dismissed H-1B Case: It Consulting

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 2 6 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The service center director denied the nonimm igrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. 
The petition will be denied. 
The petitioner submitted a Petition for a Nonimmig rant Worker (Form I-129) to the California 
Service Center on April 2, 20 14. On the Form I-129 visa petition, the petitioner describes itself as 
an IT consulting company 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 nonimmig rant 
worker in a specialty occupation pursuant to section 101 (a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101( a)(15)(H)(i)(b). 
The director denied the petition on June 9, 20 14, finding that the petitioner failed to establish that it 
will be a United States employer having an employer-employee relationship with the beneficiary as 
an H-lB temporary employee. Thereafter, the petitioner filed a combined motion to reopen and 
reconsider. The director granted the motion to reopen and reconsider but affirmed her decision to deny 
the petition, fmding that the petitioner did not overcome the basis of the denial. The petitioner filed a 
timely appeal. 
The record of proceeding before us contains the following: (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 dated June 9, 20 14 denying the petition; (5) the 
Notice of Appeal or Motion (Form I-290B) for a combined a motion and supporting documentation; 
(6) the director 's letter dated August 19, 20 14 affirming her decision to deny the petition; and (7) the 
Form I-290B for an appeal and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's ground for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 1 
I. FACfUAL AND PROCEDURAL BACKGROUND 
In this matter, the petitioner stated in the Form I-129 petition that it is an IT consulting company 
and that it seeks the beneficiary's services as a programm er analyst to work on a full-time basis for 
$51,000 per year. In addition, the petitioner indicated that the beneficiary would be employed at 
WI The petitioner stated that the dates of intended 
employment are from October 1, 20 14 to September 13, 20 17. 
In a letter dated March 19, 20 14 , the petitioner provided the following job description: 
In the position of Programmer Analyst, [the beneficiary] will be responsible for 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
(b)(6)
Page 3 
NON-PRECEDENT DECISIO.N 
system development, which includes requirements capture, solution design, code 
development & test, rollout, user training, and ramp to production support. He will 
contribute to all facets of the maintenance of systems and required system 
documenta tion, reports, system tables, and process flows within assigned areas of 
primary responsibility, along with serving as a support/backup resource for 
Operations and Customer Service groups and other internal departments. This will 
include providing support instructions for productions systems and supportability 
consulting to groups developing major new functionality for specific applications 
and creating and maintaining internal system and end user support documentation. 
[The beneficiary] will also trouble shoot problems with existing web applications, 
recommending and implementing solutions. 
[The beneficiary] 's knowledge of information technology and his expertise in 
software analysis, design, configuration, and coding, coupled with his proven 
understanding of software languages and their tools in area of ' concern, 
provides with a solid foundation. 
[The beneficiary] will develop and program software systems using various 
hardware and operating systems. This will include converting symbolic statements 
of scientific, engineering, and other technical problem formu lations and 
admini strative data to detailed logical flow charts for coding into computer language. 
He will develop and write compu ter programs to store, locate, and retrieve specific 
documents, data, and information, in addition to developing or mo difying restart 
procedures and writing macros and sub-routines to be used by other programming 
personnel. 
Using his knowledge of software development, program construction, distributed 
processing and familiarity of debugging tools, [the beneficiary] will assist in 
analyzing business procedures and problems to redefine data and convert them into 
programmable forms of EDP , along with planning and preparing technical reports, 
memoranda, and instructional manuals to document program development. 
