dismissed H-1B Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-E-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a healthcare staffing service, 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. § 110l(a)(l5)(H)(i)(b). The H-1 B 
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. 
I 
The Director, Vermont Service Center, denied the petitiOn. The Director concluded that the 
Petitioner did not demonstrate that (1) the Petitioner would employ the Beneficiary in a specialty 
occupation; (2) a valid employer-employee relationship would exist between the Petitioner and the 
Beneficiary; and (3) the Beneficiary is qualified for the proffered position. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will work as a physical therapist and 
submitted a job description. On the labor condition application (LCA)1 submitted in support of the H-
1B petition, the Petitioner designated the proffered position under the occupational category 
"Physical Therapists" corresponding to the Standard Occupational Classification code 29-1123.2 
1 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
2 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
(b)(6)
Matter ofG-E-, LLC 
Although the Petitioner is located in Pennsylvania, it stated in the H-1 B petition that the Beneficiary 
would perform her duties in Florida, for customers and clients (end-users) of 
(client). 3 
II. EMPLOYER-EMPLOYEE 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, m pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is corning temporkrily 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 [ofLabor] 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 re .~pect to employees 
under thzs part, as indicated by the fact that it may hire, pay, fir e. 
supervise, or otherwise control the work of any such employee; and 
. (3) Has an Internal Revenue Service Tax identification number. 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited , if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accurac y; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor , Emp't & Training Admin ., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Program s (rev. Nov . 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _ I 
I_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience , education, and skill 
requirements ofthe Petitioner 's job opportunity. /d. , 
3 While the agreement between the Petitioner and its client references work performed at both the Petitioner 's "own site" 
as well as the sites of end-users , the Director determined that the Petitioner 's "own site" is actually a residential address. 
As the record contains no evidence that the Petitioner operates any facilities of its own, we will assume that all of the 
Beneficiary's work would take place at the sites of the end-users. 
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Matter ofG-E-, LLC 
(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 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 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)(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-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S.C. § 1182(n)(1)(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-IB 
temporary "employees." 8 C.F.R. § 214.2(h)(1), (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 (INS) nor U.S. Citizenship and Immigration 
Services (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 -1 B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. 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." 
ld.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
3 
Matter ofG-E-, LLC 
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)). 
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. 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.4 
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-1 B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1 B 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. Gf 
Darden, 503 U.S. at318-19. 5 
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 
4 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)(l5)(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 
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). 
5 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)). 
4 
Matter ofG-E-, LLC 
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).6 
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"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 ofthe 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 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 -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, 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 
323-24. 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. 
6 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 know'ledge ); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
5 
Matter ofG-E-, LLC 
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."' Jd. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we' find that 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." 
First, we observe that the Professional Services Temporary Staffing Agreement (staffing agreement) 
executed between the Petitioner and the client calls for the Petitioner to provide workers such as the 
Beneficiary to perform services for the client's customers - the actual end-users of her services -
pursuant to staffing confirmation sheets executed in accordance with the staffing agreement. However, 
as noted by the Director in her decision, the record lacks a staffing confinnation sheet executed on 
behalf of the Beneficiary. In other words, there is no evidence of any binding obligation on the part of 
the Petitioner, its client, or any of the end-users to provide any work for the Beneficiary. Absent that 
foundational showing - that there is actually work for the Beneficiary to perform - we are unable to 
determine whether such work would entail the Petitioner engaging in an employer-employee 
relationship with the Beneficiary. 
However, even if we set that issue aside we still would find insufficient evidence of an employer­
employee relationship. Even if the Petitioner has work for the Beneficiary and would assign the 
Beneficiary to work for another company at a remote location as claimed, we would find that the terms 
of that employment had not been demonstrated. 
As noted, the Petitioner, in Pennsylvania, would assign the Beneficiary to a company in Florida, 
which would assign her elsewhere, either to an end-user or another intermediary employer. While 
the Petitioner's statement that it would "directly supervise" the Beneficiary is noted, the record 
contains no indication that the Petitioner would assign a supervisor to accompany the Beneficiary to 
Florida, or to wherever else she may work. To the contrary, it appears as though an employee of 
another entity, either the client or a subsequent end-user, would exercise primary supervision of the 
Beneficiary, assigning her work and directly monitoring the quality of her performance. Assigning 
duties and monitoring performance is central to an employer-employee relationship. 
' 
In considering the employer-employee relationship issue, we must consider the Petitioner's Le~el I 
wage designation in the LCA. Again, in designating a Level I wage the Petitioner effectively 
attested to the U.S. Department of Labor (DOL) that the Beneficiary would perform routine tasks 
that require limited, if any, exercise of judgment, that she would be closely supervised and her work 
closely monitored and reviewed for accuracy, and that she would receive specific instructions on 
required tasks and expected results. The DOL guidance referenced above also states that an 
6 
Matter ofG-E-, LLC 
employer should consider a Level l wage designation when the job offer is for a research fellow, a 
worker in training, or an internship. 
