dismissed H-1B Case: Software Development

(b)(6)
MATTER OF G-J-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 14,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and services company, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H-lB nonimmigrant classification for specialt y 
occupations . See Immigration and Nationality Act (the Act) section IOI(a)(l5)(H)(i)(b) , 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-1B 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 
r 
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, Vermont Service Center, denied the petition. The Director concluded the Petitioner 
did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
In support of the petition, the Petitioner provided evidence reflecting that the Beneficiary would 
provide software development services as an "Informatica ETL Developer " for an end-client , 
at its location in New York, through a contract it had in place 
with a mid-vendor. A submitted work order for this engagement 
indicated that the work would conclude in May 20 16; however , a letter from specified that 
"the duration of the project is ongoing, long term and will be extended year by year."' 
In response to the DireCtor's request for evidence (RFE), the Petitioner stated that it had specified 
two work locations for the Beneficiary in the labor condition application (LCA), the above 
referenced end-client location in New York, and the Petitioner 's worksite in 
New Jersey. Further, the Petitioner indicated that the Beneficiary ' s assignment to had ended 
1 
We note that the requested period of employment in the instant petition is October I, 2016, to September 6, 2019. 
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Matter ofG-1-, Inc. 
and that he would now be assigned to an "in-house project" at the Petitioner's location in 
New ~ersey. The Petitioner explained that the Beneficiary would be working tor its direct 
client In a letter, explained the Beneficiary's duties as 
follows: 
• Gather Systems requirements, perform systems Analysis, feasibility study, and 
understand technology paradigms. 
• Installations, Configurations, upgrade on software in heterogeneous platforms 
• Design, Develop, Implement virtualization to software, change control policy and 
provide support. Develop custom software, scripts and utilities, also develop 
software for data transfers, automatic scheduling, data validation, alerts and 
reports 
• Design, Develop and implement back and recovery. Also implement high 
availability. 
• Provide Software maintenance, enhancements as per changed requirements, bug 
fixing, performance tuning, develop scripts to monitor software performance. 
• Perform Software Testing to ensure developed software is performing as desired. 
Also responsible for systems and software installation, configurations etc. 
According to the Petitioner and 
science, engineering, or a related field. 
the position requires a bachelor's degree in computer 
II. 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 ofa 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; 
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Matter ofG-1- , Inc. 
(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 have consistently interpreted the term "degree" in the criteria at 8 
C.F .R. § 214.2(h)( 4)(iii)(A) 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. Cherto.ff, 
484 F.3d 139, 147 (lst 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 and for the reasons set forth below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1B caliber work for the Beneficiar y for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, although the Petitioner indicated that the Beneficiary would be employed at its 
worksite providing services to the record does not sufficiently support that this work 
will continue through the entire requested period. As noted, in the Form I-129, the Petitioner 
specified that the requested period of employm ent was from October 1, 2016, to September 6, 2019. 
However, a submitted letter from indicates that the duration of the work is 18 inonths 
and later in the same letter indicates that the project will commence "[October] 1st 2016 and is 
expected to continue into the foreseeable future." As such, this evidence does not demonstrate that 
the Beneficiary's proffered work will continue for the entire requested period. Otherwise , the 
Petitioner provides no other corroborating evidence to support that the Beneficiary's work will 
continue for the entire requested period, such as agreements, statements of work, work orders, or 
other such supporting documentation. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter o.fChawathe , 25 I&N Dec. 369, 376 (AAO 2010). 
3 
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Matter ofG-1- , Inc. 
Further, certain discrepancies on the record leave question as to the Petitioner's assertion that the 
Beneficiary will be assigned at its worksite working for its end client For instance, on 
appeal, the Petitioner submits a letter stating that it will control and supervise the Beneficiary while 
performing work "at [the] site,." In addition, the Petitioner provides a 
"Subcontractor Agreement" between it and which makes regular reference to a third 
party "customer" of The agreement also indicates that this customer will approve the 
Beneficiary's timesheets and that the work will be completed on the customer ' s Internet and email 
systems. Furthermore, it is also noteworthy that the Petitioner submitted substantial evidence related 
to the Beneficiary's engagement with its mid-vendor and the end-client both in 
support of the petition and in response to the RFE, an engagement set to expire in August 2016, prior 
to the period of requested employment. Indeed, the Petitioner continues to reference this 
engagement on appeal. This leaves question as to the Beneficiary's assignment to at its 
location, and suggests that he will continue to work on the project at this client's worksite in 
New York. The Petitioner provides no explanation for why it would submit evidence and 
assertions related to a project for which it stated will expire prior to the requested period of 
employment. The Petitioner has not resolved these inconsistencies with independent , objective 
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Moreover, the record of proceedings is absent suflicient information from the end-client regarding 
· the specific job duties to be performed by the Beneficiary. As recognized by the court in Defensor, 
supra, where the work is to be performed for entities other than the petitioner , evidence of the client 
companies' job requirements is critical. Defensor, 201 F.3d at 387-88. The court held that the 
former Immigration and Naturalization Service (INS) 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. !d. at 384. 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. Here, stated in a letter that the duties of the position could 
only be performed by an individual holding a ''bachelor's degree or higher in computer science, 
engineering or a related field." 
