dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7863326 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 6, 2020 
The Petitioner , an information and technology services organization, seeks to employ the Beneficiary 
temporarily as a "workday application developer" under the H-lB nonimmigrant classification for 
specialty occupations .1 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 Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish the Petitioner will have an employer-employee 
relationship with the Beneficiary, or that the proffered position is a specialty occupation . 
On appeal , the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de nova review , we will dismiss the appeal. 
I. SPECIALTY OCCUPATION WORK 
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. 
The regulation at 8 C.F.R. § 214 .2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a specialty 
occupation shall be accompanied by [ d]ocumentation ... or any other required evidence sufficient to 
establish ... that the services the beneficiary is to perform are in a specialty occupation." Moreover, 
the regulations at 8 C.F.R. §§ 103.2(b)(8) and 214.2(h)(9)(i) provide USCIS with broad discretionary 
authority to require evidence such as contracts and itineraries to establish that the services to be 
performed by a beneficiary will be in a specialty occupation during the entire period requested in the 
petition. Finally, USCIS has the authority to administer the law that Congress enacted, and to 
determine whether an organization has sufficiently demonstrated that it would have 
(1) non-speculative work available for a beneficiary, as well as (2) the requisite employer-employee 
relationship with that same foreign worker. 2 
B. Analysis 
The Petitioner is located in Texas and stated it has a contractual relationship withl I D ( end-client). Based on this relationship, the Petitioner would place its personnel to perform work 
at an offsite location in Florida for the end-client. The Petitioner requested the Beneficiary's dates of 
intended employment from October 2019, through September 2022. 
We agree with the Petitioner that the Director incorrectly stated that only a portion of the contractual 
material was present. However, we agree with the Director's ultimate determination that considering 
the totality of the evidence within the record, the Petitioner has not established that qualifying work 
would exist as claimed. 
Although the Petitioner provided contractual material executed between itself and the end-client, 
neither this material nor the remaining evidence corroborates the Petitioner's estimate that the 
end-client would require the Beneficiary's services in accordance with its request on the petition. The 
Petitioner provided a contract titled Contingency Search Agreement and Guarantee ( core contract) and 
a Statement of Work (SOW). Each document was comprised of one page and was signed on May 14, 
2018. 
Although the parties signed the core contract on a particular date, what is lacking from this agreement 
is the date it would commence. Specifically, the contract indicated, "The term of this Agreement shall 
commence as DATE and shall continue in effect until canceled by either party upon not less than 
thirty (30) days' prior notice to the other." (Emphasis in original). This contract contains other words 
that are in all capitals and bolded, which either have a specific meaning within the document, or are 
intended to be replaced based on the facts surrounding that contract. 
As this document does not provide a specific definition for "DATE," it appears that this text was 
supposed to be replaced with an actual agreed-upon date in which the work would commence. 
However, this core contract does not offer greater detail revealing what that date might be, nor does it 
stipulate that this text would depend on a date contained within separate contractual material, such as 
the SOW. As a result, this appears to be an error or an omission within the core contract. We consider 
2 See Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
2 
this to be one element that has an adverse effect on this document's evidentiary value. An additional 
factor that reduces this contract's probative value is the Director raised this as an issue within the petition's 
denial, but the Petitioner failed to address it on appeal. 
We raise two final issues relating to the core contract. First, this type of contract-a contingency 
search contract-is utilized by recruiting agencies that locate qualified personnel for client companies 
who want to evaluate workers for a specified period before hiring them permanently. Generally, these 
recruiting agencies do not receive compensation until a worker is placed with the client. We note that 
the core contract in this case reflected that the end-client could convert (i.e., hire) the Petitioner's 
workers to its own workforce after approximately 13 weeks of full-time work. That the Petitioner 
entered into this type of contract tends to have a detrimental effect on its claims. 
Second, regarding the unlimited term of the core contract, considering the current fact pattern and the 
deficient record, such an indefinite and open-ended agreement does not demonstrate that the project 
will be ongoing without probative, corroborating material to establish the project's actual, or likely 
duration. And the SOW doesn't aid the Petitioner in demonstrating that it would have work available 
for the Beneficiary as requested on the petition, as it only contained a start date for the work. The 
Petitioner did not cite to any relevant statute, regulation, or policy to support the position that 
open-ended arrangements are sufficient to satisfy its burden of proof. 
