dismissed H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-S- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting services firm, seeks temporarily employ the Beneficiary as a 
"computer programmer analyst" under the H -1 B nonimmigrant classification for specialty occupations. 
See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 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, Vermont Service Center, denied the petition. The Director concluded that the Petitioner 
had not demonstrated a valid employer-employee relationship.1 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB 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)(1) ... , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employ,er has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... · 
1 
The Director also denied the Petitioner's request to extend the Beneficiary's nonimmigrant status. However, we have 
no jurisdiction over this matter, as issues surrounding the beneficiary's maintenance of nonimmigrant status are within 
the sole discretion of the director. Accordingly, we will not further address this issue. 
Matter of N-S- Inc 
/ 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, .or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terlns "employee" and "employer-employee relationship" are not defined for purposes of the H­
lB visa classification. Section 10l(a)(15)(H)(i)(b) ofthe Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form 1-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-lB 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer2employee 
relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "Unit~d States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-lB visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." Id Therefore, for purposes of the H-1B visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
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Matter of N-S- Inc 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provisiqn of employee benefits; and the tax treatment of the hired 
party." 
ld; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.2 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
2 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of I974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 8IO F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
10l(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
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Matter of N-S- Inc 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing tl}ese terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-19.3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R.§ 214.2(h).4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.P.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(1) (adopting' a materially identical test and indicating that 
said test was based on the Darden decision); Deftnsor v. Meissner, 201 P.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989)(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
4 
That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
(b)(6)
Matter of N-S- Inc 
because the hospitals ultimately hire, pay, fire, supervtse, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual 'case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided 
for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and to.ols that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
II. THE PROFFERED POSITION 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, that the proffered 
position is a computer programmer analyst position. Although the -Petitioner's address is in 
New Jersey, the Petitioner indicated that the Beneficiary would work in 
Texas for (end-client) pursuant to an agreement executed between the 
Petitioner and (vendor). 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts," 
corresponding to the Standard Occupational Classification code 15-1121.5 
5 The Petitioner classified the proffered position at a Level II wage (the second-lowest of four assignable wage levels). 
We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" 
issued by the DOL provides a description of the wage levels. A Level II wage rate is generally appropriate for positions 
for which the Petitioner expects the Beneficiary to perform "moderately complex tasks that require limited judgment." 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC 
Guidance_Revised_Il_2009.pdf A prevailing wage determination starts with an entry level wage and progresses to~ 
5 
(b)(6)
Matter of N-S- Inc 
III. ANALYSIS 
Upon application of the Darden and Clackamas tests to this matter, we find 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." 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control the 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 determination as to 
who will be the Beneficiary's employer. 
In the instant case, the Petitioner, which is located in New Jersey, asserts that it would control the 
Beneficiary's work although her services have been contracted to the vendor, an intermedi~ry, to 
work for the claimed end-client, on a project at a location in Texas. In this attenuated 
scenario, the Petitioner has not submitted sufficient reliable evidence to establish how it oversees 
and directs the work of the Beneficiary, and otherwise has the right or ability to control her work 
performed off-site at the end-client's premises. 
For example, we note that the identity of the end-client is not clear. As the Director noted, another 
company, also has an office at the claimed end-client's address. On appeal, the Petitioner 
confirms that the location where the Beneficiary would work is also a location but reiterates 
its claim that the end-client is the company it identified above. The Petitioner asserts that the claimed 
end-client has provided turnkey solutions to in the past, and "it is feasible that a similar 
structure may be in place for the Beneficiary's assigned project." However, asserting that such a 
scenario "is feasible" does not equate to an asserting that such a scenario is actually in place. The 
Petitioner must establish eligibility at the time of filing the .nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after the Petitioner or Beneficiary becomes 
eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
Further, even if the Petitioner had asserted that claimed end-client is developing the project and will 
provide a turnkey solution to the Petitioner provided insufficient 
evidence to demonstrate that 
assertion. In any event, the Petitioner has not sufficiently substantiated how it oversees and directs the 
Beneficiary's work when the identity of the actual end-cliertt is unclear. 
This uncertainly is not the sole evidentiary deficiency. For example, the record contains an agreement 
executed between the vendor and claimed end-client regarding the provision of personnel to the claimed 
end-client. That city and street address provided for the claimed end-client in this agreement differ 
higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. 
!d. 
6 
J 
(b)(6)
Matter of N-S- Inc 
from the ones provided by the Petitioner. This discrepancy raises additional questions as to the actual 
location at which the Beneficiary would perform her duties. 
Moreover, it is not clear who the Beneficiary's direct ·supervisor is at the petitioning company. 