However, the duties provided by are vague and convey only general tasks and not the 
specific work and assignments to be completed by the Beneficiary. 
For example, the largely 
identical letters from and the Petitioner set forth several non-specific duties that do not 
convey the Beneficiary ' s actual day-to-day tasks, including "gather[ing] systems requirements ," 
completing "installations, configurations, [and] upgrade[ s] on software," "design[ing], develop[ing], 
and implement[ing] virtualization to software," "provid[ing] software maintenance [and] 
enhancements," and "perform[ing] software testing." The Petitioner states on appeal that the 
Beneficiary will work on the ' project, but it does not provide an explanation 
on the nature and details of this project. Likewise, an itinerary provided by the Petitioner reflects the 
Beneficiary ' s projected work on "Informatica Admin activities ," "Data Transformation and Data 
Cleansing activities ," "transferring the data from the external source system into Data mart," 
"Creat[ing] test scenarios on Sandbox environment ," "creating Unix Scripts/Autosys Job," amongst 
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Matter ofG-1- , Inc. 
other more technically specific details, but it does not explain the nature of these applications or the 
specific work to be performed by the Beneficiary. The letter from the Petitioner further references 
the Beneficiary's interaction with "the Informatica premium tech support team on a regular basis," 
but again does not explain the Informatica premium technical suppo11 team or the nature of his 
interaction of this team. 
As such, the record of proceedings, including the letter from its client does not contain a 
more detailed description explaining what particular duties the Beneficiary will perform on a day-to­
day basis, nor is there a detailed explanation regarding the demands, level of responsibilities, 
complexity, or requirements necessary for the performance of these duties (e.g., the nature of the 
"Informatica Admin activities," data transformation and cleansing , "Sandbox environment," or 
"Unix Scripts/Autosys Jobs," and what body of knowledge is required to perform these duties). In 
fact, as we have noted, the evidence of record leaves question as to whether the Beneficiary will 
indeed be assigned to the project at the Petitioner's worksite , since the record elsewhere 
indicates that this engagement will take place at location, while other evidence reflects 
that the work may be for a third party customer of Further still, the ev,idence also 
suggests that the Beneficiary will work on its supposedly concluded project with 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from 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 educat~onal requirement for entry into 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. 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(ii.i)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. Therefore, the appeal must be dismissed and the petition denied tor this reason. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Beyond the decision of the Director, we find that the evidence of record does not establish that the 
Petitioner will be a "United States employer" having "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. " 8 C.F.R. § 214.2(h)(4)(ii). 
5 
Matter ofG-1-, Inc. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) ofthe Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(1) ... , 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 )(1) .... 
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 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
I 
Nationality Act, 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
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
lB visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an individual 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)(l) of the Act, 
8 U.S.C. § 1182(n)(l). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States 
employers" must file a Form l-129 in order to classify individuals as H-lB temporary "employees." 8 
C.F .R. § 214.2(h)( 1 ), (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-1B 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.P.R. 
§ 214.2(h)(4)(ii) (defining the term "United States employer"). 
6 
Matter ofG-1-, Inc. 
Neither the former INS nor U.S. Citizenship and Immigration Services (USCIS) defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H-1 B visa 
classification, even though the regulation describes H -1 B beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "United States employer." !d. Therefore, for 
purposes of the H -1 B 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 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)). 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 ofthe instrumentalities and tools; the location ofthe 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." 
!d.; see also Clackamas Gastroenterology Assocs., P.C v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323) . 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 (quoting NLRB v. United Ins. Co. 
of Am., 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-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
2 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1 002(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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
7 
Matter ofG-1-, Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B employers to have a 
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-1 B 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. C.f 
Darden, 503 U.S. at 318-19.3 
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) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).4 
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 pmi, 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 323-24; 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 
I 0 I (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(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-1 B 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 Res. Def Council, 
Inc., 467 U.S. 837,844-45 (1984). 
3 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 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
4 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-1 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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Matter qfG-1-, Inc. 
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 EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor, 201 F.3d at 388 (determining that hospitals, as 
the recipients of beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 
214.2(h)~ even though a medical contract service agency is the 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 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, 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 
323-24. For example, while the assignment of additional projects is dependent on who has the right t<J 
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 ofthe incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-IB temporary "employee." Specifically, we 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation confirming and describing who exercises control over the Beneficiary. 
