dismissed H-1B Case: Information Technology

MATTER OF S-T -, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB.28,2017 
PETITION: FORM I-129; PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology firm, seeks to temporarily employ the Beneficiary as an 
"Engineer I" under the H-IB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 contends that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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)(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 [ofLabor] an application under section 212(n)(l) .... 
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, contractor, or other 
association, or organization in the United States which: 
Matter of S-T-, Inc. 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re!:!pect to employees 
under this part. as indicated by the fact that it may hire, pay, fire. 
supervise, or otherwise control the work olany 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), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to 
the United States to perform services in a specialty occupation will have an "intending employer" who 
will file a labor condition application with the Secretary of Labor pursuant to section 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(l ). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. §§ 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States 
employers" must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of"United 
States employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-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. § 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-1 B 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 teim 
"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 mmmer 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 
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Matter of S- T-, Inc. 
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 Assoc:~ .. 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 
term "United States employer" to be even more restrictive than the common law agency definition.1 
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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB 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 
1 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of I 974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common Jaw 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)(J 5)(H)(i)(b) of the Act, "employment" in section 2 I 2(n)(J )(A)(i) of the Act, or "employee" in section 
2 I 2(n)(2)(C)(vii) of the Act beyond the traditio.nal common Jaw definitions. Instead, in the context of the H-I 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 of S-T-, Inc. 
construing these terms in this manner would thwart congressional design or lead to absurd results. 
CJ. 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)? 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1 B nonimmigrant petitions, US CIS 
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 delineateq 
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) (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 ~orker; 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" 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 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, 
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). 
4 
(b)(6)
Matter of S-T-, 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). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive." ' !d. at 451 (quoting Darden, 503 U.S. at 324 ). 
II. ANALYSIS 
In 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." 
I 
The Petitioner, which is located in North Carolina , explained that the Beneficiary would perform his 
duties for (end-client) in Virginia pursuant to a contract executed 
between the Petitioner and (vendor). The contractual succession , therefore , appears to be as 
follows: 
Petitioner 7 vendor 7 end-client 
In a letter submitted with the H-1 B petition, the Petitioner stated that although it would assign the 
Beneficiary to the vendor, which would in turn assign him to the end-client, the Petitioner would, 
"retain[] control over [the Beneficiary's] employment." Similarly, the vendor stated that the end­
client would "have no authority to change the terms and conditions of [the Beneficiary ' s] 
employment , except to ask that he be replaced should his work prove unsatisfactory. " The record 
also contains a letter from the end-client , who stated that the Petitioner "retains full and ultimate 
control over [the Beneficiary's] hiring, termination, salary, benefits , performance reviews, and 
supervision of his work." 
However, the record does not sufficiently demonstrate that the Petitioner would supervise and 
control the Beneficiary as claimed. For example , the contract between the Petitioner and the vendor 
specifically states that either the Petitioner or the vendor would conduct an annual supervisory 
review. That the vendor retains this authority undermines th~ record's numerous claims of control 
by the Petitioner. Further, even if the Petitioner did conduct an annual performance review, it is 
unclear how meaningful the review would be, given that the Petitioner is located in North Carolina 
5 
Matter of S-T-, Inc. 
and the Beneficiary will be working in Virginia. The record does not contain evidence that the 
Petitioner plans to send a supervisor to Virginia to oversee the Beneficiary's work. Further, the 
Petitioner has not explained the manner and frequency with which it communicates with the end­
client and the vendor regarding 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 LCA 4 
submitted in support of the H-1B petition, the Petitioner designated the proffered position under the 
occupational category "Electrical Engineers" corresponding to the Standard Occupational 
Classification code 12-2071.5 
In designating a Level I wage the Petitioner effectively attested to the U.S. Department of Labor 
(DOL) that the proffered position is an entry-level position. The DOL guidance referenced above 
also states that an employer should consider a Level I wage designation when the job offer is for a 
research fellow, a worker in training, or an internship. 
The Petitioner, therefore, has claimed that the Beneficiary would be "closely supervised" and his 
work "closely monitored," and that he would "receive specific instructions" as he performs routine 
tasks that "require limited, if any, exercise of judgment." However, as discussed, it is not clear who 
would closely supervise, closely monitor, and specifically instruct the Beneficiary . 
. 
The lack of any indication as to how the Petitioner would actually control the Beneficiary's work is 
compounded by the lack of any indication that the Petitioner would play a meaningful role in the 
project upon which the Beneficiary would work. For example, there is no indication that the 
Petitioner would play any meaningful role beyond providing the services of the Beneficiary to work 
on the project. If the Petitioner's repeated claims that it would maintain control and supervision over 
the Beneficiary are accurate, it seems that the Petitioner would likely play at least some role in the 
project given Level I wage-level designation on the LCA. It is unclear how the Petitioner would 
4 
The Petitioner is required to submit a certified LCA to USC IS 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). 
5 
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 ofthe 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://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 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. 
Matter of S-T-, Inc. 
closely supervise and monitor the Beneficiary without also playing a significant role on the project 
upon which the Beneficiary would work. 
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 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. 
Further, we observe that absent evidence of any statements of work, purchase orders, or similar 
documentation, the Petitioner has not established that the petition was filed for non-speculative work 
for the Beneficiary, for the entire period requested, that existed as of the time of the petition's tiling. 
The record contains a contract executed between the Petitioner and the vendor; however, there is no 
accompanying statement of work or job order. The Petitioner submitted a printout titled "Contingent 
Worker Details," which identifies the Beneficiary as a "contingent worker," and has the end client's 
name on the top, but there are no further details on the assignment including the length of the 
project. Further, the record does not contain a contract between the vendor and the end-client and 
other similar documents. The Petitioner submitted a letter from the end-client which states that the 
Beneficiary is expected to work OJ]. their project "through the contract period subject to continuing 
business necessity and continuation of the Agreement between [the end-client] and [the vendor]." 
However, without a contract between the end-client and ,vendor, we are unable to ascertain that the 
Beneficiary will be employed for the duration of the requested validity period or the nature of the 
agreement. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed .. See 8 C.F.R. 103.2(b)(l). 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'! 
Comm'r 1978). Thus, even if it were found that the Petitioner would be the Beneficiary's United 
States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not 
demonstrated that it would maintain such an employer-employee relationship for the duration of the 
period requested. 6 
6 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
Matter of S-T-, Inc. 
For all of these reasons, we find that the Petitioner has not demonstrated that, if the H-1B petition 
were approved·, it would exercise an "employer-employee relationship" with the Beneficiary. 
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 ofS-T-, Inc., ID# 170802 (AAO Feb. 28, 2017) 
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) ofthe 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 change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
8