remanded H-1B Case: Physical Therapy

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MATTER OF M-H-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 25, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a healthcare staffing company, seeks to temporarily employ the Beneficiary as a 
"physical therapist" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to 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 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. 
The Director noted that the Beneficiary does not have the appropriate licensure, and that the record 
does not sufficiently establish that the Beneficiary qualifies for a temporary exception to the 
licensure requirement. 
On appeal, the Petitioner submits new evidence and requests approval of the H-1 B petition for one 
year. 
Upon de novo review, we find that the Petitioner has established that the Beneficiary qualities for a 
temporary exception to the licensure requirement for up to one year. However, we note other 
fundamental issues that preclude approval of the petition. As we will discuss below, the record does 
not establish that there would be specialty occupation work available for the Beneficiary for the 
entire requested period. Additionally, the record does not establish that the Petitioner would have an 
employer-employee relationship with the Beneficiary. The record also raises questions about the 
continued validity of this H-lB petition and labor condition application (LCA). Accordingly, we 
will remand the matter to the Director for further review of the record and to issue a new decision. 
I. PROFFERED POSITION 
In support of the petition, the Petitioner stated that the Beneficiary would be assigned to perform 
services for an end-client A-C- located in Florida. In response to the Director's request 
for evidence (RFE), the Petitioner indicated that the previously identified 
end-client had "suspended 
its operations," and asserted that the Beneficiary would now be assigned to a new end-client 
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Matter of M-H-S- , Inc. 
C-P-T-I- at its location in Florida "pursuant to the agreement between [the Petitioner] and 
[C-P-T-I-]." The Petitioner submitted a letter from the new end-client explaining the Beneficiary's 
duties as follows: 
[The Beneficiary's] duties include but are not limited to evaluating , developing a plan 
and providing appropriate therapeutic treatment for inpatients and outpatients ; 
perform accurate evaluations , plan and implement 
appropriate treatments and follow­
up of patients effectively and efficiently ; perform initial assessments , reassessments 
and record discharge notes in permanent chart of patients; and complete daily reports 
of patients within a specific time frame and communicate with physicians regarding 
treatment plans and discharge plans. 
The Petitioner stated in a support letter that the position requires "a degree in Physical Therapy 
meeting the FCCPT Type 1 requirements for licensure ... as well as a valid license from a US state 
or immediate eligibility for said license." 
II. SPECIALTY OCCUPATION 
We will first discuss whether the Petitioner has secured 
specialty occupation work for the 
Beneficiary for the entire validity period. 
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: 
(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: 
(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; 
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Matter of M-H-S-, Inc. 
(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. Cherto.ff, 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). 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 
201 F.3d at 387-88. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. !d. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
B. Analysis 
For the reasons set out below, we have determined that the record does not demonstrate that there 
would be sufficient specialty occupation work available for the Beneficiary for the entire validity 
period requested. 
I . 
As a preliminary matter, the Petitioner has not submitted supporting documentation to substantiate 
that the Beneficiary would be engaged at the end-client location during the entire period of the 
requested visa (from October 2016 to August 20 19). As noted, the Petitioner indicates that the 
Beneficiary would be assigned to an end-client C-P-T-I- in Florida. The Petitioner states that it 
"anticipates that the relationship will continue through the end date of the H-lB petition." However, the 
Petitioner does not submit contractual documentation relevant to that end-client, such as a service 
contract, statements of work, or work orders between the parties to substantiate the Beneficiary's work. 
Notably, a letter submitted from the end-client states that "the assignment is expected to last for three 
years, although all parties reserve the right to cancel the contract consistent with our Agreement." The 
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. 
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Matter of M-H-S-, Inc. 
Petitioner does not provide this referenced "Agreement" to evaluate its terms, including the potential 
cancellation referenced. 
Again, the Petitioner states that it "anticipates" that the Beneficiary's assignment would continue until 
August 2019, but does not explain why this is anticipated or likely. In this respect, it is important to 
consider the nature of the Petitioner's operations as a temporary staffing agency. For instance, on the 
LCA, the Petitioner listed its North American Industry Classification System (NAICS) code as 561310, 
corresponding to the 2002 NAICS code for "Employment Placement Agencies."
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The Petitioner's tax 
returns list the company's primary business activity as providing services for temporary employees. 
The Petitioner-provided marketing materials state that it is a "leading provider of temporary and 
contract staffing services to healthcare facilities," and further indicate that the Petitioner's 
professional staff are assigned to relatively short travel assignments which "[t]ypically ... last 
approximately 13 weeks." Consistent with this information, the letter from end-client A-C- also 
states that, in accordance with this company's contract with the Petitioner, "assignments are 
typically 13 weeks in duration with the option to extend." At most, the Petitioner's employment 
contract with the Beneficiary and sample performance evaluation indicates that the Beneficiary, as a 
"long term therapist," would be assigned to travel assignments lasting only "14-26 weeks."3 These 
factors undermine the Petitioner's claim that the Beneficiary's assignment with C-P-T-I- would last 
the entire duration of the requested validity period. 
Therefore, without more, 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.4 The regulations 
U.S. Census Bureau, North American Industry Classification System, https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=56131 O&search=2002 NAICS Search (last visited Aug. 23, 20 17). We note that 561310 is not 
a valid 2017, 2012, or 2007 NAICS code. 
3 The Beneficiary's employment agreement indicates that she would be a "long term therapist." The Petitioner's sample 
performance evaluation defines a "long term assignment" as lasting "14-26 weeks," and a "short term assignment" as 
"up to 13 weeks." 
4 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: 
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 a·n 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 
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Matter of M-H-S-, Inc. 
