dismissed H-1B Case: Information Technology

,-----------------------------------------------------
U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary, offsite, as a "software developer" under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner has not established that: (1) it will have an employer-employee relationship with the 
Beneficiary; (2) the proffered position is a specialty occupation; and (3) the submitted labor 
condition application (LCA) corresponds to the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
a brief, and asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(b)(6)
Matter of E-S-, Inc. 
(1) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCJS) has consistentl y 
interpreted the term "degree" in the criteria at 8 C.F.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 proposed 
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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. ld. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary tei perform that particular work. 
II. THE PROFFERED POSITION 
On the Form 1-129, Petition for a Nonimmigrant Worker , the Petitioner described itself as an 
information technology consulting company with 188 employees. The Petitioner indicated that the 
. Beneficiary will work offsite in Georgia and that her intended employment period would 
begin October 1, 2016, and continue through August 25, 2019. Also on the Form 1-129, the 
Petitioner identified the certified LCA in support of the petition as LCA case number 
for a position that coiTesponds to Standard Occupational Classification code 
and title 15~ 1132, "Software Developers, Applications." The record included a certified LCA case 
number for a software developer to be employed in Texas. 1 
1 The Petitioner asserts on appeal that it erroneously submitted the wrong certified LCA in support of the petition and 
submitted the correct LCA in response to the Director 's request for evidence (RFE ). However , the file record did not 
2 
(b)(6)
Matter C?f E-S-, Inc. 
In its support letter, the Petitioner confirmed its intent to employ the Beneficiary as a software 
developer, and noted that it currently employed the Beneficiary pursuant to her post-completion 
Optional Practical Training (OPT) program. 2 The Petitioner provided a description of the 
Beneficiary's current duties as part ofthe OPT program. 
In response to the Director ' s request for evidence (RFE), the Petitioner submitted a work order 
signed on March 14, 2016, for the project which incorporated the terms and 
conditions of a consulting services agreement between and 
The work order identified the Beneficiary as the 
"consultant" in a "technical analyst (internal) " role, with a start date of March 14, 2016. The work 
order does not include an end date and does not 
include a description of the position's duties. The 
Petitioner also provided a letter dated July 9, 2016, signed by president confirming 
that the Petitioner had "placed [the Beneficiary] with through ' to 
perform the following duties (paraphrased and bullet points added for clarity): 
• Analyze user 
requirements and define functional specifications ; 
• Develop web applications using AngularJS , HTML, CSS, Bootstrap, Grunt, and 
Yeoman ; 
• Design REST API services; 
• Work with UX design team to ensure the most efficient and user friendly web 
application design; 
• Create cross browsers compatible with CSS-based page layouts ; 
• Create and consume REST Web Services ; 
• Develop and implement test validations of the application , including unit testing, 
integration testing and load and performance testing using JUnit ; 
• Analyze test results and recommend modifications to the applications to meet 
project specifications; 
• Participate in the deployment of the applications into existing systems and 
databases; 
• Maintain source control 
using Tortoise SVN; and 
• Document modifications and enhancements made to the applications , systems, 
and databases as required by the project. 
include the correct LCA in the response to the RFE, nor did the Petitioner referen ce that it had submitted the corr ect 
LCA with its response to the RFE. However, on appeal , the Petitioner submits the corr ect LCA, as shown by matching 
the identifying LCA number s. We have considered this LCA and note that it does ident ify the employment location as 
the location identified by the Petitioner on the Form 1-1 29 and in other supportin g docum entation. As such, we will 
withdraw the Director' s decision on the issue of the certified LCA not correspondin g to the work location designat ed in 
the petition and other documentary evidence. 
2 On appeal, the Petitioner notes that the Beneficiar y performed job duties at from September 9, 2015 , to August 
8, 2016 , under valid Fl OPT, but that she left the United States on September 25, 2016 , to compl y with U.S. visa 
regulations . 
3 
(b)(6)
Matter of E-S-, Inc. 
In the same letter the mid-vendor, stated that the "minimum requirement for 
the position is a Bachelor's Degree or its work experience equivalent in Computer Science, 
Computer Information Systems, Electrical 
Engineering, or a related field.' '3 
The record also included the services agreement contract between and the 
Petitioner and the Petitioner's offer letter to the Beneficiary, dated March 19, 2014, noting she will 
report to among other documentation. 4 The record before the Director does not include 
the description of the duties and requirements for the position performed at its location. 5 
On appeal, the Petitioner submits the subcontractor agreement with 
and a completed work order 
attached as Exhibit A-2, to the agreement. This work order is signed by 
and representatives on August 22, 2016, is also for the 
project, and identifies the Beneficiary in the role of "technical analyst (internal)" with the work order 
start date as September 12, 2016. In this version of the work order, a description of services is 
provided to include : "Designer with technical programming experience; capable of designing , 
programming and implementing various technical solutions." does not identify the level of 
education necessary to perform this work in either the work order or its agreement with 
3 The letter does not include method of evaluating work experience equivalent to a bachelor's degree in 
these fields. 
