dismissed H-1B Case: Internet Services

MATTER OF 0-T-H-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 8, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "Internet Dial-Up provider," seeks to temporarily employ the Beneficiary as a chief 
executive officer (CEO) under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner has not established a valid employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by not properly analyzing all relevant factors outlined in Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) ("Darden") and Clackamas 
Gastroenterology Assocs. P.C. v. Wells, 538 U.S. 440, 449-450 (2003) ("Clackamas"). 
Upon de novo review, we will dismiss the appeal. 1 
I. THE LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an 
individual: 
[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)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(b)(6)
Matter ofO-T-H-, Inc. 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 2 
A United States employer seeking to classify an individual as an H-lB temporary worker must file a 
petition with U.S. Citizenship and Immigration Services on behalf of that individual. See 8 C .F.R. 
§ 214.2(h)(2)(i)(A). In doing so, a "United States employer " petitioning to employ an individual 
under section 101(a)(15)(H)(i)(b) of the Act must demonstrate that it will satisfy the definitional 
requirements set forth in 8 C.F.R. § 214.2(h)(4)(ii) , including that it will have an employer-employee 
relationship with the individual. The term "United States employer " is defined in 8 
C.F.R. § 
214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation , contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employ ee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire , 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also Temporary Alien Workers Seeking Classification Under the Immigration 
and Nationality Act, 56 Fed. Reg. 61 , 111,61 ,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
II. FACTUAL BACKGROUND 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker , on April4, 2014. On the 
Form I-129, the Petitioner indicated that it is a three-employee internet dial-up provider established 
in With regard to the Beneficiary, the Petitioner indicated on the Form I-129 that it seeks to 
employ the Beneficiary on a full-time basis as the company ' s CEO with an annual salary of 
$300,000 per year. 
In a letter dated April 1, 2014, the Petitioner elaborated upon the proffered position , stating that in 
the position of CEO, the Beneficiary "will be charged with carrying forward product development , 
manage finances , sales and drive business development, raise capital, define the overall business 
2 In accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. 107-296, 116 
Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions which were transferred 
from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA 
"shall be deemed to refer to the Secretary" of Homeland Security . See 6 U.S.C. § 557 (codifYing HSA, title XV, 
§ 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note. 
2 
Matter ofO-T-H-, Inc. 
model, strategy and vision as well as plan and direct activities such as sales promotion and new 
product launch." The Petitioner further stated that the Beneficiary will also "be a strategic leader 
within the company." 
In support of the petition, the Petitioner submitted, inter alia, its common stock ledger and a copy of 
the Beneficiary's stock certificate in the company, which indicate that the Beneficiary owns 86.6% 
of all outstanding stock. The Petitioner also submitted its 2012 federal tax returns, in which it 
represented that the Beneficiary owns 82.5% of the company's voting stock. 
In addition, the Petitioner submitted its Articles of Incorporation and corporate Bylaws. 
Noting that the Beneficiary appears to be the founder of the company, the Director issued a request 
for evidence (RFE). In response to the RFE, the Petitioner submitted, inter alia, a letter dated 
October 9, 2014, stating the following: 
A valid employer-employee relationship exists between the Petitioner ... and 
the Beneficiary because the control of his work is exercised by others. [The 
Petitioner] has an independent Board of Directors which has the right to control the 
terms and conditions of [the Beneficiary's] employment (namely the right to hire, 
fire, pay, supervise or otherwise control the terms and conditions of [his] 
employment). We have enclosed [the Petitioner's] Board Structure listing [the] 
Board of Directors' members. 
Note the Beneficiary is one of the five members of the board therefore he 
DOES NOT control the Board of Director's ability to [m]ake decisions and DOES 
NOT have the power to overturn a decision taken by the Board of Directors. His 
power of vote is a ratio of 1/5 or 20%, which shows that there is independent right of 
the other four members to vote with/or against any vote made by the Beneficiary ... 
on any matter. 
If the Board of Directors decides with a majority vote (4 to 1) to fire [the 
Beneficiary] from the position of CEO of [the Petitioner], he does not have the power 
to overturn the decision, even though he is on the Board of Directors. 
In this and another document, the Petitioner identified the five Board members. 
Also in response to the RFE, the Petitioner submitted, inter alia, its Employment Agreement with the 
Beneficiary, the company's Performance Appraisal Manual, and blank sample performance 
appraisals. 
3 
Matter ofO-T-H-, Inc. 
The Director denied the petition, concluding that the evidence of record did not demonstrate that 
there will be an employer-employee relationship between the Petitioner and the Beneficiary. The 
Director found that while the control of the company will fall under the Board of Directors, the 
Board of Directors is ultimately controlled by the shareholders of the company, of which the 
Beneficiary is a majority stockholder. The Director found that the Beneficiary will maintain the 
ultimate right to control his own employment as the company's majority stockholder. 
