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-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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Matter ofT- Inc 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(1). 
Furthermore, when examining the factors relevant to determining~ control, USCIS must assess and 
weigh each actual fact()r itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
II. 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-1B temporary "employee." 
As noted, the Petitioner stated that the Beneficiary will serve as a "big data analyst/Hadoop 
developer." On the labor condition application (LCA)4 submitted in support of the H-lB petition, the 
Petitioner designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification code 15-1132.
5 
4 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter o.fSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
5 The Petitioner classified the proffered position at a Level II wage (the second-lowest of four assignable wage levels). 
We will consider this selection in our analysis. The "Prevailing Wage Determination Policy Guidance" issued by the 
DOL provides a description of the wage levels. A Level II wage rate is generally appropriate for positions for which the 
Petitioner expects the Beneficiary to perfonn only moderately complex tasks involving limited judgment. U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://tlcdatacenter.com/download/ NPWHC _Guidance_ Revised _1 I_ 2009.pdf A 
prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the 
experience, education, and skill requirements of the Petitioner's job opportunity. !d. 
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(b)(6)
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The record indicates that the Beneficiary would perform his duties at an ofisite location for 
(end-client), pursuant to contracts executed between the Petitioner and 
(first vendor), between the first vendor and (second vendor), and between the 
second 
vendor and the end-client. The contractual path of succession appears to be as follows: 
Petitioner 7 First Vendor 7 Second Vendor 7 End-client 
We observe that the record of proceedings does not contain copies of any of the contracts executed 
between the first vendor and the second vendor or between the second vendor and the end-client. 
Nor are there any copies of the types of documents commonly executed pursuant to such contracts, 
such as work orders, statements of work, invoices, or receipts. Therefore, there is no evidence of 
any binding obligation on the part of the second vendor or end-client to provide any work for the 
Beneficiary to perform. 6 Absent that foundational showing- that there will actually be work for the 
Beneficiary to perform- we cannot determine whether such work would entail the Petitioner engaging 
in an employer-employee relationship with the Beneficiary. 7 
However, even if we set that issue aside we still would find insufficient evidence of an employer­
employee relationship. Even if the Petitioner has secured work for the Beneficiary to perform, and 
would assign the Beneficiary to work for the end-client at a remote location as claimed, we would find 
6 While acknowledged, the brief email from the end-client does not fill this gap. 
7 Speculative employment is not permitted in the H-1 B program. For example , a 1998 proposed rule documented this 
position as follows: 
Historically , the Service has not granted H-1 B classification on the basis of speculative , or 
undetermined , prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute , the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor 's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment , the Service is unable to perform either part of this two-prong analysis 
and , therefore , is unable to adjudicate properly a request for H-1 B classification . Moreover , there is no 
assurance that the alien will engage in a specialty occ~pation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Clas sification, 63 Fed. Reg. 30,419 , 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to petition for H-1 B classification on 
' the basis of facts not in existence at the time the instant petition was filed, it must nonetheless file a new petition to have 
these facts considered in any eligibility determination requested, as the agency may not consider them in this proceeding 
pursuant to the law and legal precedent cited, supra. 
In other words, it is not clear that a position actually exists for the Beneficiary. Absent that initial showing , whether the 
position is a specialty occupation cannot be determined. As the Petitioner has not overcome the Director's ground for 
denying the petition we will not address the specialty-occupation issue further , except to note that the Petitioner should 
be prepared to address it in any future filings. 
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(b)(6)
Matter ofT- Inc 
that the terms of that employment- and thus the existence of an employer-employee relationship- had 
not been demonstrated. 
