dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C- CORP 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 5, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an information technology services and solutions 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 Vermont Service Center denied the petition , concluding that the Petitioner had not 
established it will have an employer-employee relationship with the Beneficiary. On appeal, the 
Petitioner asserts that the Director erred and the evidence supp011s an approval of the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. 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)(l 5)(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: 
(I) 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 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of C- Corp. 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB 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. 
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 
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. 2 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-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
II. 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-1 B temporary "employee." Specifically, we find that the 
2 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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Matter of C- Corp. 
Petitioner has not submitted sufficient evidence to establish critical aspects of the Beneficiary's 
employment. 3 
The Petitioner, located i New Jersey, indicated that the Beneficiary will work offsite forD 
I !{end-client) in~---~Michigan. The contractual chain appears to be as follows: 
Petitioner ~~1 ______ ~rvendor #1) ~~------------~(vendor #2) ~ 
end-client. -
First, the Petitioner has not sufficiently established the contractual obligations between the parties for 
the employment period requested from October 2018 to September 2021. The record includes a 
supplier services agreement and a purchase order between the Petitioner and vendor #1. The purchase 
order lists the end-client, the Beneficiary, and an end-date for the project as February 2020, with one 
year possible extensions. Notably, the purchase order was signed in March 2018; however, the start 
date for the project was August 2016. The record also includes an agency agreement and work order 
between vendor #1 and vendor #2. The work order lists the Beneficiary and an end-date of December 
2018. Finally, the record includes a statement of work (SOW) and two change request forms between 
vendor #2 and the end-client, but the documents do not list the Beneficiary. Instead, the documents 
only list the positions required for the project. However, there are multiple positions required for the 
project and it is not apparent whether the proffered position is one of them. Further, the SOW refers 
to a purchase order and the agreement with attachments, but the record does not contain such 
documents. 4 The SOW lists the project period from March 2018 to August 2018, and the change 
request forms list dates from May to August 2018, and September to December 2018. Without 
additional information, we are unable to determine whether the Beneficiary would be employed in the 
proffered position for the validity period requested. 
On appeal, the Petitioner submits a document that it refers to as an email from the end-client. 
However, the email format differs from the template format and looks odd. For example, the email is 
not preceded by a header that contains the standard terms such as "from," "sent," "to," or "subject" to 
indicate the sender, time and date, and the receiver. While it lists the name of the individual from the 
end-client and the Beneficiary's name, it is also followed by a block line that says "Bing Map." 
Further, the text of the email repeats the same sentence followed by the signature block twice as if it 
was pasted from another document. Further, the email text describing the Beneficiary's duties is 
verbatim from vendor #1 's letter. While the email states that it expects the Beneficiary's services until 
December 2020, due to inconsistencies in the record and lack of documents to substantiate the dates 
of services, we do not find this document probative to establish the Beneficiary's employment for the 
period of employment requested. 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
4 Vendor #2 states that it is unable to provide the client agreement for confidentiality reasons. However, both the Freedom 
oflnformation Act and the Trade Secrets Act provide for the protection ofa petitioner's confidential business information 
when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, a petitioner may request 
pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification Procedures for 
Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
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Matter of C- Corp. 
Second, the record does not sufficiently demonstrate how the Petitioner will supervise or control the 
Beneficiary's work. The Petitioner has maintained throughout these proceedings that it will employ 
the Beneficiary and has the ability to hire, fire, remunerate, supervise, and otherwise control his work. 
For example, the Petitioner states it will dictate how the Beneficiary performs his duties. However, 
the documents in the record raise questions regarding the Petitioner's claims. For instance, the 
documents indicate that the Beneficiary will work on the end-client's! I project, which consists 
of building a platform that "reimagines the relationship between I I and consumer," and the 
end-client "is looking for [vendor #2] to staff the engagement with quality resources and skills sets as 
requested by [the end-client]." However, in this context where the Petitioner is one of the two 
subcontractors under the contract between the end-client and vendor #2, it is not apparent that the 
Petitioner has the authority to dictate the Beneficiary's duties on the end-client project. 