Nor has the Petitioner presented a basis supported by sufficient analysis and probative evidence that 
demonstrates the prediction is reasonable, by a preponderance of the evidence. In general, such 
predictions should be sufficient for USCIS to reasonably deduce whether the prospective work will 
continue, as requested. Basic or conclusory assertions do not provide us with a legitimate basis to 
determine whether a project will continue to require a beneficiary's services, or whether such 
statements are simply speculation. 3 Hypothetically, ifwe were to accept the Petitioner's position that 
perpetual arrangements are sufficient evidence, several years or decades could pass and the petitioning 
organization could continue to rely on the old contractual documents without having to demonstrate 
that such material remains active. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 4 First, a petitioner must satisfy the burden of production. As the term suggests, 
this burden requires a filing party to produce evidence in the form of documents, testimony, etc. 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince U.S. Citizenship and Immigration Services (USCIS) 
that the requisite eligibility parameters have been met (i.e., the obligation to persuade the trier of fact 
of the truth of a proposition). 5 Whether a petitioner is able to show that a particular fact or event is 
more likely than not to occur is the determinant of whether they have met the preponderance of the 
evidence standard of proof. While a petitioner may file an amended petition if a beneficiary's 
3 Cf Matter of Ho, 22 T&NDec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain 
sufficient detail to permit USCTS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service 
to determine whether the job-creation projections are any more reliable than hopeful speculation." Id. 
4 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof fi-om Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
5 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
3 
proposed work terminated with a client, the fact remains that it should rely on prospective work that 
is more likely than not to exist. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying the standard of proof This applies to whether the prediction 
is based on an existing project that a petitioner expects to continue into the future, or on an unspecified 
project. 
Providing evidence that sufficiently corroborates statements made within correspondence is 
particularly important in a case such as this where the impetus and existence of the proffered position 
appears dependent entirely upon outside clients to provide it. If a petitioner is unable to establish that 
qualifying work would actually exist in accordance with its request, we cannot determine whether the 
proffered position is a specialty occupation. 6 
Within the petition, the Petitioner committed to assign the Beneficiary to specific work, at the 
end-client's location, for a particular timeframe. In the same manner that the Petitioner committed to 
compensate the Beneficiary at a particular wage in addition to multiple other factors it attested to, the 
organization must preponderantly demonstrate that all its essential commitments are more likely than 
not to occur. In other words, the Petitioner guaranteed USCIS that it would meet a set of parameters, 
and it is their duty to ensure their case gets to that preponderant apex. 
Moreover, inherent with employing foreign nationals are additional burdens a U.S. employer must 
satisfy when compared to hiring U.S. workers. Part of that burden in the H-lB context is to 
demonstrate the existence of the proposed work. One method to establish the work's existence is to 
provide evidence that a project will exist as requested, the lack of which can create material gaps 
within the evidence. The scenario in the present case is one in which the project's existence as 
requested in in question because the petitioning organization's claims are supported by qualitatively 
deficient evidence (i.e., a contingency search contract). Such a scenario is generally one that can be 
prohibitive for a petitioner attempting to demonstrate that it would have specialty occupation work 
available for a beneficiary while they would work offsite at an end-client location. 7 
The context of the current scenario is not simply a business arrangement to provide services. Instead, 
the Petitioner has entered into such a relationship while simultaneously intending to assign H-lB 
personnel to perform the work. We note that U.S. employers take on additional burdens when 
employing foreign nationals in the United States. As a result, it does not appear that the Petitioner 
6 We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. 
To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to which the 
Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in 
some instances) to comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
7 KPK Techs .. Inc. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, at *6 (E.D. Mich. Sept. 16, 2019) (finding agency's 
determination reasonable that a petitioner has not demonstrated a foreign worker would be employed in a specialty 
occupation for the entirety of the time period it requests on a petition where the contracts do not cover the dates requested 
on a petition). 