Specifically, the vendor stated that the Beneficiary would work at the Texas address for the 
claimed end-client and further stated: "Should you have any further questions, please contact [the 
Beneficiary's] direct manager at [the Petitioner], ... " However, in another 
letter, the Beneficiary stated: "My Supervisor at was very much impressed with my work 
allowed me to work remotely from VA Office. Copy of email by my supervisor 
is provided."6 The Beneficiary did not state whether his supervisor, is an employee 
of the claimed end-client, an employee of or an employee of some other entity. The email to 
which the Beneficiary referred, which might have clarified the matter, was not submitted. In any event, 
the Beneficiary did not identify as her supervisor, which undermines the repeated 
assertions of the Petitioner and the vendor that the Petitioner would control the Beneficiary's work. 
Further, the Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, 
detailing the manner in which the Beneficiary's supervisor actually oversees, directs, and otherwise 
controls the off-site work of the Beneficiary. The Petitioner "Performance Appraisal Forms" are 
acknowledged. However, the Petitioner does not explain how it could meaningfully evaluate the 
Beneficiary's performance, particularly in light of the fact that that it seems uncertain as to whether she 
would be providing her services to the claimed end-client or to 
Assigning tasks and supervising performance are central to an employer-employee relationship. 
However, whether the Beneficiary's work will be assigned and supervised by an employee of the 
Petitioner, an employee of the claimed end-client, or an employee of or an employee of 
some other entity, remains unclear, notwithstanding the Petitioner assertion that it would control the 
Beneficiary's work. Without full disclosure of all relevant factors and evidence sufficient to support 
the Petitioner's assertions, we are unable to find that the requisite employer-employee relationship 
would exist between the Petitioner and the Beneficiary. 
In addition, the record of proceedings does not indicate that the Petitioner has secured non-speculative 
work for the Beneficiary to perform for the entire period of requested H-lB employment. Specifically, 
a sub-contractor service agreement sets out the general terms pursuant to which the Petitioner might 
provide workers to vendor, and purchase order executed pursuant to that document indicates that the 
vendor would provide the Beneficiary to the claimed end-client to work at the Texas 
address. That work was to begin on December 12, 2013, and end on March 27, 2016, unless terminated 
earlier by the claimed end-client. We observe that the period of employment requested in the visa 
petition is from October 1, 2015, through September 11, 2018. That purchase order, therefore, covers 
6 
In addition to undermining the. Petitioner's claim that it would supervise her, the Beneficiary's indication that a 
employee, rather than an employee of the claimed end-client, is her supervisor raises additional questions as to 
which company is the actual end-user of the Beneficiary's services. 
7 
Matter of N-S- Inc 
only approximately five months of the intended employment period, which has duration of more than 
two years. 
In addition, while the record contains an agreement executed between the vendor and claimed end­
client, it contains no purchase orders (or similar documentation) executed pursuant to the agreement. 
Further, the termination date of that agreement is March 27, 2016, a date prior to the September 11, 
2018, termination date of the period of requested employment. As it is not clear that the claimed end­
client is under any legal obligation to offer the employment specified in this H-1B petition, it is not clear 
that the position described in this petition actually exists,7 let alone that the Petitioner would engage the 
Beneficiary in an employer-employee relationship while she performs its duties. 
The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Claiming in its letters that the Petitioner 
exercises complete control over the Beneficiary, without sufficient evidence supporting the claim, 
does not establish eligibility in this matter. "[G]oing on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter 
of Soffici, 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)). 
In the instant case, absent evidence from the claimed end-client, the evidence of record simply does· 
not establish that the Petitioner would act as the Beneficiary's employer in that it will control and 
supervise the work of the Beneficiary. Although the Director suggested in her request for evidence 
that the Petitioner could provide evidence that the claimed end-client had contracted for the 
Beneficiary's services, such evidence was not provided. 
On appeal, the Petitioner observes that evidence from the end-client is not required in order to show 
a valid employer-employee relationship. We agree that such evidence is not a categorical 
requirement. If the evidence submitted is sufficient to demonstrate that the employer-employee 
relationship exists, no evidence from the end-client is necessary. However, in the instant case, and 
for the reasons detailed above, the evidence is insufficient to demonstrate that the Petitioner would 
exercise an employer-employee relationship with the Beneficiary, and the appeal will be dismissed 
on that basis. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § q61; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
7 The Director did not address the issue of whether a specialty occupation position actually exists. If the Petitioner is 
able to overcome the employer-employee issue at some point in the future, the Director should fully explore the 
specialty-occupation issue before considering approval of this H-1 8 petition. We will not address the issue again in this 
decision, except to note that it does not appear as though the petition as currently constituted would warrant approval 
under the statutory and regulatory specialty-occupational criteria. 
8 
Matter of N-S- Inc 
ORDER: The appeal is dismissed. 
Cite as Matter of N-S- Inc, ID# 16832 (AAO June 28, 20 16) 
9