dismissed H-1B Case: Software Development

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 2 2 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:/Jwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
� 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The 
petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Form I-129 visa petition, the petitioner describes itself as a Software Development and 
Consulting firm. In order to continue to employ the beneficiary in what it designates as a Database 
Administrator position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 110l(a)(15) (H)(i)(b). 
The director denied the petition, finding that the petitioner failed to establish that it has standing to 
file the instant visa petition as the beneficiary's prospective United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii). 
The record of proceeding before us contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the notice of 
decision; (5) Form I-290B and supporting materials, (6) the AAO's RFE; and (7) the petitioner's 
response to the AAO's RFE. We reviewed the record in its entirety before issuing its decision. 
II. THE LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , 
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 [of Labor] 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 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 
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(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
III. ANALYSIS 
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 alien 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)(1) of the Act, 
8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens as 
H-1B temporary "employees." 8 C.F.R. § 214.2(h)(l), (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-lB 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-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." I d. Therefore, for purposes of the H -lB 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 Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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 
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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. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 (quotingNLRB v. United Ins. Co. 
of America, 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-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
1 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(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), affd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(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-1B 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 Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
Finally, it is also noted that if the statute and the regulations were somehow read as extending the definition of 
employee in the H-1B context beyond the traditional common law definition, this interpretation would likely 
thwart congressional design and lead to an absurd result when considering the $750 or $1,500 fee imposed on 
H-1B employers under section 214(c)(9) of the Act, 8 U.S.C. § 1184(c)(9). As 20 C.F.R. § 655.731(c)(10)(ii) 
mandates that no part of the fee imposed under section 214(c)(9) of the Act shall be paid, "directly or 
indirectly, voluntarily or involuntarily," by the beneficiary, it would not appear possible to comply.with this 
provision in a situation in which the beneficiary is his or her own employer, especially where the requisite 
"control" over the beneficiary has not been established by the petitioner. 
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tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B 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. Cf 
2 
Darden, 503 U.S. at 318-319. 
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 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).3 
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 323-324; 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 of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
2 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
3 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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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also 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-1B nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual 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 448-449; New Compliance Manual at § 2-III(A)(1). 
Furthennore, 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 
323-324. 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. 
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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it will 
be a "United States employer" having an "employer-employee relationship" with the beneficiary as 
an H-1B temporary "employee." 
IV. EVIDENCE 
On the Form I-129 at Part 5. Basic Information About the Proposed Employment and Employer, in 
answer to question 5, "Will the beneficiary work off-site?," the petitioner responded by marking the 
check box labeled, "Yes." In answer to question 4, "Is an itinerary included with the petition?," the 
petitioner responded by checking the box labeled "Yes." No itinerary was provided with the visa 
petition. 
With the visa petition, counsel submitted (1) a Software Development Outsourcing Agreement for a 
project entitled. ; and (2) a letter, dated July 
18, 2012, from who identified herself as the petitioner's managing director. 
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The Software Development Outsourcing Agreement indicates that the petitioner has agreed to 
develop the _ project for 
That agreement states that the petitioner will perform its work at its own premises. It further states 
that the ben,eficiary will work on that project as a "Data Architect/DB Administrator. It does not list 
any educational requirements for the position the beneficiary would fill or the work he would 
perform. 
In her July 18, 2012 letter, 
proffered position: 
provided the following description of the duties of the 
Design and enhance a variety of sophisticated software implementation projects. 