The Petitioner, therefore, has claimed that the Beneficiary would be "closely supervised" and her 
work "closely monitored," and that she would "receive specific instructions" as she performs routine 
tasks that "require limited, if any, exercise of judgment." While it is not clear who would closely 
supervise, closely monitor, and specifically instruct the Beneficiary, it appears that the Petitioner 
would not, given: (1) its physical distance from the Beneficiary; (2) the lack of any indication that it 
would send a supervisor to Florida to perform those functions; and (3) the lack of any meaningful 
information as to how it would evaluate the Beneficiary's job performance from afar. 
A petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden ofproof. See }vfatter ofSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Cra.ft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); sel also Matter of 
Chawathe, 25 I&N De~. 369, 376 (AAO 2010). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. Merely 
claiming in its letters that the Petitioner exercises complete control over the Beneficiary, without 
evidence supporting the claim, does not establish eligibility in this matter. 
The Petitioner has not demonstrated that, if the H-1 B petition were approved, the Petitioner would 
exercise an employer-employee relationship with the Beneficiary. We find that the evidence is 
insufficient to establish, therefore, that the Petitioner qualifies as a United States employer, as 
defined by 8 C.F.R. § 214.2(h)(4)(ii). 
III. 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 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.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 pro±Iered 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; 
7 
Matter ofG-E-. LLC 
(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 nonrially 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.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Sia'!l 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 384, 387 (5th Cir. 2000). 
B. Analysis 
-
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 7 
First, the location at which the Beneficiary will work has not been made clear. The Petitioner has 
provided documentation declaring that the Beneficiary will work exclusively at the location of the 
Petitioner's client, as well as documentation declaring that she will not work at that location at all. 
The Petitioner has also submitted evidence indicating that the Beneficiary may work both at the 
client's location as well as at other end-user locations. "[l]t is incumbent upon the petitioner to 
resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 J&N Dec. 582, 
591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
"Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition." 1\fatter 
of Ho, 191&N Dec. 582, 591 (BIA 1988). 
7 
The Petitioner submitted documentation to support 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. 
8 
Matter ofG-E-, LLC 
More importantly, however, is the fact that the Petitioner has not established the substantive nature 
of the position. While the Petitioner refers to its client as the "end-client," the evidence of record 
makes clear that the actual end-users of the Beneficiary's services would actually be customers of 
the Petitioner's client (again, to whom we are referring as the "end-users"). The record, however, 
contains no documentation from any end-users setting forth the position's duties, requirements, or 
location. 
As recognized by the court in Defensor v. A1eissner, 201 F. 3d 384, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. 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 a beneficiary's services. 
Such evidence must be sufficiently detailed and explained as to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. The record of proceedings does not reliably identify the actual end-user of the 
Beneficiary's services and, as such, lacks such substantive evidence from the end-user or end-users 
that would generate work for the Beneficiary and whose business needs would ultimately determine 
what the Beneficiary would actually do on a day-to-day basis. In short, as noted by the Director, the 
Petitioner has not established the substantive nature of the work, if any, that the Beneficiary would 
perform pursuant to her assignment and her subsequent reassignments. 
The wage-level designated by the Petitioner on the LCA raises further questions regarding the 
accuracy and reliability of the record's description of the proffered position and its constituent 
duties. As noted, in designating the proffered position at a Level [ wage rate, the Petitioner indicated 
that the proffered position is a comparatively low, entry-level position relative to others within the 
occupation and indicates: (1) that the Beneficiary will be expected to perform routine tasks that 
require limited, if any, exercise of judgment; (2) that she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions on 
required tasks and expected results. 
However, much of the Petitioner's evidence and assertions conflict with that wage-level designation. 
For example, the record indicates that the Beneficiary would work independently and exercise wide 
latitude over her work. However, this degree of independence raises questions as to whether the 
proffered position is in fact a Level I, entry-level position as claimed, and in any event calls into 
question the reliability of the Petitioner's job description. 8 For this additional reason, we find the 
Petitioner's description of the job duties inadequate, and that the substantive nature of the duties of 
the proffered position have not been described with sufficient clarity and detail. 
8 
It also raises questions as to whether the LCA corresponds to and supports the H-1 B petition. However, because the 
H-1 B petition is not otherwise approvable, we will not explore that issue at this time. 