Further, other documents in the record undermine the Petitioner's claims. For example, the supplier 
services agreement between the Petitioner and vendor #1 states that services will be performed by the 
Petitioner's "employee ... under the direction of [vendor #l's] client." 5 Further, the agency 
agreement between vendor #1 and vendor #2 states that "assignments will be under the direction and 
control of [ vendor #2] ." The agency agreement also states that all work done for vendor #2 are "works 
done under [ vendor #2] direction and control." 
The Petitioner also has submitted the Beneficiary's time sheets, paystubs, and a performance 
evaluation. The Beneficiary's weekly timesheets and performance evaluation list his supervisor's 
name as the Petitioner's director, but the record does not adequately explain how he supervises the 
Beneficiary at the end-client worksite. In fact, the Beneficiary is required to "send time sheets with 
summary of tasks worked each week where he provides a brief summary of [his] daily work." The 
Petitioner asserts that if the director "find[s] that [the Beneficiary's] work performance for that week 
is not acceptable, he promptly communicates with them to discuss the issue"; however, the record 
does not indicate how the director determines whether the Beneficiary's work performance for that 
week is acceptable. While the Petitioner asserts that it constantly communicates with the Beneficiary 
via email and telephone, progress on assignments will be discussed, and its director will provide 
resources, technical advice, and training as needed, it has not provided sufficient supporting 
documentation to establish these claims. The record does not include emails and phone records 
evidencing constant communication. Furthermore, the one-page performance evaluation indicates it 
is based on the review of timesheets, status reports, feedback from employee team leads, and peer and 
self-assessment, but the record does not include most of these documents. The performance evaluation 
does not establish whether the information in the evaluation was provided by the end-client. 
Moreover, the SOW states "[ vendor#2] shall remove and replace any resources ... for performance 
issues upon [end-client] request"; therefore, it appears that the end-client will also evaluate the 
5 The supplier agreement also mentions that the Petitioner "shall maintain control over the manner in which its 
Consultant(s) provide the Services .... " However, this provision is in a section that discusses the relationship status 
between the Petitioner and vendor #1 to state that the agreement "does not create a pminership between [vendor #1] and 
[the Petitioner]" and "the legal relationship ... is that of an independent contractor." 
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Matter of C- Corp. 
Beneficiary's work, and that both the end-client and vendor #2 can terminate the Beneficiary's 
employment. 
Further, the record does not sufficiently establish who supervises the Beneficiary. The end-client 
organizational charts in the record list different individuals as the Beneficiary's supervisor. In an 
email, vendor #2 asserted that the Petitioner is his employer, controls him, and pays his salary and 
benefits. However, vendor #2 initially stated that its senior manager will coordinate the Beneficiary's 
activities and vendor #1 will be his employer. The Petitioner must resolve these inconsistencies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
Though we acknowledge the Petitioner's claims of an employer-employee relationship, we must 
weigh them against the evidence contained in the record. The Petitioner has not demonstrated that it 
supervises and controls the Beneficiary and his work. Furthermore, the Petitioner has not established 
it is the source of the instrumentalities. For instance, the Beneficiary's badge is from the end-client, 
and it is not clear who provides items such as his computer. We also note the location of the work is 
at the end-client's site. Lastly, the Petitioner has not established the contractual obligations between 
the parties for the duration of the requested employment period. 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 Beneficiary, 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 Beneficiary as an H-lB temporary "employee." 8 C.F.R. 
§ 214.2(h)( 4)(ii). 
III. CONCLUSION 
The record does not demonstrate that the Petitioner will have an employer-employee relationship with 
the Beneficiary. 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 C- Corp, ID# 3997179 (AAO Sept. 5, 2019) 
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