dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology, engineering, and professional staffing company, seeks to 
temporarily employ the Beneficiary as a "systems engineer" under the H-lB 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)(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 of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that (1) the Petitioner will have an employer-employee relationship with the 
Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and additional evidence and asserts that the Director erred in 
the decision. Upon de novo review, we will dismiss the appeal. 1 
I. 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 
(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. 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of E-, Inc. 
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 regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(]) 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 equivalent 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 construe the term "degree" 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. Chertojf, 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 v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the services the Beneficiary will perform. 2 
The Petitioner states that the ~eneficjarv wj)) perf°rm services for~-------~(end-client), 
pursuant to an agreement with._ ______ __.(vendor). The vendor states that it has a contractual 
2 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
Matter of E-, Inc. 
agreement with the end-client to provide "programming, networking, consulting and engineering 
related services." 
In support of these assertions, the Petitioner submitted a document titled "Terms of Business for 
Supplying Contract Personnel" (agreement) executed in 2005 between the Petitioner and the vendor. 
The agreement states that the vendor "has entered into agreements with its Customers . . . for the 
provision of on-site contract personnel and related services" and that the vendor "may notify [the 
Petitioner] of open contract personnel positions at Customer sites." The agreement farther states that 
the vendor "will review the competitive bids which [ the Petitioner] submit[ s ]" and "may select or 
reject [the Petitioner's] bids at [their] discretion and may fill open contract personnel positions with 
[their] own employees or those of other suppliers." Moreover, the agreement indicates that the vendor 
"retain(s) the right to terminate a Project Schedule or Purchase Order which [it has] issued to [the 
Petitioner] at any time and for any reason with or without cause and with or without notice." 
The agreement in the record is preceded by a letter from the vendor to the Petitioner stating "[p ]lease 
find enclosed ... [agreement] along with th~Protocol Attachments A - G for Supplying Contract 
Personnel between [the vendor] and [the Petitioner]." Notably, the agreement states that the "[t]erms 
should be read in conjunction with the Protocol Attachments which are affixed to this document and 
the relevant Project Schedule(s) or Purchase Order(s) which [the vendor] will issue to [the Petitioner]." 
The agreement also states "you agree to provide Contractee subject to these terms and subject to the 
terms and conditions set forth in the Protocol Attachment." However, the record does not contain the 
referenced "Protocol Attachments" and the Petitioner does not explain the reason for not submitting 
them. Further, the Petitioner also did not submit contracts between the vendor and the end-client. 
Instead, the Petitioner provided a letter from the end-client. The letter confirms "the relationship that 
exists between [the end-client] and [the vendor]," that the vendor helps the end-client manage the 
contractual requirements for personnel who performs work on-site at the end-client location, and that 
the vendor is authorized to issue purchase orders and jointly issued letters explaining the nature of the 
on-site placement ofH-lB workers at the end-client location. 
The record contains a purchase order, which provides information regarding the Petitioner's services 
including the name of the contractee (the Beneficiary), the end-client's address, effective dates, and 
more. However, the information is limited in scope and does not adequately establish the services to 
be provided by the Beneficiary such as duties or educational requirements for the position. 
The Petitioner also provided a jointly signed letter from the vendor and the end-client. The letter 
indicated that the Beneficiary has been selected to work on a project for the end-client and the project 
is "on-going in duration." The letter did not specify duration of the project but stated that the "project 
assignment is an At-Will-basis (terminable without cause)." Further, the letter does not provide a 
sufficiently detailed description of the Beneficiary's duties. The letter provided the following duties: 
Manage complex technical details and who is proficient across multiple disciplines 
(planning, requirements gathering and validation, system design, and development). 
Due to the global nature of the enterprise directory data management services, this 
position provides the unique opportunity to engage with multiple business teams, joint 
3 
Matter of E-, Inc. 
ventures, and different c=J IT organizations (Office of the CIO/Strategy, IT 
Operations, and Application Development). Propose, configure, and implement 
enterprise solutions ( covering both process and technical aspects) according to 
established standards and best practices. Lead the design, integration, and maintenance 
of the technical infrastructure and services (all aspects of the technology lifecycle). 
Develop implementation requirements for technical infrastructure and services. 
Develops project charters and/or project requirements ( cost, timing, scope, contingency 
and risks). Develop support and deployment plans technical infrastructure and 
services. Document support guidelines and procedures. Provide Level III Support. 