4 
possessed assurances through the above-mentioned contractual material that the proffered position 
would be available for the Beneficiary as indicated on the petition. Therefore, we conclude that the 
Petitioner's arguments that based on the material it offered before the Director, it had secured 
qualifying employment for the Beneficiary are not sufficiently persuasive to meet its burden of proof. 
The remaining documentation did not reflect a completion date commensurate with the timeframe the 
Petitioner required for the Beneficiary covering a 35-month period. Nor did the remaining evidence 
within the record (e.g., the technical material relating to the project) offer a basis for the Petitioner's 
request for work 35 months. From this perspective, it is unclear what the Petitioner based its request 
upon for the Beneficiary to work on this project for almost three years. This would appear to be 
speculative employment, which USCIS has not historically permitted within the H-lB program. 8 
Turning to the letters from the end-client, it offered two before the Director and one on appeal. Within 
the correspondence before the Director, the end-client indicated the work would exist for three years, 
and within the appellate letter it specified the work would "continue until 2022 and beyond." 
However, the client's next sentence in the appellate letter reflects that its prediction does not alter or 
create any legal obligation on its part. This statement tends to undermine the Petitioner's claims that 
the client would legally be required to provide work for the Beneficiary at least through September 
2022. The Petitioner did not offer a means by which we could verify the contents of the client's letters, 
nor did it offer material to corroborate the content. The end-client's claims within its correspondence 
essentially equate to assertions rather than evidence to support such claims. Such statements made 
without supporting documentation are of limited probative value and are insufficient to satisfy the 
Petitioner's burden of proof. 9 Moreover, none of the involved parties described an adequate basis for 
a three-year estimate. 
Moreover, the Director's denial decision informed the Petitioner that simple letters from the end-client 
were not sufficient to meet its burden of proof. Yet in response on appeal, the Petitioner only provides 
an additional letter from the end-client, an Employment Agreement and a separate memorandum 
between itself and the Beneficiary, and an Itinerary of the Beneficiary's services. The Employment 
Agreement did not address the possibility that the end-client could hire the Beneficiary after 
approximately 13 weeks of work; it only reflected the employment would continue until terminated or 
until the project ends. The memorandum was related to the claimed employer-employee relationship 
rather than to the existence of the work as requested on the petition. And even thought the Petitioner 
stated within its appeal brief that the Itinerary was for this "Beneficiary detailing the job duties and 
work location information," it contained information relating to someone other than the Beneficiary 
and to another client and project. The Petitioner did not explain why it submitted an unrelated Itinerary 
in support of this petition. Consequently, it has created conflicting facts within the record, which it must 
resolve through some form of evidence that preponderantly establishes where the truth lies. 10 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 11 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
8 See, e.g., 63 Fed. Reg. 30419. 30419-20 (June 4, 1998). 
9 Mattero(Sofjici, 22 T&NDec. 158,165 (Comm'r 1998). 
10 Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
II 8 C.F.R. § 103.2(b)(l). 
5 
a new set of facts. 12 In other words, if a petitioner's request to employ a foreign national for an 
extended time frame is based upon the willingness of another party to provide that work, then the H-1 B 
petition should not be based on contracts designed as recruiting methods for the end-client. That 
petitioner should present evidence that the position actually exists as requested on the petition. Based 
on these shortcomings, we conclude the end-client letter is insufficient to corroborate the Petitioner's 
assertions. 