The Petitioner is located in New Jersey. The H-lB petition states that the Beneficiary will 
work for the end-client in Georgia. The Petitioner stated that it would "be responsible for 
the overall direction of [the Beneficiary's] work for the entire validity period requested" and that 
this would be "accomplished through periodic performance reviews , project progress review, client 
site visits by our Managers and constant communication between employees and our internal 
managers and supervisors." In other words, the Petitioner would not control the Beneficiary 's day­
to-day performance in that it would not assign specific tasks to the Beneficiary and evaluate the 
outcome of his performance of those specific tasks. However, as noted, the Petitioner submitted an 
LCA certified at a Level II wage, which indicates that the Beneficiary would require close supervision, 
as that wage is only appropriate for positions in which the Beneficiary would perform moderately 
complex duties requiring limited judgement. While an employee who performs only moderately 
complex duties requiring limited judgment would likely require close supervision, it does not appear as 
though the Petitioner would be in a position to be the one to provide it. 
The Petitioner's claims that it would evaluate the Beneficiary's work performance are not sufficient 
to establish the existence of an employer-employee relationship, either. According to the Petitioner , 
its managers "have their own internal systems through which they supervise their employees, 
including emails, regular phone conferences, weekly time sheets & project reports, and even follow 
up phone calls with the clients." As evidence of such control, the record contains a performance 
evaluation of the Beneficiary's employment conducted in January 2016. It consists of eleven 
"check-marks" with no narrative or similar comments regarding the Beneficiary ' s work, other than a 
comment that his performance "during the interview " was satisfactory. While each of the referenced 
"check-marks" was followed by a field labeled "comments," no comments were left. The "new 
goals" field was similarly left blank. Without further information about how the Petitioner evaluated 
the Beneficiary's performance, it does not establish that the Petitioner supervises or otherwise 
controls the Beneficiary's employment. 
Further, given the Petitioner's statements regarding the performance evaluation process, we observe 
that it appears as though all of the information the Petitioner would use to evaluate the Beneficiary 
would be supplied by the Beneficiary himself. This is not indicative of an employment situation in 
which the Petitioner supervises or otherwise controls the Beneficiary 's work. In addition , it is 
unclear how often these performance reviews would take place. For all of these reasons , the 
information regarding the performance review process does not establish the existence of an 
employer-employee relationship. 
While we acknO\vledge the second vendor's statement that neither it nor the end-client would control 
the number of hours worked by the Beneficiary or his work schedule , it is undermined by other 
evidence of record. For example, an agreement between the Petitioner and the first vendor specifies 
that the first vendor must pre-approve any overtime , and that any vacation time by the Beneficiary 
must be similarly pre-approved by the first vendor. The first vendor, therefore, would at minimum 
(b)(6)
Matter ofT- Inc 
exercise veto power over the Beneficiary's work hours anl schedule. In any event, the evidence of 
record does not establish that the Petitioner would be the one to control the Beneficiary's work 
schedule. 
Moreover, discrepancies in the Petitioner's evidence further cloud its claims. For example, a 
document executed between the Petitioner and the first vendor states that "travel outside of the 
is not expected for the performance of [the Beneficiary's duties]." However, neither 
the Petitioner's location in New Jersey nor the end-client's location in Georgia is located in or near 
the in the State of Washington. Further, although the Petitioner requested a 
period of employment beginning on October 1, 2016, its contract with the first vendor contains a 
start-date of November 1, 2016. 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. Matter of Ho, 19 I&N Dec. 5 82, 591-92 (BIA 1988). It is incumbent upon the 
Petitioner to resolve any inconsistencies in the record with independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing 
to where the truth lies, will not suffice. !d. At 591-592. 
Assigning tasks and supervising performance are central to an employer-employee relationship. 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. 
The evidence is insufficient to establish that the Petitioner qualifies as a United States employer, as 
defined by 8 C.F .R. § 214.2(h)( 4 )(ii). Merely claiming in its letters that the Petitioner exercises 
control over the Beneficiary, when the evidence tends to contradict that claim, does not establish 
eligibility in this matter. 
III. CONCLUSION 
~' 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U .S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as }.fatter of'T- Inc, ID# 163674 (AAO Jan. 12, 2017) 
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