dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28,2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"Peoplesoft Administrator" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-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. The Director concluded that the 
Petitioner has not established that, if the H -1 B petition were approved, it would exercise a valid 
employer-employee relationship with the Beneficiary such that the Petitioner could meet the 
definition of a United States employer as that term is defined at 8 C.F .R. § 214.2(h)( 4 )(ii). 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 2t4(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 at 8 C.P.R.§ 214.2(h)(4)(ii) as follows: 
Matter of T-S- Inc 
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-
1B 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) ofthe Act, 
8 U.S.C. § 1182(n)(1). 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.P.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B 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 -1 B 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 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 
by which the product is accomplished. Among the other factors relevant to this 
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Matter of T-S- Inc 
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." 
Id; see also Clackamas Gastroenterology Assocs., P:c. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. 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-1B "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 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
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 ERJSA'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 
10 I (a)(I5)(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 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 of T-S- Inc 
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. Cf 
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) of the Act, section 212(n) of the 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 (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-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 exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
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-IB 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 of T-S- Inc 
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 of the relationship ... with no 
one factor being decisive."' ld. at 451 (quoting Darden, 503 U.S. at 324). 
II. THE PROFFERED POSITION 
The Petitioner, a Virginia-based information technology company, states that it has entered into an 
agreement with ("vendor") calling for the Beneficiary to provide 
services to the vendor's client, ("end-client"), in Minnesota. The labor condition 
application (LCA) was certified for employment in Virginia (at the Petitioner's address), 
Minnesota (at the end-client's address), and Maryland (the occupant of the 
Maryland address is unknown). 
In a letter submitted with the H-lB petition, the Petitioner stated: 
[The Petitioner's] information technology solutions were sought with regard to an 
ongoing project. Thereafter, and/or if the project unexpectedly ends early, [the 
Petitioner] will be assigning [the Beneficiary] to work through the end of the H-lB 
period, at our other clients that have consistent needs, as per the demand for services 
package enclosed herein. 
The Petitioner reiterated: 
[The Petitioner] as [the Beneficiary's] sole employer assigns and will continue to 
have the ability and right to assign him to the various needs of its clients and internal 
work, including on various other projects and assignments. 
Both the Petitioner, and the vendor make similar claims throughout the petition. 
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Matter of T-S- Inc 
III. 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 -1 B temporary "employee." 
While the Petitioner's multiple claims to the contrary are acknowledged, we find that the Petitioner 
has not established that it would supervise the Beneficiary's work while he works at the end-client's 
site in Minnesota. The Petitioner classified the proffered position at a Level II wage on the LCA, 
which is appropriate for positions in which the Petitioner expects the Beneficiary to perform only 
"moderately complex tasks that require limited judgment." 4 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_l1_2009.pdf It is not clear how the Petitioner could remotely 
supervise the Beneficiary from Virginia if he would not exercise independent judgement on a routine 
basis while there. In other words, if the proffered position involves only moderately complex tasks 
that require limited judgment as claimed, but neither the vendor nor the end-client would supervise 
the performance of such tasks as also claimed, then it is unclear how the Petitioner could supervise 
the Beneficiary from Virginia. 
The information regarding the Beneficiary's performance evaluation process is acknowledged. 
However, it does not demonstrate the existence of an employer-employee relationship between the 
Petitioner and the Beneficiary, either. According to the offer letter, these evaluations would only 
take place "every 3 months" and, given the format of the form used to conduct them, it appears as 
though the evaluations could be conducted without an in-person meeting. It is unclear how the 
Petitioner could provide meaningful supervision to an individual who would be performing only 
moderately complex tasks given such infrequent contact. Moreover, the structure of the form 
indicates that the performance review process would consist primarily of information provided by 
the Beneficiary. In any event, a performance evaluation conducted in this manner is not indicative 
of an employer-employee relationship. 