The Petitioner has not presented a basis supported by sufficient analysis and probative evidence that 
demonstrates it's the position would exist as requested, by a preponderance of the evidence. In 
general, a petitioner's evidence should be sufficient for USCIS to reasonably deduce whether the 
prospective work will continue, as requested. Basic or conclusory assertions do not provide us with a 
legitimate basis to determine whether a project will continue to require a beneficiary's services, or 
whether such statements are simply speculation. 13 
The Petitioner has not met its burden of persuasion demonstrating that it is more likely than not that 
the end-client would provide qualifying work for the Beneficiary for with the Petitioner remaining his 
employer. Without greater detail relating to the projects and the Beneficiary's role in the projects, the 
Petitioner has not demonstrated how his role in future assignments requires "attainment of a bachelor's 
or higher degree in the specific specialty." 14 This evidence is insufficient to establish that, at the time 
of filing, the Petitioner had secured the Beneficiary's assignment on any particular project that would 
likely exist as presented, which is insufficient to demonstrate eligibility. 15 For the reasons discussed 
above, the Petitioner has not demonstrated that the petition was filed for non-speculative employment. If 
it is not preponderant that a position would exist as requested, then we cannot determine the substantive 
nature of its associated duties. 16 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that establishes the Petitioner would remain the Beneficiary's employer. Therefore, based upon our 
review of the record, we conclude that the Petitioner has not established that the work would actually 
exist with the petitioning organization serving as his U.S. employer. This precludes a conclusion 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 one; (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 two; (3) the level of complexity or uniqueness of the 
proffered position, which is the focus of the second alternate prong of criterion two; (4) the factual 
justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under 
12 See Matter of Michelin Tire Co1p., 17 l&N Dec. 248 (Reg'l Comm'r 1978). 
13 Cf Matter of Ho, 22 l&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain 
sufficient detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service 
to determine whether [a petitioner's] projections are any more reliable than hopeful speculation." Id. 
14 Section 214(i)(l)(B) of the Act. 
15 See 8 C.F.R. ~ 103.2(b)(l ); Michelin Tire Corp., 17 T&N Dec. at 249. 
16 Further, without full disclosure of the contractual chain, we are unable to determine whether the requisite 
employer-employee relationship will exist between the Petitioner and Beneficiary. 
6 
criterion three; and ( 5) the degree of specialization and complexity of the specific duties, which is the 
focus of criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 17 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 18 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States 
employer" means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(]) 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. 19 
For purposes of the H-1B 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." 20 Thus, to interpret these terms, U.S. Citizenship and Immigration Services (USCIS) 
applies common-law agency principles, which focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common-law tests, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; 
the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's 
discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and 
paying assistants; whether the work is part of the petitioner's regular business; the provision of employee 
benefits; and the tax treatment of the beneficiary.21 When examining the factors relevant to determining 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not discuss the Petitioner's other assertions relating to this 
issue on appeal. 
18 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (refening 
to the "intending employer"). 
19 (Emphasis added.) 
20 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)); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). 
21 Darden, 503 U.S. 318, 322-23. 
7 
control, we must assess and weigh each actual factor itself as it exists or will exist and not the employer's 
claimed right to influence or change that factor, unless specifically provided for by the common-law 
tests. 22 We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
The reference to an employer-employee relationship within the definition of a United States employer 
is merely that: commentary reflecting some indications that might illustrate such a relationship. 
USCIS did not specify that those five elements (hire, pay, fire, supervise, or otherwise control the 
work) were an exhaustive list, nor did it state that any one of those five elements were definitive and 
exclusive factors that individually would establish that an employer-employee relationship existed. 
To illustrate, U.S. employers regularly engage with independent contractors at which time they hire 
and compensate those individuals, as well as terminate those relationships. We would hardly consider 
those elements to establish that such an arrangement with independent contractors constituted an 
employer-employee relationship. It is premature and precipitous to conclude the USCIS regulation 
defining a United States employer simultaneously offers comprehensive and folly considered 
definitions of the terms "employer-employee relationship" or "employee." This creates a genuine 
ambiguity within the regulation for USCIS to interpret. 
First, we consider the text, structure, history, and purpose of this regulation to evaluate whether USCIS 
should be accorded deference to interpret these terms that are not defined within the current regulation. 
The former Immigration and Naturalization Service (INS) proposed a rule implementing the 
provisions of the Immigration Act of 1990, Public Law 101-649, November 29, 1990.23 Although, 
that proposed rule did not provide a definition of a United States employer, it did state: 
A United States employer seeking to classify an alien as an H-lA, H-1B, H-2A, H-2B, 
or H-3 temporary employee shall file a petition on Form 1-129, Petition for 
Nonimmigrant Worker, only with the Service Center which has jurisdiction in the area 
where the alien will perform services or receive training, even in emergent situations, 
except as provided in this section. 
