U.S. Citizenship and Immigration Services

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Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 8, 2018·

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an information technology services firm, seeks to temporarily employ the Beneficiary as a "technical architect" 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. § IIOI(a)(15)(H)(i)(b). The H-IB 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: (I) does not qualify as a United States employer with an "employer-employee relationship" with the Beneficiary; and (2) did not establish that the protTered position qualities as a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the decision. Upon de novo review, we will dismiss the appeal. 1

I. EMPLOYER-EMPLOYEE RELATIONSHIP

A petitioner must demonstrate that it will serve as a United States employer and that it will engage in an employer-employee relationship with a beneficiary.

A. Legal Framework

A petitioner seeking to file for an H-1 B beneficiary must meet the definition of a "United States employer." 8 C.F.R. 214.2(h)(2)(i)(A). See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8 C.F.R. 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, contractor, organization, or other association in the United States which:

1 We follow the preponderance of the evidence standard as specified in Maller of Chmt•athe, 25 I&N Dec. 369, 375-76 (AAO 2010).

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(I) Engages a person to work within the United States;

(2) Has an employer-employee relationship with re.1pect to employees under this part. as indicated by the fact that it may hire. pay. fire. supervise. or otherwise control the work of any such employee; and

(3) Has an Internal Revenue Service Tax identification number.

(Emphasis added.)

For purposes of the H-1 B visa classification, the terms "employer-employee relationship'' and "employee" are undefined. The United States Supreme Court determined that, where federal law does not helpfully 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. fiJr Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services (USCIS) will apply common law agency principles which focus on the touchstone of control.

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 pm1 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. 318, 322-23 2 See Clackamas Gastroenterology Assocs .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Darden). See also De{ensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (even though a medical statling agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" because they ultimately hire, pay, tire, supervise, or otherwise control the work of the 1-1-IB beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one factor being decisive.

1 When examining the factors relevant to determining control, we 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 323-24.

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B. Proffered Position

The Petitioner stated that the Beneficiary will serve as a "technical architect." and will provide services to the end-client, through the vendor, . The labor condition application (LCA) stated that the Beneficiary will work at

Colorado. The Benetlciary will be \':orking for the end-client as follows:

C. Analysis

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-: B temporary ''employee." Specifically, we find that the Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment

1. Master Agreement

The Petitioner explained that it has ~a contract with (vendor), who in turn has a contract with (end-client). The master agreement between the Petitioner and the vendor stated that the Petitioner will provide services to the vendor's customers. Although it indicated that the Petitioner shall have certain responsibilities for the Beneficiary, we tlnd that the entire tenor of the agreement is a contract for staff augmentation. The Beneficiary will be assigned to the end-client solely to support its staff, a role which is indicative of day-to-day control by the end-client, whose staff is normally subject to the end-client's direction.

Furthermore, the Petitioner did not submit the master service agreement between the vendor and end-client. Therefore, v-:e cannot determine the conditions and scope of duties required of the Beneficiary while working on the end-client's project and work-site, including any restrictions or clauses that may impact the Petitioner's ability or right to control the Beneficiary's work product and pertormance.

2 .. Supervision

A key element in this matter is who would have the ability to supervise or otherw·ise control the work of the Beneficiary tor the duration of the requested validity period. The Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, detailing the manner in which

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the Beneficiary's supervisor actually oversees, directs, and otherwise controls the off-site work of the Beneficiary. The Petitioner stated the Beneficiary will report to its president, and submitted its organizational chart suggesting that the president oversees all employees. However, the Petitioner did not provide additional, concrete information explaining how the president will actually supervise the Beneficiary's work at a client site in a different state.

In addition, the Petitioner stated that it will conduct annual performance reviews to evaluate the Beneficiary's work. The Petitioner submitted a sample annual performance evaluation that provides a general framework of the evaluation process. Again, however, the Petitioner did not explain how it evaluates the Beneficiary's work, such as whether the Petitioner has staff located at the end-client site to review his performance. It is not apparent that performance reviews conducted on an annual basis are sufficient to demonstrate the Petitioner's control over the Beneficiary's day-to-day substantive work.

3. End-Client Letters

The Petitioner submitted a letter from Director, at to confirm that the Beneficiary will work at the end-client's site as a technical architect. The

author states that will not employ the Beneficiary but rather the Petitioner will be his actual employer. The letter also states that the Beneficiary will be managed by the Petitioner even while at the client site, but again, does not indicate how the Beneficiary will be supervised and managed by the Petitioner.

4. Speculative Employment

For H-1 B approval, the Petitioner must demonstrate a legitimate need tor an employee exists and substantiate that it has H-1 B caliber work tor the Beneficiary for the period of employment requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufticient work to require the services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to perform duties at a level that requires the theoretical and practical application of at least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for the period specified in the petition.