4 The Petitioner submitted documentation to support the H-1 B petition , including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted , we have reviewed and 
considered each one. For example, we will not discuss in detail the task order between the Petitioner and 
signed August 27, 20 15, for services estimated to be completed by September 9, 20 16, as this time 
period does not fall within the intended employment period . Similarly, the project the Beneficiary worked on while in 
OPT status is identified as "Project Labor Wise (DCL LCO)" a different project than the project referred to as the 
proposed project in work order. We also note that the organizational chart submitted in response to the 
Director's RFE and again on appeal shows that the Beneficiary will be on Team I and will report to who 
is also the general manager of the operations and finance department, and that Team I, headed by will 
report to the Petitioner ' s president, not 
5 We also note the Petitioner 's claim on appeal that the Director should have issued a second RFE, when the Director did 
not receive end-client documents from The Petitioner claims that it had requested the end-client document s 
from the mid-vendor at the time of submitting the petition and in response to the Director 's RFE, but that mid-vendor 
refused to provide them on confidentiality grounds . And that not until the petition was denied did the mid-vendor agree 
to provide the documentation . However , it is not clear why a second RFE would have prompted the mid-vendor to 
provide the documents as it appears it was the denial decision that prompted their submis sion of a work order with a 
brief description of the Beneficiary's assignment. In this regard, we observe that the Petitioner did not provide a reason 
for not submitting the end-client documentation in response to the RFE, and only references the reason on appeal. We 
find that not submitting requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. See 8 C.F.R. § 103.2(b)(l4). Here, the Petitioner did not submit the requested evidence and did not raise the 
mid-vendor's confidentiality objection as a reason for not providing the documentation. The Director had no obligation 
to issue a second RFE and even if the Director had erred as a procedural matter in not issuing a second RFE, which she 
did not, it is not clear what remedy would be appropriate beyond the appeal proces s itself. The Petitioner has, in fact, 
supplemented the record on appeal. 
4 
(b)(6)
Matter of E-S-, Inc. 
Also on appeal, the Petitioner submits a planned itinerary for the Beneficiary indicating that the 
Beneficiary "will be providing services as Software Developer on ' and 
adopts above description of duties. The Petitioner does not identify the 
level of education, if any, to perform these job duties. Finally, on appeal, the Petitioner asserts that 
"[t]his is a full-time position to analyze, design , develop and maintain various software projects" and 
requires an understanding of industry programming practices. The Petitioner adds that the employee 
will work with a team of developers, business analysts, UX designers , the product owner , and an 
engineering manager , and will supervise and review code to maintain quality of the project. The 
Petitioner further identities general areas that the employee will work in and the time the Beneficiary 
will allocate to each area, as well as a narrative further describing each area of employment. 
III. SPECIALTY OCCUPATION 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation . 
Specifically , the record (l) does not describe the position ' s duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 
Here, the record of proceedings does not include sufficient information from to ascertain the 
nature of the proffered job and whether the Beneficiary will be performing the duties of a software 
developer, applications, as certified on the LCA.6 We note that on the LCA submitted in support of 
the H-1 B petition, the Petitioner designated the proffered position under the occupational category 
"Software Developers, Applications" corresponding to the Standard Occupational Classification 
code 15-1132.7 However, brief description of services is insufficient to detennine that the 
Beneficiary will be performing the duties of a software developer, applications, rather than the duties 
of a web developer or a related technical position . 8 statement of duties does not provide 
6 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 , 545-546 (AAO 20 I 5). 
7 The Petitioner designated the proffered position under the occupational category "Software Developer , Applications" 
corresponding to the Standard Occupational Classification code 15-1 132, at a Level I wage (the lowest of four assignable 
wage levels). The "Prevailing Wage Determination Policy Guidance " issued by the DOL provides a description of the 
wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary 
to have a basic understanding of the occupation . · This wage rate indicates: ( 1) that the Beneficiary will be expected to 
perform routine tasks that require limited, if any , exercise of judgment; (2) that he will be closely supervised and his 
work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks 
and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidan ce, 
Nonagric. Immigration Programs (rev. Nov. 2009) , available at 
http://tlcdatacenter.com /download/NPWHC_Guidance_Revised _ 11 _2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience , education , and skill 
requirements of the Petitioner's job opportunity . /d. 
