dismissed H-1B Case: Textile Science

(b)(6)
DATE: MAR 0 3 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i )(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, fiJing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will 
be dismissed. The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Form I-129 visa petition, the petitioner describes itself as a 200-employee "Textile Science" 
firm established in In order to employ the beneficiary in what it designates as an "O nsite 
Program Coordinator - Textiles and Apparel" position, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to establish that it would employ 
the beneficiary in a specialty occupation position and failed to establish that it has standing to file 
the visa petition as the beneficiary's prospective United States employer as that term is defined at 
8 C.P.R. § 214.2(h )(4)(ii). 
On appeal, the petitioner asserts that the director's bases for denial were erroneous and contends that 
it satisfied all evidentiary requirements. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the bases specified in her decision. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
petitioner's Form I -129 and the supporting documentation filed with it; (2) the service center's 
request for additional evidence (RFE ); (3) the petitioner's response to the RFE; (4) the director's 
denial letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
II. EVIDENCE 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is an "O nsite Program Coordinator- Textiles and Apparel" position, and that it 
corresponds to Standard Occupational Classification (SOC) code and title 13-1199, Business 
Operations Specialists, All Other, from the Occupational Information Network (O*NET). The LCA 
further states that the proffered position is a Level I, entry-level, position. 
With the visa petition, the petitioner submitted evidence that the beneficiary received a bachelor's 
degree in Textile Engineering/International Economics and Trade from 
States. 
in China and a master's degree in Textiles from the in the United 
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The petitioner also submitted a letter, dated March 21, 2014, from 
That letter states, "[The petitioner J was established in 
the associate counsel of 
and is owned by the 
11 
It also further states the following: 
[The beneficiary] will serve our company as Onsite Program Coordinator- Textiles 
and Apparel. In this capacity, he will provide textile and apparel quality assurance 
(QA) testing technical support and program management to retailer clients. He will 
be the point contact for all Retailer QA and [the petitioner] relations. (The 
beneficiary] will monitor and work with offices worldwide to ensure that all 
retailer testing needs and procedures are met. He will perform testing in accordance 
with the retailer's specified test methods and test protocols, including turn time 
requirements and reporting procedures. [The beneficiary J will assist retailer 
managers in developing and updating protocols and procedures for new and existing 
products. He will keep current on all regulatory, safety, and quality performance 
requirements and communicate relevant information to retailers. He will assist 
retailers on projects and assignments, such as systems updates and products and 
material development procedures. (The beneficiary J will train the retailer's 
employees on documents and safety/technical protocols. He will coordinate and 
attend retailer's seasonal product line reviews and participate in product development 
meetings to identify potential issues and contribute technical recommendations. He 
will provide technical expertise to assist and resolve technical issues. He will 
organize, schedule, and track tests/audits/inspections. He will be responsible for the 
development and maintenance of database/systems manuals as they relate to [the 
petitioner]/ 
As to the educational requirement of the proffered position, 
of a bachelor's degree in Textile Sciences or a related degree. 
stated that it requires a minimum 
On May 16, 2014, the service center issued an RFE in this matter. The evidence the service center 
requested was primarily concerned with whether the petitioner qualifies as the beneficiary's 
prospective employer. However, the RFE states: "[The visa] petition does not establish when, 
where or for whom the beneficiary is assigned to work pursuant to an end-client engagement for the 
requested validity period. 
11 
The RFE further states: 
[L]acking information of work arrangement between you and your client, where the 
beneficiary will be performing his or her services, also prevents USC IS [from 
determining] determine whether the specialty occupation work is immediately 
available for the beneficiary. 
As such, the RFE also raised the issue of whether the beneficiary would be employed in a specialty 
occupation position. 
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In response, the petitioner submitted (1) a copy of the beneficiary's employment contract; 
(2) a vacancy announcement of the proffered position; and (3) a letter, dated June 23, 2014, from 
counsel. 
The beneficiary's employment contract states that he would work as Onsite Program Coordinator; 
that the work location would be Oregon; and that he would report directly to 
Business Development Director. 
The vacancy announcement of the proffered position contains the following duty description: 
• Individual would be the point contact for all Retailer QA I relations. 
Responsible for effective communication and follow through between Retailer and 
• Monitor and work with 
needs and procedures are met. 
offices worldwide to ensure that all Retailer testing 
• Ensure laboratories are performing testing in accordance with Retailer' (sic] specified 
test methods and test protocols, including turn time requirements and reporting 
procedures. 
• Continually monitor lab turn times and monitor test volume on Retailer programs. 
