dismissed H-1B Case: Software Development

MATTER OF S-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 28, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a research and software developer company, seeks to employ the Beneficiary as a 
"senior developer" under the H -1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1B program allows a U.S. employer to tymporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition determining that the Petitioner had not 
established an employer-employee relationship with the Beneficiary. Subsequently, the Petitioner 
filed three combined motions to reopen and to reconsider the Director's prior decisions. Upon 
review of each motion and the additional evidence submitted with each separate motion, the Director 
affirmed her previous decisions on the same ground. The Director concluded that the Petitioner had 
not established an employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and re-submits 
evidence previously submitted on motion. The Petitioner maintains that it has control of the 
Beneficiary and his work through its chief technology officer and thus an employer-employee 
relationship exists with the Beneficiary. The Petitioner also claims that due to U.S. Citizenship and 
Immigration Services' (USCIS) error and the lengthy delay in adjudicating this petition, the 
Beneficiary's adjustment of status was denied as he had not maintained lawful status from January 
16, 2013, until the present. The Petitioner asserts that the Beneficiary's unlawful status is a result of 
a technical violation resulting from the inaction ofUSCIS. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Evidence of Record and Procedural History 
In a letter submitted in support of the petition, dated November 29, 2012, the Petitioner stated that its 
chief technology officer started the company in 2011 and that it was registered in California in 2012. 
(b)(6)
Matter ofS-1-, Inc. 
The Beneficiary's resume, submitted with the petition, identified the Beneficiary as the Petitioner 's 
founder and chief executive officer. 
The Director, in a request for evidence (RFE), notified the Petitioner that additional information was 
required regarding the Beneficiary's ownership interest in the Petitioner as well as evidence 
establishing that the Petitioner had the right to control the Beneficiary's employment. 
In response, the Petitioner noted that the Beneficiary was one of its founders and although he 
initially was appointed chief executive officer, the chief technology officer and board of directors 
subsequently assigned him to the position of senior developer. The Petitioner noted that the 
Beneficiary would report directly to the chief technology officer and asserted that as such the 
Petitioner had the ability to control the Beneficiary's work. The Petitioner submitted its 
organizational chart for fiscal year 2013, its articles of incorporation filed with the California 
Secretary of State on May 10, 2012, showing it was authorized to issue one billion shares of stock, 
and its offer of employment to the Beneficiary. The record also included the Petitioner's by-laws 
and the Petitioner's certificate of adoption of the by-laws dated January 1, 2003.1 
On January 29, 2014, the Director issued a second RFE to the Petitioner. The Director noted that the 
Petitioner had not submitted evidence of its right to control the Beneficiary's employment or 
evidence of the Beneficiary's ownership interest in the company. The Director again requested that 
the Petitioner supply this 
information and provided a non-exhaustive list of evidence that could be 
submitted to establish a valid employer-employee relationship between the Petitioner and the 
Beneficiary. 
In response, the Petitioner confirmed that the Beneficiary is a founder and shareholder of the 
company but emphasized that the Beneficiary was not the sole shareholder. The Petitioner indicated 
that it had two additional shareholders and each of these individuals is also on its board of directors, 
and that the board of directors delegates the management of the day-to-day operation of the business. 
The Petitioner submitted an "Action of Incorporator," signed by the Beneficiary on March 6, 2013, 
appointing the Beneficiary, the chief technology officer, and as directors of the 
company. The Petitioner also submitted a corporate resolution dated March 6, 2013 , signed by each 
member of the board of directors showing the Beneficiary was issued 9,200, 000 shares of the 
Petitioner's stock, the chief technology officer was issued 800,
000 shares, and that 
was issued 10,000 shares. The record included copies ofthe Founder's Stock Purchase Agreements 
with the chief technology officer and 
with 
Upon review, the Director denied the petition finding that the Beneficiary owns 92 percent of the 
Petitioner's outstanding shares and thus is the majority shareholder of the company. The Director 
concluded that as the Petitioner's by-laws state that an affirmative vote of a majority of the 
outstanding shares may remove an individual board member(s), and the Beneficiary is the majority 
1 
The Beneficiary, as the Petitioner 's Secretary, signed the certificate . It appears that the date contains a typographical 
error and should read January I, 2013. 
2 
(b)(6)
Matter ofS-1-, Inc. 
shareholder, the Beneficiary maintains control of the board of directors and thus, his own 
employment. The Director concluded further that an employer-employee relationship did not exist 
between the Petitioner and the Beneficiary because the Petitioner did not have the ultimate right to 
corhrol the Beneficiary's employment. · 
On ~he first combined motion to reopen and reconsider the Director's decision, filed August 18, 
2014, the Petitioner reiterated that the Beneficiary is not its only board member and that the 
Petitioner through its chief technology officer has the ability to control the manner and means by 
which the Beneficiary's work is accomplished. Upon review, the Director affirmed her previous 
decision. 
