dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8207437 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 28, 2020 
The Petitioner , a software development/information technology services firm, seeks to temporarily 
employ the Beneficiary as a "database systems engineer" under the H-IB nonimmigrant classification 
for specialty occupations. Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-IB 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 and a subsequent motion to reopen 
and motion to reconsider, concluding that the record did not establish that 1) the proffered position 
qualifies as a specialty occupation, and 2) the Beneficiary will be employed in a specialty occupation 
for the requested period . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
In this matter, the Petitioner states that the Beneficiary will work off-site at an end-client location via 
a mid-vendor. In her decisions, the Director explained that, as recognized by the court in Defensor v. 
Meissner, 201 F.3d 387-88 (5th Cir. 2000), where the work is to be performed for entities other than 
the petitioner, evidence of the client companies' job requirements is critical. 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 
( emphasis added). Id. 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 . 
1We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
The Director then addressed the shortcomings in the submitted evidence. For example, she explained 
that "[ c ]ontractual agreements that merely set forth the general obligations of the parties to the 
agreement, and that do not provide specific information pertaining to the actual work to be performed, 
may be insufficient to establish that the beneficiary will be employed in a specialty occupation." She 
also explained that the agreements and work/purchase orders between the Petitioner and mid-vendor 
did not document "the deliverables" between the mid-vendor and the end-client. As a result, the 
Director determined that the Petitioner had not established the substantive nature of the Beneficiary's 
work and, therefore, was unable to demonstrate that it met any of the four criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Upon consideration of the entire record 2, including the arguments made on appeal, we adopt and affirm 
the Director's decision with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 
(BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 
F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments 
prescinding from them have been adequately confronted and correctly resolved by a trial judge or 
hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order 
reflects individualized attention to the case). 
On appeal, the Petitioner states that the end-client "has an established business practice of issuing 
cursory statements of work to its vendor companies" and that it "is preposterous" for USCIS to require 
companies to "alter their business practices to include arbitrary levels of detail in the agreements 
concerning contract labor." The August 2016 "Service Agreement" (SA) between the mid-vendor and 
end-client, however, contradicts this claim. The SA repeatedly references "Attachment A" which is to 
include such pertinent information as the 1) agreed upon services and/or goods, 2) payment amount, 
3) contract term, and 4) payment schedule. It will also identify the "Key Persons" who "will provide 
the Services." The SA also explains that "[t]he entire agreements and understanding among the parties 
consist of: this Agreement, including all attached and referenced Attachments and Exhibits." The 
Petitioner did not submit the Attachment A, or any other Attachments and/or Exhibits, or explain the 
omission. Contrary to the Petitioner's assertions that the Director "had the foll universe of contractual 
documents between client and vendor," the SA is incomplete. In addition, as will be discussed below, 
evidence in the record indicates that at least one new SA was issued before the filing of the petition. 
The Petitioner also generally asserts that the Director failed to properly consider the combination of 
the "Statement of Engagement" (SOE), the "Statement of Work" (SOW) and the letter from the end­
client Regarding the SOE3, it references a January 3, 2017 SA between the mid-vendor and the end­
client, but, as noted above, the only SA in the record is from August 2016. It, therefore, appears that 
the provided SA is not the most current one and thus, the actual terms of the relationship may have 
changed. The SOE also raises additional questions. For example, it is only signed by the end-client, 
and not the mid-vendor, and uses a different font for the "SQL Server Database Administrator" portion 
of the completed box for the name of the resource. In addition, rather than completing the 
"Description" section, a different font is used to indicate "As described in the Job Duties," which is a 
separate page, again in a different font, at the end of the document, after the signature page. 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 We do agree with the Petitioner that the Director incorrectly attributed the document to the Petitioner, rather than the 
mid-vendor. 