III. ANALYSIS 
The Petitioner has satisfied the first and third prongs of the "United States employer" definition at 8 
C.F.R. § 214.2(h)(4)(ii). Accordingly, the primary issue here is whether the Petitioner will have an 
employer-employee relationship with the Beneficiary "as indicated by the fact that it may hire, pay, 
fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii). In 
the context of H-lB nonimmigrant classification, the terms "employee" and "employer-employee 
relationship" are mentioned but not further defined by statute or Department of Homeland Security 
(DHS) regulations. See generally sections 101(a)(15)(H)(i)(b), 212(n)(l)(A)(i), (2)(C)(vii) of the Act, 
8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n)(l)(A)(i), (2)(C)(vii) (2012); 8 C.F.R. § 214.2(h)(l), 
(2)(i)(A), (4)(ii).3 As the relevant statute and controlling DHS regulations do not define the terms 
"employee" and "employer-employee relationship" for purposes of the H-lB nonimmigrant 
classification, common-law definitions apply.4 
A. The Supreme Court Decisions: Darden and Clackamas 
The Supreme Court has determined that where federal law does not define "employee," the term 
should be construed as "intend[ing] to describe the conventional master-servant relationship as 
understood by common-law agency doctrine." Darden, 503 U.S. at 322-23 (quoting Comty. for 
Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) ("C.C.N V")). The 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 
3 USCIS provided guidance on what constitutes a valid employer-employee relationship in the context of H-1 B petitions 
in the 2010 memorandum Determining Employer-Employee Relationship for Adjudication of H-1 B Petitions, Including 
Third-Party Site Placements; Additions to Officer's Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 1 0-24), 
Donald Neufeld, Associate Director, Service Center Operations, HQ 70/6.2.8, Jan. 8, 2010. This decision does not alter 
the guidance set forth in that memorandum. 
4 In defining the terms "[e]mployed, employed by the employer, or employment relationship," U.S. Department of Labor 
(DOL) regulations likewise tum to the common-law. See 20 C.F.R. § 655.715; 64 Fed. Reg. 628,638-639 (Jan. 5, 1999) 
(reiterating that in using the common-law test, "no shorthand formula or magic phrase can be applied to find the answer 
[and that a]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive"); see 
also 65 Fed. Reg. 80110, 80141-80143 (Dec. 20, 2000) (noting that the H-1 B "statute evinces only that the common-law 
test be applied, not any particular formulation of the test"). 
4 
Matter ofO-T-H-, Inc. 
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 C.C.N V, 490 U.S. at 751-752); see also Clackamas, 538 U.S. 
at 445, 447 & n.5. As the common-law test contains "no shorthand formula or magic phrase that can 
be applied to find the answer, . . . all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254, 258 (1968)) (emphasis added). 
In Clackamas, the Supreme Court articulated the following factors to be weighed in determining 
whether an individual with an ownership interest is an employee: 
• Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
• Whether and, if so, to what extent the organization supervises the individual's 
work. 
• Whether the individual reports to someone higher in the organization. 
• Whether and, if so, to what extent the individual is able to influence the 
organization. 
• Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
• Whether the individual shares m the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (deferring to the factors enumerated in the Equal Employment 
Opportunity Commission's Compliance Manual § 605:0009 (EEOC 2000) (currently cited as § 2-
III(A)(l)(d)) for determining "whether [a partner, officer, member of a board of directors, or major 
shareholder] acts independently and participates in managing the organization, or whether the 
individual is subject to the organization's control," and accordingly whether the individual qualifies 
as an employee). 
As with the common-law factors listed in Darden, the factors relevant to the inquiry of whether a 
shareholder-director is an employee are likewise not exhaustive. Clackamas, 538 U.S. at 450 n.lO 
(citing Darden, 503 U.S. at 324). Not all of the listed criteria need be met; however, the fact finder 
5 
Matter ofO-T-H-, Inc. 
must weigh its assessment of the 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 relationship. See id. at 448-449. 
The fact that a "person has a particular title - such as partner, director, or vice president - should not 
necessarily be used to determine whether he or she is an employee or a proprietor." !d. at 450; cf 
Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988) (explaining that a job title 
alone is not determinative of whether one is employed in an executive or managerial capacity). 
