dismissed H-1B Case: Information Technology

MATTER OF B-I-T-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 3, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a global consulting and IT services company, seeks to employ the Beneficiary as a 
programmer analyst and to classify her as a nonimmigrant worker in a specialty occupation. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, Vermont Service Center, denied the petition. The matter is now before us on appeal. 
The appeal will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that (1) a valid 
employer~employee relationship will exist for the duration of the requested validity period; and (2) 
the Petitioner complied with the terms and conditions of the Labor Condition Application (LCA) filed 
for the Beneficiary. On appeal, the Petitioner asserts that the Director's basis for denial was 
erroneous and contends that it satisfied all evidentiary requirements~ 
We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a 
de novo basis. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see also 5 U.S.C. 
§ 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it 
would have in making the initial decision except as it may limit the issues on notice or by rule."); 
Dar v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989). We follow the preponderance of the evidence 
standard as specified in Matter ofChawathe, 25 I&N Dec. 369,375-76 (AAO 2010). 
For reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
We will first address whether the Petitioner has 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). We reviewed the 
record of proceeding to determine whether the Petitioner has 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." !d. 
Matter of B-1-T-S-, Inc. 
More specifically, section 101(a)(l5)(H)(i)(b) ofthe Act defines an H-1B nonimmigrant in pertinent 
part as a foreign national: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services . . in a specialty occupation described in section 
214(i)(1) ... , 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 (emphasis added): 
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. 
8 C.F.R. § 214.2(h)(4)(ii); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). In the instant case, 
the record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
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-1B visa classification. Section 101(a)(l5)(H)(i)(b) of the Act indicates that a foreign 
national coming to the United States to perform services in a specialty occupation will have an 
"intending employer" who will file a Labor Condition Application (LCA) with the Secretary of 
Labor pursuant to section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). The intending employer is 
described as offering full-time or part-time "employment" to the H-1B "employee." Subsections 
212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, 
the regulations indicate that "United States employers" must file a Petition for a Nonimmigrant 
Worker (Form I-129) in order to classify foreign nationals 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-1B beneficiary, and that this relationship 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"). 
2 
Matter of B-1-T-S-, Inc. 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (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 -1 B beneficiaries as being "employees" who must have an "employer-employee relationship" with 
a "United States employer." I d. Therefore, for purposes of the H -1 B 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 Mutual 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (Darden) (quoting Community 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. 
Darden, 503 U.S. at 323-324 (quoting Community/or Creative Non-Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 445 (2003) 
(Clackamas). 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 
America, 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)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(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 ofthe H-1B visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition. 1 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § I 002(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 
3 
Matter of B-1-T-S-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H -1 B 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 -1 B "employee." 8 C.F .R. § 214.2(h)( 4 )(ii). 
Accordingly, the term "United States employer" not only requires H-1B 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 definition 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. at 318-319.2 
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) ofthe Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).3 
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 -1 B 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)). 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992), a.ffd, 27 F.3d 800 (2nd Cir.), cert. denied, 513 U.S. 1000 (1994). 
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)(l )(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 B 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 Resources Defense 
Council, Inc., 467 U.S. 837,844-845 (1984). 
2 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 
U.S.410,414,65S.Ct.l215, 1217,89L.Ed.l700(1945)). 
3 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 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized foreign nationals). 
4 
Matter of B-1-T-S-, Inc. 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; 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 New Compliance Manual, Equal Employment Opportunity Commission, 
§ 2-III(A)(l) (adopting a materially identical test and indicating that said test was based on the 
Darden decision); see also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining 
that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H-1B nurses 
under 8 C.P.R. § 214.2(h), even though a medical contract service agency is the actual 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 448-449; New Compliance Manual 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 323-324. 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, 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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. The Proffered Position 
5 
Matter of B-1-T-S-, Inc. 
