remanded H-1B Case: Business Analysis

MATTER OF W-N-A-, INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a business processing outsourcing company, seeks to temporarily employ the 
Beneficiary as a "business analyst" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 110l(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
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 of the California Service Center denied the petition, concluding that the Petitioner had 
not established that the Beneficiary is qualified to perform the services of the proffered position. 
On appeal, the Petitioner submits previously provided evidence and asserts that the Director erred 
when determining that the Beneficiary is not qualified to perform the services of the business analyst 
position. 
We conduct de novo review on appeal, and note that a beneficiary's credentials for the proffered 
position are relevant only when we find the position to be a specialty occupation. As we will discuss 
below, the record does not establish that the proffered position requires a baccalaureate or higher 
degree in a specific specialty, or its equivalent. Additionally, the record does not establish that the 
Petitioner will have an employer-employee relationship with the Beneficiary. Accordingly, we will 
remand the matter to the Director for further review of the record and to issue a new decision. 
I. SPECIALTY OCCUPATION 
We will first discuss whether the proffered position qualifies as a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
Matter ofW-N-A-, 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 regulations largely restate this statutory definition, but add a non-exhaustive list of fields of 
endeavor. 8 C.F.R. § 214.2(h)(4)(ii). In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term ·'degree" in these criteria 
to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly 
related to the proposed position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387-88 
(5th Cir. 2000). 
B. Proffered Position 
In response to the Director's request for evidence (RFE), the Petitioner listed the following duties for 
the proffered position: 
• Analyzing the clients existing loyalty and marketing programs and operations and 
working with different client stakeholders to define business problems and help 
them prioritize the problems (1 0% of the time) 
• Developing solution approaches and methodologies for each business problem; 
discussing the same with the client stakeholders and getting a sign-off on a 
specific solution approach for each problem. ( 15% of his time) 
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• Liaising with different stakeholders in the client's and 
to collect and get access to relevant data needed for developing 
the analytical solutions; Providing recommendations to the client on efficient and 
optimized analytical dataset creation to support various analytical initiatives. (5% 
of his time) 
• Communicating the problem definition, available datasets , business objectives 
and solution plans to the operations team and helping them develop a project plan 
for executing projects. (l 0% of his time) 
• Monitoring the progress of various projects with the operations manager and 
helping the operations team get regular clarifications and inputs needed from the 
client. (l 0% of his time) 
• Helping the operations team develop the final solutions with appropriate story 
flow and actionable business insights relevant to the business problem. ( 10% of 
his time) 
• Finalizing the solution with the client stakeholders, getting their feedback and 
sign-off. Communicating the feedback and next steps to the operations team. 
(10% ofthe time) 
• Consulting with clients continuously to improve the effectiveness of their loyalty 
program & providing best practices. Leveraging the best practices in the industry 
across the globe and within other geographies of to come up with ideas 
that can improve the effectiveness of the loyalty program. (10% ofhis time) 
• Analyzing data to support key business decisions. (l 0% of his time) 
• Participating in various client meetings as needed to stay updated with the 
business 
priorities and challenges of the client and educating the operations team 
about the changing business needs of the client. ( 5% of his time) 
• Educating the client on the benefits of using advanced analytical solutions and 
supporting business decisions by analyzing available information and creating 
actionable business recommendations. ( 5% of his time) 
According to the Petitioner, the proffered position requires a minimum of"a Bachelor's degree or its 
equivalent in Marketing or Management or Economics or Engineering." In response to the RFE, the 
Petitioner provided an expert opinion from a professor of finance at the 
indicating that the position requires "knowledge gained from a relevant quantitative 
or analytical field, such as Quantitative Business Analysis, a relevant field of Engineering , 
Economics, or other related field." In addition, the Petitioner submitted a letter from (end­
client), to whom the Beneficiary will be assigned, stating that the position requires a bachelor ' s 
degree or its equivalent "in management with strong quantitative and data analytics skills and 
experience." 
C. Analysis 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation. Specifically, the record ( 1) does not demonstrate sufficient work available for 
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Matter ofW-N-A- , Inc 
the Beneficiary for the entire validity period requested; and (2) does not establish that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation. 
