dismissed H-1B Case: It Consulting

(b)(6)
DATE: JUN 1 9 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizen ship and Immigration Services 
Administr ative Appeals Office 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act , 8 U.S.C. § IIOI(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an IT 
consulting business with 50 employees established in . In order to employ the beneficiary in 
what it designates as a programmer analyst position, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that it meets the 
regulatory definition of a United States employer. On appeal, the petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision.
1 
For reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
For an H-IB petition to be granted, the petitioner must establish that it meets the regulatory 
definition of a United States employer. 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the petitioner must 
establish that it will have "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." !d. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent pati as an alien: 
subject to section 2120)(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 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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[Secretary of Homeland Security] that the intending employe r has filed with the 
Secretary [of Labor] an application under section 212(n)(l) .... 
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, fir e, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added) ; see also 56 Fed. Reg . 61111, 61121 (Dec. 2, 1991 ). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Lapor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 
212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). Further , the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens 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 "employer-employee 
relationship" with the "employees under this part," i.e., the H-lB 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 "United 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-lB beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-lB 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 Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non-
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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." 
Darden, 503 U.S. at 323-324 (quoting Communityfor Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 America, 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. S 17106 (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 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERJSA") , 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., 810 F. Supp. 522 (S.D.N.Y. 1992), ajj'd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 U.S. 1000(1994) . 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101 (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)( 1 )(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 Resources Defense Council, Inc., 467 U.S. 837,844-845 (1984). 
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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 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not orily requires H-IB 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.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 design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319. 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.F.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-1 B nonimmigrant petitions, USC IS 
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) (defming 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 323-324; 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; 
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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(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 aliens). 
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see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients ofbeneficiaries' services, are the "true employers" ofH-lB nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual 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 independent contractor relationship . 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual 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 
323-324. 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 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. 
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 ."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
In the Form I-129 and its supporting documents , the petitioner indicated that the beneficiary will be 
working off-site at at 
_ The documents in the record of proceeding indicate that the 
petitioner assigned the beneficiary at through a middle-vendor , 
Applying the Darden and Clackamas tests to this matter, 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." We examined each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, and 
find that the petitioner did not establish the requisite employer-employee relationship with the 
beneficiary. Matter ofChawathe , 25 I&N Dec. 369, 376 (AAO 2010) . 
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For H-lB classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, or if there is no written agreement, a summary of the terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.P.R. § 214.2(h)(4)(iv)(A) and (B). The 
record contains an employment agreement signed by the petitioner and the beneficiary on February 
4, 2014. The agreement states that the beneficiat{ will be working for 
MO, and the anticipated start date is 02/17/2014. However
, the employment agreement does not 
provide any level of specificity as to the beneficiary's position, duties and requirements for the 
position or the duration of assignment at the client site.6 
Moreover, the agreement states that the "employee shall maintain a daily record of all hours worked 
and have it approved by an authorized manager at the Client." It further states that the employer 
shall email his time sheet on weekly basis." In addition, the agreement indicates that the "employee 
understands and agrees that (the petitioner] compensates (e]mployee for hours worked and approved 
by [the petitioner]'s client." Therefore , while the beneficiary is required to submit a time sheet to the 
petitioner on a weekly basis, it appears that it is the client that provides day-to-day supervision onsite 
and approves the hours worked. While an employment agreement may provide some insights into 
the relationship of a petitioner and a beneficiary , it must be noted again that 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. 
5 USCIS records indicate that the beneficiary had an employment authorization document valid from January 
I 8, 2014 to January I 7, 2015. 
6 The agreement states that the beneficiary "shall be compensated at a base hourly rate in the amount of 
$30 .00 per hour [or $62,400 per year] on W[-]2." Notably , this is lower than the prevailing wage of$66 ,373 
and the proffered salary of$80,000 per year as indicated in the LCA for :, MO. For more information 
about prevailing wage in Missouri, see 
http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15- I 199 It year= 14&source= I (last 
visited June 9, 2015). 
Section 2 I 2(n)(l )(A) of the Act, 8 U .S.C. § I I 82(n)( I )(A) , states in pertinent part that the petitioner must 
offer wages that are at least "the actual wage level paid by the employer to all other individuals with similar 
experience and qualifications for the specific employment in question" or "the prevailing wage level for the 
occupational classification in the area of employm ent, whichever is greater." 
