dismissed H-1B Case: Information Technology

MATTER OF V -S-C-G-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 20,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER . 
The Petitioner, an IT consulting services provider, seeks to employ the Beneficiary as a "Software 
Developer" under the H-1B nonimmigrant classification. 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 
attairirnent 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner, who will place the Beneficiary at an end-client's worksite, did not establish that it will 
·have an employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the Petitioner will not have the requisite control over 
the Beneficiary. The Petitioner further contends that it will be the "actual employer" of the 
Beneficiary and it will maintain a valid employer-employee relationship with the Beneficiary 
throughout the requested validity period. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as analien: 
subject to section 212(j)(2), who is corning 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) .... 
Matter of V-S-C-G-, Inc. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.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 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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991 ). 
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 visa classification. Section J01(a)(15)(H)(i)(b) of the Act indicates that an alien corning 
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)(1) (2012). The intending employer is described as offering 
full-time or part-time "employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) ofthe Act, 8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations 
indicate that "United States employers" must file a Petition for a Nonimmigrant Worker (Form I-
129) in order to classify aliens as H-lB temporary "employees." 8 C.P.R. § 214.2(h)(l), (2)(i)(A). 
Finally, the definition of "United States employer" indicates in its second prong that the petitioner 
must have an "employer-employee relationship" with the "employees under this part," i.e., the H-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-1B visa classification, even though the regulation describes H­
lB beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. 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 Mutual 
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Matter of V-S-C-G-, Inc. 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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 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 hiredparty; 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. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440,445 (2003) 
(hereinafter "Clackamas"). 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 America, 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 
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), aff'd, 27 F.3d 800 (2nd Cir.), cert. denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
1 01(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 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 Resources Defense 
Council, Inc., 467 U.S. 837, 844-845 (1984). 
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Matter of V-S-C-G-, Inc. 
Specifically, theregulatory definition of"United States employer" requires H-lB employers to have 
a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it 
imposes additional requirements of having a tax identification number and to employ persons in the 
United States. The lack of an express expansion of the definition regarding the terms "employee" or 
"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 construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-319. 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). 3 
Therefore, in considering whether or not one will be an "employee" in an "employer"-employee 
relationship" with a "United States employer" for purposes ofH-lB 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 323-324; 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 New Compliance Manual, Equal Employment Opportunity Commission, § 2-
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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 
U.S. 410,414,65 S.Ct. 1215, 1217,89 L.Ed. 1700 (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 aliens). 
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(b)(6)
Matter of V-S-C-G-, Inc. 
III(A)(l) (adopting a materially identical test and indicating that said test was based on the Darden 
decision); see also 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 -1 B nurses under 
8 C.F.R. § 2142(h), even though a medical contract service agency is the actual 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, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-449; New Compliance Manual 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 323-324. 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. PROFFERED POSITION 
The LCA submitted to support the visa petition states that the proffered position is a "Software 
Developer" position, and that it corresponds to Standard Occupational Classification (SOC) code 
and title 15-1132, Software Developers, Applications, from the Occupational Information Network 
(O*NET). Although the Petitioner is located in Kentucky, the Form I-129 states that the 
Beneficiary would work off-site at .Illinois. The LCA is certified 
for employment at that location. 
A letter dated March 17, 2015, states that the Beneficiary will work at the location of the end-client, 
, through the vendor, That letter 
also states that the Beneficiary will work on software development for a company which 
other evidence in the record indicates was acquired by 
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Matter of V-S-C-G-, Inc. 
A March 16, 2015, letter from states that has entered into a 
contract with which in tum has a subcontracting agreement with 
to supply services to The letter further states that the Beneficiary will work as 
a "contractor" on a project that is expected to continue until 2018. As explained by the 
"chain" is as follows: The Petitioner~ 
III. ANALYSIS 
Upon review of the record, we find insufficient evidence to establish that the Petitioner qualifies as a 
United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). There is insufficient 
evidence in the record to establish that the Petitioner will have and maintain an employer-employee 
relationship with the Beneficiary throughout the requested validity period. 
Also, the Petitioner submitted two purchase orders signed by the Petitioner and Notably, the 
first purchase order, submitted with the visa petition, states that it is subject to the terms and 
conditions of a certain subcontractor agreement signed on June 15, 2014; however, a copy of that 
agreement was not submitted. Instead, the purchase order was attached to a subcontractor agreement 
between the Petitioner and dated April 17, 2014. The purchase order also states that the 
tentative start date ofthe project is July 21, 2014, and the tentative end date is June 21, 2017. 
The second purchase order, later submitted in response to the Director's RFE states that it is subject 
to the terms and conditions of a certain subcontractor agreement dated April 17, 2014. The tentative 
start date of the project is the same as the first purchase order, i.e., July 21, 2014, and the 
tentative end date changed to "TBD(Depend on Client Requirement)." The Petitioner did not 
explain why the first purchase order references a subcontractor agreement different from that 
attached to it and also different from the one mentioned in the second purchase order. The Petitioner 
did not sufficiently explain this inconsistency. It is incumbent upon the Petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The purchase 
orders also were not accompanied by sufficient indication that Hertz has agreed to utilize the 
Beneficiary's services throughout the requested validity period. 
We have also determined that the Petitioner has not established that it will have "an 
employer-employee relationship" with the Beneficiary, as indicated by the fact that it may hire, pay, 
fire, supervise, or otherwise control his work. See id. 
Further, a March 12, 2015, employment offer in the record, signed by the Beneficiary, states that the 
Beneficiary will report project status to the Petitioner "on a weekly basis." Merely·reporting weekly 
on the progress of a project is not the type of control over the Beneficiary's work assignments and 
his performance of them that is contemplated in a true employer-employee relationship. A key 
element in this matter is who would have the ability to hire, fire, supervise, or otherwise control the 
work of the Beneficiary for the duration of the H-IB petition. Upon review, we find that the 
Petitioner has not submitted sufficient information regarding the Beneficiary's supervisor. For 
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Matter of V-S-C-G-, Inc. 
instance, in the support letter, the Petitioner states that the Beneficiary will be "under the direct 
supervision of Resources Manager[,] However, the Petitioner did not 
sufficiently explain how would supervise the Beneficiary at the worksite. 
The Petitioner stated that it "will retain sole responsibility for the hiring, regular supervision of 
performance, additional training (if required), salary, benefits package, employed related taxes, 
regular performance reviews, end-product evaluation, evaluation for promotions, determining bonus 
increases and/or termination, and otherwise 'control' [the Beneficiary's] work." The Petitioner 
further stated that "[a]ny tools or additional training needed by the Beneficiary to perform 
professional services at the end client location will be provided by the Petitioner." However, the 
Petitioner did not provide further details and corroborating evidence from the end-client to support 
these assertions. The Petitioner's assertions that it will exercise control over the Beneficiary are 
insufficient to establish eligibility in . this matter. "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
While payroll, tax withholdings, and other employment benefits are relevant factors in determining 
who will control the 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 unable to find 
that the requisite employer-employee relationship will exist between the Petitioner and the 
Beneficiary. 
Based on the above, the Petitioner has notestablished that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). The Director's decision must be affirmed and the petition 
denied on this basis. 
IV. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-S-C-G-, Inc., ID# 16340 (AAO Apr. 20, 2016)