Likewise, 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, 
as was true in applying common-law rules to the independent-contractor-versus-employee issue 
confronted in Darden, the answer to whether a shareholder-director 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). 5 
B. The Common Law Test Applied 
Because the terms "employee" and "employer-employee relationship" are not defined in the statute or 
controlling DHS regulations, we apply the common-law test described in Darden and Clackamas to 
determine whether, after weighing the combination of factors and analyzing all of the circumstances 
in the relationship between the parties, there exists or will exist a "conventional master-servant 
relationship as understood by common-law agency doctrine." 6 C.C.N V, 490 U.S. at 739-740; 
Darden, 503 U.S. at 322-323; Clackamas, 538 U.S. at 445. 
After assessing all of the incidents of the relationship and applicable factors, here, the Petitioner has 
not submitted sufficient evidence to establish that the Beneficiary's employment will ultimately be 
controlled by an "independent Board of Directors," as claimed. 
In general, a petitioner's statements alone are insufficient to meet its burden and satisfy the 
preponderance of the evidence standard unless they are amply substantiated by relevant, probative, 
and credible evidence. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)) (clarifying that going on record 
without supporting evidence does not suffice to meet the burden of proof); Matter of Chawathe, 25 
I&N Dec. at 376 (requiring relevant, probative, and credible evidence sufficient to support a finding 
that a "claim is 'more likely than not' or 'probably' true" in order to satisfy the standard of proof). 
5 The relevant H-1 8 regulation effectively, if not expressly, adopts the common-law approach. See 8 C.F.R. § 
214.2(h)(4)(ii) (recognizing an employer-employee relationship "by the fact that [the employer] may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... "). 
6 This decision only interprets the terms "employee" and "employer-employee relationship" as used in 8 C.F.R. § 
214.2(h)(4)(ii); there are instances in the Act where Congress may have intended a broader or narrower application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. 
6 
Matter ofO-T-H-, Inc. 
Here, the Petitioner asserted that the Beneficiary is one of five Board members, and thus only has the 
"power of vote [in] a ratio of 1/5 or 20%." The Petitioner therefore claimed that the Beneficiary 
"DOES NOT control the Board of Director's ability to [m]ake decisions and DOES NOT have the 
power to overturn a decision taken by the Board of Directors." The Petitioner further asserted that if 
the Board decided to fire the Beneficiary, the Beneficiary could not overrule this decision. However, 
the Petitioner's assertions are not corroborated by the evidence of record. 
Article 3.3 of the Bylaws specifies that "any director or the entire Board may be removed, with or 
without cause, by the holders of at least a majority of the share entitled to vote at an election of 
directors." Thus, it appears that the majority stockholder(s) - who in this case is solely the 
Beneficiary - maintains ultimate control over the Board by having the power to remove any and all 
Board members without cause. 7 
In addition, the Bylaws indicate that the Beneficiary in the CEO pos1t10n would also be the 
Chairman of the Board and/or the President of the company. More specifically, article 5.7 of the 
Bylaws states that "[i]f there is no President, the Chairman of the Board shall also be the [CEO] of 
the company and shall have the powers and duties prescribed in Section 5.8 thereof [describing the 
powers and duties of the President]." Article 5.8 then goes on to state the following: 
The President. Subject to such supervisory powers, if any, as may be given by 
the Board to the Chairman ofthe Board, if there be such an officer, the President shall 
be the [CEO] of the Corporation, shall preside at all meetings of the shareholders and 
in the absence of the Chairman of the Board, or if there be none, at all meetings of the 
Board, shall have general and active management of the business of the Corporation, 
and shall see that all orders and resolutions of the Board are carried into effect .... 
Thus, pursuant to the company's Bylaws, it appears that the Beneficiary will also hold the positions 
of Chairman of the Board and/or President, in addition to his position as the CE0. 8 The 
Beneficiary's duties in these positions will include the "general and active management of the 
business of the Corporation" as well as being "a strategic leader within the company." Considering 
all of these factors, the evidence of record does not corroborate the Petitioner's assertion that the 
Beneficiary's employment will be controlled by an "independent Board of Directors." To the 
contrary, the record indicates that the Beneficiary will maintain ultimate control over his own 
employment by virtue of his majority ownership as well as his position(s) on the Board of Directors. 
In fact, beyond the Articles of Incorporation and Bylaws, there is insufficient objective evidence in 
the record demonstrating that the Petitioner's Board of Directors actually exists, meets, and exerts 
7 We observe that the Bylaws set the initial number of directors as three, but allows for "such number to be changed from 
time to time." Neither the Bylaws nor the Articles of Incorporation set a minimum number of directors that must be 
present on the Board. Thus, it is possible that the Beneficiary could be the sole director on the Board of Directors. 
8 The Bylaws list the other officer positions as the Vice President(s), Assistant Secretar(ies), Treasurer, and Assistant 
Treasurer(s). The Petitioner also has not identified who holds these positions, ifthey exist. 
