dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 7818391 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 13, 2020 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "Java developer" 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 Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the Petitioner will have an employer-employee relationship with the 
Beneficiary. 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 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. 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)(l5)(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 : 
(I) 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)). Thus, to interpret these terms, U.S. Citizenship 
and Immigration Services will apply common law agency principles which focus on the touchstone of 
control. 
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." 
Darden, 503 U.S. 318, 322-23. 1 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor, 201 F.3d at 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-1 B beneficiaries). 
We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
II. ANALYSIS 
Applying the Darden and Clackamas factors to this matter, 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 conclude that the Petitioner 
has not submitted sufficient documentation regarding relevant aspects of the Beneficiary's 
employment. 2 
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. 
2 The Petitioner submitted documentation to suppmt 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. 
2 
Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified labor 
condition aprication (LCA), 3 that the Beneficiary would work as a Java developer for an end-client in 
I Florida, for the petition's entire employment period, October 2019 to September 2022. The 
Petitioner indicated the relationship with the end-client as follows: 
The Petitioner ..._. '-----------' ..... 
(Vendor) (End-client) 
The Petitioner, however, did not submit all the relevant contracts. Notably, the record does not contain 
an agreement between the vendor and the end-client and the Petitioner did not explain the reason for 
not submitting it. 4 Therefore, the record does not sufficiently establish the terms and conditions of the 
Beneficiary's assignment at the end-client's location. 
In support of the claimed contractual relationship, the Petitioner submitted a supplier agreement (SA) 
and a document entitled "Participation Agreement to Supplier Agreement" (PA) executed by the 
vendor and the Petitioner in 2018. According to Exhibit 1, "[the end-client] Specific Terms and 
Conditions" of the PA, ' [ u ]pon execution of a Participation Agreement, [ the Petitioner] will receive 
access to the Supplier Handbook for the Client" containing "the Client policies and procedures." The 
PA further states that "[i]n the event of a conflict between the terms in this Agreement and the Supplier 
Handbook, the terms of the Supplier Handbook will control." However, the Petitioner did not submit 
a copy of the end-client's "Supplier Handbook" and did not explain the reason for not submitting it. 
Thus, we are unable to review the policies and procedures set by the end-client and determine their 
implications for the Beneficiary's assignment at the end-client. 
The SA and the PA set limitations on the interaction and the direct contact the Petitioner can have with 
the end-client. The SA states that "[u]nless otherwise directed by [the vendor], [the Petitioner] will 
deal directly and exclusively with [the vendor] with respect to the Services and [the Petitioner] 
Employees." The PA states that the Petitioner will "deal with [the vendor] with respect to the services 
per the Client's rules of engagement, as outlined in the Supplier Handbook." However, as noted above, 
the record does not contain the Supplier Handbook, and therefore, we are unable to review the rules 
set by the end-client. 
On appeal, the Petitioner states that the SA "offers contractual support for the Petitioner's ongoing 
right to control the Beneficiary through the employer-employee relationship" and quotes Section 4, 
"Working Relationship," of the SA. The Petitioner emphasizes that "neither Party, nor any Supplier 
Employee, will be considered to be an employee, joint employee or co-employee of the other Party or 
Client, for any purpose whatsoever, including without limitation, any of the terms listed in Section 4.2 
below" ( emphasis omitted). Section 4.2 of the SA states, in a nutshell, that the subcontracted 
3 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73 l(a). 
4 The Participation Agreement to Supplier Agreement states that the vendor "has entered jnto al Master Services Agreement 
as the MSP with I I and Affiliates'i _ -·· The record indicates that 
~--~lis the parent company of the end-client. 
3 
employees will not be entitled to the benefits, such as group insurance, retirement, worker's 
compensation, disability insurance, provided by the vendor and the end-client, and that the vendor and 
the end-client will not "withhold or make payments for social security, federal, state, or any other 
employee payroll taxes" for the "Supplier Employees." In their letters, the vendor and the end-client 
also make a point that the Petitioner is responsible for the Beneficiary's employment, salary, and 
benefits. We recognize that social security, worker's compensation, and unemployment insurance 
contributions, as well as federal and state income tax withholdings, and providing other employment 
benefits are relevant factors in determining who will control a beneficiary. Such factors may appear 
to satisfy a cursory review that a petitioning entity might be an individual's employer; however, these 
elements are not sufficient to provide a full appraisal of the requisite relationship. We must also assess 
and weigh other factors to determine who will be a beneficiary's employer. For example, we must 
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 is assigned, among other factors. A petitioner must sufficiently address the relevant 
factors to enable us to evaluate whether the requisite employer-employee relationship will exist 
between a petitioner and a beneficiary. 
