dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8639836 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 27, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H-lB 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-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 Petitioner did 
not establish that it will maintain an employer-employee relationship with the Beneficiary. The matter 
is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. THE PROFFERED POSITION 
The Petitioner, which is located in Georgia, stated that the Beneficiary will perform his duties at an 
offsite location in Pennsylvania tori I (end-client). The path of contractual 
succession for the offsite work flows from the Petitioner to the mid-vendor, from the mid-vendor to 
the primary vendor, and concludes with the end-client. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(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: 
(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.) 
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)); Clackamas Gastroenterology Assocs., P.C. v. 
Wells, 538 U.S. 440, 444-45 (2003) (quoting Darden). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; 
the petitioner's 1ight to assign additional projects to the hired party; the extent of the beneficiaiy's 
discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and 
paying assistants; whether the work is part of the petitioner's regular business; the provision of employee 
benefits; and the tax treatment of the beneficiary. 1 Darden, 503 U.S. at 324; Clackamas, U.S. 538 U.S. 
at 449. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that even though 
a medical staffing agency was the petitioner, the hospitals receiving the beneficiaries' services were the 
"trne employers" because they ultimately hired, paid, fired, supervised, or otherwise controlled the work 
of the H-1B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Upon application of the common law tests articulated in Darden and Clackamas, 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 
1 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. 
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aspects of the Beneficiary's employment. Therefore, the key element in this matter, which is who 
exercises control over the Beneficiary, has not been substantiated. 
Throughout the proceedings, the Petitioner has maintained that it will employ the Beneficiary and 
exercise control over its right to hire, fire, remunerate, supervise, and otherwise control his work. The 
Petitioner further claims it will perform numerous administrative functions pertaining to the 
Beneficiary's employment. We acknowledge that social security, worker's compensation, and 
unemployment insurance contributions, federal and state income tax withholdings, and the provision 
of other employment benefits are relevant factors in determining who will control a 
beneficiary. However, we must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we also consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools to perform that work, 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 all of the relevant factors to enable us to evaluate 
whether the requisite employer-employee relationship will exist between a petitioner and a 
beneficiary. 
On appeal, the Petitioner states that, pursuant to its Employment Agreement with the Beneficiary, they 
agree that the Petitioner would determine where the Beneficiary would work, the Petitioner may 
expand or narrow the scope of the Beneficiary's duties, and the Petitioner retains the right to fire the 
Beneficiary for a wide range of infractions and violations of their agreement. The Petitioner further 
states that "the ability to fire a worker is among the most effective ways to demonstrate and maintain 
the right to control the manner and quality of their performance and duties." However, the Petitioner 
has not submitted sufficient documentation regarding how it will control the Beneficiary's work and 
will administer the work assignments when the Beneficiary is working off-site. The Petitioner also 
has not indicated any employee that will supervise the Beneficiary located at the end-client's work 
site. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. For example, while the mid-vendor and end-client letters specifically state 
that the Beneficiary is employed by the Petitioner and the Petitioner retains the right to hire, fire, 
supervise, or otherwise control the Beneficiary's work, it does not explain the actual manner in which 
the Petitioner provides such instructions and oversight. Furthermore, the end-client letter indicates 
that the Beneficiary will work as a "Software Developer within Information Technology-Retail 
Systems Division" and will be reporting to I I Manager, Technical Project 
Management. The letter includes! Is contact information, which is an e-mail address and 
phone number belonging to the end-client. 
Here, the Petitioner has not identified a specific employee that would supervise the Beneficiary's work 
in the proffered position, either at the end-client's office or within the Petitioner's company. The 
Petitioner stated that it wi 11 supervise the Beneficiary by way of weekly reports the Beneficiary submits 
to the Petitioner and performance evaluations the Petitioner completes for the Beneficiary. The 
Petitioner submitted copies of weekly reports the Beneficiary has submitted to the Petitioner's HR 
Manager and performance evaluations for the Beneficiary also completed by the HR Manager. On 
appeal, the Petitioner describes the way in which it evaluates the performance of its employees, as 
follows: 
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The objective of our performance review process is to ensure that employees are 
meeting our expectations regarding technical excellence, productivity, teamwork, and 
client service. We do this by gathering feedback from our contacts at clientl I I I and I I regularly .... 
As part of our performance review process we require our employees to send us weekly 
status reports about the tasks they are currently working on and the tasks that they are 
assigned to work on for the immediate future. We also conduct one-on-one telephonic 
meetings every month where we follow up with the employees regarding the progress 
of their work product at the client site, any issues that are impeding the progress and 
ideas to resolve any impediments. For example .... We collected reviews in parallel 
from our contacts at the contacts at the client site about the performance of the 
employee periodically. 