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 )(1 ). A visa petition may not be approved based on 
speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm 'r 1978). 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the 
record regarding the availability of specialty occupation work for the entire period of requested 
employment, we will remand the record for further development of this issue. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP ANALYSIS 
We will also briefly address the issue of whether or not the Petitioner qualifies as an H-IB employer. 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. 
Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed 
and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United 
Ins. Co. of Am., 390 U.S. 254, 258 (1968)). 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not sufficiently establish that the Petitioner will be a "United States employer" having an "employer­
employee relationship" with the Beneficiary as an H-IB temporary "employee." Specifically, we 
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). 
Matter of M-H-S-, Inc. 
find that the record of proceedings does not contain sufficient, consistent, and credible 
documentation substantiating and describing who exercises control over the Beneficiary. 
The Petitioner has provided insufficient evidence to demonstrate that the Beneficiary would be under 
the supervision and control of the Petitioner during her assignment to the end-client. The Petitioner 
identifies the Beneficiary's supervisor, yet does not describe the nature of this supervision during her 
assignment to the end-client, including how often and in what form this supervision will take place. 
For instance, the Petitioner's employment agreement with the Beneficiary states in section 1 O(g) that 
the Petitioner would have "regular communication" with the Beneficiary, and that it would "from 
time to time, conduct, on-site and/or off-site performance reviews to evaluate the services and care 
provided by [the Beneficiary]." First, although the agreement states "regular communication," the 
frequency and type of this communication is not explained or documented. In addition, the language 
of this agreement suggests that the Petitioner would not be aware of the Beneficiary's performance 
and activities on a daily basis, suggesting that she may be taking daily direction from the end-client 
(or elsewhere). 
Although the Petitioner provides a letter from the end-client stating that it will not control the work 
of the Beneficiary nor manage or supervise her, it also does not provide supporting documentary 
evidence to sufficiently substantiate this assertion. For instance, the Petitioner does not submit the 
referenced agreement between the parties, or other such contractual documentation, between it and 
the end-client to corroborate the terms of the Beneficiary's assignment. This lack of evidence is 
particularly noteworthy since, again, the Petitioner provided marketing materials stating that it is a 
"leading provider of temporary and contract staffing services to healthcare facilities," suggesting that 
the Petitioner may exercise little control over the individuals it assigns to end-client locations. We 
also recall the Petitioner's selection of the NAICS code 561310 for "Employment Placement 
Agencies."5 Specifically, this NAICS code is for "establishments primarily engaged in listing 
employment vacancies and in referring or placing applicants for employment. These individuals 
referred or placed are not employees of the employment agencies (emphasis added)."6 
Even though it appears that the Beneficiary would be paid and her benefits administe~ed by the 
Petitioner, the evid~nce currently on the record does not sufficiently establish that the Beneficiary 
would primarily be under the direction and control of the Petitioner during her assignment to the 
end-client. 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 affect the projects to which the 
Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to 
who will be the Beneficiary's employer. Without full disclosure, the record is insufficient to 
demonstrate that the Petitioner would qualify as the Beneficiary's employer for H-1 B purposes. 
U.S. Census Bureau, North American Industry Classification System, https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=56131 O&search=2002 NAICS Search (last visited Aug. 23, 20 17). 
6 !d. 
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Matter of M-H-S-, Inc. 
Given that the Petitioner was not provided the opportunity to address the deficiencies in the record 
regarding the employer-employee relationship, we will remand the record for further development of 
this issue as well. 
IV. MATERIAL CHANGE AND LCA REQUIREMENT 
The Director should also consider whether or not the Beneficiary's reassignment to C-P-T-1-
required an amended petition with a new LCA. While the Petitioner's RFE response claims that the 
new worksite is within the same "area of intended employment" as the original 
worksite, we note that geographical location is but one material aspect of the tenns and conditions of 
the Beneficiary's proposed employment. 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to legal requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). The regulations require a petitioner to establish eligibility at the time of filing. See 8 C.F.R. 
§ 103 .2(b )(1 ); Michelin Tire Corp., ~17 I&N Dec. at 249. If and when there is any material change to 
the terms and conditions of H-1 B employment, the regulations require a new or amended petition 
and LCA to be filed. 8 C.F.R. § 214.2(h)(2)(i)(E); Matter of Simeio Solutions, 26 I&N Dec. 542 
(AAO 2015); 8 C.F.R. § 214.2(h)(11)(i)(A) (requiring immediate notification of material change). 
The record as presently constituted does not provide full disclosure of all the material terms and 
conditions of the proposed employment, such that we can determine if the Petitioner has complied 
with these requirements. 
Finally, the Director should evaluate whether or not the Petitioner has complied with all wage and 
LCA obligations in light of the provision in the Petitioner's employment agreement with the 
Beneficiary regarding "Time Between Assignments." Specifically, this provision "authorize[s] the 
first thirty-two (32) hours of non-worked time between assignments [to] be paid as [Personal Time 
Off] PTO time," and then, under certain circumstances, the extension of "the use of PTO beyond the 
first thirty-two (32) hours." Insufficient information exists in the record to determine the 
compatibility of this contractual provision with the Petitioner's LCA requirements pursuant to 
20 C.F.R. § 655.731(c)(7), concerning "wage obligation(s) for H-1B nonimmigrant in nonproductive 
status." 
V. CONCLUSION 
As discussed in this decision, the record does not establish eligibility for the benefit sought. On 
remand, the Director should afford the Petitioner an opportunity to submit additional evidence and 
legal arguments consistent with the issues addressed in this decision, and any other issues it may 
observe in the record of proceedings. 
Matter of M-H-S-, Inc. 
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 of M-H-S-, Inc., ID# 432737 (AAO Aug. 25, 2017) 
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