Validating the Active Directory Groups and Transition to Security Group portal (FIM). 
Creating test cases for complete life cycle of Security Group Portal (FIM). Testing of 
Scripts in SQL Database. Transaction of USERID from one Environments to anther 
[sic] Environment. Working knowledge of directories (i.e. Active Directory), 
Windows Server 2008 or higher, SQL Server. Experience with PowerShell scripting 
and other command-line interfaces. Providing technical support to enterprise 
customers onl !Identity Manager 2010 R2. Working with other engineers to 
review infrastructure configuration changes. 
Notably, the record does not contain information regarding the end-client's project. When determining 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the particular 
employer. Without information regarding assignments that the Beneficiary would engage in, the 
description of the duties does not provide sufficient basis to conclude that the position requires the 
theoretical and practical application of a body of highly specialized knowledge, and the attainment of 
a baccalaureate or higher degree in the specific specialty, or its equivalent. For example, the duties 
such as "[m]anage complex technical details," "[p]ropose, configure, and implement enterprise 
solutions," "[d]evelop support and deployment plans technical infrastructure and services," 
"[ d]ocument support guidelines and procedures," and "[p ]rovide Level III Support" do not 
meaningfully establish a need for a particular level of education, or its equivalency, in a body of highly 
specialized knowledge in a specific specialty. With the broadly described duties, and insufficient 
evidence regarding work specific to a particular project, the record lacks evidence to demonstrate that 
the proffered position requires a bachelor's degree level of knowledge in a specific specialty. That is, 
the record does not adequately communicate (1) the actual day-to-day work that the Beneficiary will 
perform; (2) the complexity, uniqueness, or specialization of the tasks; and (3) the correlation between 
that work and a need for a particular level of education and knowledge. 
Further, the record lacks sufficient information regarding what the end-client may or may not have 
specified with regard to the educational credentials and experience of persons assigned to its project; 
therefore, we cannot determine whether the end-client's requirements meet the requirements of a 
specialty occupation. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform. 
This precludes a 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 the particular position, which is the focus of criterion one; 
4 
Matter of E-, Inc. 
(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 two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and ( 5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. 
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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(]) 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.) 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services will apply common law agency principles which focus on the touchstone of 
control. 
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 
5 
Matter of E-, Inc. 
of the instrumentalities and tools; the location of the work; the duration of the relationship 
between the parties; whether the hiring party has the right to assign additional projects to the 
hired party; the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether the work is 
part of the regular business of the hiring party; whether the hiring party is in business; the 
provision of employee benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 3 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services 
are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work 
of the H-lB beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas factors to this matter, we conclude 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." Specifically, we conclude that the Petitioner 
has not submitted sufficient, consistent, and credible documentation regarding relevant aspects of the 
Beneficiary's employment. 
The Petitioner contends that it has an employer-employee relationship with the Beneficiary because it 
will perform numerous administrative functions pertaining to the Beneficiary's employment such as 
hiring, firing, and providing him with benefits. Social security, worker's compensation, and 
unemployment insurance contributions, as well as federal and state income tax withholdings, and 
providing other employment benefits are relevant factors in determining who will control a 
beneficiary. Such factors may appear to satisfy a cursory review that a petitioning entity might be an 
individual's employer; however, these elements are not sufficient to provide a full appraisal of the 
requisite relationship. We must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we must consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools, where the work will be located, and who has 
the right or ability to affect the projects to which a beneficiary is assigned, among other factors. A 
petitioner must sufficiently address the relevant factors to enable us to evaluate whether the requisite 
employer-employee relationship will exist between a petitioner and a beneficiary. 
The Petitioner repeatedly asserts that it will maintain supervision and control over the Beneficiary 
while he performs his duties for the end-client. However, the Petitioner has not documented that a 
sufficient process exists in which it can objectively monitor and evaluate personnel it places with a vendor 
or with end-clients. As we discussed above, the record does not sufficiently document the nature and 
scope of the Beneficiary's employment at the end-client's location. Moreover, the Petitioner's 
employee handbook states that it is "each Consultant's responsibility to obtain client approval of their 
3 When examining the factors relevant to determining control, we 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. 
6 
Matter of E-, Inc. 
time and report that time" to the Petitioner's "Finance Team via fax or electronically" and that 
consultants "must submit time to the ( client) supervisor immediately upon completion of the 
assignment or at the end of each week, whichever sooner," raising questions regarding the Petitioner's 
claimed supervision of its employees. 