1 
The Petitioner initially indicated that the Beneficiary would be employed at the end-client's location 
in Washington, for the entire validity period. On the Fom1 I-I29, Petition for a 
Nonimmigrant Worker, the Petitioner requested that the Beneficiary be granted H-1 B classification 
from October I, 20 I6, to August 3I , 2019. However, the Petitioner has not submitted sutlicient 
documentation to substantiate that the Beneficiary would be placed at the end-client location during 
the entire validity period requested. 
In support of the petition, the Petitioner provided a Master Services Agreement (MSA) with the end­
client. The MSA reflected that the parties would execute "Resource Activity Descriptions" (RAD) , 
attached to the agreement as Exhibit A, to define the work to be performed and the resources and 
deliverables to be provided. Notably, the Petitioner did not submit all pages, but only pages 1-9 of 
the 13-page MSA . Further , Exhibit A or the accompanying RAD , was also not submitted. 
In response to the RFE, the Petitioner provided a RAD naming the Beneficiary and his assignment to 
support the '' The RAD defined the service term as October 
1, 2016, to September 30, 20 I 7. However, this document is not dated. Therefore, we are unable to 
determine when this document was executed and if this was in place prior to filing.2 
Even if we assume that the RAD was properly executed prior to filing, the record does not establish 
that the Petitioner had sufficient work for the Beneficiary for the duration of the requested H -1 B 
validity period. The Petitioner stated "given our long term engagement with [the end-client] and the 
continuous support we have been providing them from offshore , we expect the onsite requirement to 
be extended further beyond September 30, 20 I7 .... " However , the record does not contain 
sufficient evidence of its long term engagement or other documents to support this expectation. 
Therefore, we find that the Petitioner has not established non-speculative work for the Beneficiary at the 
time of the petition's filing for the entire period requested. U.S. Citizenship and Immigration Services 
(USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(l). 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 ol Michelin Tire Corp. , 17 I&N Dec. 248 (Reg ' I 
Comm'r 1978).3 . 
1 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 Because the Petitioner did not submit the original RAD attached to the MSA , we are unable to compare this RAD to the 
original and determine its authenticity. 
3 The agency made clear long ago that speculative employment is not permitted in the H-1 B program . For example , a 
1998 proposed rule documented this position as follows: 
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Matter ofW-N-A-, Inc 
However, even if we assume that the Petitioner has established non-speculative employment for the 
Beneficiary, we find that the record does not establish that the proffered position qualifies as a 
specialty occupation upon completing a specialty occupation analysis under each of the four, 
alternative criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
1. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) requires that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry into the 
particular position. We often look to the U.S. Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook) as an authoritative source on the duties and educational requirements of the 
wide variety of occupations that it addresses. 4 
On the labor condition application (LCA)5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Management Analysts" 
corresponding to the Standard Occupational Classification code 13-1111.6 The Handbook does not 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. To satisfy the first criterion, the burden of proof remains on the Petitioner to submit sufficient evidence to 
support a finding that its particular position would normally have a minimum, specialty degree requirement. or its 
equivalent, for entry. 
5 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the ''area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
6 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The ''Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
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Matter ofW-N-A-, Inc 
state a normal minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or 
its equivalent, for entry into the occupation. 7 The subchapter of the Handbook entitled ''How to 
Become a Management Analyst" states, in relevant part, "[a] bachelor's degree is the typical 
entry-level requirement for management analysts." However, some employers prefer to hire 
candidates who have a master's degree in business administration (MBA)." The Handbook further 
states "many fields of study provide a suitable education because of the range of areas that 
management analysts address. Common fields of study include business, management, economics, 
political science and government, accounting, finance, marketing, psychology, computer and 
information science, and English." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Management Analysts, (20 16-17 ed. ). 
The Handbook does not report that bachelor's degrees held by those entering the occupation must be 
in any specific specialty directly related to the occupation. Accordingly, the Handbook does not 
support the assertion that at least a bachelor's degree in a spectfic specialty is normally the minimum 
requirement for entry into this occupational category. We also note that a preference for a particular 
type of degree is not synonymous with a requirement for a degree in a specific discipline. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates on the 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin.,. Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC ~Guidance~ Revised~ II~ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience. education, and skill 
requirements of the Petitioner's job opportunity. /d. 