The SOW is between the Petitioner and the mid-vendor, and, as stated by the Director, it is not clear 
how it would establish "the deliverables" between the mid-vendor and the end-client. 4 Regarding the 
end-client letter, the authority of the signatory has not been established. It is not readily apparent that 
the individual, who holds the title "Manager, Database Services" would have sufficient knowledge of 
the contractual agreements between the Petitioner and the mid-vendor and the mid-vendor and end­
client to sign the statement or that he has been authorized by the end-client to represent it in such 
matters. Further, the provided duties were copied directly from the SOE, which was prepared by the 
mid-vendor, and thus, raises a question as to the true author of the letter. Regardless, the provided 
duties are described in terms of abstract and generalized functions. They lack sufficient detail to 
establish the substantive nature of the work the Beneficiary will be performing for the end-client, and 
the associated applications of specialized knowledge that their actual performance would require. For 
example, duties such as: 
• Managed security on Production and Development environments 
• Implement point in time recovery of the production databases 
• Data Refresh in all Non Production environments and maintain documentation 
• Database Security User Management, Privileges, Roles, Auditing, Profiling, Authentication 
• Work with Multiple development teams, business teams in a fast paced environment 
provide little meaningful insight into what the Beneficiary would actually be doing on a daily basis. 
Without a sufficiently descriptive list of job duties that would allow us to discern the nature of the 
position or the educational level of highly specialized knowledge in a specific discipline that is 
necessary to perform the work, the Petitioner has not established that the proffered position qualifies 
as a specialty occupation. We also note that, beyond simply stating that the Beneficiary would be a 
"Database Systems Engineer for our I I Project," the letter provides no 
farther details regarding the project to which he would be assigned. 
For all of the above reasons, we cannot conclude that the Petitioner has overcome the Director's 
decision. 5 
II. ADDITIONAL ISSUE 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address other 
grounds of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note 
an additional issue below. 
4 We note that the Petitioner claims on appeal that the SOWs are between the mid-vendor and end-client. The record does 
contain "Purchase Orders" (PO) between the end-client and mid-vendor, but these too raise concerns. For example, both 
are redacted in multiple places without explanation. Further, we again note a change in the font on the December 13, 2018 
PO start and end dates. Notably, the September 24, 2018 PO does not contain an end date or a change in the font for the 
start date. It is also unclear why the September 24th and December 13th POs would contain the same "PO Number" even 
though they were purportedly issued months apart. 
5 To determine whether a petitioner has met its burden under the preponderance standard, we consider not only the quantity, 
but also the quality (including relevance, probative value, and credibility) of the evidence. Matter of Chawathe, 25 I& N 
Dec. 369, 375-76 (AAO 2010); Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). 
The Petitioner has not 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, the Petitioner has not demonstrated 
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, fire, supervise, or otherwise control the work of any such 
employee." 8 C.F.R. § 214.2(h)(4)(ii). 
The United States Supreme Court 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 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)). See also Defensor, 201 F.3d at 388 (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-lB 
beneficiaries). 
As such, 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 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. 
The record does not sufficiently document how the Petitioner, located in North Carolina, will oversee 
the Beneficiary in North Carolina. According to the submitted organization chart, in addition to his 
role as Chief Executive Officer,! I will supervise the Beneficiary and more than 40 other 
employees 6. Further, the Petitioner's supervision appears to be limited to requiring the Beneficiary to 
send "weekly reports" consisting of what he "is currently working on as well as what he is going to 
work on the following week." The Petitioner's role appears to be limited to little more than invoicing 
and proper payment for the hours worked by the Beneficiary. 7 It cannot be concluded, therefore, that 
the Petitioner has satisfied its burden and established that it qualifies as a United States employer. 8 
III. CONCLUSION 
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 here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
6 The organization chart does not indicate which employees are located at the Petitioner's office and which ones are located 
off-site. 
7 With the Petitioner's role limited to essentially the functions of a payroll administrator, the Beneficiary is even paid, in 
the end, by the client or end client. See Defensor, 201 F.3d at 388. 
8 See section 214( c )(1) of the Act (requiring an "Importing Employer"); 8 C.F.R. § 2 l 4.2(h)(2)(i)(A) (stating that the 
"United States employer ... must file" the petition); Temporary Alien Workers Seeking Classification Under the 
Immigration and Nationality Act, 56 Fed. Reg. 61,111, 61,112 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214) 
(explaining that only "United States employers can file an H-lB petition" and adding the definition of the term "United 
States employer" at 8 C.F.R. § 214.2(h)(4)(ii) as clarification).