In response to public comments on the above proposed rule, INS offered the following commentary: 
The proposed rule contains a requirement that only United States employers can file an 
H-1B petition. Six commenters suggested that foreign employers should also be 
permitted to file H-1B petitions. The labor condition application requires that a 
petitioner post a notice of the filing of a labor condition application at its place of 
employment. This obviously requires the petitioner to have a legal presence in the 
United States. As a result, this requirement will be retained in the final rule. In order 
22 See Darden, 503 U.S. at 323-24, 327. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining 
that even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true 
employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-IB beneficiaries). 
23 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 31553 (July, 
11, 1991). 
8 
to provide clarification, the Service has included a definition of the term "United States 
employer" in the final rule. 24 
Within that final rule, INS also presented a definition of a United States employer and promulgated 
the definition currently found at 8 C.F.R. § 214.2(h)(4)(ii). This reveals that the purpose behind the 
former INS' s actions was to preclude foreign employers that did not have a legal presence in the United 
States from filing H-lB petitions. 
Next, USCIS' interpretation appears to fall within the zone of ambiguity, meaning that there is a 
sufficient indistinctness within the regulation and the agency's interpretation is reasonable relating to 
the need and the methodology of defining these terms ("employer-employee relationship" and 
"employee") in accordance with the common-law. 
Finally, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a 
specialty occupation shall be accompanied by [ d]ocumentation ... or any other required evidence 
sufficient to establish ... that the services the beneficiary is to perform are in a specialty occupation." 
Moreover, the regulations at 8 C.F.R. §§ 103.2(b)(8) and 214.2(h)(9)(i) provide USCIS with broad 
discretionary authority to require evidence such as contracts and sufficiently probative material to 
establish that the services to be performed by a beneficiary will be in a specialty occupation in 
accordance with a petitioner's request in the petition. And, USCIS has the authority to administer the 
law that Congress enacted, and to determine whether an organization has sufficiently demonstrated 
that it would have (1) non-speculative work available for a beneficiary, as well as (2) the requisite 
employer-employee relationship with that same foreign worker. 25 
B. Analysis 
Many of the contractual shortcomings we discussed under the specialty occupation section above also 
cause us to question whether the Petitioner has demonstrated that the employer-employee relationship 
would exist as requested on the petition. It does not appear that it has established this requisite 
relationship would exist between itself and the Beneficiary for the period requested. 
Companies that outsource their personnel to unsupervised projects, by their very nature, oftentimes 
relinquish some level of control over their employees. In the context of applying the Darden and 
Clackamas tests to this matter, we conclude that the Petitioner has not established that it will be a 
"United States employer" having an "employer-employee relationship" with the Beneficiary as an 
H-lB temporary "employee." Several elements appear to weigh against the Petitioner's claim that it 
will maintain a qualifying employer-employee relationship with the Beneficiary. The Petitioner 
claims it will control the Beneficiary and his work, but only supports these assertions with flawed, 
insufficient, or contradicting material. Specifically, we conclude that the Petitioner has not submitted 
sufficient, consistent, and credible documentation regarding relevant aspects of the Beneficiary's 
employment. Therefore, the Petitioner has not substantiated the key element in this matter, which is 
who exercises control over the Beneficiary. 
24 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 6111 L 
61112(Dec.2. 1991). 
25 See Kollasofi Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
9 
Throughout the proceedings, the Petitioner has maintained that it would employ the Beneficiary and 
exercise control over its right to compensate, assign additional work, supervise, and otherwise control 
his work. The Petitioner further claims it would perform numerous administrative functions pertaining 
to the Beneficiary's employment. Social security, worker's compensation, unemployment insurance 
contributions, as well as federal and state income tax withholdings, and providing other employment 
benefits are relevant factors in determining who will control a beneficiary. 