7 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. All of our references are to the 2016-2017 edition of the Handbook, which may be 
accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive 
source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect 
in establishing the general tasks and responsibilities of a proffered position, and we regularly review the Handbook on 
the duties and educational requirements of the wide variety of occupations that it addresses. 
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Matter ofW-N-A- , Inc 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely employ 
and recruit only degreed individuals." See .%anti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird!Bfaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering 
these "factors" to infonn the commonality of a degree requirement)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement 
for at least a bachelor' s degree in a specific specialty, or its equivalent. Thus, \:ve incorporate by 
reference the previous discussion on the matter. 
The Petitioner submitted a letter from In his letter, states that his 
assessment of the proffered position is based on the Petitioner's support letter and the end-client 
letter. He describes the credentials that he asserts qualify him to opine about the nature of the 
proffered position and states that the proffered position requires at least a bachelor's degree in a 
quantitative or analytical field such as quantitative business analysis, a relevant field of engineering , 
economics or other related field. We carefully evaluated assertions in support of the 
petition but, for the following reasons, determined his opinions lent little probative value. 
First, does not provide sufficient information to establish his expertise on the practices of 
organizations seeking to hire "business analysts. " Without further clarification, it is unclear how his 
education, training, skills, or experience would translate to expertise regarding the current recruiting 
and hiring practices of an enterprise engaged in business processing outsourcing (as designated by 
the Petitioner in the petition) or similar organizations seeking to fill a business analyst position (or 
parallel positions). does not sufficiently establish how his background in finance qualifies 
him to determine employers' minimum entry requirements for jobs such as the proffered position. 
Although states that he based his assessment on the Petitioner 's support letter, his letter 
lacks sufficient information on the petitioning organization's and the end-client's business activities. 
That is, he does not demonstrate an in-depth knowledge of the Petitioner's or the end-client's 
operations, or how the Beneficiary would perform the position's duties in the context of their 
business enterprise. Accordingly, we find that the record does not demonstrate that is a 
qualified authority to opine on the current requirements for business analyst positions . 
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.Matter ~fW-N-A-, Inc 
Further, opinion letter does not cite specific instances in which his past opinions have 
been accepted or recognized as authoritative on this particular issue. There is no indication that he 
has conducted any research or studies pertinent to the educational requirements for such positions (or 
parallel positions) in the Petitioner's industry for similar organizations, and no indication of 
recognition by professional organizations that he is an authority on those specific requirements . His 
opinion letter does not reflect that he has published any works on the academic or experience 
requirements for business analysts (or related issues). 
Even assuming was an expert on degree requirements for a business analyst, his Jetter 
does not substantiate his conclusions, such that we can conclude that the Petitioner has shouldered its 
burden of proof. First, does not reference, cite, or discuss any studies, surveys, industry 
publications, authoritative publications, or other sources of empirical information which he may 
have consulted to complete his evaluation. Second , the record does not indicate whether 
was aware that, as indicated by the Level I wage on the LCA, the Petitioner considered the proffered 
position to be an entry-level business analyst position for a beginning employee who has only a basic 
understanding of the occupation. In the letter, describes the position as "advanced , 
complex" that requires "significant mathematical and statistical skills." In other words , the 
Petitioner has not demonstrated that possessed the requisite information to adequately 
assess the nature of the position and appropriately determine parallel positions based upon the job 
duties and level of responsibilities. We may, in our discretion, use opinion statements submitted by 
the Petitioner as advisory. lvfatter of' Caron Int 'l, Inc., 19 I&N Dec. 791, 795 (Comm 'r 1988). 
HO\vever, where an opinion is not in accord with other information or is in any way questionable , we 
are not required to accept or may give less weight to that evidence . !d. 
As such, we find that opinion letter lends little probative value, and thus the Petitioner 
has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner has not explained, or offered sufficient evidence that the duties of the position proffered 
here are so complex and unique that a bachelor's degree in a specific specialty is required. 