Utilize industry expertise to perform a broad range of business data analysis, design, 
database administration and integration duties. Architect, design and maintain project 
level data models for conceptual, logical, star schema models and physical data 
models, XML schemas and other data engineering efforts. Maintain subject area and 
enterprise data models and schemas using 40% 
Under the direction of technical management, liaise with various client business 
groups and IT management to formulate and define system scope and objectives 
through research and fact finding to design database blue prints. Create and maintain 
SQL Scripts, stored procedures and functions for databases including Oracle, 
Teradata, DB2 and MS SQL Server. Perform database and SQL Tuning on the data 
storage and Data base Engine performance from time to time for optimal 
performance. 20% 
Implement database physical design and provide support for implementation of 
information systems. Thorough analysis of Data processing requirements, collection 
of metadata and business processes re-engineering, design and implement the 
software which will best serve the client's needs, Gather and enhance database design 
requirements and performance, implement data integration between various databases 
to process client's data in the most timely and cost effective manner. Perform gap 
analysis, data mappings, data quality profiling and maintain data profiling and 
maintain metadata. 15% 
Prepare detailed specifications of source and target databases, data mapping, data 
Quality rules and related metrics. Perform production support through database 
performance tuning, database backup, data recovery, maintain high data quality, data 
security, data governance and provide guidance and mentor junior DBA's and 
developers. Configure and setup Master Data Management (MDM) Repository, 
Source to target integration/ETL mappings and associated business rules. Create web 
services integration design specifications for accessing data in real-time, provide 
guidelines to data stewards in data governance best practices. 15% 
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Interact with client's management explaining each phase of the system 
implementation process, resolve issues/concerns, responding to questions, comments 
and criticisms, and modifying systems to address concerns raised by the client. 
Provide on-going database administration, back-up/recovery, business continuity 
support and change management support for development, testing and production 
databases. Perform design assessment reviews, revisions and revamp [] systems as 
required, not only to meet client concerns, but also to respond to unanticipated 
software engineering and technical anomalies. 10% 
As to the educational requirements of the proffered position, stated: "Based on 
our experience, only an individual with a Bachelor's Degree will be able to accomplish the demands 
that this position commands." 
On February 20, 2013, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence that the petitioner would have an employer-employee relationship with the 
beneficiary. The director outlined the specific evidence to be submitted. 
In questioning whether an employer-employee relationship would exist between the petitioner and 
the beneficiary, the RFE noted the existence of the following records: 
A 2009 
_ 
report for [the petitioner] listing the beneficiary's 
name as the chief executive officer with 100% ownership of capital stock; 
An Amendment Certificate to the Articles of Organization showing [the petitioner] as 
the adapted [sic] name of formed in Michicgan [sic] on 
April 15, 1998 in the beneficiary's name; 
A 2011 . , report for showing the 
beneficiary's name as the branch manager; 
A 2006 lease agreement in the name of the beneficiary for [the petitioner] at 
• 
_ New Jersey; 
A 2007 U.S. Return of Partnership Income (IRS Form 1065) for [the petitioner] 
showing the name of the beneficiary's wife, as Designation of Tax 
Matters Partner; 
The RFE requested: 
In order to demonstrate that a valid employer-employee relationship exists between 
[the petitioner] and the beneficiary, please submit additional evidence documenting 
whether or not the beneficiary has an ownership interest in the petitioning entity, and 
if so, the percentage of ownership interest .... 
In response to the RFE, counsel submitted: (1) a copy of an "Employment Agreement," dated June 
4, 2009; and (2) counsel's own letter, dated May 15, 2013. 
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The June 4, 2009 agreement was executed by the petitioner and the beneficiary, and provides the 
following description of the duties of the proffered position: 
• Conduct interviews with customer and subject matter experts to understand 
information needs and design Enterprise data models. 
• Develop and design conceptual, logical and physical data models. 
• Research and development of business solutions as required by customers. 
• Review source systems and business publications to accurately capture new data 
requirements and integrate them into the logical data model. 
• Conduct data model reviews with developers, architects, business analysts and 
subject matter experts to collaborate and gain consensus. 
• Keep the logical and physical models synchronized and understand how 
information translates between the two models. 
• Evolve the logical data model over time and work with developers to assure it is 
leveraged across all projects. 
• Be an advocate for the practice of modeling in technology and communicate the 
benefits to the customer organization 
• Work closely with data services team to assure all required interfaces are built 
with a the [sic] long[-] term vision. 
• Drive metadata documentation and make it available to those that dependent [sic] 
upon it. 