In the letter of support, the Petitioner states that the Beneficiary "is being offered a temporary 
employment as a Programmer Analyst" for "annual salary of $62,000." 4 The Petitioner also states 
that the Beneficiary will be responsible for the following duties: 
• Gather requirements from clients and prepare the requirement document; 
• Prepare design document and touch base with clients in U.S. to review; 
• Create/update forms, workflows, SQL queries and system configuration based on the 
requirements as well as perform unit, integration and system testing; 
• Support user acceptance testing and perform deployment and support post production 
activities; 
• Conduct regular trainings for new joiners and juniors in the team; 
• Support remedy administrators on their day-to-day activities and help them solve complex 
issues; and 
• Optimize and improve system performance. 
In addition, the Petitioner states that: 
... the Beneficiary's functions also include work out current and future IT needs by 
consulting with people at all levels about the current work systems and deciding how 
improvements could be made. [The Beneficiary] would be responsible to direct the 
integration of IT operations, computer hardware, operating systems, communications, 
software applications and data processing. 
The Petitioner breaks down the duties in percentages as follows: 
• Design, develop, and deploy applications that are aligned with the business and technology 
strategies (30% ); 
• Develop strong working relationships with the business and other technology team members 
to deliver quality technology solutions (20%); 
• Hard core GWT development and broad skills in technologies (25%); and 
• Develop test scripts and test new functionality/enhancement (25% ). 
In addition, the Petitioner stated that the proffered position requires "at least a Bachelor's degree, or 
the equivalent, in Engineering or a related field, for this H-lB position." 
C. Analysis 
4 In the Form I-129 and the LCA, the Petitioner indicates that the Beneficiary will be paid $65,000 per year. The 
Petitioner did not explain the discrepancy. Further, we note that $62,000 per year is below the prevailing wage of 
$63,523 per year. 
(b)(6)
Matter of B-1-T-S- , Inc. 
The Petitioner claims that it will have an employer-employee relationship with the Beneficiary. We 
have considered this assertion within the context of the record of proceeding. We examined each 
piece of evidence for relevance, probative value, and credibility, both individually and within the 
context ofthe totality of the evidence. Matter ofChawathe, 25 I&N Dec. at 375-376. However, as 
will be discussed, there is insufficient probative evidence in the record to support this assertion. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm 'r 1998) 
(citing Matter a/Tr easure Craft of California , 14 I&N Dec. 190 (Reg.' l Comm 'r 1972)). Applying 
the Darden and Clackamas tests to this matter, we find 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 -1 B temporary "employee." 
1. Work Assignment 
We find that the Petitioner has provided inconsistent information regarding the Beneficiary 's work 
assignment. In the Form I-129, the Petitioner stated that in addition to working at its address in 
MD, the Beneficiary would work off-site and that an itinerary was included. The itinerary 
indicated that "the [B]eneficiary is rendering services at 
but provided the location as its address in MD. The Petitioner also 
submitted a contract between itself and along with a purchase order dated August 16, 2013, 
that lists the Petitioner as a subcontractor. This purchase order states, "[the Petitioner] shall provide 
services to support the requirements of the purchase order in accordance with Attachment A, 
Statement of Work." The Petitioner submitted Attachment H3 to the Subcontractor's Statement of 
Work (SOW) between the Petitioner and which identifies prime contractor as 
and states that "[t]he work will be performed exclusively at facilities." 
The Petitioner also submitted an Offer of Employment and Employment Agreement with the 
Beneficiary. The Offer of Employment states that the Beneficiary's work location will be in 
MD, but "[y]ou understand and acknowledge that your employment may require you to 
perform services at customer sites, and that you may be required to travel and/or relocate to perform 
such services." Additionally , the Employment Agreement states "[p]eriodical visits to client site are 
conducted to facilitate close monitoring and supervision of off-site employee ." 
On appeal, the Petitioner submits an affidavit from its President and CEO, which states that despite 
the statements made to the contrary in the contracts previously submitted, the Beneficiary will 
provide the services from its offices in MD and not at the end client location. The 
Petitioner also provides a letter from the end client, dated October 6, 2014, which states "[the 
Beneficiary] was interviewed and selected for the position of Service Developer. .. She will be 
working at [the Petitioner 's] corporate office at MD for this project." 