• Assist Retailer managers in developing and updating protocols and procedures for 
new and existing products. 
• Keep current on all regulatory, safety, and quality performance requirements and 
communicate relevant information to Retailer. 
• Assist Retailer on projects and assignments, such as systems updates and product & 
material development procedures. Assist in the training of Retailer' [sic] employees 
on such documents. Assist Retailer on technical and safety presentations when 
needed. 
• Coordinates and attends Retailer' [sic] seasonal product line reviews and participates 
in product development meetings to identify potential issues and contribute technical 
recommendations as requested. 
• Provides technical assistance to assist and resolving technical issues [sic] 
• Organize, schedule, track test/audit/inspections as required by Retailer including 
distribution, processing and follow-up 
• Responsible for the development and maintenance of database/systems manuals as 
they relate to procedures and vice versa. 
• Perform some physical laboratory testing as it relates to projects, correlation and/or 
training. 
As to the educational and experiential requirements of the proffered positiOn, that vacancy 
announcement states: "Bachelor's degree from a college or university with minimum 2 years' 
experience; or four to six years related experience and/or training; or equivalent combination of 
education and experience." 
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In her June 23, 2014 letter, counsel stated: "There is a long-standing informal agreement between 
and [the petitioner's] affiliate organization valid until 
November 2017. " She stated that the petitioner exercises complete control over the beneficiary and 
"determines the steps necessary and the timeline required to complete the project as requested by the 
end client. " She admitted, however, that: 
The nature of the business in which [the petitioner] is engaged does not permit the 
accurate prediction of where [the beneficiary] will be located for the duration of three 
years because [the petitioner's] services are not typically engaged so far in advance. 
She further stated: "[The petitioner] cannot predict to which projects [the beneficiary] will be 
assigned over the next three years. " 
The director denied the petition on July 11, 2014, finding, as was noted above, that the petitioner had 
not demonstrated that the proffered position qualifies as a position in a specialty occupation by 
virtue of requiring a minimum of a bachelor's degree in a specific specialty or its equivalent and that 
the petitioner had not demonstrated that the petitioner would have an employer-employee 
relationship with the beneficiary. 
On appeal, the petitioner submitted: (1) a copy of a contract, dated June 1, 2007, between the 
petitioner and (2) a letter, dated August 6, 2014, signed by as associate counsel for 
; and (3) counsel's own letter, dated August 7, 20 14. 
The June 1, 2007 contract between the petitioner and is an agreement for the petitioner to 
provide services to . It states, inter alia: 
This agreement shall commence on the Effective Date stated above and continue 
through May 31, 2008, and shall be renewable, upon mutual agreement of the parties 
documented in writing, for successive one-year periods upon the same terms and 
conditions as set forth herein, with the fee for Services to be reviewed at least 
annually. 
That contract also states that principal address is ' 
The August 6, 2014 letter from associate counsel states that the agreement between the 
petitioner and is ongoing "on a continuing though informal basis ... . " It also provides the 
following revised description of the duties of the proffered position: 
1. Provide textile and apparel quality assurance testing technical support and 
program management to retailer clients. 
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2. Be point contact for all retailer quality assurance and [the petitioner]! 
relations. 
3. Be responsible for effective communication and follow-ups between the retailer 
and [the petitioner] 
4. Monitor and work with offices worldwide to ensure that all retailer 
testing needs and procedures are met. 
5. Perform testing in accordance with the retailer's specified test methods and test 
protocols, including turn time requirements and reporting procedures. 
6. Assist retailer managers in developing and updating protocols and procedures for 
new and existing products. 
7. Keep current on all regulatory, safety, and quality performance requirements and 
communicate relevant information to retailers. 
8. Assist retailers on projects and assignments, such as systems updates and products 
and material development procedures. 
9. Train the retailer's employees on document and safety/technical protocols. 
10. Coordinate and attend retailer's seasonal product line reviews and participate in 
product development meetings to identify potential issues and contribute technical 
recommendations. 
11. Provide technical expertise to assist and resolve technical issues. 
12. Organize, schedule, and track tests/audits/inspections. 
13. Be responsible for the development and maintenance of database/systems 
manuals as they relate to [the petitioner]. 
On appeal, the petitioner asserts that the evidence submitted demonstrates that the proffered position 
is a specialty occupation position and that the petitioner will have an employer-employee 
relationship with the beneficiary. 
