dismissed H-1B Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-&A- PLLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 17,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a law firm, seeks to extend the Beneficiary's temporary employment as a .. lawyer .. 
under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-IB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as 
a minimum prerequisite for entry into the position. 
The Director. Vermont Service Center. revoked the petition. The Director concluded that the 
Petitioner did not establish a valid employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in revoking the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A. Revocation 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1 B petition 
pursuant to 8 C.F.R. § 214.2(h)(ll)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition. or if the beneficiary is no longer receiving training as 
specified in the petition: or 
(2) The statement of facts contained in the petition was not true and correct. 
inaccurate, fraudulent. or misrepresented a material fact: or 
Matter of K-&A- PLLC 
(3) The petitioner violated terms and conditions of the approved petition: or 
(-1) The petitioner violated requirements of section 101(a)(l5)(1I) of the Act or 
paragraph (h) ofthis section: or 
(5) The approval of the petition violated paragraph (h) of this section or involved 
gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part. If the 
petition is revoked in pmi. the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
B. Employer-Employee Relationship 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant. in pertinent part. as an 
individual: 
[S]ubject to section 212(j)(2). who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) .... who 
meets the requirements for the occupation specified in section 214(i)(2) .... and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)( 1) .... 
A United States employer seeking to classify an individual as an H-1 B temporary worker must tile a 
petition with USC IS on behalf of that individual. S'ee 8 C.F .R. § 214.2(h)(2 )(i)(A). In doing so. a 
··united States employer'' petitioning to employ an individual under section 101(a)(15)(H)(i)(b) of 
the Act must demonstrate that it will satisfy the definitional requirements set forth in 8 C.F.R. § 
214.2(h)(4)(ii), including that it will have an employer-employee relationship with the individual. 
The term ··united States employer" is defined in 8 C.F.R. § 214.2(h)(4)(ii) as follows: 
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: 
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Matter <?f K-&A- PLLC 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with re,\pect to employees under this 
part. as indicated by the fact that it may hire, pay. fire, supervise. or othenrise 
control the work (~lany such employee: and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added): see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111, 61J21 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
C. The Supreme Court Decisions: Darden and Clackamas 
The Supreme Court has determined that where the applicable federal law does not define 
'·employee," the term should be construed as "intend[ing] to describe the conventional master­
servant relationship as understood by common-law agency doctrine:' 1\'ationwide Mul. Ins. Co. r. 
Darden. 503 U.S. 318, 322-23 (1992)("Darden") (quoting Cmty. fhr Creative Non-Violence v. Reid. 
490 U.S. 730 (1989) ("C.C.N V'')). The 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 w·hen and how long to work; the method of payment: the hired 
party's role in hiring and paying assistants: whether the work is part of the regular 
business of the hiring party: whether the hiring party is in business: the provision of 
employee benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. at 323-324 (quoting C.C.N V. 490 U.S. at 751-752); see also Clackamas 
Gastroenterology Assocs. P.C. v. Wells. 538 U.S. 440, 445.447 & n.5 (2003) ("Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer .... all (~{the incidents ofthe relationship must he assessed and weighed with no one .factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. (~lAm .. 390 U.S. 254. 
258 (1968)) (emphasis added). 
In Clackamas, the Supreme Court articulated the following factors to be \veighed in determining 
whether an individual with an ownership interest is an employee: 
• ·'Whether the organization can hire or fire the individual or set the rules and 
regulations ofthe individual's work"; 
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Matter of K-&A- PLLC 
• ·'Whether and, if so. to what extent the organization supervises the individuars 
work"'; 
• ''Whether the individual reports to someone higher in the organization"": 
• .. Whether and, if so. to what extent the individual is able to influence the 
organization"': 
• .. Whether the parties intended that the individual be an employee. as expressed 
in written agreements or contracts""; and 
• '·Whether the individual shares in the profits. losses, and liabilities of the 
organization."" 
Clackamas, 538 U.S. at 449-50: (deferring to the factors enumerated in the Equal Employment 
Opportunity Commission's Compliance Manual § 605:0009 (EEOC 2000) (currently cited as § 2-
III(A)(l )(d)) for determining "whether [a partner. officer, member of a board of directors. or mqjor 
shareholder] acts independently and participates in managing the organization, or whether the 
individual is subject to the organization's controL" and accordingly whether the individual qualities 
as an employee). 
