dismissed H-1B Case: Software Development

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting firm, seeks to employ the Beneficiary as a 
"Software Engineer" under the H -1 B nonimmigrant classification. See Immigration and Nationality 
Act (the Act) § 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California 
Service Center, denied the petition. The matter is now before us on appeal. The appeal will be 
dismissed. 1 
I. ISSUES 
The Director denied the petition, finding that the evidence of record did not establish: (1) that the 
proffered position qualifies as a specialty occupation; and (2) that the Petitioner would have an 
employer-employee relationship with the Beneficiary. 
II. THE PROFFERED POSITON 
The visa petition states that the period of intended employment is October 1, 2015, to September 8, 
2018. The Labor Condition Application (LCA) states that the proffered position corresponds to 
SOC code and title 15-1132, Software Developers, Applications, from the Occupational Information 
Network (O*NET). 
In a letter, dated March 16, 2015, submitted with the visa petition, the Petitioner stated that the 
Beneficiary would work at and provided the following description of the duties 
of the proffered position: 
• Translates client business needs into technical solutions. Implements the 
solutions by using expertise in Web-based technologies. 
• Design, development and testing of Software applications using Java, J2EE, Unix 
and Oracle. 
1 We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a de novo 
basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see also 5 U.S.C. § 557(b) ("On appeal from or 
review of the initial decision, the agency has all the powers which it would have in making the initial decision except as 
it may limit the issues on notice or by rule.") ; Dor v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989). 
(b)(6)
Matter of S-, Inc. 
As to 
• Performing development and maintenance programming and associated tasks for 
application systems, including integrated software application configuration. 
• Collaborates with others (e.g. System Designer/ Analysts, Architects, Senior 
Developer) to establish the physical application framework and to support and 
troubleshoot complex production problems. 
• Providing reporting of project statuses to project management and leadership and 
provide direct support to Development Manager. 
• Managing delivery to both the functional and non-functional requirements, 
including performance, scalability, availability, reliability and security. 
• Design and develop user interfaces to intemet/intranet applications by setting 
expectations and feature priorities through the development life cycle. 
• Scheduling the build process for software applications and staging it to QA, UA T 
and production environments. 
• Ensures the development and execution of unit test plans to validate that 
application modules meet technical specifications. 
location, the Petitioner stated: "Location of Services: located at 
The Petitioner also provided a letter, dated March 11, 2015, from 
That letter reiterates the duty description provided by the Petitioner and states that the 
Petitioner "will retain full and ultimate control over [the Beneficiary's] salary, benefits and 
supervision." As to the location where the Beneficiary would work, that letter states, "He is working 
at our location: 
In a request for evidence (RFE), the Director stated that although the Petitioner provided a letter 
from "USCIS is unable to determine whether the end-client, is contractually bound to, or 
in need of the beneficiary's services in accordance with the petitioner's period of requested 
employment at the indicated work location." In response to the RFE, the Petitioner stated that 
was "mistakenly indicated on the [Form I-129] and support letter." The Petitioner stated that the 
Beneficiary would work for at the same location. A letter from , dated June 11, 
2015, identifies the project on which the Beneficiary is working as proprietary software of 
being configured and modified for use by the City of 
III. SPECIALTY OCCUPATION 
We will first address the specialty occupation basis for denial. 
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: 
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Matter of S-, Inc. 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)( 4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
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Matter of S-, Inc. 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. 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. !d. 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. 
B. Analysis 
A Computer Consulting Service Agreement in the record, dated June 2, 2014, sets out general terms 
pursuant to which might utilize the Petitioner's workers. That document states that it will 
continue in effect for one year after it is executed unless it is terminated earlier or renewed. 
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Matter of S-, Inc. 
Insufficient evidence was provided that it was either terminated or renewed. The term of that 
agreement appears, therefore, to have ended on June 1, 2015. 
The record contains a Schedule A that was appended to that consulting agreement, which was 
executed by the Petitioner and on February 1, 2015. It states that the Beneficiary will be 
assigned, beginning on February 1, 2015, to work at the Illinois 
location. As to the "Estimated Duration" of that project, it states: "On-going." That the estimated 
duration of the project was then "On-going" does not demonstrate the duration of any additional 
period during which that project would be extended. 
The record also contains a Master Software License Agreement and Professional Services 
Agreement executed by and the City of· with an effective date of May 2, 2014. A 
Product and Services Statement of Work (SOW) appended to that agreement states that has 
retained to "implement, configure, and customize" products for the city, and "[t]his 
project is being planned and estimated to be completed within a 10 month period. That agreement 
became effective on May 2, 2014. Thus, that SOW was for work to be completed on or about March 
2, 2015. 
The record also contains a First Amendment and Supplement to the May 2, 2014 agreement, also 
between and the City of It was ratified on June 22, 2015. It states, "[The ] 
project is budgeted and planned to be staffed for an estimated 3 month period (approx. 12.6 weeks)." 
Thus, it extended the period for completion of the project for the City of to 
approximately September 22, 2015. The record contains insufficient indication that the City of 
agreed to extend the project beyond that date. That extension does not encompass 
any portion of the period of intended employment in this case, which began on October 1, 2015. 