With respect to managing the Beneficiary's work while she performs her duties at the end-client, the 
Petitioner indicated that there is a shared-responsibility by the end-client and the Petitioner. In the 
employment offer letter addressed to the Beneficiary, the Petitioner stated that its employees "will 
perform technical services under the general direction of the end[-]client, but the manner and the 
means by which services are provided are at the sole discretion [ of the Petitioner] and [ the Petitioner's] 
employees." However, The Petitioner did not elaborate on the extent of "general direction" the 
Beneficiary would receive from the end-client. The Petitioner stated that the Beneficiary "shall 
provide [the Petitioner] manager and supervisor with weekly status reports regarding any and all 
on-going projects assigned" and submitted a few weekly reports generated by the Beneficiary. The 
weekly reports are about one to two pages in length and contain information in bullet-point fashion 
under the "Key accomplishments last period" and "Upcoming tasks for this period" headings. The 
reports also contain a section in which the Beneficiary can indicate if she is experiencing any issues. 
For example, in the weekly report covering the period ofJune 10-16, 2019, the Beneficiary stated that 
she was "[h]aving issues pointing to conductor API's and URL's. Checked the controller part of the 
backend code but that did not help. Need help fixing the issue." While the subsequent weekly report 
indicated that the Beneficiary did not experience issues during that week, the record does not contain 
information regarding whether the Beneficiary received the needed assistance to resolve her issue from 
the Petitioner or whether such assistance was provided by the end-client. Other than the weekly reports 
provided by the Beneficiary, the Petitioner has not explained and documented in detail how it would 
assist, supervise, and otherwise control the Beneficiary's day-to-day activities for the project at the 
end-client to which she is assigned. 
The Petitioner submitted a document entitled "Employee Performance Review" for the fiscal year 
2019, to which the Petitioner referred as "sample performance review." This document contains the 
Beneficiary's name and indicates that the Human Resource Manager is the reviewer. The document 
has a section for comments and a ratings section for "technical competency," "interpersonal relations," 
"management of position assignment," and "initiative/problem solving." However, the record 
contains insufficient documentary evidence demonstrating the means and methods of the Petitioner's 
established practice in supervising and evaluating the Beneficiary's performance from a remote 
4 
location. The manner of the Petitioner's claimed supervision is largely in the form of weekly status 
reports that the Beneficiary provides to the Petitioner, rather than the Petitioner providing her with the 
necessary information on the project and assigning her daily work. The Petitioner's generalized 
statements contained in the record regarding supervision and control are insufficient to meet the 
Petitioner's burden to demonstrate that it will have an employer-employee relationship with the 
Beneficiary while she works at the end-client's location. 
We also note that the language contained in the SA undermines the Petitioner's claimed authority over 
its hiring process and its autonomy in assigning its employees to the projects at the end-client. 
According to the SA, the Petitioner "will not use any subcontractor ... to perform any Services under 
this Agreement without the prior review and written approval of Client and [the vendor]; which both 
have the absolute right to withhold approval at their sole discretion. Furthermore, the "Client may 
request to dismiss [the Petitioner] Employee at Client's sole discretion. At [the vendor's or Client's 
request, [the Petitioner] will remove [its] Employees assigned to Client." These clauses contained in 
the SA raise questions regarding the hiring process and who has the hiring authority, as well as who 
is the ultimate decider in assigning its employees. 
The Petitioner also states it will provide "[a]ny additional equipment/commercial software 
platforms/mobile devices necessary for this position." However, it does not provide sufficient details 
as to what tools and instruments, if any, it may have already provided for the Beneficiary to perform 
her duties. The Petitioner does not elaborate on respective responsibilities of the parties in providing 
necessary tools and instruments for the Beneficiary to perform her duties. 
Overall, the evidence of record provides insufficient insight into how the Petitioner would direct and 
control the Beneficiary's work on a daily basis, who will provide the instrumentalities and tools, and 
who has the right or ability to affect the projects to which the Beneficiary is assigned. While the 
Petitioner asserts that it would remain the Beneficiary's employer, these assertions are insufficient to 
demonstrate that the Petitioner would have an employer-employee relationship with the Beneficiary 
while she will be working at the end-client's location. The Petitioner's generalized assertions 
regarding control lack specificity and probative detail of the degree of supervision, direction, or control 
that the Beneficiary would receive from the Petitioner. As we noted earlier, the Petitioner did not 
submit an agreement between the vendor and the end-client, nor did it submit the Supplier Handbook 
of the end-client. Therefore, we are unable to evaluate the terms and conditions set by the end-client 
for the project. The record contains insufficient evidence to demonstrate that the requisite 
employer-employee relationship will exist between the Petitioner and the Beneficiary. 
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. 5 
ORDER: The appeal is dismissed. 
5 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we will 
not further address whether the Petitioner has established non-speculative employment for the Beneficiary. 
5