5 The Petitioner claims that 1s a company but there is insufficient docum entary evidence in the record to 
establish that 1s a company. 
(b)(6)
Matter of B-1-T-S-, Inc. 
However, for the first time on appeal, the Petitioner also submits a full Subcontract Agreement dated 
October 29, 2012 between the Petitioner (as the Subcontractor) and In Section D-1, it 
states that "the work shall be completed at site in Maryland." 
We further note while the Petitioner claimed that the Beneficiary will be employed as a programmer 
analyst, the letter from states that "[the Beneficiary] has been offered a position of Developer." 
The Petitioner did not explain the discrepancy. 
It is incumbent upon the Petitioner to resolve any. inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582,591-92 (BIA 1988). 
2. Duration of the Relationship Between the Parties 
Upon review of the record, we also find that the Petitioner has not established the duration of the 
relationship between theparties. The Petitioner has not indicated that the Beneficiary would work 
on any other projects besides the one for through Even if the SOW mentioned the 
Beneficiary by name, which it did not, the Purchase Order dated June 4, 2014 only covers work 
through May 7, 2015. 
Although the Petitioner requested that the Beneficiary be granted H-lB classification from October 
1, 2014 to September 10, 2017, there is a lack of substantive documentation regarding any work for 
the duration of the requested period. Rather than establish definitive, non-speculative employment 
for the Beneficiary for the entire period requested, the Petitioner simply asserts that the Beneficiary 
would be working at its own offices during the requested validity dates. 
The agency made clear long ago that speculative employment is not permitted m the H-lB 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H -1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-lB classification is not 
intended as a vehicle for an alien to engage in a job search within the United States, 
or for employers to bring in temporary foreign workers to meet possible workforce 
needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an 
H-lB nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the 
attainment of a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has 
the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H -1 B classification. Moreover, there is no 
8 
(b)(6)
Matter of B-1-T-S-, Inc. 
assurance that the alien will engage in a specialty occupation upon arrival in this 
country. 
63 Fed. Reg. 30419, 30419- 30420 (June 4, 1998). 
3. Supervision 
A key element in this matter is who would have the ability to hire, fire, supervise, or otherwise 
control the work of the Beneficiary for the duration of the H -1 B petition. The Subcontract between 
the Petitioner (as the 
Subcontractor) and , contains the following language: 
may request Subcontractor remove any employee of Subcontractor 
whose performance is deemed unacceptable by either or the Government, 
and it shall be the responsibility of Subcontractor, if so directed by , to remove 
and replace that individual immediately or within the time required by or 
the Government at no additional cost to 
If Subcontractor fails to provide qualified personnel in the time frame required 
by shall have the right to fill the positions from sources other than 
Subcontractor. .. 
The Subcontract also states: 
Subcontractor personnel provided in support of this Agreement must, at a 
minimum, meet the labor category requirements included in Attachment H.3. 
Resumes for all proposed personnel must be submitted by the Subcontractor to the 
Program Manager, Project Manager or Technical Monitor. The Program Manager, 
Project Manager or Technical Monitor must have an opportunity to verify the 
individuals meet the qualifications of the labor category for which they are being 
proposed before the individual being placed on the agreement. .. In the event that the 
performance of assigned Subcontractor personnel or any substitute(s) is determined 
by to be unsatisfactory at any time during the performance of any TO issued, 
reserves the right to request and receive a satisfactory personnel replacement 
within ten (1 0) calendar days of written notification ... 
Based on this statement, it appears that will review and verify the resumes of the Petitioner's 
employees, monitor assignment for staff positions , and, if the performance of any of the Petitioner's 
employees is unsatisfactory, can request and receive a replacement. 
Further, the Petitioner indicated that the Beneficiary will be supervised by 
However, the evidence in the record contains inconsistent information. The Petitioner provided two 
organization charts; one organizational chart lists as the Executive Vice President 
(EVP) and Chief Technology Officer (CTO), second only to the President & CEO, and the other 
9 
Matter of B-1-T-S-, Inc. 
chart describes his position as the EVP and Chief Operation Officer (COO). Further, according to 
the organizational chart, the Petitioner's programmer analysts, who presumably would include the 
Beneficiary, do not report directly to the EVP. and COO, but rather to either the Senior Program 
Manager or the SVP of Federal Business Group, neither of whom are mentioned in the Beneficiary's 
offer letter as being her supervisor. 
