dismissed H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting company, seeks to temporarily employ the Beneficiary as a "software 
engineer" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB 
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 petition, concluding that the Petitioner had 
not demonstrated an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits additional evidence and asserts that it has the right to control the 
Beneficiary's work. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(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 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined at 8 C.P.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: 
Matter of T-S- Inc 
(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 Feel Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
' Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1 B visa 
classification. 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." Nativnwide 
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)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
Id; 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)).1 
1 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U .S.C. § 1 002(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., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
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Matter of T-S- Inc 
In considering whether or not one will be an "employee" in an "employer-employee relationship" with 
a "United States employer" for purposes of H-1 B nonimmigrant petitions, we must focus on the 
common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. § 214.2(h)(4)(ii) 
(defining a "United States employer" as one who "has an employer-employee relationship with respect 
to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such'employee ... " (emphasis added)). 
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); Defensor v. Meissner, 201 
F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the recipients ofbeneficiaries' services, are 
the "true employers" ofH-1B nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise control 
the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must .be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an indepe!ldent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
When examining the factors relevant to determining control, we 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 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
I 0 l(a)(IS)(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. Specifically, the regulatory definition of :'United States employer" requires H-1 B 
employers to have a tax id~ntification number, to engage a person to w,ork within the United States, and to have an 
"employer-employee relationship" with the H-1 B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
The lack of an express expansion of the definition regarding the terms "employee': or "employer-employee relationship" 
combined with the agency's otherwise generally circular definition of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) 
indicates that the regulations do not intend to extend the definition beyond "the traditional common law definition" or, more 
importantly, that construing these terms in this manner would thwart congressional d~sign or lead to absurd results. 
Cf Darden, 503 U.S. at 318-19. 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 ofT-S- Inc 
example, while the assignment of additional projects is dependent on who has the right to assign them, 
it is the actual source of the instrumentalities and tools that must be examined, and not who has the 
right to provide the tools required to complete an assigned project. See id at 323. 
II. ANALYSIS 
We find that the Petitioner has not submitted sufficient evidence establishing that it qualifies as the 
Beneficiary's U.S. employer having an employer-employee relationship with hini. 
On the H-1B petition, the Petitioner, which is located in Michigan, indicated that the Beneficiary 
will work remotely from his home in Texas. In response to the Director's request for evidence 
(RFE), the Petitioner reiterated that the Beneficiary will work from home and clarified that he "will 
only work on a project for [its] client, ' (Company T), also located in Texas. The 
Petitioner claimed that no other end-client or third party company will be involved. 
With its RFE response, the Petitioner submitted, inter alia, a letter from Company T and the master 
services agreement (MSA) between the Petitioner and Company T. The express "Purpose" of this 
agreement is stated as follows: "[Company T] shall attempt to locate a client who requires 
temporary staffing of a specific project and to identify the specific training, skills, abilities, and 
experience required to perform the project." This agreement further references Company T's client 
by stating, for example, that "[a]ny evaluation of [Petitioner's] Engineer's performance shall be 
made by client," and that "Engineer may perform services on client's and/or [Company T's] 
premises." As the Director pointed out when denying the petition, the MSA's provisions indicating 
that the Beneficiary will be assigned to Company T's client conflict with the Petitioner's claim that 
the Company T is the direct end-client to which the Beneficiary will be exclusively assigned. 
On appeal, the Petitioner acknowledges that "the agreement between the petitioner and [Company T] 
does give the impression that [Company T] will further contract the beneficiary's services to other 
firms needing computer-related positions to complete their projects." But the Petitioner counters 
that "the planned use of the beneficiary's services changed between the time the contract was 
entered into and the filing of this petition." The Petitioner also supplements the appeal with a new 
letter from Company T stating that "this statement in [the] MSA is not applicable" because the 
Beneficiary "will not be outsourced" and will "provide his expertise to [Company T's] team for [its] 
in-house projects." 
However, we are not persuaded by the Petitioner's explanations and evidence submitted on appeal. 
Although the MSA was executed in January 2016 before this petition was filed in April 2016, the 
Petitioner still submitted the same MSA with its RFE response in November 2016 without any 
indication that one of the MSA's major provisions did not apply. On appeal, the Petitioner does not 
submit a new or amended MSA (or another similar contractual document) governing the new scope 
and conditions of the Beneficiary's assignment with Company T. 
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Matter of T-S- Inc 
A new or amended MSA appears necessary as some of the MSA' s prov1s10ns are expressly 
dependent upon the Beneficiary's assignment to Company T's client. For example, the MSA states 
that "[a]ny evaluation of [Petitioner's] Engineer's performance shall be made by client." It also 
states that any payment for the Beneficiary's services will only be made after Company T receives 
"payment from End Client." The Petitioner has not explained how the Beneficiary's performance 
would be evaluated, how he would be paid, and how other provisions of the MSA would be executed 
if Company T has no client. While Company T' s new letter states that the "Purpose" provision of 
the MSA "is not applicable," it does not address other provisions of the MSA which specifically 
apply to Company T' s "client." 
Further, the record does not contain sufficient details about Company T's "in-house projects" to 
which the Beneficiary will be assigned. For instance, Company T's lett'er states that the Beneficiary 
will "design and develop large-scale eCommerce web applications," but it does not identify who the 
Beneficiary will design these applications for. Notably, Company T's letter begins by explaining the 
nature of its business as providing services to other end-clients, and ends by referring to sample 
MSAs with these other clients "which describe [Company T's] business product in detail." All of 
these statements strongly suggest that, contrary to the Petitioner's claims, the Beneficiary will 
ultimately be providing his services to an end-client(s) other than Company T. Without additional 
information and evidence from the end-client(s) ultimately receiving the Beneficiary's services, we 
cannot assess the terms and conditions of the Beneficiary's assignments, and accordingly, the 
Petitioner's employment relationship with him. 