This information indicates that the Petitioner is heavily reliant on the end-client's input in order to 
complete the Beneficiary's performance evaluation. Further, the Petitioner states that it gathers 
weekly information from the Beneficiary in order to learn of the Beneficiary's current and assigned 
tasks in the proffered position. Then, the Petitioner states that it holds monthly telephonic meetings 
in order to learn of impediments to the Beneficiary's progress with work product. This information 
demonstrates clearly that the Petitioner is not part of the Beneficiary's daily work life and does not 
provide direction on work deliverables or assignments on a day-to-day basis. As such, the Petitioner 
has not submitted a sufficient explanation, corroborated by credible evidence, detailing the manner in 
which it, as the Beneficiary's supervisor, actually oversees, directs, and otherwise controls the off-site 
work of the Beneficiary. 
Additionally, the Petitioner submitted a copy of its Vendor Agreement with the mid-vendor, which 
states that the Petitioner shall provide services in accordance with the requirements specified in the 
client's work order, in this case the primary vendor. The Vendor Agreement further states that the 
consultant must obtain a supervisor's approval in the client system for timesheet reporting and that the 
mid-vendor will only pay the Petitioner for hours approved by the client. The Vendor Work Order 
between the Petitioner and the mid-vendor lists the Beneficiary as the consultant, j I as 
the client, an effective date of April 1, 2019, and a duration of "12 Months with possible extension." 
The Vendor Work Order also includes a line item for whom the Beneficiary would report to, but states 
"details will be shared separately" in response. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a copy of the first 
and last pages of the Professional Services Agreement (PSA) between the mid-vendor and the primary 
vendor. First, the Petitioner states on appeal that this evidence, when combined with the mid-vendor 
and end-client letters, demonstrates that there is a contractual relationship between the parties to 
employ the Beneficiary in the proffered position. However, due to the missing pages of the PSA, the 
record lacks information pertaining to the actual terms and agreements between the mid-vendor and 
the primary vendor such that we may determine who supervises, manages, and controls the 
Beneficiary's work. Second, the PSA specifically states on the first page that the "pertinent 
information relative to such specific Services will be described in a statement of work." However, the 
Statement of Work No. 1618185 (SOW), from the primary vendor to the mid-vendor, simply lists the 
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"scope of work" and "skill/technology required" as "Java developer" and lists the Beneficiary as 
contractor personnel. The SOW does not provide any specifics about the proffered position, such as 
a project or duties the Beneficiary would perform. 
While the Petitioner did not submit a copy of an Agreement between the primary vendor and the end­
client, it submitted a Statement of Work No. 0345 (SOW), from the end-client to the primary vendor, 
which references a Master Services Agreement (MSA) between both parties, dated August 2014. In 
the portion of the SOW that describes the services to be provided, there are multiple references to 
Attachments to the SOW that include specific information about the services required and expected. 
However, the Petitioner did not provide the referenced Attachments and thus, the specific services, 
such as a project or duties, expected from the Beneficiary in the proffered position remain unknown. 
Here, the record does not contain any information regarding the actual project upon which the 
Beneficiary would work for the end-client, at the end-client's office, and on the end-client's own 
systems. There is even less information regarding any ongoing role for the Petitioner on that project. 
If the Petitioner has little to no role to play on the project, then it is unclear how it could direct the 
Beneficiary's day-to-day duties as they relate to this project. To the contrary, the Petitioner's role 
appears limited to the provision of the Beneficiary's services with little room for actual direction of 
his activities. 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of this 
H-1B petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer 
in the common law sense, but that it would instead act as a supplier of personnel to temporarily 
supplement the staff of organizations, such as the end-client, who would control the content, means, 
and methods of those individuals' work. In this regard, we observe that it appears that not only would 
the end-client dete1mine and assign the Beneficiary's day-to-day work, but that it would also control 
the Beneficiary's access to the systems without which his work could not be done. 
The Petitioner has not demonstrated that it supervises and controls the Beneficiary and his work. 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). Merely claiming in its letters that the Beneficiary is the 
Petitioner's employee and that the Petitioner exercises control over the Beneficiaiy, without sufficient, 
corroborating evidence to support the claim, does not establish eligibility in this matter. 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 Beneficiaiy as an H- IB temporary "employee." 
8 C.F.R. § 214.2(h)(4)(ii). 
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111. CONCLUSION 
The appeal will be dismissed for the above stated reasons.2 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. 
2 As this issue precludes approval of the petition, we will not address any of the additional matters we have observed in 
our de novo review of this matter, except to notify the Petitioner that the record is not currently sufficient to establish that 
the proffered position qualifies as a specialty occupation. As recognized in Defensor, 201 F.3d at 387-88 (5th Cir. 2000), 
it is necessary for the end-client to provide sufficient information regarding the proposed job duties to be performed at its 
location in order to properly ascertain the minimum educational requirements necessary to perform those duties. The 
Petitioner should be prepared to address this issue in any future H-lB filings. 
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