[The beneficiary] may also be called upon to handle the following duties: 
• Developing and programming computer software applications using various 
software and interface with the technical staff in the complex programming 
needs and document modification concerning the systems software; 30% 
• Responsible for improvements in software computer utilization and 
determine necessity for modifications; 10% 
• Reviewing software program for comp liance with comp any standards and 
requirements and assisting in identifying deficiencies of computer runs and 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
perform specialized programming assignments; 5% 
• Developing and enhancing the software systems for wider applications and 
customize it for specific requirements; 5% 
• Using RDBMS to log system change orders and analyze, develop and 
implemen t new applications with GUI and analyze software requirements to 
determine feasibility of design within time and cost restraints; 15% 
• Identifying deficiencies, troubleshooting problems and supporting user needs 
with professional knowledge for test planning, defect tracing and provide 
assistance in use of RDBMS; 10% 
• Analysis and Design of system which includes Preparation of Process Flow 
Diagrams, Entity Relationship Diagrams, File design, Program Specification 
and Design Docum ent; 10% 
• Database and application analysis/design logical and physical database; 5% 
• Interacting with other technical staff in researching and interpreting technical 
data; 5% [and] 
• Assisting as part of the team to resolve technical problems requiring good 
ju dgment and creativity in developing solutions. 5% 
In the letter of support, the petitioner also stated that "these duties ... require an advanced theoretical 
knowledge and practical expertise gained through either a Bachelor's or a Master's degree in 
Computer Science, Information Systems, Management Information Systems, Electrical/Electronics 
Engineering, Physics, or a closely related field." 
Moreover, the petitioner submitted a Labor Condition Application (LCA) in support of the instant 
H-1B petition. We note that the LCA designation for the proffered position corresponds to the 
occupational classification of "Computer Programmers" -SOC (ONET/OES Code) 15-1131. The 
petitioner designated the proffered position as a Level I (entry level) position. In the LCA, the 
petitioner listed work locations as · WI , and its address at 
, Texas 
Furthermore, the petitioner submitted the following evidence: 
• A document signed by the petitioner and the beneficiary related to the petitioner's 
right of control over the beneficiary, and listing validity dates of October 1, 2014 to 
September 30, 20 17. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
• An October 24, 20 13 Contract for Services Agreement for Consultant External (CE) 
Classification between ' and the petitioner. 
• A March 13, 2014 letter from ' to the beneficiary confirming that the State 
of Wisconsin Department of Transportation (State of Wisconsin) will not provide a 
client letter per their policy. 
• A March 13, 2014 letter from 
the petitioner and 
in reference to a Master Agreement between 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on April 28, 2014. The director acknowledged that the petitioner had submitted 
various documents in support of the petition, but found that the evidence was insufficient to 
establish that a valid employer-employee relationship would exist for the duration of the period 
requested. The director outlined the types of evidence to be submit ted. 
In response to the RFE, the petitioner also submitted the following documents; 
• A May 2, 20 14 letter from 
the petitioner and 
in reference to a Master Agreement between 
• A May 2, 20 14 letter from 
provide a client letter. 
restating the State of Wisconsin's policy not to 
• Emails from ' 
attached. 
and the State of Wisconsin from 20 13-20 14 with work order 
• Copies of the beneficiary's timesheets. 
The director reviewed the evidence but determined that the petitioner failed to establish 
eligibility for the benefit sought. The director denied the petition on June 9, 20 14. 
Subsequently, the petitioner filed a combined motion to reopen and reconsider, and 
submitted the following: 
• A July 1, 20 14 letter from the State of Wisconsin. 
• A contract between and 
� 
_ . . The contract runs from October 17, 20 11 
until June 30, 2012, with five potential one year extensions if mutu ally agreed upon 
by both parties in writing. 
The director granted the motion, but affirmed her decision to deny the petition. The 
petitioner filed an appeal with additional documents, which include: 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
• An August 29, 2014 letter from to clarify the terms of its contract with 
• A copy of information on the State of Wisconsin's 
II. EMPLOYER-EMPLOYEE RELATION SHIP 
We reviewed the record of proceeding in its entirety. We will now discuss whether the petitioner 
has established that it will have "a n 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 emplo yee." 8 C. P.R. § 214. 2(h)( 4)(ii). 
Section 101 (a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services .. . in a specialty occupation described in section 214(i)(1) .. . , 
who meets the requirements for the occupation specified in section 214(i)(2) ... , 
and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214. 2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
· (1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification numb er. 