As with the common-law factors listed in Darden. the factors relevant to the inquiry of whether a 
shareholder-director is an employee are likewise not exhaustive. Clackamas, 538 U.S. at 450 n.l 0 
(citing Darden. 503 U.S. at 324). Not all of the listed criteria need be met; however, the fact finder 
must weigh its assessment of the 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 relationship. See id. at 448-449. 
The fact that a "person has a particular title- such as partner. director. or vice president- should not 
necessarily be used to determine whether he or she is an employee or a proprietor." !d. at 450: c( 
Maller o/Church ,)'cientoloAry Jnt '1, 19 I&N Dec. 593. 604 (Comm'r 1988) (explaining that a job title 
alone is not determinative of whether one is employed in an executive or managerial capacity). 
Likewise, 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. 
as was true in applying common-law rules to the independent-contractor-versus-employee issue 
confronted in Darden, the answer to whether a shareholder-director is an employee depends on 'all 
of the incidents of the relationship ... with no one factor being decisive."' ld. at 451 (quoting 
Darden, 503 U.S. at 324). 1 
1 The relevant H-1 B regulation effectively, if not expressly, adopts the common-law approach. 5;ee 8 C.F.R. § 
214.2(h)(4)(ii) (recognizing an employer-employee relationship "by the fact that [the employer] may hire. pay, tire. 
supervise, or otherwise control the work of any such employee .... "). 
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Matter(~( K-&A- PLLC 
II. PROCEDURAL HISTORY 
On the Form I-129, the Petition for a Nonimmigrant Worker, the Petitioner indicated that it is a two­
employee law firm. The Director issued a notice of intent to revoke (NOIR) noting that the 
Beneficiary appears to own .. 100% of the voting stock." In response. the Petitioner submitted 
documents indicating that, effective November 19, 2013. the Beneficiary has 70% membership 
interest and another attorney (Partner) has the other 30%. The Petitioner further asserted that it is 
'·run by a Manager," not the Beneficiary. In support. the Petitioner provided a revised operating 
agreement, dated October L 2013, which was signed by the Beneficiary and another attorney as 
.. members,'' and designated a Manager for the Petitioner. 
The Director revoked the petition finding that the record does not establish that a valid employer­
employee relationship exists. The Director noted that according to the evidence in the record the 
Beneficiary can terminate the Manager's employment. The Director further noted that the evidence 
indicates that the Manager conducts only the business affairs of the Petitioner and not the practice of 
law. The Director concluded that it appears that the Manager does not control the actual work 
performed by the Beneficiary. and the Petitioner had not established that it meets the definition of a 
U.S. employer. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine the 
Petitioner has not established that it meets the regulatory definition of a U.S. employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii), and the Director properly revoked the approval of the petition 
under 8 C.F.R. § 214.2(h)(11)(iii). Specifically, as the Petitioner has satisfied the first and third 
prongs of the definition of U.S. employer. the remaining question is whether the Petitioner has 
established that it will have .. an employer-employee relationship with respect to employees under 
this part, as indicated by the fact that it may hire, pay, fire, supervise. or otherwise control the work 
of any such employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Because the terms .. employee" and .. employer-employee relationship" are not defined in the statute 
or controlling DHS regulations, we apply the common-law test described in Darden and Clackamas 
to determine whether. after weighing the combination of factors and analyzing all of the 
circumstances in the relationship between the parties, there exists or will exist a ·'conventional 
master-servant relationship as understood by common-law agency doctrine.'' 2 C. C.l\'. V. 490 U.S. at 
739-740: Darden. 503 U.S. at 322-323; Clackamas. 538 U.S. at 445. 
" This decision only interprets the terms "employee'' and "employer-employee relationship" as used in 8 C.F.R. § 
214.2(h)(4)(ii); there are instances in the Act where Congress may have intended a broader or narrower application ofthe 
term ·'employer" than what is encompassed in the conventional master-servant relationship. 
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Matter (?f K-&A- PLLC 
After assessing all of the incidents of the relationship and applicable factors, here. we find that the 
Petitioner has not submitted sufficient evidence to establish that the Beneficiary's employment will 
ultimately be controlled by its '·Manager," as claimed. 