Even if the Beneficiary were bound by the terms of the submitted MSA, this MSA is insufficient to 
demonstrate that the Petitioner will remain his "employer" for H-IB purposes. As previously cited, 
the MSA states that "[a]ny evaluation of [Petitioner's] Engineer's performance shall be made by 
client." This provision undermines the Petitioner's statements that it will have "full and ultimate 
control" over the Beneficiary's employment, including the claimed responsibility to evaluate his 
work product. The Petitioner has not explained this MSA provision which gives Company T' s client 
a degree of control over the Beneficiary's work product. 
The sample MSAs do not corroborate the Petitioner's statements about controlling the Beneficiary's 
work, either. One sample MSA states that Company T "shall take end to end responsibility for the 
Services, including supervision and management of the project execution to be provided by 
Consultant and the specific deliverables to be created and provided," and also provides that 
Company T "shall be responsible hereunder for the performance of any independent contractors or 
temporary employees to the same extent as Consultant is responsible for the performance of its own 
employees." Some sample MSAs similarly state that "[Company T] shall supervise the performance 
of its employees, if any, and shall have control of the manner and means by which the Services are 
performed." Some sample MSAs additionally indicate that Company T's services will be provided 
"on-site" at the client's premises, instead of being purely "in-house" projects as claimed. Moreover, 
Company T's letter specifies that the Beneficiary "will be providing development work on 
[Company T's] eCommerce projects under the VP of Development." The Petitioner has not 
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Matter of T-S- Inc 
explained these MSA provisions which give Company T control over the Beneficiary's performance 
and work product. 
Based on the above, it appears that the Beneficiary's daily substantive work will actually be 
controlled by Company T, with some degree of control also exercised by Company T's client. 
The Petitioner maintains that it has the right to supervise and otherwise control the Beneficiary's 
daily work, stating: 
, We do have the ability, as well as the legal right, to control the manner and means in 
which the work, and certainly could assign a technically skilled person to directly 
supervise the beneficiary if that was deemed beneficial. However, the beneficiary is 
sufficiently skilled to operate without direct technical supervision from our company 
under the general guidance, but not control, of the client. We provide access to [the 
Petitioner's] other technical employees for the beneficiary for solutions to complex 
technical problems when needed by the beneficiary, or when we feel beneficiary is 
behind on a deadline. 
On appeal, the Petitioner reinforces that "so long as that right to control exists, there is no need to 
show that the petitioner actually controls the beneficiary's work." We disagree. 
As discussed above, we must examine who has actual control, not just the right to control, the 
Beneficiary's work. See Darden, 503 U.S. at 323.2 Thus, evenifthe Petitioner reserves the right to 
control the Beneficiary's work, if Company T and another entity exercise actual control over his work 
on a daily basis, then we could not find the Petitioner to be the Beneficiary's "employer" for H-IB 
purposes. 
Although the Petitioner claims that it will track the Beneficiary's general performance through 
regular phone calls or emails, it is the Beneficiary who is advising the Petitioner of his progress and 
performance. That the Beneficiary is the one providing the Petitioner with such information, and not 
the other way around, raises additional questions as to how much knowledge and control the 
Petitioner actually has over the Beneficiary's substantive work. Indeed, the Petitioner's 
organizational chart portrays a single IT services manager as overseeing the work of all 35 of the 
Petitioner's technical employees, including the Beneficiary. This staffing structure supports the 
2 The Petitioner cites to a memorandum from Donald Neufeld, Associate Director of Service Center Operations, 
addressed to Service Center Directors. However, this memorandum merely articulates internal guidelines for Service 
Center Directors and their personnel; it does not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 
~ 231 F.3d 984, 989 (5th Cir. 2000). An agency's internal personnel guidelines "neither confer upon [a] petitioner 
substantive rights nor provide procedures upon which [they] may rely." Ponce-Gonzelez v. INS, 775 F.2d 1342, 1346 
(5th Cir. 1985). 
Matter of T-S- Inc 
Petitioner's statements that the Beneficiary normally works "without direct technical supervision 
from [the Petitioner]."3 
The Petitioner also states that it does not currently provide the Beneficiary with the tools or 
instrumentalities needed for his work, but, "if the client requests it, [the Petitioner] can provide 
laptops, and associated software." Again, however, we must examine the actual source of the 
Beneficiary's instrumentalities and tools, not just who has the right to provide them. 
In the end, it appears that the Petitioner's role and responsibilities are essentially limited to the 
administration of the Beneficiary's payroll a1;1d other related benefits, including the filing of 
immigration benefits. Accordingly, we are unable to find that the requisite employer-employee 
relationship will exist between the Petitioner and the Beneficiary. See id. (with the Petitioner's role 
limited to essentially the functions of a payroll administrator, the Beneficiary is even paid, in the 
end, by the client or end client). We therefore find that the Petitioner has not demonstrated that the 
Petitioner will exercise an employer-employee relationship with the Beneficiary. 
III. CONCLUSION 
The Petitioner has not demonstrated that the Petitioner will exercise an employer-employee 
relationship with the Beneficiary as his U.S. employer. 8 C.F.R. § 214.2(h)(4)(ii). 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S- Inc, ID# 395014 (AAO June 13, 2017) 
3 In designating this position on the labor condition application at a Level I wage rate, the Petitioner effectively attested 
to the U.S. Department of Labor that the Beneficiary will perform routine tasks that require limited, if any, exercise of 
judgment, that he will be closely supervised and his worR closely monitored and reviewed for accuracy, and that he will 
\ 
receive specific instructions on required tasks and expected results. This wage designation is inconsistent with the 
Petitioner's statements regarding the Beneficiary's level of skill and independence.