remanded H-1B Case: Business Development

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MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a start-up company, seeks to temporarily employ the Beneficiary as a director of 
business development under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body ofhighly 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, concluding that the Petitioner did not 
demonstrate that the proffered position is a specialty occupation. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the evidence of record 
satisfies all evidentiary requirements. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings. 
I. SPECIALTY OCCUPATION 
Upon our review of the entire record of proceedings, including the Petitioner's evidence and 
assertions submitted on appeal, we find that the proffered position qualifies as a specialty 
occupation. 
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. 
Matter of S-S-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list offields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of the following criteria to qualify as a specialty occupation: 1 
(I) 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. 
The totality of evidence establishes that the nature of the specific duties proposed for the Beneficiary 
is so specialized and complex that the knowledge required to perform them is usually associated 
with attainment of a bachelor's degree in a specific specialty, or its equivalent. Also, the degrees 
required for the proffered position constitute a body of highly specialized knowledge that relate 
directly to the duties of the proffered position. Therefore, we conclude that the evidence of record 
satisfies the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)( A)( 4). The Petitioner has established that the 
proffered position qualifies for classification as a specialty occupation as defined by section 
214(i)(l) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
Therefore, we withdraw the Director's decision. However, the appeal may not be sustained because 
the record of proceedings as currently constituted does not establish that the Petitioner will be a 
"United States employer" having an "employer-employee relationship" with the Beneficiary. 
1 U.S. Citizenship and Immigration Services (USCIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. § 214.2(h)( 4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proposed position. See Royal Siam Corp. v. Chert off, 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, 20 I F.3d 384, 387 (5th Cir. 2000). 
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Matter of S-S-, Inc. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP. 
A. Legal Framework 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)( 4 )(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship ·with respect to employees 
under this part, as indicated by the fact that it may hire. pay, fire, 
supervise, or othervvise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
In the context of H-1B nonimmigrant classification, the terms "employee" and "employer-employee 
relationship" are mentioned but not further defined by statute or Department of Homeland Security 
(DHS) regulations. See generally sections 101(a)(15)(H)(i)(b), 212(n)(1)(A)(i), (2)(C)(vii) of the Act, 
8 U.S.C. §§ 1101(a)(l5)(H)(i)(b), 1182(n)(1)(A)(i), (2)(C)(vii) (2012); 8 C.F.R. § 214.2(h){l), (2)(i)(A), 
(4)(ii)? As the relevant statute and controlling DHS regulations do not define the terms "employee" 
and "employer-employee relationship" for purposes of the H -1 B nonimmigrant classification, common­
law definitions apply.3 
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-Jaw agency doctrine." Nationwide Afut. Ins. Co. v. 
2 USCIS provided guidance on what constitutes a valid employercemployee relationship in the context of H-1 B petitions 
in the 20 l 0 memorandum Determining Employer-Employee Relationship for Adjudication ol H-1 B Petitions. Including 
Third-Party Site Placements; Additions to Officer's Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD I 0-24), 
Donald Neufeld, Associate Director, Service Center Operations, HQ 70/6.2.8, Jan. 8, 20 I 0. 
3 In defining the terms "[e]mployed, employed by the employer, or employment relationship,'' U.S. Depmiment of 
Labor (DOL) regulations likewise turn to the common-law. See 20 C.F.R. § 655.715; 64 Fed. Reg. 628, 638-639 (Jan. 5, 
1999) (reiterating that in using the common-law test, "no shorthand formula or magic phrase can be applied to find the 
answer [and that a]ll of the incidents of the relationship must be assessed and weighed with no one factor being 
decisive"); see also 65 Fed. Reg. 80 II 0, 80141-80 143 (Dec. 20, 2000) (noting that the H-1 B "statute evinces only that 
the common-law test be applied, not any particular formulation of the test"). 
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Matter of S-S-, Inc. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative lv'on-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 w·hich 
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." · 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting l'v'LRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
Within the context of H-1 B 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.F.R. § 214.2(h)(4)(ii). In Clackamas, the Supreme 
Court articulated the following factors to be addressed in determining whether an individual with an 
ownership interest is an employee: 
• Whether the organization can hire or fire the individual or set the rules and 
regulations of the 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 m the profits, losses, and liabilities of the 
organization. 
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Matter of S-S-, Inc. 
Clackamas, 538 U.S. at 449-50; Threshold Issues, EEOC Compl. Man. (BNA) at§ 2-III(A)(l)(d), 2009 
WL 2966755 (Aug. 2009), available at http://www.eeoc.gov/policy/docs/threshold.html#2-Ill-A-1-d 
(last visited Feb. 16, 2017). 
As with the common-law factors listed in Darden, the factors relevant to the inquiry of whether a 
shareholder-director is an employee are likewise not exhaustive. Clackamas, 538 U.S. at 450 n.l 0 
(citing Darden, 503 U.S. at 324). Not all of the listed criteria .need be met; however, the fact finder 
must weigh its assessment of the 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 relationship. See id. at 448-449. 
The 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." Jd at 450; cf 
Matter ofChurch Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988) (explaining 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."' ld at 451 (quoting Darden, 503 U.S. at 324).4 
B. Analysis 
We find that the current record of proceedings does not establish that the Petitioner will have an 
"employer-employee relationship" with the Beneficiary as an H -1 B temporary "employee." 
Specifically, the record does not sufficiently demonstrate how the Petitioner controls the 
Beneficiary's work. 
On the Form I-129, the Petition for a Nonimmigrant Worker, the Petitioner indicated that it has two 
employees and the Beneficiary will be employed as a director of business development. However, 
the evidence in the record contains business documents that the Beneficiary signed on behalf of the 
Petitioner as a CEO, president, and incorporator. Further, the record contains a stock purchase 
agreement executed between the Petitioner and the Beneficiary, which indicates that the Beneficiary 
has an ownership interest in the company. Moreover, the record contains letters from individuals 
who are familiar with the Petitioner's business operations that suggest that the Beneficiary played a 
critical role in the founding ofthe company. 
We find that the record, as currently constituted, does not sufficiently establish that the Beneficiary 
1s subject to the Petitioner's control. Therefore, we will remand the matter to the Director to 
4 
The relevant H-1 8 regulation effectively, if not expressly, adopts the common-law approach. See 8 C.F.R. 
§ 214.2(h)(4)(ii) (recognizing an employer-employee relationship "by the fact that [the employer] may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... "). 
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Matter of S-S-, Inc. 
consider whether the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary. 
III. CONCLUSION 
The Petitioner has established that the proffered position qualifies as a specialty occupation. 
However, we Will remand the matter to the Director to consider whether the Petitioner will have an 
"employer-employee relationship" with the Beneficiary. 
ORDER: The decision of the Director, California Service Center, is withdrawn. The matter is 
remanded to the Director, California Service Center, for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofS-S-, Inc., ID# 139279 (AAO Feb. 22, 2017) 
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