In general. a petitioner's statements alone are insufficient to meet its burden and satisfy the 
preponderance of the evidence standard unless they are amply substantiated by relevant. probative. 
and credible evidence. See /vfatter l?lSl?{/ici, 22 I&N Dec. 158. 165 (Comm'r 1998) (citing ,Hatter 
of1reasure Crafi l?{Cal.. 14 I&N Dec. 190 (Reg'l Comm'r 1972)) (clarifying that going on record 
without supporting evidence does not suffice to meet the burden of proof): Aifaller l~{ Chmmthe. 25 
I&N Dec. at 376 (requiring relevant. probative. and credible evidence sufficient to support a finding 
that a ··claim is ·more likely than not' or ·probably' true" in order to satisfy the standard of proof). 
On appeal, the Petitioner continues to assert that. according to the operating agreement, it is the 
Manager ·'that is responsible for the day-to-day business affairs of the Petitioner including the hiring. 
terminating, setting of compensation rates and supervision of employees" and that it is the Manager 
"who can terminate employees without cause." The Petitioner also asserts that "it is the Manager 
that assigns the legal work to the employee to perform:· However. the Petitioner's assertions are not 
corroborated by the evidence in the record of proceedings. 
For example, the operating agreement indicates that the "business and affairs of the Professional 
Limited Liability Company. except for the practice of law. shall be conducted and managed by the 
Manager." It also states that "the Manager shall have responsibility for the day-to-day management 
of the business and affairs of the Professional Limited Liability Company, except the practice of law 
... ."' This contradicts the Petitioner's claim that the Manager assigns legal work to the employees. 
Further. as noted by the Director, the Petitioner described itself as a .. law practice" on the Form 1-
129. The operating agreement states that the Petitioner's purposes "are to primarily provide 
international legal and consulting services: to engage in the practice of law ... :· Therefore. without 
managing the practice of law. it is not clear what the Manager's responsibilities are over "the day to 
day business affairs of the Petitioner." Notably. the Petitioner did not submit copies of an 
employment agreement that describes the terms and conditions of his employment. payroll records. 
or tax records for the Manager evidencing his employment \Vith the Petitioner. 
On appeal, the Petitioner acknowledges that the Manager is not a lawyer and does not practice law. 
However. the Petitioner asserts that the Manager '·regulates the flow of work. reviews the work in 
that it is performed in a timely professional manner. and communicates with clients to ensure they 
are happy with the work performed." In support, the Petitioner submitted its timesheets. The 
timesheets contain limited information such as the Beneficiary's name and the hours worked each 
day. The timesheets also contain skeletal information regarding "service item." described generally 
as "consulting." The timesheets do not sufficiently demonstrate how the Manager revie\vs the 
Beneficiary's work and verities that it is perfonned in a timely. professional manner. The Petitioner 
also asserts that "the relationship between the Beneficiary and the clients is reviewed by the 
Manager." In support, the Petitioner submitted a copy of contract signed by the Partner. for a virtual 
oflice, which matches the address listed on the petition. Notably. this agreement was signed by the 
(b)(6)
Matter of K-&A- PLLC 
Partner in his individual capacity, not as a member of the Petitioner. Nonetheless, the Petitioner has 
not explained how a contract for a virtual office establishes that the Manager reviews the 
relationship between the Beneficiary and the clients. 
Further, we note that the documents in the record including income tax returns and pay stubs 
indicate that the Beneficiary is located in However, the mailing address for the Manager 
listed on the petition is a post office box address in NY, and the Petitioner's virtual 
office is in NY. While it is asserted that the Manager and the Petitioner monitor the 
Beneficiary's performance on a daily basis with regularly occurring status conference calL the 
Petitioner did not submit documentary evidence other than the contract for the virtual office. 
Moreover, 
while the Petitioner asserts that the Beneficiary is subject to an annual performance 
review, the Petitioner did not submit copies of actual performance reviews. Notably, the Beneficiary 
has been employed with the Petitioner since 2008. In conclusion, the Petitioner has not credibly 
established that the Manager and the Petitioner supervise the Beneficiary's work. 
We further note that it is the members (including the Beneficiary, who has 70 percent membership 
interest) who elect the Manager and can hire or fire the Manager. Specifically, the operating 
agreement states that ·'[t]he Manager for the [Petitioner] shall be elected, and can only be discharged 
with cause, as Manager by the unanimous vote or consent of the Members. . . .'' Further. the 
members determine the Manager's compensation; the operating agreement indicates that .. the 
Manager shall receive, as compensation for the services of the Manager to the [Petitioner], such 
sums as may be determined from time to time by the unanimous vote or consent of the Members 
On appeal, the Petitioner asserts that the Beneficiary "cannot unilaterally terminate the Manager" 
and even if the Beneficiary were to persuade his Partner to terminate the Manager, they simply 
would have to hire another manager, who will have the same authority including the ability to 
terminate the Beneficiary. While we acknowledge that according to the agreement, the Beneficiary 
cannot unilaterally terminate the Manager, we find that the Petitioner has not provided documentary 
evidence to credibly establish that the Manager, whose compensation is established by members. 
which includes the Beneficiary, a majority shareholder. and the Partner. who only has 30% of the 
membership interest, can fire the Beneficiary. 