8 C.F.R. § 214.2(h)(4)(ii); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). In this matter, the 
record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2( h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 10 1(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 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the 
Act, 8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "em ployee." Subsections 212(n)(l)( A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(l)(AXi), (2)(C)(vii) (201 2). Further, the regulations indicate that "United States 
employers" must file a Petitio n for a Nonimmigrant Worker (Form 1-129) in order to classify aliens as 
H-lB temporary "employees." 8 C. P.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-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C. P.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-1B 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." Id. Therefore, for purposes of the H-1B visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden'') (quoting Community 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 partis 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 wor k; 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 Community for 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 commo n-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)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
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)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.2 
Specifically, the regulatory definition of "United States employer" requires H-lB 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.P.R. § 214 .2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.P.R. § 214. 2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this ma nner 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 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C . § 1002(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 traditiona l common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 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)(15)(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-1B 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 Co ngress 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). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's in terpretation 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)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101 (a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R. § 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "c ontrol." Clackamas, 538 U.S. at 450; see also 8 
C.P.R. § 214.2 (h)(4)(ii) (defin ing 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; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-lli(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 of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.P .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 contr actor relationship. 
See Clackamas, 538 U.S. at 44 8-449; 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, not 
who has the right to provide the tools required to complete an assigned project. See id. at 323 . 
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-lB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
The petitioner claims that it will have an employer-employee relationship with the beneficiary. 
However, as will be discussed, there is insufficient probative evidence in the record to support this 
assertion. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm' r 
1972)) . Applying the Darden and Clackamas tests to this matter, the petitioner has not established 
that it will be a "U nited States employer" having an "employer-employee relationship" with the 
beneficiary as an H-1B temporary "employ ee." 
In the Form I-129, the petitioner indicated that the beneficiary will work off-site as a programmer 
analyst. A letter dated March 13, 2014 from indicates that the petitioner has an agreement 
regarding the beneficiary's employment with ' who has "a confidential Master Service 
Agreement ("Agreement ") with the State of [Wisconsin] to provide informati on technology 
solutions and services. "5 We note that the petitioner did not disclose in its initial filing that the 
beneficiary' services to the end-client, State of Wisconsin, are further handled by who 
administers a vendor management services program for the State of Wisconsin. On its combined 
motion to reopen and reconsider, the petitioner submitted a contract between and 
for its work at State of Wisconsin. Upon review of both agreements, we find that the petitioner did 
not establish its employer-employee relationship with the beneficiary. 
For example, the contracts have conflicting provisions regarding employer-employee relationship 
and exercise of control over the means and manner in which services are provided. For example, 
the contract between ' and includes the following language at section 1.24 : 
1, and contracted pe rsonn el are independent contractors with respect to the 
performance of all work to be performed hereunder and neither I nor 
Contracted Personnel shall be deemed for any purpose to be an employee, agent, 
servant or representative of the State or any Agency. 1 ] shall 
exercise control over the means and manner in which Services are provided and 
performed under this Contract, and in all respects, the relationship to and the 
[end-client) shall be that of an independent contractor, not an employee or agent. 
5 We note that the record does not contain a copy of Master Service Agreement between and the 
State of Wisconsin. While a petitioner should always disclose when a submission contains confidential 
commercial information, the claim does not provide a blanket excuse for the petitioner's failure to provide 
such a document if that document is material to the requested benefit. Although a petitione r 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. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 
1977). 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
This contract reflects that will exercise control over the means and manner in which 
services are provided, and that the beneficiary will not be an employee of or the end-client. 
Further, in Section 1.27, it states that "[ ] agrees that the Contracted Personnel provided 
hereunder are W2 employees of [ 1 (unless otherwise specified by Purchase Order) " and 
"warrants that it bears the sole responsibility for the payment of compensation to the Contracted 
Personnel, including, but not limited to, salary, taxes, contributions and benefits. "6 Therefore, the 
contract reflects that will control the means and manner in which the services are 
provided, that will be the employer, and that will be responsible for the 
payment of the beneficiary. 
Moreover, in section 1.3.1., the contract indicates that " 1 is solely responsible for 
verifying that the Contracted Personnel have input complete and accurate work hours into [the time 
records]." Section 2.9.4 further states that will appoint a Contract Administrator, who 
will "have authority to make managerial and technical decisions concerning the Services deliverable 
under the Contract." As such, the contract reflects that is responsible for supervising the 
beneficiary. 
However, the petitioner's contract with dated October 24, 20 13 contradicts the provisions 
in the contract with Specifically, in section 2, the contract indicates that "[ t]he 
scope and performance of services shall be under the supervision, direction, and control of [the end­
client]." It also states that "[the end-client] and the petitioner shall determine when, how, and where 
[the petitioner] shall perform services for [the end-client]." This contract reflects that the client, in 
this case, the State of Wisconsin, would supervise, direct and control the performance of services; 
and it would be involved with when, how, and where the contractor performs services. 
