dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6480991 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 25, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "systems architect" 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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that (1) an employer-employer relationship exists between the Petitioner and the Beneficiary; and (2) 
the Petitioner will have specialty occupation available for the Beneficiary to perform and that the 
Beneficiary will perform specialty occupation services. In a subsequent decision on the Petitioner's 
motion to reopen and motion to reconsider the decision, the Director concluded that the Petitioner had 
not overcome the reasons for denial. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de novo. 2 Upon de 
novo review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the totality of the record, we conclude that the Petitioner has not established the 
requisite employer-employee relationship and has not established it has definitive, non-speculative 
H- lB caliber work available for the Beneficiary to perform throughout the requested employment 
period , thus has not established the proffered position is a specialty occupation. 
A. Employer-Employer Relationship 
The Petitioner, an information technology company located in Virginia, states on the Form I-129, 
Petition for a Nonimmigrant Worker, that the Beneficiary will perform work offsite. The Petitioner 
submits an itinerary indicating that the Beneficiary will work in New York. The Petitioner also 
submits a letter from an end-client stating that the Beneficiary will work at the end-client's location as 
a "PeopleSoft System Administrator." 
1 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010) . 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
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"). 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 (USCIS) 
applies common law agency principles which focus on the touchstone of control. 
The Director in this matter discussed the lack of evidence in the record establishing the 
employer-employee relationship. Upon consideration of the entire record, including the evidence 
submitted and arguments made on appeal, we adopt and affirm the Director's decision on this issue 
with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing 
Matter o_fBurbano, 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 provides a revised end-client letter which now includes an additional 
sentence stating that the Petitioner "has the exclusive authority to pay, hire, fire, assign, supervise or 
otherwise control the work of the [B]eneficiary." First, the Director previously requested evidence of 
the Petitioner's right and ability to direct and control the Beneficiary's work and this letter was not 
provided. The Petitioner does not offer an explanation for this lack of response or offer argument on 
why this revised letter should be considered for the first time on appeal. Second, the letter is not 
evidence of the legal obligations and restrictions between the Petitioner and the end-client. The record 
does not include the contract between the two parties. Thus, we cannot review what limitations and 
restrictions the end-client and the Petitioner may have agreed to contractually regarding the actual 
supervision and instruction of the Beneficiary regarding the proposed work. 
The record in this matter also does not include evidence establishing the Petitioner's role in instructing, 
directing, and supervising the Beneficiary's work. When the entity who will actually be using a 
beneficiary's services is not the Petitioner it is crucial to understand who will direct, supervise, and 
instruct the beneficiary's day-to-day work. This is because the entity directing, supervising, and 
instructing a beneficiary will necessarily influence the type of duties a beneficiary will perform. This 
particular component of the employer-employee relationship is especially significant within the H-1 B 
nonimmigrant classification. Here, the Petitioner has not explained the process or provided evidence 
establishing the manner and means of how it will assign and direct the Beneficiary's day-to-day work. 
It appears more likely than not that the Petitioner, located in Virginia, will not actually be involved in 
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the supervision and day-to-day direction of the Beneficiary but that managers at the end-client facility 
in New York will actually perform those supervisory and managerial duties. 
Our review of the four comers of this H-1 B 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 the end-client who would control the 
content, means, and methods of those individuals' work. 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. Based 
on these tests, we also 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." 8 C.F.R. § 214.2(h)(4)(ii). 
B. Specialty Occupation 
The Director in this matter also thoroughly discussed the lack of evidence in the record establishing 
that the Petitioner had or would have ongoing H-lB caliber work available for the Beneficiary 
throughout the requested employment period. 3 We also adopt and affirm the Director's decision on 
this issue with the comments below. 
We again observe that the record does not include any evidence of the proposed work in the form of a 
contract and a corresponding work order, statement of work, or other document establishing a legal 
obligation on the part of the end-client to provide work for the Beneficiary to perform. If we cannot 
determine whether the proffered position as described in this petition would actually exist then we 
cannot ascertain its substantive nature, let alone determine whether it is a specialty occupation. 
On appeal, the Petitioner again points to the revised end-client letter as evidence of the continued 
availability of work. 4 The newly revised end-client letter again offered for the first time on appeal 
adds a sentence indicating that it will need the Beneficiary's services on a long term basis extendable 
up to three years as this is an ongoing project. This statement is not corroborated with any probative 
evidence of a long term ongoing project, a beginning date and end date for any required services, or a 
contract establishing the legal obligation of the end-client to provide the services for the Beneficiary 
to perform. Even setting aside the deficiency of the lack of evidence establishing the Petitioner has 
definitive, non-speculative work for the Beneficiary, the record also includes significant 
inconsistencies regarding the substantive nature of the proffered position. 
For example, the Petitioner's descriptions of the proposed duties do not appear to correspond to the 
end-client's described duties except in the most general way. Additionally, the Petitioner's offer letter 
3 The Petitioner requested that the H-lB petition be approved for a validity period beginning October L 2018 through 
September 1 L 2021. 
4 We recognize that the record shows that the Beneficiary has worked in some capacity for this end-client in the past 
however, past work is not evidence of the legal obligation for that work to continue. 
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to the Beneficiary identifies the offered position as a programmer analyst and provides yet a third 
description of the proposed duties. The Petitioner in this matter has not provided consistent evidence 
of the actual day-to-day duties of the proffered position so that those duties may be analyzed to 
determine the actual nature of the proffered position. The Petitioner here, has not provided sufficient 
probative, consistent evidence to establish the actual duties of the position and that those specific 
duties require both the theoretical and practical application of a body of highly specialized knowledge 
and the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the 
minimum for entry into the occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
( defining the term "specialty occupation). 
The record does not establish that the Petitioner has non-speculative work available of the Beneficiary 
and significantly that any such work would be work in a specialty occupation. 
II. CONCLUSION 
Upon de nova review, we adopt and affirm the Director's decision with the comments above. 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. 
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