dismissed H-1B Case: Physical Therapy

MATTER OF U-C- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 31,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a healthcare services pool, seeks to temporarily employ the Beneficiary as a 
"physical therapist" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence in the 
record did not establish that the proffered position qualifies as a specialty occupation. 
In its appeal, the Petitioner submits additional evidence and asserts that it has satisfied all evidentiary 
requirements. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
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 th~t 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.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of U-C- Inc. 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto_[f, 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 particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner stated that it is engaged in the recruitment and placement of healthcare professionals, 
including physical therapists. The Petitioner also indicated that it assigns individuals to an affiliated 
company with common ownership, U-G-H-C-S-, which it characterized as the end-client. The 
Petitioner explained that the Beneficiary would be assigned to U-G-H-C-S- as a physical therapist to 
"provid[ e] services to patients in their homes" in Florida. The Petitioner, and its affiliated service 
provider, described the Beneficiary's duties as follows: 
The duties of the [Beneficiary] assigned to [U-G-H-C-S-] include but are not limited 
to evaluating, developing a plan and providing appropriate therapeutic treatment of 
patients, inpatient and outpatient; will perform accurate evaluation; plan and 
implement appropriate treatments and follow-up of patients effectively and 
efficiently; will perform initial assessments, reassessments and record discharge notes 
in permanent chart of patients; and will complete daily reports of patients within 
specific time frame and communicate with physicians regarding treatment goals and 
discharge plans. 
The Petitioner indicated in support of the petition that the individual tilling the position "needs to be 
a graduate of Bachelor of Science in Physical Therapy." 
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Matter of U-C- Inc. 
C. Analysis 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record does not demonstrate that there would be sufficient 
specialty occupation work available for the Beneficiary for the entire validity period requested. 1 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 
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. ld. 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, the Petitioner states that the Beneficiary would be assigned through its affiliated service 
provider U-G-H-C-S- to provide physical therapy services to patients in their homes in Florida. 
However, the Petitioner also provides evidence indicating that these services may be provided 
through or to "various other clients including and ' For instance, the 
evidence submitted on appeal includes 
invoices and checks reflecting that the Petitioner is paid for 
its services by and The Petitioner has not sufficiently explained and 
documented its relationship with these entities involved in the provision of services, including how 
the Petitioner 
and its affiliated service provider receive orders for physical therapy services from the 
referenced third party "clients." Nor does the Petitioner provide contractual documentation to 
support these relationships , including master service agreements , work orders, statements of work, or 
other such documentation between its company and these third party clients. As presently 
constituted, the record is insufficient to demonstrate the Beneficiary's proposed specialty occupation 
work for the entire requested period. 
Further, the Petitioner provides conflicting evidence that leaves question as to whether the 
Beneficiary would be exclusively assigned to patients' homes, as claimed. According to the 
Petitioner's employment agreement with the Beneficiary, he would be engaged as a "travel 
therapist." The Petitioner's marketing material specifically describes its travel program as providing 
its personnel "the unique opportunity to travel across the country and be exposed to different work 
settings in our 13 weeks or 26 weeks assignments," and lists the company's "clients" as various 
healthcare or rehabilitation centers within the United States. The Petitioner's job announcement for 
"physical therapists travel needs" likewise lists job opportunities in various rehabilitation 
departments within the United States. Even the Petitioner's staffing agreement with U-G-H-C-S­
states that the Petitione~ "provides healthcare workers for placement in CLIENTs; Hospitals, 
1 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted , we have reviewed and 
considered each one. 
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Matter of U-C- Inc. · 
Nursing Homes and Rehab Clinics throughout the United States." Without more, these documents 
do not corroborate the Petitioner's repeated claim that the Beneficiary would only be assigned to 
patients' homes through the claimed end-client, U-G-H-C-S-. 