Moreover, the Petitioner does not articulate or document what detailed 
course of study leading to a 
specialty degree would be required to perform these or any of the duties described, nor how such a 
curriculum is necessary to perform the duties it provided for the position. While a few related courses 
may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how 
an established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
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Matter ofW-N-A-, Inc 
Although we note the Petitioner's assertion that the Beneficiary's duties are "highly complex," this 
statement is at odds with the Petitioner's designation of the proffered position as that of a Level I, entry­
level position. 8 Again, the LCA indicates that, relative to other positions located within the 
"management analysts" occupational category, the Beneficiary would perform routine tasks that require 
only a basic understanding and require limited, if any, exercise of judgment. Without further evidence, 
the record does not demonstrate that the proffered position is complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a Level III 
(experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing wage. 
The evidence of record does not establish that this position is significantly different from other 
business/management analyst positions such that it refutes the Handbook's infmmation to the effect that 
a general bachelor's degree is acceptable for this position. Accordingly, the Petitioner has not satisfied 
the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the Petitioner's claimed 
self-imposed requirements, then any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the Petitioner created a token degree 
requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
We reviewed the Petitioner's statements regarding the proffered position. However, it does not 
assert, and has not provided evidence in support of this criterion. Therefore, it has not satisfied the 
third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 
The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a 
specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain 
occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not 
reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage-level 
designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements 
of section 214(i)(l) of the Act. 
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Matter ofW-N-A-, Inc 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A) requires a petitioner to establish that the nature of 
the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent. 
The Petitioner has not sufficiently developed relative specialization and complexity as an aspect of the 
proffered position. The Petitioner has not distinguished the duties of the proffered position as more 
specialized and complex than the duties of a business/management analyst position that does not require 
a bachelor's degree in a specific specialty. 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, 
and the designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category. 
The record does not include sufficient evidence establishing that the duties of the proffered position 
require knowledge usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty, or its equivalent. The Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)( 4). 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, the petition cannot be approved because the Petitioner has not demonstrated that it qualifies 
as a United States employer. As detailed above, the record of proceedings lacks sufficient 
documentation evidencing what exactly the Beneficiary would do for the period of employment 
requested or where exactly and for whom the Beneficiary would be providing services. Given this 
specific lack of evidence, the Petitioner has not corroborated who has or will have actual control 
over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In 
other words, the Petitioner has not established whether it has made a bona fide offer of employment 
to the Beneficiary based on the evidence of record or that the Petitioner, or any other company which 
it may represent, will have and maintain the requisite 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-1 B nonimmigrant worker). 
Even if we assume that the Beneficiary will work for the end-client as claimed, it is noteworthy that 
the Petitioner has not provided sufficient evidence to substantiate that the Beneficiary would be 
under the Petitioner's supervision and control. For instance, although the Petitioner identifies the 
Beneficiary's supervisor, it does not indicate how this manager will oversee him, whether the 
manager will be located at the client location, and if not, how the manager will supervise him on a 
day-to-day basis. In contrast, the Petitioner's duties discuss regular and constant contact with the 
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Matter ofW-N-A-, Inc 
client, including getting the client's "feedback" and "sign-oft~" mentioning his "continuous" 
provision of consulting, and his attendance at "various client meetings." Indeed, the Petitioner 
references its "right" to control the Beneficiary, but does not indicate with its statements or the 
evidence that it will be actually controlling his work on a daily basis. The Petitioner states that it is 
responsible for supervising the Beneficiary at the client location and that it will provide all the tools 
and instrumentalities necessary for the work. However, the Petitioner does not indicate how, when, 
and in what form this supervision will take place nor the tools or instrumentalities it will provide. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Although the Petitioner may pay the Beneficiary's wages and administer his benefits, the evidence 
currently indicates that the Beneficiary will primarily be under the direction of the end-clients and 
that he will only occasionally check in with the Petitioner as to his progress. While payroll, tax 
withholdings, and other employment benefits are relevant factors in determining who will control the 
Beneficiary, other aspects 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 afiect 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. 
Therefore, the petition cannot be approved for this additional reason. 
III. CONCLUSION 
Based on the foregoing discussion, although the Director's decision will be withdrawn, the evidence 
of record as presently constituted does not establish eligibility for the benefit sought. Accordingly, 
we will remand this matter to the Director for further action and entry of a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision 
Cite as Matter ~fW-N-A-. Inc, ID# 406064 (AAO June 29, 2017) 
II