dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-L- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT . 31, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary 
as an "embedded software engineer" under the H-lB nonimmigrant 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 Petitioner did 
not establish that 1) the proffered position is a specialty occupation and 2) the Beneficiary will perform 
services in a specialty occupation for the requested period. On appeal, the Petitioner asserts that the 
Director erred. 
Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
A. Specialty Occupation 
In this matter, the Beneficiary will work off-site at an end-client location via a contract with a mid­
vendor. In her decision, 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. 
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 perfonn that particular work . The 
Director then discussed the shortcomings in the submitted evidence. For example, she explained that 
the "Supplier Agreement" between the mid-vendor and end-client only provided the "general 
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
Matter of T-L- Inc 
obligations of the parties" and did not contain any specific information regarding the work to be 
performed by the Beneficiary or the requirements of the position. In addition, the Director explained 
that the November 12, 2018 letter from the end-client, which only included three general duties and 
no educational or experience requirements, did not sufficiently describe the proffered position and did 
not establish the signatory as an authorized official of the end-client. 
Upon consideration of the entire record 2, including the evidence submitted and 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 provided a printout of the "reporting structure" for the letter's signatory and 
a copy of the previously submitted end-client letter discussed above. 3 The Petitioner asserts that that 
reporting structure document establishes that the signatory "is part of the [end-client] and an 
executive" and has the "authority to sign such letter." Contrary to the Petitioner's claims however, 
the document only provides a list of the individuals who report to the signatory. It does not include 
any information regarding the signatory's position at the end-client or his authority to sign such a 
document on behalf of the end-client. Further, the document raises additional questions which we will 
discuss below. 
Without evidence from the end-client regarding the minimum requirements for the proffered position 
and detailed duties which demonstrate the type and educational level of highly specialized knowledge 
in a specific discipline that is necessary to perform those duties, the Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary. We are, therefore, precluded from 
determining whether the proffered position satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 It is still not readily apparent that the signatory, who holds the title "Engineering Manager" and is the Beneficiary's 
supervisor at the end-client's location. has been authorized by the end-client to represent it in such matters or that he would 
have specific knowledge of the contractual agreements between the mid-vendor and the end-client or the Petitioner and 
mid-vendor. Regardless, as discussed by the Director, the letter does not sufficiently describe the duties of the proffered 
position or even provide its minimum requirements. 
2 
Matter of T-L- Inc 
B. Additional Issues 
We must also note additional issues and inconsistencies in the record. First, the Petitioner has not 
established 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). 4 
The Petitioner asserts that the Beneficiary will be "directly reporting to [its] HR department and his 
manager," who is also an employee of the Petitioner, and that its project manager "will be supervising 
the beneficiary's activities including activities at the end-client to meet the [p ]roject timelines and 
delivery in a consistent manner." The Petitioner also states that (note: errors in the original have not 
been changed) "[t]he beneficiary will be advised and assisted by doing the project review status on a 
periodic basis and provide require support to complete the projects successfully." However, both the 
record and the reporting structure document discussed above undermine the Petitioner's general claims 
regarding its control. For example, the reporting structure document indicates that the Beneficiary 
reports to an individual at the end-client and uses the end-client's email domain, not the Petitioner's. 
The record also contains a copy of the Beneficiary's employee badge, which only includes the name 
of the end-client. Further, given that the Petitioner indicated that it has only three employees on the 
Form 1-129, Petition for Nonimmigrant Worker, it has not established that it has an "HR department." 
We also note that the Petitioner provided pages 1 and 19 of the mid-vendor's "Supplier Agreement" 
with the end-client, but provided no explanation for its failure to include pages 2 through 18. Without 
full disclosure of the contractual relationships between the parties, we are unable to conclude that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
4 For purposes of the H-1 B 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, we 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. 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 "trne employers" because they ultimately hire, pay, fire, supervise, or otherwise 
control the work of the H-IB beneficiaries). 
3 
Matter of T-L- Inc 
We also note that, although the record does not contain any information from the end-client regarding 
the proffered position's requirements, the Petitioner did submit the "Schedule A - Project 
Assignment" document from the mid-vendor, which indicates that a bachelor's degree in engineering 
and more than ten years of engineering experience are the minimum requirements for the proffered 
position. In contrast, the Petitioner stated that it requires a bachelor's degree in computer science, 
information systems, or the equivalent, and does not list any experience requirement. The Petitioner 
has not provided any explanation for the wide discrepancy in the stated requirements. 5 
II. 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 here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-L- Inc, ID# 5035381 (AAO Oct. 31, 2019) 
5 We also note that the mid-vendor's experience requirement is not reflected in the labor condition application (LCA) Level 
II wage and the record does not establish that the Beneficiary meets the mid-vendor's experience requirements. 
4