As noted, the Petitioner states that the Beneficiary will work for its client at the 
Petitioner's work-site in New Jersey. In its appeal, the Petitioner points to the letter 
submitted from stating that the Beneficiary will not be its employee, that he will remain 
under the Petitioner's "control and supervision," and that the Petitioner "will be responsible for 
paying all wages and for maintenance of his personnel file." The Petitioner also references a letter 
from the mid-vendor relevant to its project with a project it states has concluded prior 
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to the requested period of employment, and contends that this shows it maintains control over the 
Beneficiary. 
First, it is not clear how the circumstances of a claimed prior assignment , that of is relevant 
to demonstrating the Petitioner's control over the Beneficiary while assigned to the 
project. Indeed, the Petitioner's submittal of evidence related to the project, and particularly 
its reference to it on appeal, leaves question as to his claimed cunent assignment. In addition , it is 
noteworthy that the evidence provided specific to the Beneficiary 's previous assignment strongly 
indicates that the Petitioner did not maintain control over the Beneficiary while he was assigned to 
The Petitioner provides emails which reflect the Beneficiary refening to a contact from 
as his "manager" and showing this manager's approval of his \Veekly timesheets. Further, 
the Petitioner provides evidence that while the Beneficiary was assigned to the project he 
submitted weekly timesheets in an end-client system. Otherwise, the Petitioner did not submit 
evidence clearly delineating how the Petitioner maintained 
control over the Beneficiary during this 
project. For instance, the evidence did not demonstrate who supervised the Beneficiary, how they 
supervised him, and how often. Although we acknowledge that the Beneficiary ' s supposedly 
concluded project is not direct evidence of who wilJ exact control over him while working on the 
project, it is probative in reflecting the Petitioner's typical operations and the level of 
control it maintains over its employees while they are assigned to customer projects. 
In fact, we find similar evidence, or a lack thereof~ present with respect to the Beneficiary ' s 
proposed work for The Petitioner provides a letter on appeal suggesting that the 
Beneficiary's work for will indeed take place at the client's location. Further, as we 
previously noted, the Petitioner ' s agreement with appears to indicate that its work for 
this client is likely for customers of and section 14 of the agreement states that the work 
is performed on the "Customer's e-mail and internet systems." As such, these discrepancies leave 
question as to the very nature of the Beneficiary's work and for whom he will be working, thereby 
leaving unclear who maintains control over him while assigned to 
Regardless, even if we are to accept that the Beneficiary will be assigned to its worksite in 
working for it has submitted little supporting documentation to corroborate who will 
have daily control over the Beneficiary while working for this client. The Petitioner has not 
articulated or documented who will supervise the Beneficiary, how often, or how they will maintain 
control over his work with the client. For instance, the Petitioner submits an organizational chart 
reflecting that he reports to a "project manager- who in turn is supervised by a chief technical 
officer- However, it is not clear whether this chart reflects the Beneficiary ' s 
supervisory situation at all times, or his supervision specific to 
the or projects. 
Further, there is no evidence or details to support this supervision by the Petitioner while assigned to 
client projects. To illustrate , the Petitioner submits a performance review document, but it is only a 
general, non-completed form with no specific relation to the Beneficiary. 
In fact, to the ex;tent the Petitioner submits evidence specific to the project, this evidence 
suggests that the Beneficiary will work directly for the client as an outsourced employee taking 
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Matter ofG-1-, Inc. 
direction from the client. Similar to the Beneficiary's assignment to the agreement between 
the Petitioner and reflects that the Beneficiary will submit regular timesheets for 
approval by the "customer." As noted, the agreement stated in section 14 that the work will be 
performed on the "customer's email and internet systems," suggesting both that the unidentified end­
client will direct the work and that it is providing the instrumentalities and tools for the work. 
Further, the Petitioner submitted marketing documentation referencing "staff augmentation" 
services, which the above referenced evidence strongly suggests is the Beneficiary's proposed 
assignment. As such, even if the work of the Beneficiary is performed at the Petitioner's location, 
the evidence submitted indicates that its clients are directing the course of his work on a daily basis 
and it has not otherwise provided objective evidence to refute this suggestion. 
Although the Beneficiary is likely being paid and his benefits administered by the Petitioner, the 
evidence appears to indicate that the Beneficiary is primarily under the control of the Petitioner's 
end-clients. While payroll, tax withholdings, and other employment benefits are relevant factors in 
determining who will control the 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 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Here, we find that the preponderance of the evidence 
demonstrates that the Beneficiary will be primarily under the control of the client. 
Based on the above, the Petitioner has not established that it qualifies as a "United States employer" 
as defined at 8 C.F.R. § 214.2(h)(4)(ii) and the petition is not approvable for this additional reason. 
IV. CONCLUSION 
In visa petition proceedings, it is' the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
\ 
Cite as Matter ofG-1-. Inc., ID# 210670 (AAO Feb. 14, 2017) 
II