While the requested employment and the corresponding wages are not in effect until September 14, 2014, we 
note that the petitioner did not submit an updated employment agreement to demonstrate that the beneficiary 
will be paid the prevailing wage for the occupational classification in the area of employment. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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In response to the RFE, the petitioner claimed that the beneficiary is supervised by its own 
employees. Specifically, the petitioner indicated that the beneficiary is currently supervised by Mr. 
until the end of March 2015; thereafter, he will be supervised by Mr. until 
the end of September 2017. In support , the petitioner provided a document entitled "Work 
Allocation Breakdown," which names Mr. and Mr. as onsite managers. Notably, the 
document is signed by Mr. , but his contact addresses are listed as NJ and P A. 7 
Moreover , the record contains a letter from dated March 12, 2014. The letter states that at 
the beneficiary's 
"day-to-day project deliverables are reviewed by " The 
petitioner did not identify as its own employee. While the letter also states that the 
beneficiary "remains under the control and overall supervision of his own employer," the letter did 
not offer further information on how the petitioner provides day-to-day control and supervision of its 
employees. 
The petitioner also submitted a copy of performance review for the beneficiary dated July 1, 2014, 
which contains performance competencies and the beneficiary's rating. However, the document 
lacks information regarding how the petitioner determines and rates an employee on these criteria, as 
well as whether the petitioner measures the details of how the work is performed or the end result. It 
is not apparent how Mr. , who appears to be located in NJ or P A, would have direct knowledge 
of the listed evaluation criteria or be in a position to direct or assess the beneficiary's day-to-day 
work in Missouri . The petitioner did not submit a description of Mr. duties and 
responsibilities , nor did it address how he supervises the beneficiary's duties. There is a lack of 
information regarding what the role of supervisor actually entails. Moreover, we note that while the 
evaluation is signed by the beneficiary, it is not signed by the supervisor. 
In response to the RFE, the petitioner submitted additional documentation including a leave request 
from the beneficiary to the petitioner ; beneficiary's benefit enrollee detail report; and wage 
statements showing payment from the petitioner to the beneficiary. 8 We acknowledge that the 
method of payment of wages can be a pertinent factor to determining the petitioner's relationship 
with the beneficiary. While social security contributions, worker's compensation contributions, 
unemployment insurance contributions , federal and state income tax withholdin gs, and other benefits 
are still relevant factors in determining who will control an alien 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 
7 
We further note that Mr. phone number has a New Jersey area code . 
8 While the petitioner indicates that the beneficiary has been employed at _ 
since March 2014. However, the pay stubs dated from May to June 2014 
indicate that the beneficiary's address is in , Massachusetts. Further, the pay stubs do not indicate 
deduction for MA or MO income tax. Again, it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. 
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the projects to which the alien beneficiary is assigned, must also be assessed and weighed in order to 
make a determination 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 . 
The evidence in the record, 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). Merely claiming in its letters that 
the petitioner exercises complete control over the beneficiary, without evidence supporting the 
claim, does not establish eligibility in this matter. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California , 14 I&N Dec. 190 (Reg. Comm'r 1972)). The evidence of record prior to 
adjudication did not establish that the petitioner would act as the beneficiary's employer in that it 
will hire, pay, fire, or otherwise control the work of the beneficiary . Despite the director's specific 
request for evidence such as a letter from the end client, the petitioner did not submit such evidence. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition . 8 C.F.R. § 103.2(b)(14). 
Further, we find the record does not establish that the petitioner has available non-speculative work 
for the beneficiary in a specialty occupation. The Form I-129 states that the petitioner intends to 
employ the beneficiary as a programmer analyst from October 1, 2014 to September 14, 2017. 
The record of proceeding contains a statement of work between . and The SOW 
names the beneficiary and has effective dates of February 17, 2014 to December 31, 2014. The 
SOW references a November 29, 2010 agreement between and but the petitioner did 
not submit a copy of this agreement. Moreover , the SOW is not signed by and it is 
unclear whether or not this SOW was actually executed or if any work was performed pursuant to its 
terms. 
Further, the letter from dated March 12, 2014 states "[t]he projects which [the beneficiary's] 
services are required for is expected to continue through 11117/2014 unless the projects should be 
completed earlier." We note that the petitioner did not submit additional SOWs or evidence to 
substantiate availability of projects for the validity of the requested H-1B employment period. In the 
letter, asserts that it "has repeatedly renewed service contracts with 
for the past 25 years." However, there is no documentary evidence to support this statement in the 
record of proceeding. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 
165 ((citing Matter ofTreasur e Craft of California, 14 I&N Dec. 190)). 