• Write SQL queries to database for data manipulation and reporting. 
• Performance tuning of the database engine to optimize query and functioning of 
the application with data. 
• Participate in team and client meetings as requested. 
• Work on multiple projects simultaneously with varying levels of complexity and 
deliverables. 
• Researches, analyzes and resolves problems and issues with minimal supervision 
and escalate issues as appropriate. 
We observe that duty description is consistent with the duty description contained in the petitioner's 
July 18, 2012 letter. 
Among its other terms, that agreement states: 11 [The beneficiary] agrees that his/her duties shall be 
rendered at [the petitioner's] business premises or at such other places as the [petitioner] may 
require from time to time. 11 [Emphasis supplied.] 
In his May 15, 2013 letter, counsel stated: 
[The beneficiary] does not have an ownership interest in the [petitioner]. (The 
petitioner] was initially founded in August, 1998 under the name 
See Exhibit 10. The 2010 to 2012 U.S. Return on Partnership 
Income Tax filings show that [the beneficiary] did not hold any ownership interest in 
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[the petitioner]. See Schedule NJK-1, Exhibit 11. This evidence shows that [the 
beneficiary] does not have an ownership interest in the [petitioner]. It also shows that 
the information in the report is incorrect as the evidence provided 
accurately reflects the current ownership of [the petitioner]. As a result, [the 
beneficiary] does not have an ownership interest in [the petitioner]. 
The director denied the visa petition on December 17, 2013, finding, as was noted above, that the 
petitioner had not demonstrated that it has standing to file the instant visa petition as the 
beneficiary's prospective U.S. employer. 
In the appeal brief, counsel noted that none of the documentation provided pertains to the ownership 
of the petitioner during the period of employment requested in the instant visa petition, and that 
some relates to periods prior to the beneficiary's employment by the petitioner. Counsel specifically 
noted that the 2006 lease agreement and 2007 tax return predate the beneficiary's employment by the 
petitioner. Counsel also noted that is publicly traded, for profit, company, and that 
"The veracity of the information provided in these reports is at best speculative." 
V. DISCUSSION 
Initially, we observe that the inference that may be drawn by the beneficiary having founded the 
petitioner, having acted as its CEO, its principal, its branch manager, even before being hired as an 
employee, is that the beneficiary may exert such influence over the petitioner that no true employer­
employee relationship may exist. 
On appeal, counsel did not assert that the evidence was mistaken, but only that it is questionable, and 
that it refers to a time prior to the petitioner hiring the beneficiary. That does not dispel the inference 
that the beneficiary's control over the petitioner is such that the petitioner would not have an 
employer-employee relationship with the beneficiary. We would conclude that the director was 
correct in finding that the petitioner had not demonstrated that, if the visa petition were approved, it 
would have an employer-employee relationship with the beneficiary. 
However, an additional reason exists to find that the petitioner has not demonstrated that it would 
have an employer-employee relationship with the beneficiary. As was noted above, the petitioner 
stated, on the visa petition, that the beneficiary would work off-site, that is, away from the 
petitioner's premises. The "Employment Agreement" submitted also indicates that the beneficiary 
may work away from the petitioner's premises. 
The scenario pursuant to which the petitioner would work at a location remote from the petitioner's 
premises is entirely unclear. The petitioner has provided insufficient information pursuant to the 
work that the beneficiary would, or might, perform at a remote location. Whether the petitioner 
would also relocate a supervisor to that remote location to assign the beneficiary's tasks and 
supervise his performance is unknown. Whether, on the other hand, an employee of some other 
company would assign the beneficiary's tasks and supervise his performance has not been revealed. 
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While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
in determining who will control an alien beneficiary, other incidents of the relationship, e.g., who 
will oversee and direct the work of the beneficiary, who will provide the instrumentalities and tools, 
where will the work be located, and who has the right or ability to affect the projects to which the 
alien beneficiary is assigned, must also be assessed and weighed in order to make a determination as 
to who will be the beneficiary's employer. Without full disclosure of all of the relevant factors, we 
are unable to find that the requisite employer-employee relationship will exist between the petitioner 
and the beneficiary. 