Therefore, we find that the Petitioner has not established non-speculative work for the Beneficiary at the 
time of the petition's filing for the entire period requested. U.S. Citizenship and Immigration Services 
(USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). 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'l 
Comm'r 1978).2 
Therefore, the Petitioner has not established that there would be specialty occupation work available 
for the Beneficiary for the entire requested period of employment. For this reason, the appeal must 
be dismissed. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We also find that the Petitioner has not demonstrated that it would have an employer-employee 
relationship with the Beneficiary during the entire requested period of employment. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, m pertinent part, as an 
individual: 
2 The agency mad~ clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the ''Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
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). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
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Matter of U-C- Inc. 
[S]ubject to section 2120)(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)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the .fact that it may hire, pay, .fire, 
supervise. or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). . 
Although "United States employer" is defined inthe regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-
1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)( 1) 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 "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S. C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States 
employers" must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals 
as H-lB temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of"United 
States employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1 B beneficiary, and that this relationship 
be evidenced by tht:< employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service nor USCIS defined the terms "employee" or 
"employer-employee relationship" by regulation for purposes of the H-1 B visa classification, even 
though the regulation describes H-1B beneficiaries as being "employees" who must have an "employer-
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Matter of U-C- Inc. 
employee relationship" with a "United States employer." Id. Therefore, for purposes of the H-1 B 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 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." 
I 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. 
o.(, Am., 390 U.S. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.3 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § I 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA 's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer'' in section 
I 0 I (a)( 15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or ''employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
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Matter of U-C- Inc. 
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-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in· the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F .R. § 214.2(h)( 4 )(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at318-19. 4 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).5 
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, we must 
focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
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 323-24; 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 EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A .. Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
4 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship,'" 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 ( 1945)). 
5 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-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
Matter of U-C- Inc. 
said test was based on the Darden decision); Defensor, 201 F.3d at 384, 388 (determining that hospitals, 
as the recipients of beneficiaries' services, are the "true employers" of H-1 B nurses under 8 C.F.R. 
§ 214.2(h), even though a medical contract service agency is the petitioner, because the hospitals 
ultimately hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, we must assess and weigh 
each actual factor itself as it exists or will exist and not the claimed employer's right to influence or 
change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' Id at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation substantiating and describing who exercises control over the Beneficiary. 
First, the Petitioner has provided little direct evidence to substantiate that the Beneficiary would be 
under the supervision and control of the Petitioner. The Petitioner submitted a few different 
organizational charts on the record. One organizational chart was applicable to the Petitioner's 
affiliated service provider and indicated that the Beneficiary would be overseen by a number of 
administrators including a "scheduling clerk," an "intake clerk," and a "managed care coordinator." 
Another organizational chart provided on appeal and relevant to the Petitioner's organization 
reflected that the Beneficiary would be supervised by a "Director OF PT & OT Services"; similarly, 
the Petitioner stated in its request for evidence (RFE) response that the Beneficiary would directly 
report "to the Director of PT Services who reports directly to the CEO." Meanwhile, another 
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Matter of U-C- Inc. 
organizational chart submitted in response to the RFE showed that the Beneficiary would be 
overseen by a "senior physical therapist" who reports directly to an individual other than the 
Petitioner's CEO. Therefore, the Petitioner has provided conflicting evidence regarding the 
Beneficiary's supervision. Further, the Petitioner does not indicate how and in what form the 
Beneficiary would be supervised while providing home physical therapy services at patient homes or 
other facilities, and while coordinating with third party patient care providers. Absent supporting 
evidence, the Petitioner has not substantiated that the Beneficiary is likely to be supervised on a 
daily basis by employees of the Petitioner. 
In addition, the Petitioner provides further conflicting evidence that leaves question as to whether it 
actually controls the Beneficiary's work on a daily basis. As previously noted, the Petitioner 
provided purchase order documents and evidence of payments relevant to U-0-H-C-S- originating 
from other healthcare service providers. Other documentation in the record, including the 
Petitioner's marketing material and employment agreement with the Beneficiary, indicates that the 
Beneficiary's position as a "travel therapist" would require him to travel to various healthcare 
facilities for weeks at a time. Overall, this documentation indicates that the Beneficiary would likely 
be placed at patient locations through various third party providers, rather than being directly 
assigned to patients' homes through U-0-H-C-S-. However, as discussed, the Petitioner does not 
explain the nature of these relatipnships, or the matter of interaction the Beneficiary would have with 
these entities in the course of performing his duties. 