Thus, the evidence submitted is insufficient to establish that the Petitioner had any work for the 
Beneficiary to perform on the project during the period of intended employment requested in 
the visa petition. 
The record contains insufficient evidence that, when the Petitioner submitted the instant visa 
petition, it had secured any work of any type for the Beneficiary to perform at any time during the 
period of intended employment requested in this case. If the Petitioner had secured any work for the 
Beneficiary during that period, then the substantive nature of that work has not been established. 
The Petitioner is obliged to show, pursuant to at least one of the criteria at 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A), that the work the Beneficiary would perform is specialty occupation work. 
That the substantive nature of any work the Beneficiary might perform has not been established 
precludes a finding that the Beneficiary would work in a specialty occupation after that date, because 
it is the substantive nature of that work that determines (1) the normal minimum educational 
requirement for the particular position, which is the focus of criterion 1; (2) industry positions which 
are parallel to the proffered position and thus appropriate for review for a common degree 
requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness 
of the proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the 
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Matter of S-, Inc. 
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. Accordingly, as the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it cannot be found that the proffered 
position qualifies for classification as a specialty occupation. The appeal will be dismissed and the 
petition denied for this reason. 
Also, at a more basic level, as reflected in this decision's discussion of the evidentiary deficiencies, 
the record lacks credible evidence that when the Petitioner filed the petition, the Petitioner had 
secured work of any type for the Beneficiary to perform during the requested period of employment. 
users regulations require a petitioner to establish eligibility for the benefit it is seeking at the time 
the petition is filed. See 8 C.P.R.§ 103.2(b)(l). A visa petition may not be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). For this reason also, the appeal will be dismissed and 
the petition denied. 
IV. EMPLOYER-EMPLOYEE 
The remaining basis for denial is the Director's finding that the Petitioner did not establish a valid 
employer-employee relationship between the Petitioner and the Beneficiary such that the Petitioner 
could meet the definition of a United States employer as that term is defined at 8 C.P.R. 
§ 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the 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.P.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; 
Matter of S-, Inc. 
(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 
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-
1B 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) ofthe Act, 8 
U.S.C. § 1182(n)(l )(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals 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-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.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 -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-1B 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 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 
Matter of S-, Inc. 
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? 
Specifically, the regulatory definition of "United States employer" requires H-1B 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-IB "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB 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 defmition 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 
Darden, 503 U.S. at 318-19? 
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. § 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). 
However, 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. Instead, in the context of the H-IB 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 
8 
Matter of S-, Inc. 
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).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-IB 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 323-24; 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 
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 v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" ofH-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 
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 of S-, Inc. 
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 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 ). 
B. Analysis 
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 -1 B temporary "employee." 
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 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. 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. 
In the instant case, as was explained in detail above, the Petitioner has not demonstrated that it has 
secured any work for the Beneficiary to perform during the period of intended employment 
requested in this case. As such, the terms and conditions of any employment to which it might 
assign the Beneficiary if the visa petition were approved have not been established. For this reason, 
the Petitioner has not demonstrated that it would have an employer-employee relationship with the 
Beneficiary if the visa petition were approved. The appeal must be dismissed and the visa petition 
denied for this reason alone. 
Further, even if we assume, arguendo, that the Beneficiary would work on the project 
throughout the period of intended employment, we observe that the May 2, 2014, agreement 
between the and the City of states, " may not subcontract any part of the work 
required under this Agreement without [the city of I written approval of each such 
subcontract(s), which approval shall not be unreasonably withheld." The record contains insufficient 
indication that the City of has agreed that may subcontract the implementation, 
configuring, or customization of the software. This suggests that rather than the 
Petitioner, is implementing, configuring, and customizing the applications for the City of 
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and that it will assign duties to individuals working on the project and supervise their 
performance of those duties. 
The record contains a form which the Petitioner states it would use in performing a review of the 
Beneficiary's performance every three months. However, we find that, even assuming that the 
Beneficiary would work on the project throughout the period of intended employment as the 
Petitioner claims, the entity that would most likely assign the Beneficiary's tasks on a day-to-day 
basis and supervise his performance of those tasks would be 
Assigning duties and supervising performance is central to an employer-employee relationship. 
Under these circumstances, with apparently developing that application, notwithstanding the 
assertions by the Petitioner and others, it does not appear that the Petitioner would have an 
employer-employee relationship with the Beneficiary if the Beneficiary worked for on the 
project it is developing for the City of 
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-1B temporary 
"employee" within the meaning of the definition at 8 C.F.R. § 214.2(h)(4)(ii). The appeal will also 
be dismissed on this basis. 
V. CONCLUSION 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001); see also Matter 
of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 20 15) (noting that we conduct appellate review 
on a de novo basis). 
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 Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
The petition will be denied and the appeal dismissed 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) (citing Matter of 
Brantigan, ll I&N Dec. 493,495 (BIA 1966)). Here, that burden has not been met. 
11 
Matter of S-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 15545 (AAO Jan. 29, 2016) 
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