dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8660281 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 27, 2020 
The Petitioner, a software development and consulting services business, seeks to temporarily employ 
the Beneficiary as a "software packaging engineer" 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. § 1101(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 California Service Center denied the petition on two separate grounds, concluding 
that the Petitioner did not establish that: (1) it will maintain an employer-employee relationship with 
the Beneficiary; and (2) the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. THE PROFFERED POSITION 
The Petitioner, which is located in Texas, stated that the Beneficiary will perform his duties at an 
offsite location also in Texas tori I (end-client). The path of contractual succession 
for the offsite work flows from the Petitioner to the mid-vendor, from the mid-vendor to the managed 
service provider (MSP), and concludes with the end-client. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to ti le for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association 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.) 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully 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)); Clackamas Gastroenterology Assocs., P.C. v. 
Wells, 538 U.S. 440, 444-45 (2003) (quoting Darden). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services (USCIS) will apply common law agency principles which focus on the 
touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; 
the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's 
discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and 
paying assistants; whether the work is part of the petitioner's regular business; the provision of employee 
benefits; and the tax treatment of the beneficiary. 1 Darden, 503 U.S. at 324; Clackamas, U.S. 538 U.S. 
at 449. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that even though 
a medical staffing agency was the petitioner, the hospitals receiving the beneficiaiies' services were the 
"true employers" because they ultimately hired, paid, fired, supervised, or otherwise controlled the work 
of the H-1B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one 
factor being decisive. 
B. Analysis 
Upon application of the common law tests articulated in Darden and Clackamas, we conclude 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-lB temporary "employee." Specifically, we conclude that 
1 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. 
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the Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant 
aspects of the Beneficiary's employment. Therefore, the key element in this matter, which is who 
exercises control over the Beneficiary, has not been substantiated. 
Throughout the proceedings, the Petitioner has maintained that it will employ the Beneficiary and 
exercise control over its right to hire, fire, remunerate, supervise, and otherwise control his work. The 
Petitioner further claims it will perform numerous administrative functions pertaining to the 
Beneficiary's employment. We acknowledge that social security, worker's compensation, and 
unemployment insurance contributions, federal and state income tax withholdings, and the provision 
of other employment benefits are relevant factors in determining who will control a 
beneficiary. However, we must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we also consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools to perform that work, where the work will be 
located, and who has the right or ability to affect the projects to which a beneficiary is assigned, among 
other factors. A petitioner must sufficiently address all of the relevant factors to enable us to evaluate 
whether the requisite employer-employee relationship will exist between a petitioner and a 
beneficiary. 
1. Conflicts Between the Petitioner's Claims and the Contractual Material 
Although the Petitioner claims it wi 11 control the Beneficiary while he works offsite, several provisions 
of the contracts submitted by the Petitioner indicate otherwise. First, the Petitioner's Subcontractor 
Agreement with the mid-vendor states that it "wishes to retain the [Petitioner] for the purpose of 
providing temporary personnel to work sites of Client." The same Subcontractor Agreement, at article 
8.03, states that the mid-vendor or the end-client could hire the Petitioner's personnel at any time, and 
it states that the Petitioner "agrees that the Client may hire said Employee and/or consultant." 
Then, item 4, section e, of the Supplier Agreement executed between the mid-vendor and the MSP 
specifically states the following: 
Work Product. [The end-client] shall designate the specific services to be provided 
by Contract Workers and shall direct and oversee the performance of such Contract 
Workers while on assignment with [the end-client]. In no event shall [the Petitioner] 
be responsible for or have ownership over any Work Product produced by or associated 
with any Contract Worker, or the outcomes thereof. [The Petitioner] acknowledges 
and agrees that [the end-client] shall have exclusive, unlimited ownership rights to all 
results of any contract services performed by Contract Workers under this Agreement 
Further, item 5 references the "nature of services provided; supplier warranties" and specifically states 
the following: 
(a) [The Petitioner] is providing temporary staffing services to [the end-client], with 
such services provided by Contract Workers under [the end-client's] management and 
supervision at a facility or in an environment controlled by [the end-client.] 
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(e) [The Petitioner] represents and warrants that the services provided by [the 
Petitioner] and its Contract Workers shall be performed in accordance with this 
Agreement. 
These factors indicate that the Petitioner will partially relinquish a certain level of control over its 
personnel to both the MSP and the end-client who would in fact exercise a great deal of control over 
the Beneficiary's employment. This is not indicative of an employer-employee relationship and the 
contractual documents described above do not support the Petitioner's claims of control. 
2. Supervision and Performance Review Process 
The Petitioner stated that the Beneficiary will be supervised b~ , I president of the 
Petitioner, by telephone or other means at least once a week and that he will review his 
progress/performance regularly based on his work product. However, none of the parties involved 
sufficiently describe the execution of its performance review process. For example, the Petitioner did 
not explain how often it conducts reviews or specifically describe how the reviews would take place. 