Therefore, we find that the petitioner has not established that the petition was filed for non-speculative 
work for the beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F .R. 103 .2(b )(1 ). A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
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eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. Thus, even 
if it were found that the petitioner would be the beneficiary's United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii), the petitioner has not demonstrated that it would maintain such 
an employer-employee relationship for the duration of the period requested .9 
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). 
III. SPECIALTY OCCUPATION 
Furthermore, we find that the 
record does not establish that the beneficiary would be employed in a 
specialty occupation, as defined by applicable statues and regulations , for the duration of the 
requested H-1B validity period. 
As recognized in Defensor v. Meissner, 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. See Defensor v. 
Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide services to 
the 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. 
9 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative , or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle 
for an alien to engage in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts . To determine whether 
an alien is properly classifiable as an H-1 B nonimmigrant under the statute , the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and , therefore , is 
unable to adjudicate properly a request for H-1 B classification. Moreover , there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g. , a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. § 
214 .2(h)(2)(i)(E). 
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In this matter, the petitioner did not submit any documents from the end client, that 
outline the nature and scope of the beneficiary's employment. We acknowledge that the record of 
proceeding contains a Sub-Supplier Agreement dated January 18, 2014 between the petitioner and 
The agreement states in Section 4: 
4.1 There may be instances in which Client may 
require that certain of the terms and conditions set forth in the primary 
agreement between and its Client (the "Prime Contract") apply to 
Sub-Supplier ("flow-down provisions"). and Sub-Supplier agree that 
all such engagements shall be governed by the flow-down provisions of 
this Section 4. 
4.2 If Sub-Supplier [the petitioner] provides Services which , in 
sole judgment are subject to any such flow-down provisions, then all 
Services provided in connection with any such Prime Contract shall be 
performed and provided strictly in accordance with and subject to the 
applicable terms and conditions of the Prime Contract, which are hereby 
incorporated by reference. 
Based on this section, it is apparent that the relationship between the petitioner , and 
and the subsequent employment treatment of the beneficiary is dependent upon the "Prime Contract" 
between and _ . Despite the director's specific request , the petitioner did not submit the 
requested material evidence citing reasons of confidentiality. We note that failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C .P.R. § 103.2(b)(14). Further, while a petitioner should always disclose when a submission 
contains confidential information, the claim does not provide a blanket excuse to avoid providing 
such a document if that document is material to the requested benefit. 10 Although a petitioner may 
always refuse to submit confidential commercial information if it is deemed too sensitive , the 
petitioner must also satisfy the burden of proof and runs the risk of a denial. C.f Matter of Marques, 
16 I&N Dec. 314 (BIA 1977). 
Here, the record of proceeding in this case is devoid of sufficient information from the end-client, 
_ , regarding the specific job duties to be performed by the beneficiary for that company. 
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 
10 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's 
confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. 
§ 1905. Additionally, the petitioner may request pre-disclosure notification pursuant to Executive Order No. 
12,600, "Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 
12,600 , 1987 WL 181359 (June 23, 1987). 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the 
normal minimum educational requirement for 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 focus of criterion 4. 
On appeal, the petitioner asserts that providing information from the end client would necessitate 
that USCIS determine that the end client and not the petitioner has an employer-employee 
relationship with the beneficiary . On the contrary, providing information from the end client 
concerning the work to be performed by the beneficiary under the terms of the submitted contracts 
would allow USCIS to fully evaluate the facts of the instant petition and would not preclude USCIS 
from finding that the petitioner is the beneficiary's employer for the purposes of these proceedings. 
However, because the record does not contain information from the end client regarding the work to 
be performed, we cannot conclude that the beneficiary will be employed in a specialty occupation. 
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 qualifies as a specialty occupation. 
For this additional reason, the appeal will be dismissed and the petition denied. 
IV. BENEFICIARY QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications , because the petitioner has 
not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant only 
when the job is found to be a specialty occupation. 
As discussed in this decision, the petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require a baccalaureate or higher degree in a specific 
specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a 
specific specialty or its equivalent is required to perform the duties of the proffered position, it also 
cannot be determined whether the beneficiary possesses that degree or its equivalent. 
V. CONCLUSION AND ORDER 
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). Here, that burden has not been met. 
ORDER: The appeal is dismissed.