A. THELAW 
III. THE SPECIALTY OCCUPATION ISSUE 
We will first address the specialty occupation basis of denial. 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 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: 
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NON-PRECEDENT DECISION 
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.P.R. § 214. 2(h)(4)(iii)(A) , to qualify as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the mtmmum 
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.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214. 2(h)(4)(i i). 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. Federal Sav. and Loan Ins. Corp. , 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(ii i)(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.P.R. § 214.2( h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 P.3d 384, 387 (5th Cir. 2000) . To avoid this 
result, 8 C.P.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)(l) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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term "degree" in the criteria at 8 C.P.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 r�gularly approves H-lB petitions for qualified aliens 
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 alien, 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 nor 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, supra, 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 387-388. 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. 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. 
B. ANALYSIS 
As a preliminary matter, we observe that the petitioner's announcement of a vacancy in the proffered 
position states that the proffered position requires either a "Bachelor's degree from a college or 
university with minimum 2 years' experience; or four to six years related experience and/or training; 
or equivalent combination of education and experience." 
That announcement suggests that a bachelor's degree, in order to be a sufficient educational 
qualification for the proffered position, need not be in any specific specialty. If, as that vacancy 
announcement indicates, a bachelor's degree that is not in any specific specialty would be a 
sufficient educational qualification for the proffered position, then the proffered position does not 
require a minimum of a bachelor's degree in a specific specialty or its equivalent and does not 
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qualify as a specialty occupation position. The assertion in the vacancy announcement that a degree 
that is not in any specific specialty would be a sufficient qualification for the proffered position is 
tantamount to an admission that the proffered position does not require a minimum of a bachelor's 
degree in a specific specialty or its equivalent and does not qualify as a specialty occupation 
position. 
Further, the vacancy announcement indicates that, even without such education or a degree, four to 
six years of experience would be a sufficient preparation for the proffered position. Four to six years 
of experience is not equivalent to a four-year bachelor's degree pursuant to the salient regulations. 
See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (indicating that in the context of qualification for a specialty 
occupation position, provided other conditions are met, three years of experience may be shown to 
be equivalent to one year of college education). In the instant visa category, one year of college 
education is equal to no less than three years of experience. The assertion that four to six years of 
experience, with no college education, would be a sufficient preparation for the proffered position 
makes clear that the proffered position does not require a minimum of a bachelor's degree in a 
specific specialty or its equivalent, and does not qualify as a specialty occupation position. 
Both of those admissions indicate that the proffered position does not qualify as a specialty 
occupation position. The appeal must be denied and the visa petition dismissed on this basis alone. 
Nevertheless, we will conduct a further analysis of whether the proffered position qualifies as a 
specialty occupation position. 
With the visa petition, the petitioner provided a list of duties the beneficiary will perform at 
That address was later revealed to be the principal 
address of That evidence suggests that the petitioner contemplates the beneficiary performing 
the duties described at address on textiles. 
However, the only documentary evidence that agrees that the beneficiary, or some employee of 
the petitioner, may perform any duties for it is the June 1, 2007 contract which, by its own terms, 
expired on May 31, 2008 unless renewed in writing. The record contains no such written renewal. 
Further, as to the duties to be performed, that agreement states, "The Written Requirements shall 
provide the overall definition and scope of the work to be performed . . . . " and "The Written 
Requirements shall be attached as Schedule B to become a part of this Agreement." The agreement 
makes explicit that determined the duties to be performed by a worker provided by the 
petitioner, and that those duties would be explained in Schedule B. However, the petitioner did not 
provide Schedule B of that agreement. As such, the evidence provided does not corroborate that the 
lists of duties the petitioner and associate counsel provided are accurate. 
The petitioner asserted, through counsel, that a "long-standing informal agreement" exists between 
the petitioner and associate counsel asserted that such an agreement exists on a 
"continuing though informal basis." However, that is inconsistent with the terms of the expired 
written contract of June 1, 2007, which indicates that any extension of that agreement would be in 
writing. Without evidence to corroborate those claims, the evidence submitted is insufficient to 
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show that the petitioner, or , has an agreement to provide any type of services to 
any part of the period of requested employment. 
during 
Also, at a more basic level, 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. The petitioner has asserted that the beneficiary will perform 
certain duties for clothing manufacturers, but has provided insufficient evidence to demonstrate that 
any clothing manufacturers have agreed to utilize the beneficiary's services. 
Absent sufficient evidence that the petitioner has any work for the beneficiary to perform, the 
petitioner cannot demonstrate the substantive nature of the work the beneficiary would perform if the 
visa petition were approved. In this respect, we note that as recognized by the court in Defensor v. 
Meissner, 201 F. 3d 384, where the work is to be performed for entities other than the petitioner, 
evidence of the client companies' job requirements is critical. 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. 