On appeal, the Petitioner states that the jointly signed letter by the vendor and the end-client "makes 
it abundantly clear that [the] Petitioner is in fact the employer with the right to control the terms and 
conditions of[the] Beneficiary's employment." However, the Petitioner does not sufficiently establish 
how it would perform the day-to-day supervisory duties over its employees it places off site at 
end-client locations. For exam12le, the Petitioner submitted an organizational chart indicating that the 
Beneficiary is a subordinate o±i I but the Petitioner did not provide further details 
regarding means and the manner through which she would supervise the Beneficiary at the end~ 
location. Moreover, the purchase order that identifies the Beneficiary by name indicates L__J 
I =I is the supervisor, which contradicts the Petitioner's assertion that I I supervises the 
B1tneficiary. 4 Further, the Petitioner rovided a performance review document, but it is titled 
"customer assessment" and I is identified as the "client providing feedback." The record 
contains insufficient information regarding the scope of supervision the Beneficiary would receive 
from eitherl J orl I 
Moreover, while the vendor's letter states that "[a]ll activities and conditions of employment, 
including performance evaluation as well as any hiring/firing decisions will be made by his HlB 
employer, [the Petitioner]," the inconsistent terms contained in the vendor's agreement make it 
difficult for us to determine the scope and the level of the control the Petitioner would exercise over 
the Beneficiary's services. For example, the agreement requires the Petitioner to "dictate the manner 
and means by which services are performed by [the Beneficiary]." However, the agreement also 
allows the vendor to dictate the assessment criteria for the services provided. The agreement states 
that its "[c]ustomers may require [the vendor] to establish assessment criteria and objectives for 
suppliers and to investigate quality of service issues." In that circumstance, the vendor "will assess 
[the Petitioner's] performance" and "may require [the Petitioner] to align [its] processes to conform 
to [their] criteria and meet [their] objectives." The record does not explain the extent of the vendor's 
or the end-client's involvement with the services provided by the Beneficiary. As we noted earlier, 
the Petitioner did not submit the end-client's "Protocol Attachments" into the record; therefore, we are 
unable to evaluate the terms and conditions set by the end-client. 
Overall, the evidence of record provides insufficient insight into how the Petitioner would direct and 
control the Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. While the 
Petitioner repeatedly asserts that it would remain the Beneficiary's employer, these assertions are 
insufficient to demonstrate that the Petitioner would have an employer-employee relationship with the 
Beneficiary while he works at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative detail of the degree of supervision, direction, or control 
that the Beneficiary would receive from the Petitioner. Without disclosure of all relevant factors, we 
4 The jointly signed letter indicates that~l ___ '""lis"--la supervisor atl I Company. 
5 It is unclear whether! I andl I is the same individual. 
7 
Matter of E-, Inc. 
are unable to properly assess whether the requisite employer-employee relationship will exist between 
the Petitioner and the Beneficiary. 
Lastly, we note that the record does not demonstrate that, at the time of filing the petition, the Petitioner 
had a project for the Beneficiary covering the intended period of employment. On the petition, the 
Petitioner indicated the dates of intended employment as October 1, 2018 to September 1, 2021. The 
purchase order submitted by the Petitioner indicates the period of the Beneficiary's project is from 
August 14, 2017 to January 24, 2021. The vendor states that the project is ongoing in duration. 
However, without corroborating evidence to establish the project's actual duration, we are not able to 
determine whether the project will be ongoing for the period ofrequested employment. Based on the 
information contained in the record, we conclude that the Petitioner did not establish eligibility for the 
requested period of employment. See, e.g., 63 Fed. Reg. 30,419, 30,419-30,420 (June 4, 1998). 
Based on all the factors detailed 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-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 6 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-, Inc., ID# 4944684 (AAO Sept. 18, 2019) 
6 Since these issues are dispositive of the appeal, we will not further discuss whether the labor condition application 
corresponds to the petition. 20 C.F.R. ~ 655.705(b). Specifically, the Petitioner indicated on the certified labor condition 
application that the Beneficiary would work offsite as an "electrical engineer" (SOC code 17-2071) for the end-client. 
However, we are unable to determine whether the duties as described fall within the "electrical engineers" occupational 
category. 
8