Nor did it explain the extent of the end-client's involvement in the review process. Moreover, it is not 
clear how the president of the Petitioner can supervise the Beneficiary on a weekly basis regarding his 
work at the end-client and run the company. 
The Petitioner did not expand upon this description in the RFE response or on appeal. Here, the 
Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, detailing the 
manner in which it, as the Beneficiary's supervisor, actually oversees, directs, and otherwise controls 
the off-site work of the Beneficiary. The letter from the end-client claims that the Petitioner will 
control the work of the Beneficiary; however, the Petitioner did not submit sufficient documentation 
regarding how it will control the Beneficiary's work and will administer the work assignments to the 
Beneficiary in the proffered position. Therefore, the Petitioner has not explained how it will actively 
monitor the Beneficiary's work or performance, which is not indicative of an employer-employee 
relationship, and actually weighs against the Petitioner's claims of control. 
3. Position/Project Assignment 
In its letter, the end-client briefl] stated that the Beneficiary "is working as a Software Packaging 
Engineer with I on the project of Windows 10 Desktop Software." However, the 
record does not contain any information regarding the project upon which the Beneficiary would work 
for the end-client, at the end-client's office, and on the end-client's own systems. There is even less 
information regarding any ongoing role for the Petitioner on that project. If the Petitioner has little to 
no role to play on the project, then it is unclear how it could direct the Beneficiary's day-to-day duties 
as they relate to this project. To the contrary, the Petitioner's role appears limited to the provision of 
the Beneficiary's services with little room for actual direction of his activities. 
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4. Summary 
The record does indicate that the Petitioner would handle the administrative and personnel functions 
related to keeping the Beneficiary on its payroll. However, our review of this 
H-1B petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer 
in the common law sense, but that it would instead act as a supplier of personnel to temporarily 
supplement the staff of organizations, such as the end-client, who would control the content, means, 
and methods of those individuals' work. In this regard, we observe that it appears that not only would 
the end-client determine and assign the Beneficiary's day-to-day work, but that it would also control 
the Beneficiary's access to the systems without which his work could not be done. 
The Petitioner has not demonstrated that it supervises and controls the Beneficiary and his work. The 
evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States employer, 
as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary is the 
Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without sufficient, 
corroborating evidence to support the claim, does not establish eligibility in this matter. Based on the 
tests outlined above, the Petitioner has not established that it will be a "United States employer" having 
an "employer-employee relationship" with the Beneficiary as an H-1 B temporary "employee." 8 
C.F.R. § 214.2(h)(4)(ii). 
Ill. SPECIALTY OCCUPATION 
The next issue before us is whether the evidence of record demonstrates that the Petitioner will employ 
the Beneficiary in a specialty occupation position. 
A. Legal Framework 
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.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 
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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 construe 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. Chertoff, 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). 
As recognized by the court in Defensor, 201 F.3d at 387-88, 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 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. 
B. 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: (1) describe the proffered position in sufficient 
detail; and (2) establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 2 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. Here, the record 
of proceedings does not provide sufficient information from the end-client regarding the specific job 
duties to be performed by the Beneficiary. 
The Petitioner submitted a letter from the end-client confirming that the Beneficiary will be working 
for them as a software packaging engineer. The letter, however, describes the Beneficiary's job duties 
in brief, generalized terms that fail to convey the substantive nature of the proffered position and its 
constituent duties. For example, the end-client's letter stated that the Beneficiary would perform 
duties such as, reviewing and approving the modification of existing databases and database 
2 The Petitioner submitted documentation in support of the H-1B 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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management systems; instructing staff to write and code logical and physical database descriptions; 
directing database development and approving project scope and limitation period; reviewing project 
requests describing database user needs; planning, coordinating, and implementing security measures 
to safeguard information in computer files; responding to the needs and questions of users; developing 
and adhering to network standards; providing planning and technical support for company 
installations; providing assistance to other support groups; and working independently with users to 
define concepts and under the direction of project managers. This list of duties provided by the end­
client does not contain a detailed description explaining what particular tasks the Beneficiary will 
perform on a day-to-day basis for the end-client's project. 
While the Petitioner submits additional information pertaining to the Beneficiary's proffered duties, 
the record does not contain a more detailed description from the end-client explaining what particular 
duties the Beneficiary will perform on a day-to-day basis for their project. Nor is there a detailed 
explanation regarding the demands, level of responsibilities, complexity, or requirements necessary 
for the performance of these duties (e.g., an explanation of what specific systems and applications are 
involved) from the end-client. In addition, while the record indicates that the Beneficiary will work 
on a project for the end-client, it does not specifically describe the project or explain the specific role 
of the Beneficiary for this project. 
As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform. This precludes a finding that the proffered position satisfies 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 one; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. Therefore, we cannot conclude 
that the proffered position qualifies for classification as a specialty occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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