On the second combined motion to reopen and reconsider the Director's decision, the Petitioner 
asserted that in May 2013, two of the founders of the company entered into a verbal agreement to 
have an equal equity distribution. The Petitioner noted that in June 2014 the documents evidencing 
the verbal agreement were issued. The Petitioner explained that the documents were not finalized 
until June 2014 due to limited funds and the cost of legal fees. The Petitioner included a copy of a 
Shares Transfer Agreement, effective June 24, 2014, between the Beneficiary and 
wherein the Beneficiary transferred 4,595,000 of his shares to The Petitioner 
claimed that as a result of the shares transfer, the Beneficiary owned approximately 46 percent of its 
outstanding shares. The Petitioner explained further that this document was not submitted initially 
because the Beneficiary was under the direct supervision of the chief technology officer and it 
believed that this information was sufficient to establish the employer-employee relationship. 
Upon review, the Director affirmed her previous decision. The Director found that the documents 
were created subsequent to the filing of the petition, and thus could not be considered as establishing 
eligibility when the petition was initially filed. 
On the third combined motion to reopen and reconsider the Director's decision, the Petitioner asserts 
that at the time of filing the petition in December 2012, the Beneficiary owned only 33.33 percent of 
its equity. The Petitioner submitted an Equity Ownership Agreement dated July 5, 2012, in support 
of this assertion. The agreement identifies the three founders of the company and indicates that each 
have equal shares of the Petitioner's common stock. The agreement includes the signatures of the 
three founders of the Petitioner. The Petitioner acknowledged that subsequently, from March 6, 
2013, to April 30, 2013, the Beneficiary held 91 percent of its equity but that during this limited 
amount of time he did not remove or influence the· board of directors. The Petitioner also asserted 
that even if the Beneficiary was the majority shareholder during this two-month time period, case 
law establishes that a corporation is a separate legal entity from its owner and that even if the 
Beneficiary had ultimate control of the Petitioner, he was still employed by the petitioning separate 
corporate entity. 
Upon review, the Director affirmed her previous decision, finding that as the July 5, 2012, Equity 
Ownership Agreement, was not submitted at the time of filing, -the existence and authenticity of the 
3 
) 
Matter ofS-1-, Inc. 
document had no evidentiary value. The Director concluded that the Petitioner had not established 
an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits the same documents submitted with its third motion and asserts 
that it submitted the Equity Ownership Agreement, "only when it was asked in response to the last 
H-1B denial solely to provide USCIS what they requested" and not submitting the agreement earlier 
was an oversight. The Petitioner also reiterates its previous assertions regarding its interpretation of 
case law and concludes that the Petitioner, even if the Beneficiary was the Petitioner's majority 
shareholder, has established an employer-employee relationship with the Beneficiary. 
B. Law 
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 212(j)(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)(1) .... 
The term "United States employer" is defined in the (:ode 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; 
(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.P.R. pt. 214). 
C. Analysis 
Preliminarily, we find that the Petitioner's Equity Ownership Agreement submitted for the first time 
on the Petitioner's third combined motion to reopen and reconsider, does not adequately establish 
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Matter of S-1-, Inc. 
the Petitioner's ownership when the petition was filed. We find specifically that the Petitioner has 
offered no corroborating evidence of the claimed shares initially issued. Moreover, the Director 
specifically requested the Petitioner to provide evidence of the Beneficiary's ownership interest in 
the Petitioner in the first RFE issued. When the Petitioner did not offer evidence in response to the 
RFE on this issue, the Director provided the Petitioner a second opportunity to offer evidence of the 
Beneficiary's ownership interest. The Petitioner's response to the second RFE regarding the 
distribution of its equity showed that the Beneficiary owned a majority and controlling interest in the 
Petitioner. Only in the second combined motion on the Director's decision, more than two years 
subsequent to filing the petition, does the Petitioner submit evidence that the Beneficiary's majority 
ownership had been diluted to a 46 percent equity interest through a June 24, 2014, agreement. And 
only in the third combined motion, two and one-half years subsequent to the filing of the petition, 
does the Petitioner claim that the Beneficiary owned only a one-third interest in it when the petition 
was filed in December 2012. 
The Petitioner had multiple opportunities to provide evidence of the Beneficiary's ownership interest 
in the Petitioner. Only when the Director determined that the Beneficiary's majority ownership 
interest in the Petitioner combined with the Petitioner's by-laws giving the majority of the 
outstanding shares authority to remove an individual board member(s) does the Petitioner materially 
amend the petition.2 We emphasize here that the Petitioner must establish that it will have and will 
maintain an employer-employee relationship with the Beneficiary for the duration of the requested 
employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and 
requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an 
employer-employee relationship with respect to the sponsored H-1B nonimmigrant worker). Thus, 
even if the Beneficiary's majority ownership existed for only a short period oftime as the Petitioner 
asserts on appeal, this majority ownership would have disrup~ed the employer-employee relationship 
and still require a denial of the petition on this issue. 
