dismissed H-1B Case: Information Technology

MATTER OF C-C-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology and software consulting firm, seeks to temporarily employ 
the Beneficiary as a "software engineer" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-IB 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 concluding that the Petitioner did not 
establish a valid employer-employee relationship with the Beneficiary. 
On 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. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant, m pertinent part, as an 
individual: 
[S]ubject to section 2120)(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 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 
I 
Secretary [ofLabor] an application under section 212(n)(l) .... 
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: 
Matter of C-C-, LLC 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire. pay, fire. 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.P.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.P.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 -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)( 1) of the 
Act, 8 U.S.C. § 1182(n)(l). The intending employer is desyribed 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. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United· States 
employers" must file a Form l-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-lB temporary "employees." 8 C.P.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-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.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-lB visa classification, even though the regulation describes H-lB beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id. Therefore, for purposes of the H-lB 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: 
"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 
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Matter ofC-C-, LLC 
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 A.~·socs., 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. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the tenn 
"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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB 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 
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 
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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Matter ofC-C-, LLC 
"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 definitiqn 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.f 
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)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
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, 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 (.'Jecond) 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 ofthe 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); Defimsor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-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, tire, 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. 
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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(b)(6)
Matter ofC-C-, LLC 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
. 323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents ofthe relationship ... with no 
one factor being decisive."' I 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-lB temporary "employee." 
The Petitioner is an information technology and software consulting firm located in Texas. It seeks 
to employ the Beneficiary in Tennessee so that he may provide services to the 
(end-client) pursuant to contracts executed between the Petitioner and 
(vendor), and 
between the vendor and the end-client. The contractual path of succession 
is therefore as follows: Petitioner -7 vendor -7 end-client. 
We have reviewed the contracts executed between the Petitioner and the vendor, and between the 
vendor and the end-client. Neither contract creates any legal obllgation on the parties absent an 
executed purchase order or statement of work. However, the record does not contain a purchase 
order or statement of work executed pursuant to either contract. 
In other words, there is no evidence of any binding obligation on the part of the vendor or the end­
client to provide work for the Beneficiary to perform. 4 Absent that foundational showing- that there 
will actually be work for the Beneficiary to perform - we are unable to determine whether such work 
would entail the Petitioner engaging in an employer-employee relationship with the Beneficiary. 5 
4 While acknowledged, the brief letters from the vendor and end-client create no binding obligation. 
5 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: I 
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Matter ofC-C-, LLC 
However, even if the Petitioner has secured work for the Beneficiary to perform, we find that the 
Petitioner has not demonstrated an employer-employee relationship with the Beneficiary. 
The record contains numerous assertions that the Petitioner would supervise the Beneficiary, and that 
neither the vendor nor the end-client would engage him in an employer-employee relationship. For 
example, the vendor claimed that the Petitioner would have "sole responsibility for supervision and 
management of [the Beneficiary]." In a similar fashion, the Petitioner states that it "maintains 
complete control over its employees including, but not limited to, the ability to hire and terminate an 
employee, determine the terms of compensation and provide salary, and supervise the employee on a 
regular basis." In describing this claimed supervision, the Petitioner stated that "[ s ]upervision is 
conducted through e-mails, telephone calls, videoconferences and by the [Beneficiary] submitting 
regular reports to [the Petitioner]." In support, the Petitioner provided a performance appraisal form 
and a bi-weekly project status report. 
Regarding the Petitioner's statements about supervision, we observe that it appears as though all of 
the information would be supplied by the Beneficiary, which does not demonstrate how the 
Petitioner supervises or otherwise controls the Beneficiary's work. 
In addition, when evaluating the employer-employee relationship issue, we must also consider the 
Petitioner's Level I wage designation in the labor condition application (LCA). On the LCA6 
submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 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-18 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. 
6 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 ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
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Matter of C-C-, LLC 
occupational category "Software Developers, Applications" corresponding to the Standard 
Occupational Classification code 15-1132.7 
In designating a Level I wage the Petitioner effectively attested that the Beneficiary would perform 
routine tasks that require limited, if any, exercise of judgment, that he would be closely supervised 
and his work closely monitored and reviewed for accuracy, and that he would receive specific 
instructions on required tasks and expected results. However, it is not clear who would closely 
supervise, monitor, and specifically instruct the Beneficiary given that: ( 1) the Petitioner is located in 
Texas, and the Beneficiary would work in Tennessee; (2) the Petitioner has not indicated that it 
would send a supervisor to Tennessee to perform these functions; and (3) the Petitioner has not 
provided sufficient evidence to demonstrate how it would evaluate the Beneficiary's job 
performance from afar. 
Moreover, although the record contains evidence pertinent to a project under development at the 
end-client's location, there is no indication that the Petitioner would play any meaningful role in it 
beyond sending the Beneficiary to work on the project. It appears that if the Petitioner's repeated 
claims that it would maintain complete control and supervision over the Beneficiary are true, the 
Petitioner should play at least some role in the project especially given that the proffered position is 
a Level I position that requires close supervision and monitoring. 
Assigning duties and supervising performance is 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 a beneficiary, other incidents of the relationship, e.g., who will 
oversee and direct tl}e 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. 
Deficiencies in the Petitioner's evidence further cloud its claims. For example, though the Petitioner 
claims that it would employ the Beneficiary through September 2019, the end-client stated in a letter 
dated March 17, 2016, that "[t]his is a long term project with an expected duration of one year or 
I 
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The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate' for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. 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 _I 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. ld. 
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(b)(6)
Matter ofC-C-, LLC 
more." While we acknowledge the end-client's statement that "[w]e expect that [the Beneficiary] 
will continue working at [the end-client's] location for the duration of his H1B status," it does not 
indicate whether the end-client was aware that the period of intended employment would continue 
through September 2019. The record contains insufficient evidence that the end-client contemplates 
utilizing the Beneficiary's services through September 2019 or through any specific date beyond 1 
year. 
On appeal, the Petitioner amends it claim to state that the Beneficiary would work at the end-client's 
location ( 1) on the ' through December 31, 20 16; (2) on a ' 
through June 30, 2017; (3) on Compensation Management through December 31, 2018. However, 
there is no corroborating evidence to substantiate that both the vendor and the end-client have agreed 
to this new arrangement. The Petitioner must resolve inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
In the instant case, we find that the Petitioner has not demonstrated that it would exercise an 
employer-employee relationship with the Beneficiary and has not, therefore, demonstrated that, in 
the context of this H-1 B petition, it qualifies as a U.S. employer as defined at 8 C.F.R. 
§ 214.2(h)( 4 )(ii). 
Ill. 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-C- , LLC, ID# 179550 (AAO Feb. 15, 2017) 
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