8 For additional information on the occupation of " Web Developers" see U.S. Dep't of Labor, Bureau of Labor Statistics , 
Occupational Outlook Handbook, 2016-17 ed., " Web Developers ," https://www.bls.gov/ooh/computer-and-information-
5 
(b)(6)
Matter of E-S-, Inc. 
any insight into the Beneficiary's actual duties or the specific tasks the Beneficiary will perform 
while at its location. W,e note here, the Petitioner's claim that although requested by a 
representative, indicated that as a matter of policy, it does not issue letters verifying a 
Beneficiary's assignment. In that regard, although a petitioner may not be able to submit 
confidential information if it is deemed too sensitive , the Petitioner must also satisfy the burden of 
proof and runs the risk of a denial if the evidence not provided is material. Cf Malter of Marques , 
16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim under the 
Fifth Amendment[ ; however], in so doing he runs the risk that he may fail to carry his burden of 
persuasion with respect to his application. "). Here, the Petitioner has not submitted consistent 
secondary evidence identifying with specificity that the Beneficiary will perform the duties of a 
software developer, applications. 
For example, we also reviewed the mid-vendor ' s description of duties , as those duties appear to 
relate to the project ' however , as noted above, the work order between 
and classifying the Beneficiary as a "technical analyst" is for a project 
identified as ' First, there is nothing in the record establishing that these are the 
same or similar projects. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suftice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. !d. at 591-92. Second, the duties as described 
for the project correspond most closely with the duties of a front-end web developer , a 
position that the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) 
identifies as a sub-category of a web developer occupation. See U.S ~ Dep't of Labor, Bureau of 
Labor Statistics , Occupational Outlook Handbook. 2016-17 ed., "Web Developers ," 
https://www.bls.gov /oohlcomputer-and-information-technology/web-developers.htm#tab-2 (last 
visited Dec. 14, 2016). Further, according to the Handbook's , subchapter on "How to Become a 
Web Developer," the "[e]ducational requirements for web developers vary with the setting they 
work in and the type of work they do. Requirements range from a high school diploma to a 
bachelor's degree. An associate's degree in web design or related field is the most common 
requirement." See U.S. Dep't of Labor, Bureau of Labor Statistics , Occupational Outlook 
Handbook, 2016-17 ed., "Web Developers," http://ww\v.bls.gov /ooh/computer-and-inforrnation­
technology/web-developers.htm#tab-4 (last visited Dec. 14, 20 16). Thus, a front-end web develop 
position is not, as a category, a specialty occupation. 
We further reviewed the Petitioner's description of duties and allocation of the Beneficiary's time to 
those duties submitted on appeal. We note that the Petitioner does not assert that the Beneficiary 
will perform these duties for a specific project but rather will perform these duties in relation to 
various software projects. Upon review of this description, we find that it is a generic overview of 
an occupation and does not reflect the Beneficiary's specific duties. 9 For example, when comparing 
technology /web-deveiopers.htm #tab-2 (last visited Dec. 14, 20 16). 
9 
We have reviewed the opinion letter prepared by 
6 
M.S.E.E., Professor at 
(b)(6)
Matter of E-S-, Inc. 
the mid-vendor's description of duties and the overview of duties submitted on appeal, it is not 
possible to correlate specific duties with any degree of certainty. Again, we are unable to analyze 
even the general parameters ofthe actual tasks and the Beneficiary's actual level of responsibility as 
those tasks relate to specific work the Beneficiary will perform for A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
burden of proof. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm ' r 1998) (citing Matter of 
Treasure Crafi o.fCal., 14 l&N Dec. 190 (Reg'! Comm'r 1972)); see also Matter o.fChawathe, 
25 I&N Dec. 369, 376 (AAO 201 0). The Petitioner must support its assertions with relevant , 
probative, and 
credible evidence. See Matter o.fChawathe, 25 I&N Dec. at 376. Upon review of the 
totality of the record, the Petitioner does not submit sufficient probative evidence to establish that the 
Beneficiary will primarily perform the duties of a specialty occupation-level software developer, 
applications. To the extent they are described the Petitioner's description of the Beneficiary's 
proposed duties do not convey the substantive matters that would engage the Beneficiary on a 
day-to-day basis on a specific project. Without a meaningful job description, the record lacks 
evidence sufficiently concrete and informative to demonstrate that the proffered position requires a 
bachelor's degree, or higher, in a specific specialty , or its equivalent. 
