dismissed H-1B Case: Information Technology

MATTER OF S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 11,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT services firm, seeks to employ the Beneficiary as a "DCNI Network Engineer" 
under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality 
Act (the Act)§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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, California Service Center, denied the petition. The Director concluded that the proffered 
position does not qualify as a specialty occupation and the Petitioner has sufficient work for the 
requested period of intended employment. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and the 
asserts that the proffered position is a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
Matter of S- LLC 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
2 
(b)(6)
Matter of S- LLC 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, US CIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. 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. 
B. The Proffered Position 
The Petitioner asserts in the labor condition application (LCA) submitted to support the visa petition 
that the proffered position corresponds to Standard Occupational Classification code and title 
15-1142, Network and Computer Systems Administrators, from the Occupational Information 
Network. 
The period of requested employment stated on the Form I-129, Petition for a Nonimmigrant Worker, 
is from October 1, 2015, to September 10, 2018. On the Form I-129, the Petitioner stated that the 
Beneficiary 
would work as a DCNI Network Engineer at CA 
The LCA submitted is approved for employment at that location. It does not list any other 
3 
(b)(6)
Matter of S- LLC 
work location. Evidence in the record indicates that the address is a location of 
In a support letter provided with the I-129, the Petitioner stated the following as the duties of the 
proffered position: 
• Performing DC NW application migrations , implementation , and scaling to meet 
DC network application design (10%) ; 
• Creating DC network solution design deliverables required to support application 
migrations and implementations (1 0% ); 
• Scaling aspects of application to support aggressive application implementation 
and migration strategy (10%); 
• Supporting delivery of new network technologies for enhancing the network's 
platform capabilities ( 10% ); 
• Working on service areas including application design and consulting with 
application programs ( 10% ); 
• Collecting requirements , such as document application network 
dependencies and 
packet flows or solution requirements and dependencies ( 10% ); 
• Documenting and collaborating with various teams on application design solution 
set (10%) ; 
• Ensuring alignment with collaborative partners, escalating open issues to DC 
Network Design team management and identifying technical gaps (10%); 
• Reporting to DC network roadmap owner for feature alignment 
(10%); 
• Creating post documentation for reference and participating in solution network 
design and build and unit testing (5%) ; and 
• Performing enterprise testing and post Go-Live support and knowledge transfers 
(5%). 
An Offer Letter addressed to the Beneficiary by the Petitioner and dated January 22, 2015, states: 
Your responsibilities include but not limited to being responsible for 
multiple datacenter projects working with F5 load balancing, Nexus switches, and 
security policies and best practices . You will be supporting the design for these 
projects and will be taking an operations approach to creating scalable and easily 
supportable datacenter solutions . 
The record also contains a letter, dated March 13, 2015, from Director of 
Operations (Managed Services) at It affirms that the 
Petitioner entered into an agreement to provide the Beneficiary's services to and states 
that the Beneficiary will be engaged by as a subcontractor. It describes the duties of 
the proffered position as follows : 
4 
(b)(6)
Matter of S- LLC 
1. Perform hardware refresh and lOS code upgrades for Nexus 7k, 5k and 2k. 
Catalyst 6500, 4900M, 3750. ASR 1000 series routers, 7200 series and ISR 
routers (2800/2900)[;] 
2. Deploy new devices in data center[;] 
3. Configure networking hardware to latest IT standards[;] 
4. Serve as escalation point to Tier 2 support groups[; and] 
5. Provide feedback to operations and design teams[.] 
C. Analysis 
We agree with the Director that the evidence of record does not establish that the proffered position 
qualifies as a specialty occupation. 
First, we find that the Petitioner has not demonstrated with sufficient documentary evidence 
requirements for the proffered position and the duties to be performed by the Beneficiary on the 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide 
sufficient information regarding the proposed job duties to be performed at its location(s) in order to 
properly ascertain the minimum educational requirements necessary to perform those duties. See 
Defensor v. Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide 
services to the end-client hospitals and not to the petitioning staffing company, the petitioner­
provided job duties and alleged requirements to perform those duties were irrelevant to a specialty 
occupation determination. See id. 
The record of proceedings in this case is similarly devoid of sufficient, credible information from or 
by the end-client, regarding the requirements for the proffered position and the specific job 
duties to be performed by the Beneficiary. "[G]oing on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter 
ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)). 