We find that when the Director issued her decision, the evidence of record established that at the 
time of filing, the Beneficiary owned a majority interest in the Petitioner. Accordingly, we will 
analyze the employer-employee relationship based on this evidence. 
USCIS regulations affirmatively require a petition~r to establish eligibility for the benefit 1t 1s 
seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(1). A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm'r 1978)~ A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm 'r 1998). 
2 The Petitioner asserts on motion and on appeal that changing the Petitioner's ownership and its ultimate control or lack 
of control of the Beneficiary is not a material change to the petition. We find, as will be discussed below, that the 
Beneficiary's majority ownership of the Petitioner is material to the employer-employee issue and thus any change to the 
controlling ownership is also material and requires the filing of a new or amended petition. 
5 
Matter ofS-1-, Inc. 
We have considered the Petitioner's assertion that even if the Beneficiary owned a majority interest in 
the Petitioner, it still has established that it has an employer-employee relationship with the Beneficiary. 
However, applying the tests mandated by the Supreme Court of the United States for construing the 
terms "employee" and "employer-employee relationship," the record is not persuasive in establishing 
that the Beneficiary will be an "employee" of the Petitioner as its majority shareholder when the petition 
was filed. 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 10l(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)(1). The intending employer is described as offering 
full-time or part-time "employment" to the H-lB "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-lB 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 USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H-lB visa 
classification, even though the regulation describes H-lB 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 of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
6 
Matter ofS-1-, Inc. 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
Id; 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)). 
Within the context of H-1B nonimmigrant petitions, when a beneficiary is also a partner, officer, 
member of a board of directors, or an owner of the corporation, the beneficiary may only be defined as 
an "employee" having an "employer-employee relationship" with a "United States employer" if he or 
she is subject to the organization's "control." 8 C.P.R. § 214.2(h)(4)(ii). The Supreme Court decision 
in Clackamas specifically addressed whether a shareholder-director is an employee and stated that six 
factors are relevant to the inquiry. According to Clackamas, the factors to be addressed in determining 
whether a worker, who is also an owner of the organization, is an employee include: 
• Whether the organization can hire or fire the individual or set the rules and 
regulations ofthe individual's work. 
• Whether and, if so, to what extent the organization supervises the individual's work. 
• Whether the individual reports to someone higher in the organization. 
• Whether and, if so, to what extent the individual is able to influence the 
organization. 
• Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
• Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-50; Threshold Issues, EEOC Compl. Man. (BNA) at§ 2-III(A)(1)(d), 2009 
WL 2966755 (Aug. 2009), available at http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1-d 
(last visited Oct. 27, 2016). 
Again, this list need not be exhaustive and such questions cannot be decided in every case by a 
"shorthand formula or magic phrase." Clackamas, 538 U.S. at 450 (citing Darden, 503 U.S. at 324). 
We acknowledge the past case law, cited by the Petitioner regarding the employment of principal 
stockholders by petitioning business entities in the context of employment-based classifications. 
However, these precedent decisions can be distinguished from the present matter. 
The decisions in Matter of Aphrodite Inv. Ltd, 17 I&N Dec. 530 (Comm'r 1980) and Matter of Allan 
Gee, Inc., 17 I&N Dec. 296 (Reg'l Comm'r 1979) both conclude that corporate entities may file 
petitions on behalf of beneficiaries who have substantial ownership stakes in those entities. We do not 
question the soundness of this particular conclusion and we do not take issue with a corporation's 
Matter ofS-1-, Inc. 
ability to file an immigrant or a nonimmigrant visa petition. The cited decisions, however, do not 
address an H-IB petitioner's burden to establish that a beneficiary will be a bonafide "employee" of a 
"United States employer" or that the two parties will otherwise have an "employer-employee 
relationship." See 8 e.F.R. § 214.2(h)(4)(ii). 
Although an H-IB petitioner may file a visa petition for a beneficiary who is its sole or primary owner, 
this does not necessarily mean that the beneficiary will be a bona fide "employee" employed by a 
"United States employer" in an "employer-employee relationship." See Clackamas, 538 U.S. at 440. 
Thus, while a corporation that is solely or substantially owned by a beneficiary is not prohibited from 
filing an H-IB petition on behalf of its owner, the petitioner must nevertheless establish that it will have 
an "employer-employee relationship" with the beneficiary as understood under common-law agency 
doctrine. 
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, USers 
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)) .. 