Such evidence must be sufficiently detailed and explained as to demonstrate the type and educational 
level of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. The record of proceeding lacks such substantive evidence from any end-user 
entities that may generate work for the beneficiary and whose business needs would ultimately 
determine what the beneficiary would actually do on a day-to-day basis. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under 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 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 pos ition, 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. 
The petitioner has failed to establish that it has satisfied any of the criteria at 8 C.P.R. 
§ 214. 2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 1 
1 We further observe that the visa petition stipulates that the petitioner would employ the beneficiary full-
time at the location of The agreement with however, merely states that the 
beneficiary would produce reports pertinent to suppliers. The agreement does not indicate whether 
would require those services often or only rarely. There is insufficient indication in that agreement that 
anticipates using the beneficiary's services on a full-time basis. The record does not indicate, therefore, 
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IV. THE EMPLOYE R-EMPLOYE E ISSUE 
The remaining basis cited in the decision of denial is the director's determination that the petitioner 
has not established that, if the visa petition were approved, the petitioner would have qualify as the 
beneficiary's employer as that word is defined at 8 C.F.R . § 214.2(h)(4)(ii). 
A. THE LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject 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)(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 fa ct that it may hire, pay, fi re, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the petitioner will have an employer-employee 
relationship with the beneficiary. 
B. ANALYSIS 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214. 2(h)(4)(ii), it is noted 
that if the visa petition were approved, the petitioner would employ the beneficiary pursuant to the terms and 
conditions of that approved visa petition. 
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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 alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 
8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-1B "employee." Subsections 21 2(n)(1)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form 1-129) in order to classify aliens 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-lB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii)( defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-lB visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business· of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quotingNLRB v. United Ins. Co. 
of America, 390 U.S. 254, 258 (1968)). 
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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-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.2 
Specifically, the regulatory definition of "United States employer" requires H-lB 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-lB "employee." 8 C.P. R. § 214. 2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-lB 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.P. 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 
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), aff'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
Finally, it is also noted that if the statute and the regulations were somehow read as extending the definition 
of employee in the H-1B context beyond the traditional common law definition, this interpretation would 
likely thwart congressional design and lead to an absurd result when considering the $750 or $1,500 fee 
imposed on H-1B employers under section 214(c)(9) of the Act, 8 U.S.C. § 1184(c)(9). As 20 C.F.R. § 
655.731(c)(10)(ii) mandates that no part of the fee imposed under section 214(c)(9) of the Act shall be paid, 
"directly or indirectly, voluntarily or involuntarily," by the beneficiary, it would not appear possible to 
comply with this provision in a situation in which the beneficiary is his or her own employer, especially 
where the requisite "control" over the beneficiary has not been established by the petitioner. 
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Page 14 
construing these terms in this manner would thwart congressional design or lead to absurd results_ Cf 
Darden, 503 U.S. at 318-319? 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.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-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.P.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Def ensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-1B nurses under 8 C.P.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties relevant 
to control may affect the determination of whether an employer-employee relationship exists. 
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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at § 2-III(A)(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 323-324. For example, while the assignment of additional projects is dependent on who has the right 
to assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship .. . with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that it 
will be a "United States employer" having an "employer-employee relationship" with the beneficiary 
as an H-lB temporary "employee." 
The petitioner repeatedly claims that the beneficiary wm be performing services for another 
company or for other companies. Counsel asserted in her June 23, 20 14 letter, that the beneficiary 
would initially work on matters for at location, but conceded that where and for whom 
the beneficiary would work during the three years of requested employment cannot be determined. 
Counsel did not state any minimum period of time during which the beneficiary would work at the 
location. In any event, there is insufficient evidence that employment exists for the beneficiary 
at the location during the requested validity period and insufficient documentary evidence of 
any employment available for him at any other location. 
Because the record contains insufficient evidence of where the beneficiary would work, whose 
textiles he would test, or the conditions of that employment, such as who would assign the 
beneficiary's tasks and supervise his performance of them, we are unable to determine that the 
petitioner would have an employer-employee relationship with the beneficiary, in whatever 
employment he might be placed. The petitioner has failed to show that it has standing to file the 
instant visa petition as the beneficiary's prospective U.S. employer as that term is defined at 8 C.F.R . 
§ 214.2(h)(4)(ii). The appeal will be dismissed and the visa petition denied for this additional 
reason. 
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V. CONCLU SION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff d. 345 F.3d 
683 . 
The director's decision will be affirmed and the petition will be denied for the above stated reasons, 
with each considered as an independent and alternative basis for the decision. In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 29 1 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.