7 
(b)(6)
Matter ofO-T-H- , Inc. 
control over the company. For example, there are no meeting minutes or other similar evidence of 
the Board's annual, regular, and special meetings, if any. The Petitioner has not provided detailed 
information about the Board, such as how often the Board has met since its formation, the location 
and manner in which these meetings have occurred, and what significant business has been 
conducted in these meetings. Moreover, while the Petitioner has identified the names of the other 
Board members, the Petitioner has not submitted additional, detailed information and evidence about 
these individuals and their positions on the Board. Notably, neither the Board of Directors nor the 
individual directors named above appear on Petitioner's two organizational chatis; instead, the 
Beneficiary is depicted in the highest position within the U.S. company on both organizational 
charts. Overall, the evidence of record is insufficient to demonstrate the actual existence of the 
claimed Board of Directors, much less its claimed independence and control over the Beneficiary. 
We acknowledge the Petitioner's submission of its Performance Appraisal Manual and blank sample 
performance appraisals. However, the Petitioner did not submit copies of actual performance 
appraisals it has issued since the company was established in . nor has the Petitioner provided 
any other documentation demonstrating the actual implementation of the performance appraisal 
process and templates suggested by the blank samples. Notwithstanding this lack of corroborating 
evidence, we nevertheless observe that Section 8 of the Performance Appraisal Manual specifies that 
the CEO's performance is typically appraised by a committee/task force that is both established by 
and evaluated by the Chair of the Board, i.e., the Beneficiary. Again, the evidence of record is 
insufficient to corroborate the claimed existence and control of the Petitioner's "independent Board 
of Directors." 
We also acknowledge the Petitioner's submission of various print-outs from the USCIS website. 
However, information on an agency's website does not constitute final agency action and does not 
create legally enforceable entitlements. See generally Air Brake Sys., Inc. v. Mineta, 357 F.3d 632 
(6th Cir. 2004 ). 
Finally, we accord little probative value to the Petitioner's Employment Agreement with the 
Beneficiary. While the agreement states that the Beneficiary "shall report to and be under the 
supervision of the independent Board of Directors ... [and] may be terminated at any time by a 
majority vote of the independent Board of Directors," the record of proceeding indicates otherwise, 
i.e., that the Beneficiary will maintain ultimate control over his employment. Moreover, this 
agreement was executed on October 1, 2014, after the date of filing of the instant petition and in 
response to the Director's RFE.9 Again, 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. 
Accordingly, we cannot find that the evidence of record sufficiently establishes an employer­
employee relationship between the Petitioner and the Beneficiary with respect to the factors outlined 
in the Darden and Clackamas decisions. That is, the evidence does not establish that the Petitioner 
9 The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition . 8 C.F.R. § 103.2(b)(l) . 
8 
Matter ofO-T-H-, Inc. 
has the authority to hire and fire the Beneficiary, as this authority is ultimately maintained by the 
Beneficiary as the company's majority stockholder. With respect to the authority to set the rules and 
regulations of the Beneficiary's work, whether and to what extent the organization supervises the 
Beneficiary's work, and whether the Beneficiary reports to someone higher in the organization, it also 
appears that these powers are ultimately maintained by the Beneficiary, as he apparently holds the 
positions of the Chairman of the Board, President, and CEO of the company. Again, we note that the 
Petitioner's two organizational charts do not depict a Board of Directors, but instead, depict the 
Beneficiary as occupying the highest position within the U.S. company. Regarding the extent the 
Beneficiary is able to influence the organization, it appears that the Beneficiary would possess 
significant influence in his positions as the company's founder, majority stockholder, CEO, President, 
and Chairman of the Board. Regarding whether the parties intended that the Beneficiary be an 
employee as expressed in written agreements or contracts, we find that the submitted Employment 
Agreement lacks probative weight. Lastly, as the corporation's majority stockholder (holding between 
82.5 to 86.6 percent of all outstanding stock), the Beneficiary shares significantly in the profits, losses, 
and liabilities of the organization. 
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-1B temporary 
"employee." 8 C.F .R. § 214.2(h)( 4 )(ii). 
IV. CONCLUSION 
The Petitioner has not established that it will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-1B temporary "employee." 8 C.P.R. 
§ 214.2(h)( 4)(ii).10 Accordingly, the Petitioner and the Beneficiary are not eligible for the benefit 
sought, and the appeal must be dismissed. 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-T-H-, Inc., ID# 12681 (AAO Mar. 8, 2016) 
10 As this issue precludes approval of the petition, we will not address any of the additional deficiencies we have 
identified on appeal. 
9