dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6641222 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer 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, concluding that the evidence of 
record does not establish that: (I) the Petitioner will have an employer -employee relationship with 
the Beneficiary; and (2) the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec . 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the evidence of record establishes that the proffered position qualifies 
as a 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 proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) 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 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). 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the actual work that the Beneficiary will perform for the end-client. 1 
As recognized in Defensor, 201 F.3d at 387-388, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the employees in that case would provide services to the end-client and not to the petitioning staffing 
company, the job duties and alleged requirements to perform the duties that the Petitioner provided 
were irrelevant to a specialty occupation determination. See id. 
Here, the Petitioner asserts that the Beneficiary will be employed offsite at an end-client's location. 
The record of proceedings, however, is devoid of information from the end-client regarding the nature 
of the Beneficiary's proposed position and the duties associated therewith. While the record contains 
1 The Petitioner submitted documentation in support of the H-IB 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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job descriptions from the Petitioner and the vendor, there is no evidence in the record from the end­
client to corroborate the claimed duties and scope of the Beneficiary's assignment. 
The Petitioner also provided a Master Subcontracting Services Agreement and work order between 
itself and the vendor. In addition, the Petitioner submitted several statement of works between the 
vendor and the end-client. However, the documents do not contain sufficient evidence outlining the 
nature of the Beneficiary's proposed assignment on the end-client's premises for the requested validity 
period. For instance, the agreements do not mention the Beneficiary's name, job title, or duties. 2 
Furthermore, the Petitioner has not provided information from the end-client outlining the company's 
educational requirements. The record, therefore, also lacks documentation or information about the 
end-client's educational requirements for the position and whether such educational requirements 
would match the Petitioner's requirements and qualify for a specialty occupation and meet the wage 
level specified on the labor condition application. Consistent with Defensor, where the work is to be 
performed for entities other than the Petitioner, evidence of the client companies' job requirements is 
critical. However, the record of proceedings does not contain such evidence. 
Without documents from the end-client that sufficiently provide pertinent information such as the 
Beneficiary's assigned project and detailed duties to demonstrate what he will actually do on a day­
to-day basis, we cannot determine the substantive nature of the proffered position. As the Petitioner 
has not established the substantive nature of the work to be performed by the Beneficiary, this 
precludes a conclusion 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 1; 
(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 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will now briefly address the issue of whether the Petitioner qualifies as an H-1 B employer. 
A. Legal Framework 
A petitioner seeking to file 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 
2 We note that while the work order between the Petitioner and the vendor mentions the Beneficiary, the end-client, and 
the proffered position, it was executed in October 2018 (approximately six months after the H-1 B petition was submitted). 
The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible 
for the benefit through adjudication. 8 C.F.R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 
249 (Reg'l Comm'r 1978). 
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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: 
(]) 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-lB 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. 3 Darden, 503 U.S. at 324; 
Clackamas, U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (even though a medical staffing 
agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" 
because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-lB 
beneficiaries). We will assess and weigh all of the factors 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-1 B temporary "employee." Specifically, we find that the 
Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant 
3 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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aspects of the Beneficiary's employment. Therefore, the key element in this matter, which is who 
exercises supervision and control over the Beneficiary, has not been substantiated. 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability 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. Social security, worker's compensation, and unemployment insurance contributions, as 
well as federal and state income tax withholdings, as well as the provision of other employment 
benefits, are relevant factors in determining who will control a beneficiary. While such factors might 
appear to satisfy a cursory review that a petitioning entity could be an individual's employer, these 
elements are not necessarily sufficient to provide a full appraisal of the relationship between the 
parties. We must also assess and weigh other factors to determine who will be a beneficiary's 
employer. For example, we consider who will oversee and direct a beneficiary's work, who will 
provide the instrumentalities and tools, where the work will be located, and who has the right or ability 
to affect the projects to which a beneficiary will be 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. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. For example, while all three actors appear to claim that the Beneficiary would 
be employed by the Petitioner, and the Petitioner does appear to retain the right to hire, fire, supervise, 
or otherwise control the Beneficiary's work, it does not explain the actual manner in which the 
Petitioner provides such instructions and oversight. 
For example, the record contains little information regarding the actual 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 feasibly 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. 
Moreover, none of the letters submitted by the actors at play in this petition speak to any active ongoing 
role for the Petitioner in the project upon which the Beneficiary would work. Given the physical 
distance (the Petitioner is located in Texas, and the end-client is located in Georgia) between the 
Petitioner and the end-client, we question whether any such role actually exists. If there is no provision 
for the Petitioner's input, then we question whether it actually controls the Beneficiary, as claimed. 
The single contract that was submitted - the one executed between the Petitioner and the vendor -
resembles a staff augmentation agreement with little provision for input by the Petitioner on the 
Beneficiary's daily tasks. 
As noted, 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 the four comers 
of this H-1 B 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 then control the 
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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 utilized without which his work could not 
be done. In fact, the copies of work emails documenting the Beneficiary's work activities at the end­
client location reflect that the end-client manager provides direction to the Beneficiary regarding his 
day-to-day work priorities. The Petitioner is not mentioned, or included as an addressee within this 
email traffic. 
In sum, the evidence of record 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-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 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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