The petitioner's contract with further provides in section 8 that "[the petitioner] 
acknowledges and covenants that it is an independent contractor; that nothing in this Agreement 
shall be considered to create an emp loyer-employee relationship between the parties, and [the 
petitioner] shall not be deemed to be an employee of for any purpose whatsoever." In the 
same section, the contract states that the petitioner is solely responsible for withholding income tax 
and benefits, and that the petitioner shall have no claim against for worker's 
compensation, unemployment insurance or compensati on, vacation pay, sick leave ... etc. Notably, 
the contract does not reference the beneficiary, the end-client or the date of employment for the 
project. 
Although this language related to the petitioner assumes the duties of an employer, we find that the 
petitioner did not provide sufficient evidence to substantiate its employer-employee relationship 
with the beneficiary. For H-lB classification, the petitioner is required to submit written contracts 
6 The petitioner submitted a work order in response to the RFE, but it is unclear if the submitted work order 
is a part of this contract. Further, the work order does not provide information regarding payment of 
compensation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
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 emplo yed. See 8 C.F.R. 
§ 214. 2(h)(4)(iv)( A) and (B). In this matter , the petitioner did not provide a written contract or an 
employment agreement; instead, it provided a document entitled "[the petitioner]'s Right to Control 
over [the beneficiary]." The document states th at the beneficiary "will work under the supervision 
and control of [the petitioner]," and that "only [the petitioner] has the right to control the work of 
[the beneficiary] on a day-to-day basis ." The document is not dated, but states th at the validity 
period is from October 1, 20 14 to September 30, 20 17, and is signed by both the petitioner and the 
beneficiary. 
While the petitioner claims its right of control over the beneficiary, we find that the petitioner did 
not provide sufficient documentary evidence to support its claims. As previously noted, when 
making a determination of whether the petitioner has established that it has or will have an 
employer-employee relationship with the beneficiary, we look at a number of factors, including the 
petitioner's right to control the manner and means by which the product is accomplished including 
the source of the instrumentalities and tools; the method of payment; the provision of employee 
benefits; the tax treatment and more . The document entitled "[the petitioner]'s Right to Control over 
[the beneficiary]" indicates that the petitioner "will retain full discretion over when and how long 
[the beneficiary] will work, the provision of employee benefits, the method of payment, and the 
right to hire and pay any assistants as required." 
However, the petitioner did not provide any further informat ion on this matter, such as a description 
of the instrumentalities and tools that are required to perform the duties. Further, we note that while 
the method of paym ent of wages can be a pertinent factor to determining the petitioner's relationship 
with the beneficiary, the petitioner did not submi t documentation to establish the method of 
payment (such as pay statements or quarterly wage reports) of wages. Moreover, the petitioner also 
did not submit evidence regarding the provision of employee benefits and the tax treatment ? In 
addition, the petitioner did not provide information regarding the right to hire and pay any assistants 
as required. 
The document further states that the beneficiary "will telephone or otherwise communicate directly 
with [the petitioner] no less than once a week" and "will be subject to regular progress/performance 
reviews." It is also stated that the beneficiary's superv isor is the signatory for this 
petition. However, the petitioner did not submit documents to establish communication with the 
beneficiary. In response to the RFE, the petitioner submitted copies of several email 
communicat ion. However, the email communication is between and the end client, and 
not the petitioner and the beneficiary. 