The H-1 B petition requested employment dates from October I, 2017 through August 13, 2020. However, the record of proceedings provides several different periods of employment as evidenced below: -

Document Period of Employment Offer Letter 10/01/2017 to 08/13/20 I 0

First Vendor Letter (March 13, 2017) ' consulting services work .order with is currentlv valid

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until December 31, 2017, with expected renewals beyond."

End-Client Letter We will require the services of [the Beneficiary], an employee of [the Petitioner] contracted through

for at least the next three years.

Second Vendor Letter (September 22, 20 17) ' consulting services work order with is currently valid until October I ' 2018, with expected renewals beyond."

Vendor Personnel -Addendum 1 Estimated completion date: October I, 2018

In this matter, the documentation provided several different periods of employment dates for the Beneficiary. The' Petitioner does not sufficiently explain these variances.

Moreover, the Vendor Personnel - Addendum I was not signed until September 21, 201 7, several months aper this H-1 B petition was filed in April of 2017. The Petitioner has not submitted evidence establishing that it had secured work for the Beneficiary prior to the date the Vendor Personnel -Addendum I was signed.

Thus, the record does not establish· that the pet1t10n was filed tor non-speculative work for the Beneficiary that existed as of the time of the petition's tiling for the entire period requested. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is tiled. See 8 C.F.R. 1 03.2(b )(I). 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 Maller (?f Michelin Tire Corp., 17 l&N Dec. 248 (Reg. Comm'r 1978). Thus, even if the Petitioner established that it would be the Beneficiary's United States employer as that term is delined at 8 C.F.R. § 214.2(h)(4)(ii), which it has not, the Petitioner has not demonstrated that it would maintain such an employer-employee relationship for the duration of the period requested.3

3 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. 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 'Yithin 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-I 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

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5. Conclusion

The evidence, therefore, is insufficient to establish that the Petitioner qualities as a United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without sutricient corroborating evidence to support the claim, does not establish eligibility in this matter.

Based on the tests outlined above, the Petitioner has not established that it will be a "United States employer" having an "employer-employee relationship" with the beneficiary as an 1-1-1 B temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii).

II. SPECIALTY OCCUPATION

We will now briefly address the Director's conclusion that the Petitioner did not establish that it would employ the Beneficiary in a specialty occupation position.

As recognized in Defensor. it is necessary f(Jr the end-client to provide su11icient informatiop regarding the proposed job duties to be performed at its location(s) in order to properly ascertain the minimum educational requirements necessary to perform those duties. 201 F.3d at 387-88. In other words, as the employees in that case would provide services to the end-client and not to the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation determination. See id.

In the instant matter, the record of proceedings does not contain sutricient information from the end-client regarding the specific job duties to be performed by the Beneficiary. The record does not contain a detailed explanation regarding the demands, level of responsibilities, complexity, or requirements necessary for the performance of the Beneficiary's job duties. For example, the end­client letter states that the Beneficiary will "[p]erform general management functions including participating in technical assessments, performance reviews, mentoring, hiring, and trainings." It does not further explain such aspects as what position(s) the Beneficiary will be managing or hiring, and who these subordinate personnel work for (e.g., whether the Beneficiary will be managing or hiring end-client personnel or the· Petitioner's personnel). Similarly, the end-client letter states that the Beneficiary will "[i]nterface with the technical staff' and "[ w]ork with business partners" but does not clarify who these technical statT and business partners are, and which company or

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 ~nable to adjudicate properly a request for H-1 8 classification. Moreover. there is no assurance that the alien will engage in a specialty occupation upon arrival in this country.

63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 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).

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companies they work for. The record also does not contain a detailed description of the end-client's project."

Accordingly, upon review of the totality of the record, the Petitioner has not provided substantive information and supportive documentation sut1icient to establish that the Beneficiary will, in fact, be performing services of a technical architect for the duration of the requested employment period. As the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it precludes a finding that the proffered position satisfies 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 nonnal minimum educational requirement tor entry into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the protrered position and thus appropriate for review lor a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; (4) the factual justification tor 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.

Accordingly, as the Petitioner has not established that it has satisfied any of the ·criteria at 8 C.F.R. § 214.2(h)( 4 )(iii)(A), it has not established that the proftered position qualifies tor classification as, a specialty occupation.

Ill. CONCLUSION

The Petitioner has not established an employer-employee relationship with the Beneficiary, and that the proffered position qualifies as a specialty occupation

ORDER: The appeal is dismissed.

Cite as Maller ofK-, IO# 1166387 (AAO Mar. 8, 2018)

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