In addition, the Petitioner provides substantial evidence suggesting that its physical therapists act as 
independent contractors, leaving question as to whether they would be considered employees of the 
Petitioner. For instance, the 2015 IRS Forms 1120S, U.S. Income Tax Return for an S Corporation, 
for both the Petitioner, and its commonly owned affiliate U-0-H-C-S-, reflect that neither paid any 
wages and salaries during that fiscal year, despite both earning substantial revenues. Instead, both 
companies' 2015 IRS Forms 1120S show an "Other Deductions" line item indicating that the 
Petitioner and U-0-H-C-S- incurred substantial expenses in payments to "leased employees." In the 
case of the Petitioner, its payments to "leased employee[ s ]" amounted to $2,406,666, and in the case 
of U-0-H-C-S- (the Petitioner's affiliate to which the Beneficiary would purportedly be assigned), 
payments to "leased employees" amounted to $509,328. The Petitioner and U-0-H-C-S­
designating their assigned medical professionals as "leased employees" in its tax documentation 
leaves serious question as to whether they can be considered employees of these entities. 
We again refer to the marketing documentation provided by the Petitioner. These documents 
describe the Petitioner's staffing services, and stress to prospective candidates the independence of 
its physical therapists. In particular, the Petitioner's "travel program" (consisting of short-term 
placements of 13 weeks or 26 weeks to "travel clients") is described as offering "unparalleled 
freedom and flexibility." The Petitioner's brochure describes the company as also offering a "per 
diem/local contracts program" and a "permanent placement program" for placements at "the tinest 
facilities in the country." These other programs also stress workers' independence of the Petitioner's 
control. For instance, the "per diem/local contracts program" is described as having "the best pool 
of specialized nurses and allied healthcare workers" which allows workers to "work at [their] own 
pace," "select [their] shift," and "choose where [they] would like to work." This language strongly 
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Matter of U-C- Inc. 
suggests that the physical therapists the Petitioner engages - particularly the traveling physical 
therapists - act mostly independent of the Petitioner's managerial control and is consistent with the 
Petitioner's documented treatment of its staff as independent contractors. The Petitioner must 
resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Finally, we point to language in the Petitioner's staffing agreement with U-G-H-C-S- that is 
concerning. More specifically, the staffing agreement specifies that the client, U-G-H-C-S-, shall 
provide "appropriate supervision" of the Petitioner's physical therapists. U-G-H-C-S- will also be 
responsible for such duties as assigning a preceptor to the Petitioner's physical therapists, providing 
orientation, and providing the Petitioner "with a weekly schedule of actual hours worked by [the 
Petitioner's physical therapists]." Elsewhere, the staffing agreement indicates that the Petitioner's 
"direct responsibilities" over its physical therapists would mainly consist of such duties as recruiting, 
transporting, and paying their salaries. 
In sum, the evidence indicates that the Beneficiary would more likely than not be assigned to act 
independently at patient locations. While payroll, tax withholdings, and other employment benefits 
are relevant factors in determining who will control the Beneficiary, other aspects 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 for H-1B purposes. Here, we find that 
the preponderance of the evidence demonstrates that the Beneficiary would not be primarily under 
the control of the Petitioner. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.P.R.§ 214.2(h)(4)(ii). 
III. CONCLUSION 
The record does not establish that there would be sufficient specialty occupation work available for 
the Beneficiary for the entire requested period of employment or that the Petitioner would have an 
employer-employee relationship with the Beneficiary. ' 
ORDER: The appeal is dismissed. 
Cite as Matter of U-C- Inc., ID# 384311 (AAO Aug. 31, 20 17) 
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