dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology (IT) consulting firm, seeks to employ the Beneficiary as 
an "application developer" under the H-1 B nonimmigrant classification for specialty occupation s. 
See Immigration and Nationality Act (the Act) § 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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 evidence of record 
did not establish that the Petitioner would have the employer-employee relationship with the 
Beneficiary that is required to qualify a business entity to file an H-1 B petition as a United States 
employer in compliance with the regulatory definition at 8 C.F.R. § 214.2(h)(4)(ii). 
The matter is now before us on appeal. Submitting a letter and additional evidence letter, the 
Petitioner asserts that it has provided sufficient evidence to establish the employer-employee 
relationship 
with the Beneficiary to merit recognition as a U.S. employer. 
Upon de novo review, we will dismiss the appeal. 
I. FACTUALBACKGROUND 
We will here recount factual aspects of the petition as asserted by the documents that the Petitioner 
submitted into the record. 
The Petitioner runs its IT consulting business from an office in California. It filed 
the petition in order to assign the Beneficiary to work for a third-party end-client. the 
. North Carolina, in at the building. Two business entities are 
interposed between the Petitioner and the end-client. They are 
and 
The Petitioner entered a "Consulting and Placement Agreement" with . whereby the Petitioner 
agreed to "provide programming, analysis. engineering, technical writing, and other specialized 
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services as an independent contractor to the third party user( s) ('"TPU'') who has engaged to 
locate temporary consultants for the TPU's projects according to skills, abilities and experience 
requirements of the TPU.'' As worded in this agreement, relationship with the Petitioner is 
that of a broker with an independent contractor. The agreement indicates that any evaluation of the 
Petitioner's would be made by the TPU and that the Petitioner would be responsible for such work­
related administrative matters as insurance, workman's compensation, and tax withholdings. 
letter submitted on appeal, which attests that has ""contracted the services of [the 
Beneficiary] as an Application Developer for the end [ c ]lient, " identifies as a 
vendor involved in 
the Beneficiary's assignment. In its letter submitted on appeal advises that 
it contracted for the Beneficiary's services of as an Application Developer for its client the 
II. U.S. EMPLOYER: LEGAL FRAMEWORK 
The primary issue in the present matter is whether the Petitioner has established that it meets the 
regulatory definition of a United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
Specifically, as the Petitioner has satisfied the first and third prongs of the definition of United States 
employer, the remaining question is whether the Petitioner has established that it will have ··an 
employer-employee relationship with respect to employees under this part, as indicated by the fact 
that it may hire, pay, tire, supervise, or otherwise control the work of any such employee." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) .. ., who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
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: 
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 re.S]Ject 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 emplo.vee; and 
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(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). 
III. ANALYSIS 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
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 
ofthe H-18 visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an indi\idual 
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) 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-18 '·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-18 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-18 beneficiary, and that this relationship be evidenced by the employer's ability to .. hire. pay. 
tire, 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-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 Mw. ln'l'. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creatil·e j\'on-Vio!ence 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, \Ve 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 
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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." 
ld; 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. ofAm., 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)(1)(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-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-IB .. employee.'' 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term .. United States employer'' not only requires H-1B 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 tenns .. employee" or 
··employer-employee relationship" combined with the agency's otherwise generally circular 
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)( 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. Instead, in the context of the Il-l R 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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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.f Darden, 503 U.S. at 318-19.2 
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, 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 \vhethcr 
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-lB 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 
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. ,\lethow Valley Citi::ens 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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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. S'ee 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 ). 
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-IB temporary '"employee.'' 
The Petitioner, . and attest that the Petitioner is the Beneficiary's employer. However. 
they do not provide sufficient documentary evidence to establish that the Petitioner and the 
Beneficiary have an employer-employee relationship under the common law test of control by which 
the issue must be determined within the context of the ""U.S. employer" definition at 8 C.F.R. 
§ 214.2(h)(4)(ii). 
The lack of documentation from the asserted end-client, the , is a critical and decisive 
deficiency. We reasonably expect that, as the entity generating the project upon which the 
Beneficiary would work, deciding the scope, requirements, and acceptability of the Beneficiary's 
project-work, and ultimately paying for her services, the will have decided such 
contractual matters as the extent of control that it would have over assigning, supervising, evaluating 
the Beneficiary's day-to-day project work and determining whether the Beneficiary's work merits 
continuing her assignment. Yet, the Petitioner has provided no submissions from the 
We also find that the record lacks evidence of the definite lines of supervision over the Beneficiary's 
daily work. In this regard, we also find that the Petitioner has not provided evidence of any 
supervisory representation by it at the project site, of any arrangements with the for 
the Petitioner to assign and evaluate the Beneficiary's particular day-to-day work during the progress 
of the project, or of any allowance by the for the Petitioner to play any substantive 
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role in the performance of its project-work. Further, the record is silent with regard to such indicia 
of control as whether the Beneficiary would have to rely upon the Petitioner for tools and 
instrumentalities necessary for the project work: whether the Beneficiary's performance of services 
for the would require her to use proprietary information of the Petitioner; and the 
extent. if any, to which the would allow the Petitioner to participate in directing the 
Beneficiary's activities within the scope of whatever governing contract there may be. 
While social security contributions, worker's compensation contributions. unemployment insurance 
contributions. federal and state income tax withholdings, and other benefits are relevant factors in 
determining who will control an alien beneficiary, other incidents of the relationship, e.g., who will 
directly 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 alien beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the beneficiary's employer. Absent full disclosure of all of the 
relevant factors. the AAO is unable to properly assess whether the requisite employer-employee 
relationship will exist between the petitioner and the beneficiary. 
The evidence, therefore, 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). 
IV. SPECIALTY OCCUPATION 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceedings. Nevertheless. we will 
briefly note and summarize it here with the hope and intention that, if the Petitioner seeks again to 
employ the Beneficiary or another individual as an H-1 B employee in the proffered position. it will 
submit sufficient independent objective evidence to address and overcome this additional ground in 
any future filing. 
The Petitioner premises its specialty occupation claim upon the assertion that the beneficiary will 
perform the services of a software applications developer as described in the petition. While both 
the Petitioner, . and attest that the Beneficiary would serve in that capacity. the record 
lacks any submissions from the , which is presented as the end-client entity 
generating the project work to which the Beneficiary would be assigned and determining the 
substantive scope of that work. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations. are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualities as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
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attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, 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. See Defensor v. Jt;feissner, 201 F.3d at 387-88. 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. !d. 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. The Petitioner 
has not satisfied this requirement. The record does not contain documentary evidence from the 
- the ultimate user of the Beneficiary's services - specifying the duties that the 
Beneficiary would perform and whatever educational requirements it deems necessary. Further, 
there are no submissions from the that adopt or confirm the accuracy of the 
representations by the Petitioner, , or about the duties that the Beneficiary would perform 
for the . •'[G]oing on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings." Matter of S(~ffici, 
22 I&N Dec. 158. 165 (Comm'r 1998) (citing Matter of Treasure Cra.fi ofCal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
As the evidence of record is insufficient to establish the proffered position as a specialty occupation, 
the petition may not be approved. 
V. CONCLUSION AND ORDER 
As discussed above. the evidence of record does not demonstrate sufficient common-law indicia of 
control over the Beneficiary and her work to establish the she and the Petitioner have the employer­
employee relationship required for the Petitioner to qualify as a U.S. employer as defined at 8 C.F.R. 
§ 214.2(h)(4)(ii). Therefore, the appeal will be dismissed. 
ORDER: The appeal will be dismissed. 
Cite as Matter qfO- Inc., ID# 17292 (AAO May 4, 2016) 
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