In addition, we reiterate that as recognized in Defensor, 201 F.3d at 387-88, 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. In other words, as the nurses in that case would provide services to the 
the Petitioner submits on appeal. bases his opinion on the Petitioner's 
initial description of duties as part of the Beneficiary's OPT program and the Petitioner's expanded description of duties 
submitted on appeal. notes that his opinion letter "makes the assumption that the duties for the Software 
Developer, as described in the support letter, will characterize the duties that the position performs at any end-client site 
to which the position would be assigned." also indicates his belief that the "instant Software Developer will 
assume advanced duties across the software development life cycle ... " tinds that it is customary for an IT 
firm, such as the Petitioner, to require its software developers to possess a bachelor's level training in computer science, 
information systems, electronic engineering, or a related field. We first note that does not list any reference 
materials on which he relied as a basis for his conclusion, and thus did not base his opinion on any objective evidence , 
but instead on the general position descriptions as provided by the Petitioner. also acknowledges that his 
opinion is not based on duties as they relate to the specific project. Additionally, identifies the 
Petitioner's described duties as "advanced duties" indicating that he is unaware that the Petitioner assigned a Level I 
wage to the proffered position, a wage-level which is appropriate for a comparatively low, entry-level position, 
relative 
to others within the same occupation , and which signifies that the Beneficiary is only expected to possess a basic 
understanding of the occupation. Moreover, it appears that has not reviewed the Petitioner ' s advertisement for 
software developers which stat~s that the Petitioner requires one to five years of full stack Java or Javascript experience 
and experience with other technological languages/programs/platforms and prefers, but does not require, a bachelor's 
degree ffom a computer science program. We also note that does not relate personal observations of the 
Petitioner's operations or of the actual work the Beneficiary would perform. Based on lack of information 
regarding the proffered position, we question the foundation of his opinion. For these reasons, we do not find the 
opinion probative in establishing that a bachelor's degree in a specific specialty, or its equivalent, is required for the 
proffered position . We may, in our discretion, use opinion statements submitted by the Petitioner as advisory . Malfer ~f 
Caron lnt'l, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). However , where an opinion is not in accord with other 
information or is in any way questionable , we are not required to accept or may give less weight to that evidence . Id 
(b)(6)
Matter of E-S-, Inc. 
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. 
Here, the record of proceedings in this case is devoid of sufticient information from the end-client, 
regarding the specific job duties to be performed by the Beneficiary for that company. 
Thus , the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary which therefore 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 (I) 
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 tocus 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 qualities for classification as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-1 B 
employer. The United States Supreme Court 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 Creativ e 
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; wheth er 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." 
Jd. ; 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 
8 
(b)(6)
Matter of E-S-, Inc. 
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)). 
On appeal, the Petitioner lists the documents that it believes demonstrate the Beneficiary's actual 
employer, including: (1) the contracting agreement and work order entered into between 
and (2) a task order between the Petitioner and signed August 27, 
2015; (3) a letter dated July 9, 2016, from (4) a subcontractor agreement between the 
Petitioner and (5) the employment offer and agreement between the Petitioner and the 
Beneficiary, dated March 19, 2014; (6) the Petitioner's organizational chart; (7) a copy of the 
Beneficiary's performance review; (8) copies of invoices, the Beneficiary's past weekly time and 
expense reports, and email correspondence between and the Beneficiary regarding approved 
timesheets; and (9) the Petitioner's employee handbook, the Beneficiary's medical card and 
memorandum of understanding signed by the Beneficiary, and the Beneficiary's contractor 
badge. 
Upon review of these documents and the totality of the record, we do not find that the record 
includes any contract, agreement, statement of work, or other reliable document outlining in detail 
the duties the Beneficiary will perform and the manner in which her work will be supervised. First 
we have reviewed the services agreement submitted on appeal and find that 
placed significant restrictions on ability to control the Beneficiary and the 
Beneficiary's right to work. For example, reserves the right to approve the assignment of 
any person proposed by and also requires to remove any person from 
performing services at sole discretion. Additionally, disallows from 
reassigning any person from performing services until completion of the services without the prior 
written consent of Accordingly, the Petitioner's right to assign the Beneficiary to other 
positions is restricted by agreement with also may terminate any 
work order at any time for no reason. 
