dismissed H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting services provider, seeks to temporarily employ the Beneficiary as a 
"computer programmer analyst" under the H-1B nonimmigrant classification. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. ISSUES 
The issues before us are whether (1) the proffered position qualifies as a specialty occupation; and 
(2) the Petitioner meets the regulatory definition of a "United States employer" in accordance with 
the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
We find that the Petitioner has not established that the proffered position qualifies as a specialty 
occupation in accordance with the applicable statutory and regulatory provisions. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter ofC-, Inc. 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
2 
(b)(6)
Matter of C-, Inc. 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a pm1icular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary 
will be employed off-site as a "computer programmer analyst" at (the End 
Client) in . CA. The Petitioner submitted a letter from the End Client, which stated that 
the Beneficiary was working as a "Programmer Analyst/SQL Server Developer" on a long-term 
contract basis through (the Vendor). The letter from the End Client listed the 
Beneficiary's duties as follows: 
• Work as a developer in creating complex Stored Procedures, tables, and views and 
other SQL joins and statements for applications. 
• Perform Data Transfer using Import/Export[ ] Wizard to different Environments. 
• Works with the Client for resolving different bug fixes of data migration by writing 
different queries using joins, cursor and loops. 
• Develops different Complex Stored Procedure for reviewing their application reports. 
3 
(b)(6)
Matter of C-, Inc. 
• Resolves system performance issues by either by [sic] modifying or rewriting stored 
procedure to reduce execution time. 
• Develops different complex SSIS Packages for data extracting by using DFT, Merge 
Joins, Union, Executive SQL Tasks, Script Components, different source and target 
systems either Flat Files, Excel or RDBMS. 
• Extensively uses data conversion, Slow changing Dimensions, Lookups, Conditional 
Split to transform data and load into database as part of incremental/regular loading to 
match the source and destinations to avoid data inconsistency and redundant data. 
• Responsible for primary 2nd 
level support for problems encountered with production 
processing, including off hours support. 
As a Programmer Analyst/SQL Server Developer, [the Beneficiary's] job 
responsibilities also include, but are not limited to: 
• Maintaining and Managing SQL Servers for Development, Test and Production 
Environments. 
• Support daily work request from different environment groups requesting 
Modifications and creating new stored procedures . 
• Design, Development, configure and Support of new databases, tables, jobs, SSIS 
Packages and Other Database Objects. 
• Troubleshoot and resolve issues reported 
by the groups. 
The End Client also stated that it requires "a minimum of a bachelor's degree or its equivalent with a 
concentration in any branch of Engineering, Computer Science, Information Systems, or a closely 
related field." 
C. Analysis 
We find that the record of proceeding does not contain sufficient information regarding the specific 
job duties to be performed by the Beneficiary. That is while the Petitioner indicated that the 
Beneficiary will be working for the End Client throughout the duration of the petition, the Petitioner 
has not adequately corroborated its assertion. 
In this case, the Petitioner is located in VA. The Petitioner indicated that the Beneficiary 
will be working for the End Client in CA. On appeal, the Petitioner indicates that the 
"work for [the Petitioner]'s client is executed pursuant to contractual agreements between [the 
Petitioner] and the client." The record contains a master agreement and "description of consultant 
services" with the Vendor which outline the contractual arrangement with the Petitioner. However, 
the record does not contain contracts between the Petitioner and the End Client. Further, the record 
reflects that the Beneficiary is assigned to ' ' project for the state of Arizona 
while working for the End Client, but the record does not contains documents that outline 
contractual terms between the End Client and the state of Arizona. Without documentary evidence 
that delineates the contractual agreement between the Petitioner and the End Client, 
and the 
contractual terms of the project that the Beneficiary is assigned to, including the duties and the 
4 
Matter of C-, Inc. 
requirements for the position, we are unable determine the substantive nature of the proffered 
position. 
Further, the End Client states in its letter that the Beneficiary is working "on a long term contract 
basis starting from October 1, 2013," through the Vendor, but does not specify the duration of the 
contract. In support, the Petitioner submitted copies of the contract with the Vendor; however, the 
most recent contract was from May 26, 2015, for 12 months. While the contract states that the 
Vendor has the option to extend the contract for additional periods, the Petitioner did not submit 
further documents to establish that the contract has been extended and is valid for the duration of the 
Beneficiary's requested employment period, from October 1, 2015, to July 13,2018. 
Moreover, since the record of proceeding does not contain contractual documents between the state 
of Arizona and the End Client, we are unable to determine if the Beneficiary will be working on the 
project for the requested employment period. A petition must be filed for non-speculative work for 
the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. 
Without a copy of a contract that covers the duration of the period of employment requested, we are 
not able to ascertain what the Beneficiary would do, where the Beneficiary would work, as well as 
how this would impact circumstances of his relationship with the Petitioner? 
The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.P.R. 
§ 103 .2(b )(I). 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). 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.P.R. § 214.2(h)(4)(ii), the 
2 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 
individual 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 individual 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 individual 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-18 classification. Moreover, 
there is no assurance that the individual will engage in a specialty occupation upon arrival in this 
country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
5 
Matter of C-, Inc. 