Such factors may appear to satisfy a cursory review that a petitioning entity might be an individual's 
employer; however, meeting these more simplistic administrative elements does not extinguish a 
petitioner's requirement to illustrate control over a foreign national and over his work at an end-client 
worksite. We must also assess and weigh other intricate factors to determine who will be a 
beneficiary's employer. For example, we must consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools, where the work will be located, and who has 
the right or ability to affect the projects to which a beneficiary is assigned, among other factors. A 
petitioner must sufficiently address these relevant factors to enable us to evaluate whether the requisite 
employer-employee relationship will exist between a petitioner and a beneficiary. 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary; 
however, it has presented an inchoate explanation and submitted little supporting documentation to 
corroborate that it will have control over the Beneficiary while assigned to the end-client. Although 
the Petitioner indicates that it will provide the Beneficiary's instrumentalities and tool to perform his 
work, it does not indicate the tools or instrumentalities, if any, it will provide to the Beneficiary on 
this assignment. 
The Petitioner has provided inconsistent accounts of who will supervise the Beneficiary, how often 
status reports the Beneficiary's performance evaluations would occur. The Petitioner claims its 
president would supervise Beneficiary. On the petition the Petitioner indicated it employed 30 
employees. Within the past 24 months, the Petitioner filed 138 H-lB petitions, 25 of which it filed 
within the last year. This raises questions concerning the sufficiency of supervision the Petitioner 
would exercise over the Beneficiary. If the Petitioner's standard process is for its president to provide 
supervision over the company's offsite personnel, it is unclear how the president would be able to 
supervise all of these individuals and control the manner and means of the Beneficiary's work under 
the common-law tests, in addition to his own day-to-day executive responsibilities. 
Additionally, the Petitioner indicated that it learns of the Beneficiary's performance and task 
completion based on emails and telephone calls in which the foreign worker reports his own 
performance. The Petitioner has not demonstrated that the Beneficiary's self-reporting assessments 
would result in an accurate representation of his work performance. The Petitioner's reliance on the 
Beneficiary's self-reporting, without an alternate method to verify the accuracy of his assessment, is not 
sufficient to demonstrate that it will objectively monitor and evaluate personnel it places with end-clients. 
These circumstances are not indicative of an employer-employee relationship, and actually weigh against 
the Petitioner's claims of control. Such a lack of an established means to observe, record, and report the 
Beneficiary's actual conduct significantly reduces the evidentiary value of the Beneficiary's performance 
review process. 
10 
Furthermore, the Petitioner has presented conflicting information regarding the frequency and to 
whom the Beneficiary reports. Within the appeal brief, the Petitioner indicated that the Beneficiary 
reports to the president weekly. In a subsequent paragraph, the Petitioner specified the Beneficiary is 
under constant supervision and constant contact with his managers. Then, it subsequently stated the 
Beneficiary has a mentor and a supervisor in which he "updates his progress to the team and supervisor 
on daily stand-ups." Next, the Petitioner claims that on a bi-weekly basis, it discusses the 
Beneficiary's progress with him. Based on the several differing accounts, we are unable to determine 
where the truth lies. 26 
Further still, the Petitioner provided conflicting information regarding the frequency of the 
Beneficiary's performance reviews. Within the appeal brief: the Petitioner stated these occur on a 
monthly basis, while its correspondence submitted on appeal reflected the performance review is 
conducted on a quarterly basis. We conclude that based on inconsistent statements and qualitatively 
deficient evidence in the record, that the Petitioner has not demonstrated that it would maintain the 
requisite employer-employee relationship with the Beneficiary for the duration it requested. Nor has 
it shown that it will feasibly be able to exercise its claimed right to control the Beneficiary and his 
work while working offsite at the end-client worksite. 
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," or that it has sufficient 
specialty work as requested in the petition. 27 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
26 The Petitioner must remedy this discordant information in the record. Such an amelioration must be demonstrated 
through the submission of relevant independent, and objective evidence that divulges which assertions are true. Matter 
of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). To allow such inconsistencies to pass unchallenged would serve to 
undermine the concept that the burden rests with a petitioner to provide credible and consistent material that preponderantly 
supports its eligibility. See section 291 of the Act; Matter of Soo Hoo, 11 T&N Dec. 151, 152 (BIA 1965) ( finding that the 
petitioner had not established eligibility by a preponderance of the evidence because the submitted evidence was not 
credible); see also Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010) (discussing the necessity that evidence be 
relevant, probative, and credible). 
27 8 C.F.R. § 2 l 4.2(h)( 4 )(ii). 
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