dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6560171 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 18, 2020 
The Petitioner seeks to employ the Beneficiary as a "software 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 Vermont Service Center Director denied the petition, concluding that the Petitioner will not have 
an employer-employee relationship with the Beneficiary. The Petitioner filed an appeal which we 
dismissed. The matter is now before us on a motion to reopen and a motion to reconsider. 
In its combined motion, the Petitioner provides additional documentation and asserts that it has 
provided sufficient evidence to establish that an employer-employee relationship exists and will 
continue to exist with the Beneficiary. We will dismiss the motions. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration , a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion , with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R . § 103.5(a)(l). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration ; (2) establish that the decision was based on an incorrect application of law or policy; 
and (3) establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner submits additional documentation to establish an employer-employee relationship with 
the Beneficiary. 1 On motion, the Petitioner submits an employment agreement with the Beneficiary 
dated March 18, 2019, which is a verbatim copy of the initial employment agreement submitted except 
for the dates and a small increase in salary. The Petitioner also submits the Beneficiary's performance 
review for the first quarter of 2019. Lastly, the Petitioner submits a vendor consulting agreement 
between! I ( first vendor) and I I( second vendor) dated February 
2, 2016. For the reasons below, we conclude that the Petitioner has not established new facts sufficient 
to satisfy the requirements to reopen. 
We discussed the employment offer in our previous decision and noted that the information in the 
agreement did not provide sufficient information on how the Beneficiary would be supervised at the 
end-client location over 300 miles away. We also discussed the deficiencies in the record overall 
regarding the process to sufficiently monitor and supervise the Beneficiary's work performance at the 
end-client. The Petitioner does not address these deficiencies on motion, and the new agreement is 
essentially a verbatim copy of a previously submitted document, which does not add any new probative 
evidence to the record. 
The perfunctory performance review document provided on motion offers little meaningful review by 
the Petitioner of the Beneficiary or his work. The evaluation consists of biographical information and 
boxes to rate the Beneficiary's performance competencies on a scale of 1 (unsatisfactory) to 5 
( outstanding). The performance review does not reflect any role for the Petitioner in directing, or 
even, influencing, the Beneficiary's work as it unfolds on a day-to-day basis at the end-client's 
worksite. The performance review does not include any new relevant facts for the record. 
The vendor consulting agreement provided on motion cannot be considered a "new fact." It is dated 
prior to the filing of the petition and is now provided for the first time on motion. The Petitioner does 
not offer an explanation for its failure to submit the agreement earlier and does not explain why the 
document should be considered as relevant to establishing the employer-employee relationship. 
Moreover, this agreement states that the services to be provided shall be described in a "Project 
Request" which will describe the nature of the project, the personnel assigned to the project, their roles 
and responsibilities, and the length of time the personnel will work on the project. The "Project 
Request" document, however, is not provided for the record. The incomplete vendor consulting 
agreement does not contain new, relevant information for the record. 
The record on motion does not include new facts that establish the employer-employee relationship 
between the Petitioner and the Beneficiary. Thus the Petitioner has not established proper cause to 
reopen this matter. 
1 The Petitioner re-submits a number of documents that have already been reviewed and considered and will not be 
referenced here. 
2 
B. Motion to Reconsider 
The Petitioner asserts that it has "clearly established an employer-employee relationship and repeats 
that it is responsible for paying the Beneficiary, treating the Beneficiary as an employee for tax and 
insurance purposes, for periodic review of the Beneficiary's performance, and for supervising the 
Beneficiary's work through its project managers. 2 The Petitioner, however, does not address any of 
the deficiencies noted in our decision which led to our conclusion that the Petitioner does not exercise 
control of the Beneficiary's specific work on a day-to-day basis and is not responsible for influencing 
instructing, or directing the nature of the Beneficiary's work. It is crucial to understand who will 
direct, supervise, and instruct the beneficiary's day-to-day work and how that process will unfold. 
This is because the entity directing, supervising, and instructing a beneficiary will necessarily 
influence the type of duties the beneficiary will perform and affect the corresponding job requirements 
for the position. This particular component of the employer-employee relationship is especially 
significant within the H-lB nonimmigrant classification. We note that, as recognized by the court in 
Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. 3 
Here, the Petitioner does not state specific reasons for reconsideration but rather repeats its previous 
arguments without discussing or offering an analysis of how the previous decision was based on an 
incorrect application of law or policy. Moreover, the record on motion does not establish how our 
decision was incorrect based on the evidence ofrecord at the time of the initial decision. The Petitioner 
has not provided a legal basis to reconsider the previous decision. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the previous decision or otherwise established eligibility for the immigrant benefit sought. In visa 
petition proceedings, it is a 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 motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
2 The Petitioner acknowledges the inconsistency in the record regarding the Beneficiary's supervision and claims that 
while its president is also a supervisor, the Beneficiary's immediate supervisor is the project manager. 
3 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. Defensor, 201 F.3d at 387-88. 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. 
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