7 According to the beneficiary's Certificate of Eligibility for Nonimmigrant (F-1) Student Status (Form I-20), 
the beneficiary was authorized to be employed by the petitioner beginning February 5, 2014. A letter from 
dated March 13, 2014 indicates that the beneficiary has been working on-site at the State of 
Wisconsin Department of Transportation (DOT) since November 14, 2013. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Further, the email communications do not indicate th at the petitioner supervises the beneficiary's 
work on a day-to-day basis. An email dated March 13, 20 14 from a supervisor for the 
end client, states that "[the beneficiary] works for and reports to me here at the [end-client] ." In 
another email dated November 23, 2013 from ' to the end client indicates that the 
beneficiary has been working for the end-client for two weeks and requests for feedback. In 
response, the end client states that "[the beneficiary] has asked for some time off in December 
which will slow us down a bit, but we can work around that." In another email dated April 30, 
20 14 from ' to the end client, ' indicates that the beneficiary has been on the 
project for six months, and requests additional feedback to pass along his "employer ." Notably, this 
"employer" is not identified. In response, the end client states th at "[the beneneficiary] is doing a 
good job with supporting the [ end-client]'s web infrastructure." Here, even if we assume that the 
"employer" as referred to in the email is the petitioner, the emails indicate that the petitioner does 
not have discretion over when and how long to work since the beneficiary requested time from the 
end-client. Further, the emails indicate that the beneficiary reports to the end client, and that the 
petitioner does not have day-to-day supervision since' is requesting for feedback from the 
end client two weeks after the start of the employment, and again, after six months had passed. 
In addition, the petitioner submitted copies of the beneficiary's timesheets. However, the timesheets 
only identify the beneficiary, the name of the project, and the hours worked. The "task/activity " is 
generally described as "professional work" and do not establish the specific duties of the position or 
provide information regarding which entity supervises the beneficiary. 
We also find that the evidence submitted fails to establish non-speculative employment for the 
beneficiary for the entire period requested, specifically from October 1, 20 14 to September 13, 
2017. For example, the letter from dated March 13, 201 4 indicated that the project "has 
an estimated duration through November 2016 with the possibility of extension." However, a letter 
dated July 1, 2014 from the end client indicates that the beneficiary "is on annual consulting 
contract that has options to be renewed." Further, the work order submitte d with the emails 
indicates that the engagement end date is October 13, 20 16. The contract between ' and 
was to "run from October 1 ih 2011 __ through June 30, 20 12, with five (5) potential, 
one (1) year-extensions if mutually agreed upon by both parties in writing." However, the 
petitioner did not submit further evidence of extensions. A work badge that states the beneficiary's 
and the end-client's name indicates that the expiration date is November 4, 2016. Due to 
inconsistencies in the record of proceeding with regard to the beneficiary's dates of intended 
employment, we find that the petitioner failed to establish employment for the beneficiary for the 
entire period requested. 
In addition, we note that the petitioner did not provide an itinerary for the services to be provided. 
In the Form I-129, the petitioner indicated that an itinerary is included with the petition; however, 
the petitioner did not submit an itinerary. The LCA lists the work locations as 
part: 
Wisconsin , and the petitioner's address at 
_ 
Texas Notably, the regulation at 8 C.F.R. § 214.2 (h)(2)(i)(B) states, in pertinent 
(b)(6)
Page 14 
NON-PRECEDENT DECISION 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed 
with USCIS as provided in the form instructions. The address that the petitioner 
specifies as its location on the Form I-129 shall be where the petitioner is located for 
purposes of this paragraph. 
The itinerary language at 8 C.F.R. § 214.2 (h)(2)( i)(B), with its use of the mandatory "mus t" and its 
inclusion in the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
mat erial and necessary document for an H-1B petition involving employment at multiple locations, 
and that such a petition may not be approved for any employment period for which there is not 
submitted at least the employment dates and locations. 
Notably, USCIS regulations affirmat ively require a petitioner to establish eligibility for the benefit 
it is seeking at the time the petition is filed. See 8 C.P.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 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
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 petitioner has not 
demonstrated that it would maintain such an employer-employee relationship with the beneficiary 
for the duration of the period requested. 8 
8 The agency made clear long ago that speculative employment is hot permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B 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-1B 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-1B 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.P.R. § 214.2(h)(2)(i)(E). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
After a thorough review of the evidence of record, we find that it is insufficient to establish that the 
petitioner qualifies as a "United States employer, " as defined by 8 C.P.R. § 214.2(h )(4)( ii). Without 
evidence supporting the petitioner's claims, the petitioner has not established eligibility in this 
matter. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. at 190). 