Therefore, the record does not sufficiently establish who would supervise the Beneficiary on a daily 
basis. It is incumbent upon the Petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the Petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. at 591-92. 
4. Lack of Evidence 
As previously noted, when making a determination of whether the Petitioner has established that it 
has or will have an employer-employee relationship with the Beneficiary, we look at a number of 
factors, including who will provide the instrumentalities and tools required to perform the duties of 
the proffered position. The Director specifically noted this factor in the RFE. The Petitioner did not 
provide any further information on this matter. Thus, the Petitioner did not fully address or submit 
probative evidence on the issue. 
In the RFE, the Director also asked the Petitioner to provide information regarding the Beneficiary's 
role in hiring and paying assistants. The Petitioner elected not to address this issue or provide any 
information in response to this material request for evidence. While the Petitioner was given an 
opportunity to clarify the Beneficiary's role in hiring and paying assistants, it chose not to submit 
any probative evidence on the issue. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
5. Conclusion 
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 that the Petitioner exercises 
control over the Beneficiary, without evidence supporting the claim, or indeed, as is the case here, 
providing contradictory evidence, 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 So.ffzci, 22 I&N Dec. at 165. Based on the tests outlined 
above, 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." 8 C.F.R. 
§ 214.2(h)(4)(ii). 
Moreover, there is a lack of probative evidence to support the Petitioner's assertions. It cannot be 
concluded, therefore, that the Petitioner has satisfied its burden and established that it qualifies as a 
United States employer with standing to file the instant petition in this matter. See section 214( c )(1) 
10 
··-·---------------------------------
Matter of B-1-T-S-, Inc. 
of the Act (requiring an "Importing Employer"); 8 e.F.R. § 214.2(h)(2)(i)(A) (stating that the 
"United States employer ... must file" the petition); 56 Fed. Reg. 61111,61112 (Dec. 2, 1991) 
(explaining that only "United States employers can file an H-1B petition" and adding the definition 
of that term at 8 e.F.R. § 214.2(h)(4)(ii) as clarification). Accordingly, the petition must be denied 
on this basis. 
II. LeA NOT VALID FOR ALL WORK LOeA TIONS 
The next issue before us is whether the Petitioner submitted a valid LeA for all work locations and 
complied with the itinerary requirement at 8 e.F.R. § 214.2(h)(2)(i)(B). General requirements for 
filing immigration applications and petitions are set forth at 8 e.F.R. § 1 03.2(a)(l) in pertinent part 
as follows: 
Every benefit request or other document submitted to DHS must be executed 
and filed in accordance with the form instructions . . . and such instructions are 
. incorporated into the regulations requiring its submission. 
Further discussion of the filing requirements for applications and petitions is found at 8 e.F.R. § 
103.2(b)(l): 
Demonstrating eligibility. An applicant or petitioner must establish that he or 
she is eligible for the requested benefit at the time of filing the benefit request and 
must continue to be eligible through adjudication. Each benefit request must be 
properly completed and filed with all initial evidence required by applicable 
regulations and other USeiS instructions. Any evidence submitted in connection 
with a benefit request is incorporated into and considered part of the request. 
The regulations require that before filing a Form I-129 petition on behalf of an H-1B worker, a 
petitioner obtain a certified LeA from DOL in the occupational specialty in which the H-1B worker 
will be employed. See 8 e.F.R. § 214.2(h)(4)(i)(B). The instructions that accompany the Form I-129 
also specify that an H-1B petitioner must submit evidence that an LeA has been certified by DOL 
when submitting the Form I-129. 