Upon review of the work order between and the work order does not identify 
to whom the Beneficiary will report at premises, who she would receive her assignments 
and daily instructions from regarding her work, and the reporting relationship, if any, between 
and the Petitioner. We have considered the Petitioner's claim that the Beneficiary will 
report to the Petitioner's president and we note that the Petitioner's president signed the 
Beneficiary's past performance evaluation. However, the Petitioner has not explained how and why 
the president of a 188-employee company would supervise the Beneficiary, and the Petitioner has 
not provided additional details showing where the Petitioner's president works and the nature 
and 
frequency of his interaction ~ith Beneficiary. Notably, the Petitioner's organizational chart depicts 
the Beneficiary as on Team 1, and shows that she will report directly to not the 
Petitioner's president. Additionally, the Petitioner's offer of employment, which we recognize is 
dated more than two years prior to filing this petition, shows that she will report to The 
record, thus, does not include definitive information on who will supervise and direct the 
Beneficiary's work while at worksite. We also note that the Beneficiary's previous 
9 
(b)(6)
Matter of E-S-, Inc. 
weekly time anq expense reports were issued by and the emails requesting approval for 
the same were between the Beneficiary and a representative. The Petitioner is not 
referenced as controlling the nature and scope of the Beneficiary's work. The omissio!l of critical 
details, coupled with the discrepancies above, render these documents of limited evidentiary value. 
Further, as detailed in the previous analysis, the record lacks sufficient documentation evidencing 
exactly what the Beneficiary would do for the period of time requested. That is, the 
claimed end-client in this matter, does not provide a detailed description of the proposed duties, the 
description appears to relate to a prior project and moreover is sufficiently generic that 
the duties fall within the parameters of a number of occupations, and the Petitioner's description of 
duties on appeal provides only a general overview of the duties and does not relate the tasks to any 
specific project. Given this specific lack of evidence on what work the Beneficiary will be expected 
to perform while at the Petitioner cannot establish the condition and scope of the 
Beneficiary's services. That is, the Petitioner has not established that it controls the Beneficiary's 
work so that her services while at will fall within the parameters of a specialty occupation. 
We note that the agreement with the Petitioner states that the Petitioner's consultants 
will remain the Petitioner's employees and the July 9, 2016, letter claims that 
does not have the right to assign the Beneficiary to another company and that the Petitioner has the 
right to assign additional duties to the Beneficiary and will be reviewing her performance. However, 
we do not find these documents sufficient to establish that the Petitioner has the requisite 
employer-employee relationship with the Beneficiary as contemplated by the regulations, especially 
in light of requirements of and the insufficient information regarding who will 
supervise the Beneficiary's employment, who will instruct the Beneficiary on the performance of her 
daily tasks, and, consequently, who exercises, 
substantive control over the Beneficiary and the work 
that she is to perform. 
We acknowledge the documentary evidence indicating that the Petitioner will be responsible for 
administrative matters such as dispensing pay to the Beneficiary, compliance with 
immigration-related requirements, and making contributions to taxes, social security, and workers 
compensation insurance for the Beneficiary. However, while payment of salary, federal and state 
income tax withholdings, and other benefits are still relevant factors in determining who will control 
a beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, who will provide the instrumentalities and tools, where will the work be located, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be 
assessed and weighed in order to make a ~etermination as to who will be the Beneficiary's 
employer. Without full disclosure of all of the relevant factors, we are unable to find that the 
requisite employer-employee relationship will exist between the Petitioner and the Beneficiary. 
For all of these reasons, the key element in this matter, which is who exercises actual control over 
the Beneficiary and her work, has not been substantiated. While the record contains multiple 
assertions from the Petitioner regarding its claimed right to control the work of the Beneficiary, 
again a petitioner's unsupported statements are of very limited weight and normally will be 
10 
Matter of E-S-, Inc. 
insufficient to carry its~burden of proof. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Crafi of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also 
Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions 
with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
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.P.R. § 214.2(h)(4)(ii). Thus, the Petitioner has not demonstrated that it will have 
an employer-employee relationship with the Beneficiary. Accordingly, the appeal will be dismissed 
and the petition will be denied on this additional basis. 
We note the Petitioner's references to several unpublished, non-precedent decisions issued by this 
office. However, the Petitioner has not furnished probative evidence to establish that the facts of the 
instant petition are analogous to those in the unpublished decisions and has not furnished evidence 
that the reasoning in that matter is reasoning that we currently follow. Further, while 8 C.P.R. 
§ 103 .3( c) provides that our precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
V. CONCLUSION 
As the Petitioner emphasized on appeal, it must prove by a preponderance of evidence that the 
Beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 201 0). In evaluating the evidence, eligibility is to be determined not by the quantity of 
evidence alone but by its quality. Id. As discussed above, the record does not establish that more 
likely than not, the proffered position is a specialty occupation, and that the Petitioner has an 
employer-employee relationship with the Beneficiary. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter o(Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-S-, Inc., ID# 152512 (AAO Dec. 29, 20 16) 
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