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 staffing company, seeks to temporarily employ the Beneficiary as a 
"physical therapist" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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 ofhighly specializedknowledge 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 of 
record did not establish that: (1) the Petitioner· would maintain the requisite employer-employee 
relationship with the Beneficiary; and (2) 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 
We will first discuss whether the proffered position qualifies as a specialty occupation. 
A. Legal Framework 
Section 2 i 4(i)(l) of the Act, 8 U .S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equiva:lent) as a minimum for entry into the occupation in the United States. 
Matter of U-C- Inc. 
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: 
(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_ff, 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 3 84, 3 87 (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 described the Beneficiary's 
duties as follows: 
1. Evaluate patient's needs and determine medical care required - 20% 
• Meet the patient's needs by determining physical therapy treatment plans in 
consultation with physicians or by prescription. 
• Prevent, monitor and treat the development of impairments, functional 
limitations, or disabilities that may result from diseases, disorders, conditions, 
or mJunes. 
2. Implement patient care - 30% 
• Create treatment plan and treat patient through the use of therapeutic devices 
and by administering manual exercises. 
2 
Matter of U-C- Inc. 
• Use equipment and devices to teach patients to properly use exercise 
techniques. 
• Maintain patients' records, keeping track of goals and progress. 
• Ensure operation of equipment by completing preventative maintenance 
requirements, following manufacturer's instructions, and troubleshooting 
malfunctions. 
3. Instruct and guide patient's mobility and independence- 30% 
• Instruct, encourage, and assist patients in performing physical activities, such 
as non-manual exercises, ambulatory functional activities, and daily-living 
activities. 
• Guide patients in using assistive and supportive devices, such as crutches, 
canes, and prostheses. 
• Restore, maintain, and promote not only optimal physical function but optimal 
wellness and fitness and optimal quality of life as it relates to movement and 
health. 
• Diagnose and manage movement dysfunction and enhance physical and 
functional abilities. 
4. Ensure patient success after discharge 
• Determine discharge plan by consulting with physicians, nurses, social 
workers, and other healthcare workers and contributing to patient care 
conferences. 
• Assure continuation of therapeutic plan following discharge by designing 
home exercise programs; instructing patients, families, and caregivers in home 
exercise programs; recommending and/or providing assistive equipment; 
recommending outpatient or home health follow-up programs. 
On appeal, the Petitioner emphasizes that all physical therapist positions reqmre an "advanced 
degree." 
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, 
1 
The Pet'itioner 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. · 
3 
.
Matter of U-C- Inc. 
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. Id. 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. Therefore, the Petitioner has not sufficiently documented the 
Beneficiary's proposed specialty occupation work for the entire requested period. 
For the above reasons, 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 )(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'l Comm'r 1978).2 
2 The agency made clear long ago that speculative employment is ·not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
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) ofthe 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 arequest 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 
4 
Matter of U-C- Inc. 
' 
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 will now address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, s4pervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B 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)( 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). 
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). 
5 
Matter of U-C- Inc. 
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
lB visa classification. Section 101(a)(l5)(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)(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 "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-1B 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 the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service nor USCIS has defined the tem1s 
"employee" or "employer-employee relationship" by regulation for purposes of the H-1 B visa 
classification, even though the regulation describes H-1 B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." ld Therefore, tor 
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 Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non- Violence v. Reid, 490 U.S. 730 
(1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254, 258 (1968)). 
Matter of U-C- Inc. 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. Hl2358 (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 detinition.3 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-IB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cl 
Darden, 503 U.S. at 318-19. 
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) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).5 
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 ofa statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron. U.S.A .. Inc. v. Natural 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 Citi::.ens 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 
Matter of U-C- Inc. 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1 B nonimmigrant petitions, 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 State.s 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 
said test was based on the Darden decision); Defensor, 201 F.3d at 388 (determining that hospitals, as 
the recipients of beneficiaries' services, are the "true employers" of H-1B 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 ofthe incidents of the relationship ... with no 
one factor being decisive."' ld. at 451 (quoting Darden, 503 U.S. at 324). 
transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
8 
Matter of U-C- Inc. 
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-1 B 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 an organizational chart 
reflecting that the Beneficiary would be supervised by a "Director OF PT & OT Services," but it 
otherwise provides little detail or documentation to substantiate the nature of her supervision on a 
daily basis. 6 The Petitioner does not indicate how and in what form the Beneficiary would be 
supervised while providing physical therapy services at patient homes, or elsewhere. There is no 
discussion in the duties indicating the Beneficiary's coordination with the Petitioner. Absent 
supporting evidence, the Petitioner has not substantiated that the Beneficiary would likely be 
supervised on a daily basis by employees of the Petitioner. The Petitioner must support its assertions 
with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Further, the Petitioner provides conflicting evidence that leaves question as to whether it actually 
controls the Beneficiary's work on a daily basis. The Petitioner provided purchase order documents 
and evidence of payments relevant to U-G-H-C-S- originating from healthcare service providers. 
This documentation indicates that the Beneficiary would be placed at patient locations through these 
patient healthcare providers. However, the Petitioner does not explain the nature of these 
relationships, or the matter of interaction the Beneficiary would have with these entities in the course 
of her duties. There is no discussion in the duties indicating the Beneficiary's coordination with the 
Petitioner. 
In addition, the Petitioner provides 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-G-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-G-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 ofU-G-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-G-H-C-S- designating their 
6 The Petitioner also provided the organizational chart for U-G-H-C-S- depicting physical therapists as directly repmting 
to a "scheduling clerk." 
9 
Matter~~ U-C- Inc. 
assigned medical professionals as "leased employees" in its tax documentation leaves senous 
question as to whether they can be considered employees of these entities. 
Moreover, on the certified LCA, the Petitioner listed its North American Industry Classification 
System (NAICS) code as 561310, corresponding to the 2002 NAICS code for "Employment Placement 
Agencies."7 This NAICS code is for "establishments primarily engaged in listing employment 
vacancies and in referring or placing applicants for employment. These individuals referred or placed 
are not employees qfthe employment agencies (emphasis added)."8 Even the Petitioner's "company 
profile" describes its staff as consisting of, inter alia, "7 Independent Contractor Physical 
Therapists." 
Further, marketing documentation provided by the Petitioner related to its staffing services stresses 
to prospective candidates the independence of its physical therapists. For instance, the Petitioner's 
brochure describes the company as providing "staffing services" through a "per diem/local contracts 
program," a "travel program" and a "permanent placement program" for placements at "the finest 
facilities in the country." The "per diem/local contracts program" is described as having "the best 
pool of specialized nurses and allied healthcare workers" and the Petitioner states that it provides the 
job opportunity, while candidates "work at [their] own pace," "select [their] shift," and "choose 
where [they] would like to work." For the "travel program" which offers short-term placements (13 
or 26 weeks) to "travel clients," the Petitioner states that candidates have "unparalleled freedom and 
flexibility." This language strongly suggests that the physical therapists the Petitioner engages act 
mostly independent of its 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 qf Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
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. Here, we tind that the preponderance of 
the evidence demonstrates that the Beneficiary would not be primarily under the control of the 
Petitioner. 
7 U.S. Census Bureau, North American Industry Classification System, https://www.census.gov/cgi-bin/sssd/naics/ 
naicsrch?code=56131 O&search=2002 NAICS Search (last visited Aug. 30, 20 17). We note that 561310 is not a valid 2017, 
2012, or 2007 NAICS code. 
8 /d. 
10 
Matter of U-C- Inc. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii). The Director's decision must be affirmed and the petition 
denied on this basis. 
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# 459056 (AAO Aug. 31, 20 17) 
II