The record also contains information which directly undermines the Petitioner's claims of sole 
supervision and control. For example, in the agreement executed between the Petitioner and the 
vendor, both parties agreed that the Petitioner would "immediately remove from service under this 
agreement any employee who, in the sole judgment of [the vendor] (or [the end-client]), does not 
4 While designating the position at a Level II wage, the Petitioner also highlighted the Beneficiary's work experience, 
stating that he "has gained significant knowledge about the information technology field, and worked on many 
assignments that are similar in nature to his continued employment. ... " It is unclear why, if the Beneficiary possesses 
not only "significant knowledge" about the field in general, but also worked "on many assignments" similar to the one 
proposed for him here, he would be limited to performing only "moderately complex tasks that require limited 
judgment." In any event, we must question whether the certified LCA submitted by the Petitioner actually corresponds 
to and supports the H-1 B petition. As the petition cannot otherwise be approved we will not address this issue further, 
except to note that the Petitioner should be aware of it for any future H-I B filings. 
/ 
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Matter of T-S- Inc 
meet [the vendor's] (or [the end-client's]) qualification for any reason." This clause undermines the 
vendor's statement that the Petitioner "retains rights of control over" the Beneficiary's work. 
Clearly, the end-client can cut short that work. In similar fashion, the agreement between the vendor 
and end-client calls also undermines the Petitioner's claims of supervision and control.5 For 
example, that agreement calls for the vendor to place a full-time "On-Site Supplier Account 
Manager" in Minnesota who would "act as [the Beneficiary's] employer" and "provide work 
cj 
direction, review, and manage performance of [the Beneficiary]." Thus, both contractual agreements 
of record' - th~ agreement between the Petitioner and the vendor, and the agreement between the 
vendor and the end-client- undermine the record's assertions of sole supervision and control by the 
Petitioner. It is therefore not clear who would actually direct, supervise, and otherwise control the 
Beneficiary's work. 
The agreement between the Petitioner and vendor also states that the vendor and its clients could 
agree to various co~ditions that would be considered "flow-down provisions," that is, they would be 
binding on the Petitioner and would control various unidentified aspects of the Petitioner's workers' 
provision of services through the vendor to its clients. It further states that the flow-down provisions 
supersede the terms of the agreement between the Petitioner and the vendor. That is, the Petitioner 
has agreed that the vendor and its clients may, by agreement, change the terms of the Beneficiary's 
employment, without the Petitioner's consent. The vendor and its clients are therefore free to 
change any aspect of the Beneficiary's employment, such as who would assign the Beneficiary's 
duties and supervise his employment, where the Beneficiary would work, the projects to which the 
Beneficiary would be assigned, and the duties the Beneficiary would perform. Thus, the Petitioner 
has ceded the right to control the terms and conditions of the Beneficiary's employment. 
Further, the agreement between the Petitioner and the vendor suggests that the vendor would supply 
some of the instrumentalities and tools required by the Beneficiary. Specifically, it st;:1tes_ that upon 
termination of the agreement, the Petitioner would promptly return all equipment the vendor or its 
clients had furnished. 
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. Without full disclosure of all of the relevant factors, we are 
5 It appears as though the agreement between the vendor and the end-client was no longer in effect at the time the 
petition was filed, which calls into question the validity of the SOW executed pursuant to the agreement. In addition, the 
vendor and end-client did not both signed the SOW, which casts further doubt onto the SOW's evidentiary value. Given 
the critical value of the SOW in this case toward demonstrating the existence of work for the Beneficiary to perform at 
the end-client's site, we find that these questions regarding its probative value in turn raise questions as to whether the 
Petitioner has demonstrated the existence of~ specialty occupation position. 
Matter of T-S- Inc 
unable to find that the requisite employer-employee relationship will exist between the Petitioner 
and the Beneficiary. 
IV. CONCLUSION 
Based on the tests outlined 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-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S- Inc, ID# 124841 (AAO Sept. 28, 2016) 
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