Additionally, the regulation at 8 e.F.R. § 214.2(h)(2)(i)(B) provides as follows: 
Service or training in more than one location. A petition that requires 
services to be performed or training to be received in more than one location must 
include an itinerary with the dates and locations of the services or training and must 
be filed with USeiS as provided in the form instructions. The address that the 
petitioner specifies as its location on the I -129 shall be where the petitioner is located 
for purposes of this paragraph. 
As discussed previously, the Petitioner indicated on the Form I-129 and on appeal that the 
1 I 
(b)(6)
Matter of B-1-T-S-, Inc. 
Beneficiary would be working at its office in for the duration of the H-1B employment 
period, i.e., October 1, 2014 to September 10, 2017. However, the Petitioner also checked the box 
"yes" in response to the question of whether the Beneficiary would work offsite in the Form 1-129. 
The certified LCA submitted with the Form 1-129 indicates that the Beneficiary will work only at the 
Petitioner's business in from September 15, 2014 to September 14, 2017. However, the 
documentation submitted by the Petitioner (which includes the Form I-129 that states the 
Beneficiary will work offsite 
and contracts regarding a project to which the Petitioner claims the 
Beneficiary will be assigned, but that do not name the Beneficiary, do not cover the duration of the 
petition, and state that all work will be performed at the end client location) does not demonstrate 
that the Beneficiary will work at the Petitioner's office in for the duration of the petition. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the U.S. 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 1-129 actually supports that petition. The regulations state, in pertinent part: 
For H-1B 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 model of distinguished merit and ability, and whether the qualifications of 
the nonimmigrant meet the statutory requirements of H -1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
In light of the above, we find that a necessary condition for approval of an H -1 B visa petition is an 
LCA, certified on or before the filing date of the petition, with information, accurate as of the date of 
the petition's filing, as to where the Beneficiary would actually be employed. Furthermore, the 
petition must list the locations where the Beneficiary would be employed and be accompanied by an 
itinerary with the dates the Beneficiary will provide services at each location covering the duration 
of employment requested in the petition. Both conditions were not satisfied in this proceeding. 
It is further noted that to ascertain the intent of a petitioner, USCIS must look to the Form I-129 and 
the documents filed in support of the petition. It is only in this manner that the agency can determine 
the exact position offered, the location of employment, the proffered wage, et cetera. 
In view of the foregoing, the Petitioner has not overcome the Director's basis for denying the 
petition, and it has also not met the itinerary requirement at 8 C.F.R. § 214.2(h)(2)(i)(B). For these 
reasons, the petition may not be approved. Accordingly, we will not disturb the Director's denial of 
the petition on this ground. 
III. SPECIALTY OCCUPATION 
12 
(b)(6)
Matter of B-1-T-S-, Inc. 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceeding. Nevertheless, we will briefly 
note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ 
the Beneficiary or another individual as an H-1B employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any 
future filing. 
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 384 (5th Cir. 2000). In other words, as the employees in that case would provide 
services to the end-client 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 letter from dated October 6, 2014, states that "[the Beneficiary] was interviewed and 
selected for the position of Service Developer, based on the qualification and following skills": 
• Java, 
EJB, Web Services, SOAP, XML, WSDL, JAXB, JAX-WS 
• MVC, JSP, JSF, Struts, Spring 
• Oracle 9/10, JP A, Hibernate, SQL 
• Weblogic Application Server, TomCat 
• Eclipse, JDeveloper, Remedy ARS, Putty 
In other words, the end-client does not indicate that a bachelor's degree in a specific specialty is 
required for the proffered position. Here, the record of proceeding in this case is similarly devoid of 
sufficient information regarding the specific job duties and requirements for the proffered position. 
The Petitioner's failure to establish the substantive nature of the work to be performed by the 
Beneficiary, therefore, precludes a finding that the proffered position satisfies any criterion at 8 
C.F.R. § 214.2(h)(4)(iii)(A), because it isthe substantive nature of that work that determines (1) the 
normal minimum educational requirement for 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. Therefore, the petition must be denied for this additional reason. 
IV. CONCLUSION AND ORDER 
13 
Matter of B-1-T-S-, Inc. 
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). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-1-T-S-, Inc., ID# 12880 (AAO Nov. 3, 2015) 
14