III. ADDITIONAL ISSUES 
We will address an additional issue beyond the decision of the director, namely whether the 
petitioner has established that the proffered position qualifies as a specialty occupation position. 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(I) 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 
(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.P.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.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or hi gher 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 
(b)(6)
Page 16 
NON-PRECEDENT DECISION 
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 harmo ny with the thrust of the related provisions and with the statute 
as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a wh ole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Lo an Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-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)(ii i)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 20 1 
F.3d 387. To avoid this illogical and absurd result, 8 C.F.R. § 214.2 (h)(4)(ii i)(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), 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, 14 7 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). Applying this standard, 
USCIS regularly approves H-lB petitions for qualified aliens who are to be employed as engineers, 
comput er 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 alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 20 1 F. 3d 384. The critical element is not the title 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
of the position nor 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. 
To ascertain the intent of a petitioner, USCIS must look to the Form 1-129 and the documents filed 
in support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.P.R. 
§ 214. 2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) provides that "[ a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
In this matter, the petitioner stated that the position requires "a Bachelor's or a Master's degree in 
Computer Science, Information Systems, Management Information Systems, Electrical/Electronics 
Engineering, Physics, or closely related field." Such an assertion, i.e., that the duties of the 
proffered position can be performed by a person with a degree in any one of those disciplines, (i.e., 
computer science, engineering, physics or a related field) suggests that the proffered position is not, 
in fact, a specialty occupation. More specifically, the degree requirement set by the statutory and 
regulatory framework of the H-lB program is not ju st a bachelor's or higher degree, but such a 
degree in a specific specialty that is directly related to the position. See section 214(i)(l )(b) of the 
Act, 8 U.S.C. § 1184(i)(l)(b), and 8 C.P.R. § 214. 2(h)(4)(ii). 
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" 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 disparate fields, spch as philosophy and engineering, 
would not meet the statutory requirement that the degree be "in the specific specialty, " 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Here, the petitioner indicated that a bachelor's degree in a number of disciplines is acceptable for the 
proffered position, specifically, business, technology, computer science, and electrical engineer. 
However, it must be noted that these include broad categories that cover numerous and various 
specialties. Therefore, it is not readily apparent that a degree in any and all of these fields is directly 
related to the duties and responsibilities of the particular position proffered in this matter. 
Moreover, we note that, as recognized by the court in Defensor, supra, where the work is to be 
performed for entities other than the petitioner, evidence of the client company's job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-388. That is, it is necessary for the end-client to 
provide sufficient information regarding the proposed job duties to be performed at its location in 
order to properly ascertain the minimum educational requirements necessary to perform those 
duties. Id at 387-388. The court held that the former INS 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. 
In this case, we find that the job duties provided by the petitioner in its support letter dated March 
19, 20 14 differ from the job description provided by dated March 13, 20 14. In addition, 
the letter from end client dated July 1, 20 14 states that the beneficiary's responsibilities are as 
follows, which also differ from the job description provided by the petitioner: 
• Supports Websphere 7 and liS environment including Java and .Net 
applications. 
• Performs systems backups and recovery. 
• Maintains data files and monitors system configuration to ensure data 
intergrity. 
• Has knowledge of commonly used concepts, practices, and procedures within 
a particular field. 
Moreover, the letter from refers to the proffered position as "WebSphere Administrat or." 
Further, the work order indicates that the qualifications for the proffered position include the 
following: 
• Administration-Customer Service 
• Phone based technical support * 5+ Yrs. 
• Problem documentation and communicati on*a nd 5+ Yrs. 
• Problem resolution (development and implementation) * and 5+ Yrs. 
• Project coordination and scheduling: Schedule and coordinate service 
delivery with vendor and custom * 5+ Yrs. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
Based on the work order, it appears that the end client does not require a degree in a specific 
specialty. We reiterate that the degree requirement set by the statutory and regulatory framework of 
the H-lB program is not ju st a bachelor' s or higher degree, but such a degree in a specific specialty 
that is directly related to the duties and responsibilities of the position. See 214(i)(1 )(b) of the Act 
and 8 C.P.R. § 214. 2(h)(4)(ii ). 
We find that the petitioner's failure to establish the substantive nature of the work to be performed 
by the beneficiary, therefore, precludes a finding that the proffered position satisfies any criterion at 
8 C.P.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.P.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 .CONCLUSION 
As set forth above, 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. 
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). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.