We have reviewed the letter from dated August 20, 2015, submitted on 
appeal by the Petitioner, which states that does not hire or engage computer consulting 
professionals who do not possess, at minimum, a Bachelor's degree in Computer Science, 
Engineering or a related field." However, that letter is not from and it states a different 
requirement than that listed in earlier March 31, 2015, letter in which he stated "a 
minimum of a Bachelor's degree and experience in the relevant field" is required. On appeal, the 
Petitioner cannot materially change a position's title, the associated job responsibilities, or the 
requirements of the position. The Petitioner must establish that the position offered to the 
Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to users 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
5 
(b)(6)
Matter of S- LLC 
Second, it also cannot be determined that the Beneficiary will work at on a 
during the requested validity period. The record of proceedings contains a printout of an e-mail 
exchange that took place on March 12, 2015, and March 13, 2015, between and 
who identifies herself as working for Global Procurement Services at In that 
exchange, only says, "Please respond accordingly." In response to that email which 
may have had an attachment, requested that "confirm if [the Beneficiary] 
ts a direct (W2) employee contract employee). " also 
stated that will not confirm the Beneficiary ' s placement at because he is not a direct 
employee of and "per long-standing policy , support letters for immigration 
purposes to third-party vendors are not issued ." The next email in the chain is from 
who states, "[The Beneficiary] is a subcontractor. " response 
substantially repeats her earlier email. neither confirms the Beneficiary's assignment 
to on the claimed project, nor does she mention any dates of employment. 
On appeal , the Petitioner states that the "existence of the [email] exchange .. . serves the same 
purpose as confirming [the Beneficiary 's] deployment at The e-mail exchange relied upon 
by the Petitioner , however , does not indicate that the Beneficiary will work at a location on the 
claimed project during the requested validity period . There is no documentation from the 
end-client, in the record of proceedings which (1) states that the Beneficiary is contracted to work at 
its location on the project specified by the Petitioner, and (2) describes the work to be performed 
specifically by the Beneficiary at its location . 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary . That the Petitioner did not establish the substantive nature of the 
work to be performed by the Beneficiary precludes a finding that the proffered position satisfies any 
criterion 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. 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore , it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
Also, at a more basic level , the evidence of record does not demonstrate the existence of work for the 
Beneficiary that would continue throughout the period of employment requested in the visa petition. 
Even if the Petitioner had established that the Beneficiary would work at the location as well 
as the requirements for the position and the duties to be perfmmed , another issue is how long the 
emplo yment at that location would last. The Petitioner provided a Consulting Agreement between 
6 
(b)(6)
Matter of S- LLC 
the Petitioner and containing the general terms pursuant to which the Petitioner may 
provide workers to The Consulting Agreement covers work on projects to be 
identified later in each "Scope of Work" which will "become part of this Consulting Agreement as 
part of Appendix I." The Consulting Agreement has an Appendix I, a one page document, attached 
which is dated February 5, 2015. That document states that the Beneficiary will work as a network 
engineer at client site in from February 9, 2015, to March 7, 2016. 1 
The Petitioner also submitted two Statements of Work (SOWs) entered into by 
for work to be performed on the The first SOW covers the period 
January 25, 2015, to April 25, 2015, while the second SOW covers work to be performed from July 
26, 2015, to October 24, 2015 (SOW #2).2 Both of the SOWs fall short of confirming that the 
project would continue through September 10, 2018, which is the end-date of the period of requested 
employment on the Form I-129. The SOWs also do not mention either the Petitioner or the 
Beneficiary. 
In an "Itinerary " on the Petitioner 's letterhead , the Petitioner characterized the project on which it 
asserts the Beneficiary would work at as "open-ended & long term ." The Petitioner further stated: 
Based upon past experience and future end-client need , we anticipate this 
project I contract will continue to be extended until the end of the H1B duration 
requested. Therefore, we are confident of employing the Beneficiary on this project 
at the present end-client location until the end of the H1B stay requested . 
The Petitioner did not reveal the nature of that "past-experience and future end-client need ." 
Based on the evidence of record, we cannot determine that the Petitioner has work for the 
Beneficiary that will continue through the end of the requested validity period, September 10, 2018. 
Even if the proffered position were to qualify as a specialty occupation based on the Beneficiary ' s 
employment at the petition could not be approved beyond October 24, 2015, which is the end 
of SOW #2's period. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
As an additional basis , we find that 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 established that it will have "an employer-employee relationship 
1 
Although they contain spaces for the Petitioner to sign, ratifying them, neither the consulting agreement nor the 
appendix appears to be signed by the Petitioner. As such, whether they represent agreements that were ratified by both 
parties remains unclear. Also, the appendix only lists the site as being located in without further specifying the 
street address and whether it is a 
2 The letter from of submitted on appeal, refers to SOW #2 which covers work throu gh 
October 24,2015 . 
Matter of S- LLC 
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." !d. 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4 )(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) 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); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H­
lB visa classification. Section 101(a)(l5)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(1). The intending employer is described as offering full-time or part-time 
"employment" to the H-IB "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-IB beneficiary, and that this relationship 
0 
Matter of S- LLC 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H -1 B visa 
classification, even though the regulation describes H-IB beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." !d. Therefore, for 
purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has 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." 