Petitioner has not demonstrated that it would maintain such an employer-employee relationship for the 
duration of the period requested. 
Further, we find that there are inconsistencies and discrepancies in the petition and supporting 
documents, which undermine the Petitioner's credibility with regard to the services the Beneficiary 
will perform, as well as the actual nature and requirements of the proffered position. When a 
petition includes numerous discrepancies, those inconsistencies will raise serious concerns about the 
veracity ofthe Petitioner's assertions. 
For example, the Petitioner has provided inconsistent information with respect to the position's title. 
While the Petitioner refers to the proffered position as "computer programmer analyst" in the Form 
I-129 and the labor condition application (LCA), the weekly status reports indicate that the 
Beneficiary's project role is "SQL Developer." Further, the End Client refers to the proffered 
position as a "programmer analyst/SQL server developer." Then, in its letter dated June 14, 2015, 
the Petitioner also refers to the Beneficiary as a "programmer analyst/SQL server developer." "[I]t 
is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
Moreover, we note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work 
is to be performed for entities other than the Petitioner, evidence of the client companies' job 
requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations 
as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
occupation on the basis of the requirements imposed by the entities using the beneficiary's services. 
!d. at 384. Such evidence must be sufficiently detailed to demonstrate the type and educational level 
of highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. 
As noted, there are no documents from the state of Arizona that outline the requirements for the 
position. Even if we assume that the End Client is the ultimate end client, we note that the End 
Client's requirements do not establish that a bachelor's degree in a specific specialty is required for 
the position. Specifically, the End Client stated that the proffered position requires "a minimum of a 
bachelor's degree or its equivalent with a concentration in any branch of Engineering, Computer 
Science, Information Systems, or a closely related field." 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required "body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in two disparate fields, such as 
Matter ofC-, Inc. 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)(l )(B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.P.R. § 214.2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the particular 
position. 
The issue is that this list of acceptable credentials includes broad categories that cover numerous and 
various specialties. 3 The Petitioner, who bears the burden of proof in this proceeding, does not 
establish either (1) that these various degrees are all closely related fields, or (2) that a general 
degree in one of these fields is directly related to the duties and responsibilities of the particular 
position proffered in this matter. Accordingly, as the evidence of record does not establish a 
standard, minimum requirement of at least a bachelor's degree in a specific specialty, or its 
equivalent, for entry into the particular position, it does not support the proffered position as being a 
specialty occupation. 
Further, we note that the wage level in the LCA appears to contradict the Petitioner's claim that the 
proffered position is "so complex and sophisticated." Specifically, the Petitioner asserts on appeal 
that the proffered position is "a specialty occupation as documented by the job duties' complexity, 
sophistication, and requirement of theoretical and practical application of highly specialized 
knowledge .... " However, the Petitioner indicated in the LCA that the proffered position 
corresponds to a level I (entry-level) wage. 4 The Level I wage rate indicates that the Beneficiary is 
3 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, and a beneficiary's credentials 
to perform a particular job are relevant only when the job is found to be a specialty occupation. However, we briefly 
note that the Beneficiary has degrees in telecommunications, and electronics and communication engineering. It is not 
readily apparent how the Beneficiary's degrees are directly related to the duties of the proffered position. 
4 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
(b)(6)
Matter of C-, Inc. 
only required to have a basic understanding of the occupation and carries expectations that the 
Beneficiary will perform routine tasks that require limited, if any, exercise of judgement; that he 
would be closely supervised; that his work would be closely monitored and reviewed for accuracy; 
and that he would receive specific instructions on required tasks and expected results. This 
contradicts the Petitioner's representation that the duties of the proffered position are "so complex 
and sophisticated."5 
On appeal, the Petitioner submits a letter from Associate Professor of Computer 
Applications and Information Systems at the . to assert that the proffered 
position is a specialty occupation. In the letter, states that "a [ c ]omputer [p ]rogrammer 
[a]nalyst ... would be considered a professional position and would normally be filled by a graduate 
with a minimum of a Bachelor's Degree in Information Technology or related area, or the 
equivalent." However, we find that opinion is not based upon sufficient information 
about the computer programmer analyst position proposed here. 
For example, while provides a list of job duties that he used for his analysis, we note that 
the duties appear to have been copied verbatim from various documents that the Petitioner provided 
in 
the record of proceeding, including errors in the End Client's letter. Specifically, he indicates that 
the Beneficiary's duties include "[r]esolving system performance issues by either by [sic] modifying 
or rewriting stored procedure to reduce execution time." Further, he lists the same duties twice on 
multiple occasions, such as "working with the client for resolving different bug fixes of data 
migration by writing different queries using joins, cursor and loops." Therefore, it is not evident if 
fully reviewed the duties of the proffered position. does not relate any personal 
observations of the Petitioner's operations or the work that the Beneficiary will perform, nor does he 
state that he has reviewed any projects or work products related to the proffered position. 
opinion does not relate his conclusions to specific, concrete aspects of this Petitioner's 
business operations and its projects to demonstrate a sound factual basis for his conclusions about 
the duties of the proffered position and its educational requirements. 
are indicators that a Level r wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin ., Prevailing Wage Determination Policy Guidance , Nonagric . 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC 
Guidance_Revised_l1 _2009.pdf. 