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). Claiming in its letters that the petitioner 
exercises complete control over the beneficiary is insufficient in the face of evidence to the contrary. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The 
evidence of record prior to adjudication did not establish that the petitioner would act as the 
beneficiary's employer in that it would control the work of the beneficiary. 
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). Therefore, the appeal will be dismissed and the petition will 
be denied. 
VI. ADDITIONAL BASES 
The record suggests additional issues that were not mentioned in the decision of denial. 
A. ITINERARY 
The petitioner has indicated on the visa petition and in the beneficiary's employment contract that he 
will or may work at locations other than the petitioner's premises. The regulation at 8 C.F.R. 
§ 214.2(h)(2)(i)(B) states, in pertinent part: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form I-129 shall be where the petitioner is located for purposes 
of this paragraph. 
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The itinerary language at 8 C.F.R. § 214.2(h)(2)(i)(B), with its use of the mandatory "must" and its 
inclusion in the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
material and necessary document for an H-1B petition involving employment at multiple locations, 
and that such a petition may not be approved for any employment period for which there is not 
submitted at least the employment dates and locations. Here, there are indications in the record that 
the beneficiary would work at multiple locations at some point during the requested period of 
employment. Notwithstanding that the petitioner stated, on the visa petition, that it was providing 
the required itinerary, no such itinerary is present in the record. The petition must be denied on this 
additional basis. 
B. LOCATION 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(l) stipulates the following: 
Before filing a petition for H-1B classification in a specialty occupation, the 
petitioner shall obtain a certification from the Department of Labor that it has filed a 
labor condition application in the occupational specialty in which the alien(s) will be 
employed. 
While the U.S. Department of Labor (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, US CIS) to determine whether the 
content of an LCA filed for a particular Form I-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 1-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds 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-1B visa classification .... 
[Italics added] 
In the instant case, the record indicates that the beneficiary would work at a location, or at locations, 
other than the petitioner's premises. However, those locations are not identified in the record. 
Therefore, the LCA submitted, which is certified for employment at the petitioner's premises in 
New Jersey, has not been shown to be valid for employment in all of the locations where 
the beneficiary would work. It has not been shown, therefore, to correspond to the visa petition. 
The visa petition must be denied on this additional basis. 
C. SPECIALTY OCCUPATION 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
The instant visa category is for specialty occupation positiOns, that is, positions that require a 
minimum of a bachelor's degree in a specific specialty or its equivalent. However, the petitioner has 
not indicated that the instant visa petition requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent. 
Specifically, in her July 18, 2012 letter, stated that the proffered position requires 
a bachelor's degree. She did not state that the proffered position requires a minimum of a bachelor's 
degree in a specific specialty or its equivalent. There is insufficient evidence that the petitioner has a 
specific degree requirement. 
Further, the petitioner has indicated that the beneficiary will or may work at a location, or at 
locations, other than the petitioner's premises. Even if the duties that the beneficiary would have 
erformed if he worked at the petitioner's offices serving in the 
project had been shown to be specialty occupation duties, the duties he 
might perform at other locations, on other projects, at the premises of other companies, have not 
been identified and could not, therefore, be shown to be specialty occupation duties. The petitioner 
has not demonstrated that, if the visa petition were approved, the beneficiary would perform 
specialty occupation duties. The visa petition must be denied on this additional basis. 
VII. CONCLUSION 
The petitioner noted that users approved other petitions that had been previously filed by the 
instant petitioner on behalf of the instant beneficiary. The director's decision does not indicate 
whether he reviewed the prior approvals of the other nonimmigrant petitions. If the previous 
nonimmigrant petitions were approved based on the same evidence contained in the current record, 
the approval would constitute material and gross error on the part of the director. We are not 
required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCrS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
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); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 
683. 
The director's decision will be affirmed and the petition will be denied for the above stated reasons, 
with each considered as an independent and alternative basis for the decision. 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.