We acknowledge the Petitioner's submission of its employment agreement with the Beneficiary. 
However because this agreement became effective September 16, 2014. after the petition was filed 
on March 18, 2014, it is accorded little weight. The Petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition and must continue to be eligible tor the benefit through 
adjudication. 8 C.F.R. § 103.2(b){l). A visa petition may not be approved at a future date after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. See Mauer ol Michelin Tire 
Corp., 17 I&N Dec. 248. 249 (Reg'l Comm'r 1978). We therefore do not find the terms of that 
agreement relevant for these proceedings as they do not relate to the Beneficiary's employment 
effective at the time the petition was filed. Further, the "'mere existence of a document styled 
Matter (?f K-&A- PLLC 
'employment agreement'" shall not lead inexorably to the conclusion that the worker IS an 
employee. Clackamas. 538 U.S. at 450. 
On appeaL the Petitioner further refers to an unpublished decision in which we detennined that a 
sole owner can also be the sole beneficiary. However, the Petitioner has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision. 
While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. 
On appeal, the Petitioner also cites to Afatter (~f Aphrodite Investments Ltd.. 17 I&N Dec. 530 
(Comm'r 1980). to assert that a corporation has a separate legal identity from its owner. and it may 
tile certain petitions on behalf of beneficiaries who have substantial ownership stakes in those 
entities. However. Matter (~{Aphrodite Investments Ltd. is distinguishable to the extent it does not 
address an H-1 B petitioner's burden to establish that a beneficiary will be a bona fide "employee" of 
a "United States employer" and that the two parties will othenvise have an "employer-employee 
relationship" as understood by common-law agency doctrine. See Clackamas. 538 U.S. at 440: 8 
C.F.R. § 214.2(h)(4)(ii). Thus, although a corporation that is solely or substantially owned by a 
beneficiary may tile an H-1 B petition on behalf of its owner. the petitioner must establish that it wi II 
have an "employer-employee relationship" with the beneficiary as understood by common-lmv 
doctrine. 
Accordingly. we cannot find that the evidence of record sufficiently establishes an employer­
employee relationship between the Petitioner and the Beneficiary with respect to the factors outlined 
in the Darden and Clackamas decisions. That is. the evidence does not establish that the Petitioner 
has the authority to hire and fire the Beneficiary. as this control is ultimately maintained by the 
Beneficiary as he is one of only two members and the company's majority stockholder. With 
respect to the authority to set the rules and regulations of the Beneficiary's work. \vhether and to 
what extent the organization supen'ises the Beneficiary's work, and whether the Beneficiary reports 
to someone higher in the organization. the Petitioner did not submit sutlicient documentary evidence 
to resolve inconsistencies. Regarding the extent to which the Beneficiary is able to inf1uence the 
Petitioner, it appears that the Beneficiary would possess significant influence in his position as a 
member and a majority shareholder. Even if the parties intended that the Beneficiary be an 
employee as expressed in V\Titten agreements or contracts, we find that the submitted employment 
agreement lacks probative weight. Lastly. as the corporation's majority stockholder (holding 70 
percent of the firm's shares). the Beneficiary shares significantly in the profits. losses. and liabilities 
of the organization. 
Based on the tests outlined above. the Petitioner has not established that it will be a ··united States 
employer·· having an .. employer-employee relationship"' with the Beneficiary as an H-1 B temporary 
··employee,"' and the Director properly revoked the approval of the petition under 8 C.F.R. 
§ 214.2(h)(ll)(iii). 3 
3 The Director revoked the petition under 8 C.F.R. § 214.2(h)( II )(iii)(A)(3). but it would have been proper to revoke the 
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Matter of K-&A- PLLC 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter (~lOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here. that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofK-&A- PLLC. ID# 16411 (AAO May 17, 2016) 
petition under 8 C.F.R. § 214.2(h)( II )(iii)(A)(2),(4). and (5). 
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