5 The Petitioner's designation of this position as a Level 1, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless , a 
Levell wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly , however, a LevellY wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position 's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(1) of the Act. 
(b)(6)
Matter of C-, Inc. 
Further, there is also no indication that the Petitioner advised that it characterized the 
proffered position as a low, entry-level computer programmer analyst position for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA). indicates that "the duties described ... are not those of a lower level employee 
performing tasks such as those duties performed by a Technologist or an IT-support employee, but 
rather those of a professional employee with a strong background in information technology 
concepts and principles and a great level of responsibility within the company." It appears that 
would have found the wage-level information relevant for his opinion letter. Moreover, 
without this information , the Petitioner has not demonstrated that possessed the requisite 
information necessary to adequately assess the nature of the proffered position. 
Moreover, also concludes that the proffered position requires at least a bachelor's degree in 
information technology or a related field, which is a nanower minimum requirement than the End 
Client's stated requirement of "a minimum of a bachelor's degree or its equivalent with a 
concentration in any branch of Engineering, Computer Science, Information Systems, or a closely 
related field." With limited information provided, it is not clear how arrived at such 
conclusion. Accordingly, we find that opinion letter is not probative evidence to 
establish the proffered position as a specialty occupation. We may, in our discretion, use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 
795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. !d. 
Because of the discrepancies discussed above, we cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate that the proffered position qualifies as a specialty occupation. Therefore, we cannot 
determine that description of the proffered position communicates: (1) the actual work that the 
Beneficiary would perform; (2) the complexity , uniqueness and/or specialization of the tasks ; and/or 
(3) the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently precludes a finding that the proffered position satisfies any criterion at 8 C .F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines: (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. 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. 
9 
Matter of C-, Inc. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether or not the Petitioner qualifies as an H-IB employer. 
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. 
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." 
!d.; 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)). 
As such, 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. 
We note that the Petitioner submitted copies of emails between the Beneficiary and several 
individuals employed by the End Client. In an email dated June 10, 2015, the Beneficiary's email 
address includes the domain name of the End Client suggesting that the Beneficiary is identified as 
an employee of the End Client through his email address. 
Further, the emails appear to indicate that the Beneficiary receives assignments and provides status 
updates to several individuals, but there is no evidence that these individuals are employed by the 
Petitioner. For example, in an email dated April 10, 2015, the Beneficiary reported "[t]oday worked 
on June Auto renewals and sent for batching, which had issues with notices." Notably, the recipients 
10 
(b)(6)
Matter of C-, Inc. 
of the email are not listed on the Petitioner 's organization chart. In another email dated June 8, 
2014, an individual named requested that the Beneficiary "review and advise if this is a 
Conversion issue." However, this individual is identified as the End Client's employee in his email 
address, and he is not listed on the Petitioner's organization chart. 
We also note that the Petitioner submitted documents that contain information such as time sheets 
and weekly status reports from the Beneficiary. However, it appears that such information is 
provided by the Beneficiary and there is no information on how the Petitioner verifies the 
information provided by the Beneficiary. On appeal, the Petitioner states that it "review[s] the 
timesheets and the brief work summaries" and if "[the Beneficiary]'s work performance for that 
week is unacceptable, [the Petitioner] promptly communicate[s] with the Beneficiary to discuss the 
issue and how to resolve it." However, the Petitioner does not clarify or document how it remotely 
evaluates the Beneficiary's work at the End Client's location. On appeal, the Petitioner asserts that it 
"review[s] and listen to feedback from our client regarding the performance of [the Beneficiary] ." 
However, the Petitioner did not submit documents to substantiate its claims. "[G]oing on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings." In re Sojjici, 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)). Therefore, we find that the 
Petitioner has not provided sufficient evidence with regard to how the Petitioner controls the manner 
and means by which the product (or in this case, the service) is accomplished. 
It cannot be concluded, therefore, that the Petitioner has satisfied its burden and established that it 
qualifies as a United States employer with standing to file the instant petition in this matter. See 
section 214(c)(l) of the Act (requiring an "Importing Employer") ; 8 C.F.R. § 214.2(h)(2)(i)(A) 
(stating that the "United States employer ... must file" the petition) ; 56 Fed. Reg. 61111, 61112 
(Dec. 2, 1991) (explaining that only "United States employers can file an H-1 B petition" and adding 
the definition of that term at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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 of Otiende, 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.6 
6 Since the identified bases for denial are dispositive of the Petitioner 's appeal , we will not address any of the additional 
grounds of ineligibility we observe in the record of proceeding including whether the Petitioner established that the 
Beneficiary qualifie s for the proffered position . 
ll 
Matter of C-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-, Inc., ID# 15800 (AAO Jan. 29, 2016) 
12