dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 4903182 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 30, 2020 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary as a software developer under the H-lB nonirnrnigrant classification for specialty 
occupations. 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 record did not 
establish that 1) the Petitioner would have an employer-employee relationship with the Beneficiary 
and 2) the Beneficiary is qualified for the proffered position. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Upon de nova review, we will dismiss the appeal. 
I. 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)(l5)(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 
(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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services 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. 1 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). 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-1 B beneficiaries). 
We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
B. Analysis 
According to the Petitioner, the Beneficiary will work for an end-client via a contractual relationship 
with a mid-vendor. Applying the Darden and Clackamas factors to this matter, 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." 
The Petitioner, which is located in Texas, asserts that it will have an employer-employee relationship 
with the Beneficiary while he performs his duties at the end-client's location in Minnesota. 2 In 
addition to performing various administrative functions pertaining to the Beneficiary's employment 
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. 
2 The Petitioner filed an amended petition in September 2018 when then project referenced in the current filing ended. 
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such as payment of salary and providing him with benefits, the Petitioner claims it has the "right to 
control" the Beneficiary. We note that social security, worker's compensation, and unemployment 
insurance contributions, as well as federal and state income tax withholdings, and providing other 
employment benefits are relevant factors in determining who will control a beneficiary. Such factors 
may appear to satisfy a cursory review that a petitioning entity might be an individual's employer; 
however, these elements alone do not provide a full appraisal of the requisite relationship. We must 
also assess and weigh other factors to determine who will be a beneficiary's employer. For example, 
we must consider who will oversee and direct a beneficiary's work, who will provide the 
instrumentalities and tools, 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 the relevant factors to enable us to evaluate whether the requisite employer-employee 
relationship will exist between a petitioner and a beneficiary. In this matter, the Petitioner has not 
done so. 
Here, information in the record contradicts the Petitioner's assertion that it will have an employer­
employee relationship with the Beneficiary. For example, the letter from the end-client states that it is the 
mid-vendor, and not the Petitioner, who 1) will have "sole responsibility" for the Beneficiary's "daily 
duties, reporting structure and conduct," 2) will "control the manner or means in which [the Beneficiary] 
perform[s] his work," and 3) "may assign [the Beneficiary to different projects and different end-users as 
it deems fitting." 3 In addition, although the letter repeatedly references the agreement between the mid­
vendor and the end-client, the record contains only pages 1 and 13 of a 23 page document with most of 
the information on those two pages redacted. 4 We are also left to question "the authenticity of "Exhibit 
A" between the mid-vendor and Petitioner as information regarding the "Agreement Date" and the related 
parties are not correctly completed. 
Despite the Petitioner's assertions, it has not provided sufficiently detailed and credible information 
regarding the means of supervision of and assignment of work to the Beneficiary while he is at the 
end-client's location. The Petitioner has not explained and documented in detail how it would 
supervise, assign Beneficiary's work, and otherwise control the Beneficiary's day-to-day activities 
from a remote location while he works for the end-client. Overall, the evidence provides insufficient 
insight into how the Petitioner would direct and control the Beneficiary's work on a daily basis, who 
will provide the instrumentalities and tools, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned. The Petitioner's generalized assertions regarding control lack 
3 The Petitioner must resolve this discrepancy in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 l&N Dec. 582. 591-92 (BIA 1988). 
4 While a petitioner should always disclose when a submission contains confidential commercial information, the claim 
does not provide a blanket excuse for a petitioner not providing such a document if that document is material to the 
requested benefit. Although a petitioner may always refuse to submit confidential commercial information if it is deemed 
too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 
T&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the Fifth Amendment 
[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). We also note that both the Freedom of Information Act and the Trade Secrets Act provide for the 
protection of a petitioner's confidential business information when it is submitted to USCTS. See 5 U.S.C. § 552(b)(4), 18 
U.S.C. § 1905. Additionally, the 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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specificity and probative detail of the degree of supervision, direction, or control that the Beneficiary 
would receive from the Petitioner. 
II. BENEFICIARY QUALIFICATIONS 
The Director also found that the Beneficiary was not qualified to perform the duties of the proffered 
position. However, a beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. As recognized by the court inDefensorv. Meissner, 201 F.3d 
384, 387 (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. 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. 
First, most of the duties from the end-client are copied from the Occupational Information Network 
(O*NET) Summary Report for Software Quality Assurance Engineers and Testers, corresponding to 
the Standard Occupational Classification (SOC) code 15-1199. Providing generic job duties for a 
proffered position from O*NET or another Internet source is generally insufficient to establish 
eligibility. 5 The duties themselves provide the nature of the employment. 6 While this type of 
description may be appropriate when defining the range of duties that may be performed within an 
occupational category, it does not adequately convey the substantive work that the Beneficiary will 
perform on a day-to-day basis 7 
Second, the Petitioner indicated on the submitted labor condition application that the SOC code for 
the proffered position is 15-1132, corresponding to the Software Developers - Applications 
occupation. While the Department Of Labor is the agency that certifies LCA applications before they 
are submitted to USCIS, DOL regulations note that the Department of Homeland Security (DHS) (i.e., 
its immigration benefits branch, USCIS) is the department responsible for determining whether the 
content of an LCA filed for a particular Form I-129 actually supports that petition. See 20 C.F.R. 
§ 655.705(b), which states, in pertinent part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
5 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
6 Id. 
7 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-lB petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that it 
submitted a valid LCA that has been certified for the proper occupational classification, and the 
petition cannot be approved for this additional reason. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
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