As detailed above, in addition to the six factors relevant to the broad question of whether a person is an 
employee, there are six factors to be considered relevant to the narrower question of whether a 
shareholder-director is an employee. See Clackamas, 538 U.S. at 449. These factors include whether 
the organization can hire or fire the individual; whether and to what extent the organization supervises 
the individual's work; whether the individual is able to influence the organization; whether the 
individual reports to a more senior officer or employee of the organization; and whether the individual 
shares in the organization's profits, losses, and liabilities. Id at 449-50. 
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, users 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-lawtest. 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. 
8 
Matter ofS-1-, Inc. 
In applying the test as outlined in Clackamas, the mere fact that a "person has a particular title -
such as partner, director, or vice president- should not necessarily be used to determine whether he 
or she is an employee or a proprietor." Clackamas, 538 U.S. at 450; cf Matter of Church 
Scientology Int 'l, 19 I&N Dec. 593, 604 (Comm'r 1988) (stating that a job title alone is not 
determinative of whether one is employed in an executive or managerial capacity). Likewise, 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, as was true in 
applying common-law rules to the independent-contractor-versus-employee issue confronted in 
Darden, the answer to whether a shareholder-director 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-IB temporary "employee." Here, the Petitioner is majority owned and 
controlled by the Beneficiary. We recognize that the Petitioner delegated its day-to-day operations 
to its board of directors. As the Director below found, however, the Petitioner's by-laws state that 
the board of directors is subject to removal based upon an affirmative vote of the majority of the 
shares issued. Thus, the Beneficiary as the majority shareholder has control of the Petitioner's 
operations through its board of directors. The Petitioner acknowledges this when noting that the 
Beneficiary, when holding a majority interest, did not remove or influence the board of directors. 
Thus, the Beneficiary as the majority shareholder has the right and ability to override any decisions 
of its board of directors and any decisions of employees placed in positions above the Beneficiary. 
The Beneficiary is the Petitioner for all practical purposes. 
We have reviewed the Petitioner's employment offer and the Beneficiary's acceptance of the 
position of senior developer with the Petitioner. The Beneficiary, by his signature, accepted the 
Petitioner's right to make personnel decisions regarding his employment. Again, ho~ever, the 
Beneficiary's majority ownership controls the Petitioner and any actions it may take regarding his 
employment. The record does not include probative evidence that the Petitioner can actually 
terminate the Beneficiary's employment or otherwise control the Beneficiary's actions, without the 
express approval of the Beneficiary. For example, while the Petitioner maintains that the chief 
technology officer will supervise the Beneficiary in his role as senior developer, the Beneficiary at 
any time may exercise his majority interest control in the Petitioner and terminate the employment of 
the chief technology officer. 3 When the petition was filed, the evidence demonstrates that: the 
Beneficiary will control the petitioning organization; he cannot be fired; he can influence the 
petitioning organization; and he will share in all profits and losses. Finally, we also note that there is 
3 Again we reiterate that the Equity Ownership Agreement dated July 5, 2012, submitted for the first time on the 
Petitioner's third motion to reopen and reconsider, is not probative in establishing the Petitioner's ownership when the 
petition was filed. Further, the Beneficiary's transfer of stock to dilute his majority ownership interest subsequent to 
filing the petition is a material change and necessitates the filing of a new or amended petition in order to be considered. 
9 
/ Matter ofS-1-, Inc. 
no record of employment actions or any employment history for this corporation that would establish 
that it ultimately controls the work of the Beneficiary. Therefore, based on the tests outlined above 
and the totality of the record, 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." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the Petitioner and the Beneficiary are not eligible for the benefit sought, and the appeal 
must be dismissed and the petition denied for this reason.4 
II. CONCLUSION 
The burden is on the Petitioner to show 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. 
Cite as Matter ofS-1-, Inc., ID# 12240 (AAO Oct. 28, 2016) 
4 As noted above, the Petitioner also cites to unpublished opinions in support of its contention that the Beneficiary may 
be "employed" by the Petitioner even though he is the majority owner and operator of the enterprise. However, the 
Petitioner's reliance on these decisions is misplaced. First, while 8 C.F.R. § 103.3(c) provides that our precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. Second, the unpublished decisions correctly determined that corporations are separate and distinct from their 
stockholders and that corporations may petition for, and hire, their principal stockholders as H-1 B temporary employees; 
however, similar to the 1979 Allan Gee decision discussed above, the unpublished decisions do not address how, or 
whether, petitioners must establish that such beneficiaries are bona fide "employees" of "United States employers" 
having an "employer-employee relationship," which is the issue in this matter. Therefore, while it is correct that a 
petitioner may employ and seek H-IB classification for a beneficiary who happens to have a significant ownership 
interest in a petitioning business, this does not automatically mean that the Beneficiary is a bona fide employee. Again, 
the prior, unpublished decisions do not address the issue at hand in the instant matter, and the Petitioner's reliance on 
them is misplaced for this additional reason. 
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