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Matter ~fG-E-, LLC 
Finally, we note the speculative nature of the Petitioner's offer of employment. While the Petitioner 
requested a three-year period of H-1B approval on behalf of the Beneficiary, neither the Petitioner, 
its client, nor any end-users appear to have procured any non-speculative work for the Beneficiary to 
perform. Moreover, the staffing agreement executed betvveen the Petitioner and its client appears to 
have no binding effect absent an executed assignment confirmation (similar to a purchase order or 
statement of work), which the current record does not contain.9 When coupled with the lack of 
clarity with regard to where, and for whom, the Beneficiary would perform her duties, this lack of 
certainty indicates strongly that this is a speculative offer of employment. However, USCIS 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-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 \vhether 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 
\vhether the alien has the appropriate degree for the occupation. In the case of 
speculative employment, the Sen,ice 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). That the offer of employment appears 
speculative raises further questions regarding the substantive nature of the work to be performed by 
the Beneficiary. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
9 
The Petitioner states on appeal that an assignment confirmation sheet cannot be completed until the petition is 
approved. 
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Matter ofG-E-, LLC 
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. 
The Petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed on this basis. 
IV. BENEFICIARY QUALIFICATIONS 
The remaining issue raised in the decision of denial is whether the Petitioner has demonstrated that 
the Beneficiary is qualified for the proffered position. More concretely, the question raised below is 
whether the Petitioner has demonstrated that the Beneficiary would be granted a license to practice 
physical therapy in Florida. 
Because the previous two issues each constitute a sufficient basis for dismissing the instant appeal, 
we are not obliged to discuss this third basis in depth. However, we find that the evidence submitted 
pertinent to that point was insufficient. In any further proceedings, the Petitioner should provide 
evidence sufficient to show that (1) the Beneficiary has filed an application for a license in 
accordance with state or local rules and procedures; (2) cannot obtain a full unrestricted license in 
the state in which he/she will practice due to the requirement for possession of a social security card, 
valid immigration document, and/or physical presence in the United States (although the Petitioner 
might provide other evidence to satisfy this requirement, it \Vould typically be satisfied by a letter 
from the State Board in charge of licensure), and (3) is otherwise eligible to practice physical 
therapy in Florida. 
V. LOCATION OF EMPLOYMENT 
Because the appeal is to be dismissed on the bases detailed above, we need not fully address other 
issues evident in the record. That said, we wish to identify an additional issue to inform the 
Petitioner that this matter should be addressed in any future proceedings. 10 Specifically, the 
evidence of record does not demonstrate that the Beneficiary would be employed only in areas for 
which the labor condition application provided is certified. 
A. Legal Framework 
The regulation at 8 C.P.R.§ 214.2(h)(4)(i)(B)(l) stipulates the following: 
10 
In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
II 
(b)(6)
Matter ofG-E- , LLC 
Before filing a petition for H-1 B classification in a specialty occupation, the 
petitioner shall obtain a certification from the Department of Labor that it has tiled a 
labor condition application in the occupational specialty in which the alien(s) will be 
employed. 
While the DOL is the agency that certifies LCAs before they are submitted to USCIS, the DOL 
regulations note that it is within the discretion of the U.S. Department of Homeland Security (DHS) 
(i.e., its immigration benefits branch, USCIS) to determine whether the content of an LCA filed for a 
particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in 
pertinent part: 
For H-1B visas .. . DHS accepts the employer's petition (DHS Form l-129) with the 
DOL certified LCA attached. In doing so. the DHS determines whether the petition is 
supported by an LCA which correspond<; with the petition , whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1 B ·visa classification .... 
(Emphasis added.) 
B. Analysis 
The record suggests that the Petitioner's client would assign the Beneficiary to other intermediary 
employers or to its own clients to perform physical therapy services for them. The Petitioner 
initially asserted that the Beneficiary would provide those services at the client's 
Florida address. Subsequently, the Petitioner asserted that none of the services would be performed 
at that location, but that the provision of those services would be geographically limited to the 
area or to However, the employment offer letter the Petitioner sent to the 
Beneficiary does not geographically limit the area in which the Beneficiary might work, nor does the 
subsequent employment agreement. 
Further, the Petitioner provided contracts between the client and other 
health care companies , stating 
the terms pursuant to which the client might assign workers to provide health care services to those 
other companies ' clients , possibly through another intermediary company. None of those contracts 
indicates that the provision of services would be geographically limited to the area or to 
In fact, one makes clear that it is a contract for the provision of services in "All 
Florida Counties." Others contain a schedule of prices for providing services to ten Florida counties. 
The Petitioner has not demonstrated that, if the H-1 B petition were approved , the Beneficiary would 
work exclusively in the area for which the LCA is certified. The LCA provided does not, therefore , 
correspond to the H-1 B petition . This constitutes another reason that the H-1 B petition cannot 
presently be approved. 
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Matter ofG-E-, LLC 
VI. 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 o.fOtiende, 26 I&N Dec. 127,128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fG-E-, LLC, ID# 19610 (AAO Dec. 29, 2016) 
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