!d.; 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)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-IB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g, Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
9 
Matter of S- LLC 
Specifically, the regulatory definition of "United States employer" requires H-lB employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the defmition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at318-19. 4 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 I (a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 8 visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
4 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
5 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g, section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184( c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
10 
(b)(6)
Matter of S- LLC 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner , 201 F.3d 384, 388 (5th Cir. 2000) 
(determining 
that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-1B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS 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. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive." ' Jd. at 451 (quoting Darden , 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, 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, the Petitioner indicated that the Beneficiary will work off-site for the end-client, 
however, the 
record of proceeding does not contain reliable documentation from establishing 
in sufficient detail the circumstances of the Beneficiary's assignment. Given the lack of evidence 
from the scope of the Beneficiary's duties and who would have actual control over the 
Beneficiary ' s work or duties cannot be determined. 
11 
(b)(6)
Matter of S- LLC 
While the Petitioner submitted letters from the mid-vendor, stating that ( 1) 
"employees of [the Petitioner] working on projects are directly employed by [the Petitioner] 
and are not employees," and (2) "[the Petitioner] will control and supervise [the Beneficiary's] 
overall work," these letters do not describe in any factual detail the manner in which the Petitioner 
purportedly exercises such control and supervision. Similarly, the Petitioner states in its support 
letter the following with respect to the employer-employee relationship with the Beneficiary: 
Throughout the Beneficiary's employme_nt with us, he will be closely 
supervised by Manager at [the Petitioner]. is charged 
with ensuring that [the Beneficiary] is meeting deadlines and satisfactorily delivering 
the contracted development work. makes periodic onsite visits to review 
[the Beneficiary's] progress. [The Beneficiary] is further supervised by [the 
Petitioner] through a variety of standard employment practices, including sending in 
timesheets to account for his daily hours and his project progress, which are reviewed 
every two weeks by HR. In addition, [the Beneficiary] regularly updates his 
superiors on project status through teleconferences and company e-mails. 
We affirm that [the Beneficiary] will be using some equipment owned by [the 
Petitioner] to perform his job. For security reasons, the project development will be 
on client servers and computers onsite. As [the Beneficiary's] employer, [the 
Petitioner] has the exclusive right to assign additional duties to [the Beneficiary], 
decide when and how long [the Beneficiary] will work, determine the method and 
terms of [the Beneficiary's] compensation, and hire additional resources to work with 
[the Beneficiary] . We further affirm that [the Petitioner] and only [the Petitioner] will 
provide employee benefits to [the Beneficiary] and that [the Beneficiary] is treated as 
our employee for tax purposes. 
The record of proceeding does not, however, contain reliable documentation corroborating the 
Petitioner's assertions that it supervises and controls all aspects of the Beneficiary's off-site work. 
Although the Petitioner claimed that the Beneficiary will be closely supervised by 
notably, the Petitioner's organizational chart indicates that is the Petitioner's "HR & 
Legal" and the organizational chart does not depict as overseeing the Beneficiary . "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. " 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). "Doubt cast on any aspect of the petitioner 's 
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition." Id. There is insufficient documentary evidence of 
how the Beneficiary will be supervised and how his performance will be rated. 
Thus, even if the Petitioner established that it would provide the Beneficiary's salary and other 
employment benefits, 
these factors, alone, are insufficient to establish that the Petitioner qualifies as 
the Beneficiary's employer having an employer-employee relationship with him. 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 
12 
Matter of S- LLC 
make a determination as to who will be the Beneficiary's employer. Here, there is insufficient 
evidence establishing all the relevant factors of the Beneficiary's employment. Without full 
disclosure of all the relevant factors, we are unable to find the requisite employer-employee 
relationship between the Petitioner and the Beneficiary. 
We acknowledge the Petitioner's submission of its "Exclusive Employer-Employee Agreement" 
with the Beneficiary, which states that "[a]ll employment decisions ... rest solely with [the 
Petitioner]" and the Petitioner "has the exclusive employer rights to [the Beneficiary]." However, 
merely claiming that the Petitioner has the right to control the Beneficiary's work, without evidence 
supporting the claim and evidence that another entity would not exercise control over the 
employment, does not establish eligibility in this matter. Again, "going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings." Matter of Sofjici, 22 I&N Dec. at 165. As previously mentioned, the "mere 
existence of a document styled 'employment agreement'" shall not lead inexorably to the conclusion 
that the worker is an employee. Clackamas, 538 U.S. at 450. 
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 and other 
submitted documentation that the Petitioner exercises complete control over the Beneficiary, without 
competent evidence supporting the claim, does not establish eligibility in this matter. Based on the 
tests outlined above, the Petitioner has not established that it qualifies as a "United States employer" 
having an "employer-employee relationship" with the Beneficiary as an H-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). For this additional reason, the petition must be denied. 
III. CONCLUSION 
As set forth above, we find that the evidence of record does not demonstrate that the proffered 
position qualifies as a specialty occupation. The evidence of record also does not establish that an 
employer-employee relationship will exist between the Petitioner and the Beneficiary. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of 
Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS- LLC, ID# 15815 (AAO Mar. 11, 2016) 
13