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MATTER OF Y- INC

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 23,2018

APPEAL OF CAUFORN1A SERVICE CENTER DECISIO"t\.

PETITION: FORM 1-129, PETITION FOR A NONLvtMIGRANT WORKER

The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary as a "quality assurance analyst" under the H-1 B nonimmigrant classification for specialty occupations. See hnmigration and Nationality Act (the Act) ·section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 Form 1-129, Petition for a Nonimmigrant Worker, noting the following deficiencies: (I) the Petitioner will not have an cmployer~employee relationship with the Beneficiary, (2) the Petitioner did not establish the proffered position is a specialty occupation; and (3) the Petitioner relied on speculative employment for the Beneficiary. On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

Upon de novo review, we will dismiss the appeal.

I. PROCEDURAL AND FACTUAL BACKGROUND

The Petitioner provided the following dates of intended employment: (1) for the U.S. Department of Labor ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) from September 15, 2017, through September 15, 2020; and (2) for the petition from October l, 2017, through September 15, 2020. On both the LCA and the petition, the Petitioner signitied that the Beneficiary will not work at its location in California, but instead will work off-site at

in California. This corresponds with the address for (the end-client). It appears that the .entity dictating the terms of the contractual project and controlling the Beneficiary's day-to-day functions is the end-client.

II. EMPLOYER-EMPLOYEE RELATIONSHIP

We will first address whether the Petitioner has established that it meets the regulatory definition of a United States employer having "an employer-employee relationship with respect to employees

Matter of V- Inc

under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii).

A. Legal Framework

A petitioner seeking to file for an H-1 B beneficiary must meet the definition of a "United States employer." 8 CF.R. § 214.2(h)(2)(i)(A). See section IOI(a)(IS)(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:

(I) 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 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) (quotingCmty. fin· Creative Non-Violence v. Reid, 490 U.S. 730 (1989)); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003) (quoting Darden). 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.

In determining whether a petitioner controls the manner and means of a beneficiary's work under the common law tests, USClS will consider such factors as: the skill required: the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the provision of employee benefits; and the tax treatment of the beneficiary. 1 Darden, 503 U.S. at 324; Clackamas. 538 U.S. at 449. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that

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 nol the claimed employer's right to influence or change that factor, unless specifically provided for by the common-law tests. See Darden, 503 U.S. al 323-24.

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even though a medical staffing agency is the pettlloner, the hospitals recetvmg the beneficiaries' services are the "tme employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-1 B beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one factor being decisive.

B. 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-1 B temporary "employee."2 Specifically, we find that the Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has not been substantiated.

I. Evidence

The Petitioner provided numerous documents that either post-date the petition filing date, or that bear another type of deficiency to include:

• Exhibit 2, the Memorandum of Understanding (MOU) between the Petitioner and the Beneficiary signed in October 2017, after the Director issued the denial. This document described the purported employer-employee relationship between the Petitioner and the Beneficiary;

• Exhibit 3, the Petitioner's affidavit signed after the Director issued the denial that indicated the petitioning entity will have full control over the Beneficiary's employment and will be responsible for the full incidents of the Beneficiary's employment;

• Exhibit 9, the Beneficiary's planned itinerary for services that the Petitioner signed after the Director issued the denial; and

• Exhibit 1, the Employment Agreement between the Petitioner and the Beneficiary. Although the document is dated in March 2017, it appears that the Beneficiary did not sign this item, as the portion for his signature contains typewritten text. Consequently, the Petitioner has not demonstrated that this constitutes a valid agreement between itself and the Beneficiary3

A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. 9 103.2(b)(l), (12). A visa petition may not be approved at a future date after a petitioner or a beneficiary becomes eligible under a new set of facts. Maller of Michelin Tire Corp., 17 l&N Dec.

2 Within the appeal, the Petitioner identifies three judicial.decisions as support for its eligibility claims. However, each of the decisions preceded both the Darden and Clackamas judicial opinions, and therefore bears little relevance to this appeal. 3 For the H-1 B classification, a petitioner is required to submit written contracts between itself and a beneficiary, or if

. there is no written agreement, a summary of the terms of the oral agreement under which a beneficiary will be employed. See 8 C.F.R. §§ 214.2(h)(4)(iv)(B). As the Employment Agreement does not appear to be valid, the Petitioner has not demonstrated compliance with the regulation. !d.

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248, 249 (Reg'l Comm'r 1978). Except for Exhibit 1, each of the above documents related to eligibility requirements the Petitioner was required to satisfy as of the date it filed the petition, rather than after learning of deficiencies in its evidence. We especially question the veracity of the documentation crafted after the Petitioner received the Director's denial of the benefit request. Consequently, this evidence bears significantly diminished probative value, and will not serve to demonstrate eligibility in these proceedings.

2. Control

Throughout the proceedings, the Petitioner has maintained that it will employ the Beneficiary and exercise control over all aspects of his work. The evidence the Petitioner oftered in support of this assertion consisted of a letter from the end-client, the petitioning entity's organizational chart, and the Subcontractor Services Agreement.

Regarding the administrative employment responsibilities such as social security, worker's compensation, federal and state income tax \Vithholdings, and other benetits, these are ail relevant tactors in detem1ining who will control a beneficiary. Such factors may appear to satist)' a cursory review that a petitioning entity might be an individual's employer; however, these elements are not sufficient to provide a full appraisal of the requisite relationship. We must also assess and weigh other intricate factors to determine who will be a beneficiary's employer. For example: we must consider who will oversee and direct a beneficiary's work, who will provide the instrumentalities and tools, where the work will be located, and who has the right or ability to affect the projects to which a beneticiary is assigned, among other factors. A petitioner must sufficiently address the relevant factors to enable us to evaluate whether the requisite employer-employee relationship will exist between a petitioner and a beneficiary.

Although the Petitioner and the end-client each claim that the petitioning organization will exercise control over all aspects of the Beneficiary's employment and his work, the Petitioner has not demonstrated how it will achieve a certain level of control while the Beneficiary is working otlsite by a preponderance of the evidencc.4

Within the request for evidence (RFE) response, the Petitioner only stated that the Beneficiary wollld consistently be in contact \vith the petitioning organization's manager. For the first time on appeal, the Petitioner states to whom the Beneficiary will report to within its organization as its co-president,

While the organizational charts the Petitioner submitted with the RFE response and on appeal include in the Beneficiary's chain of command, each chart lists Tech

4 We also observe the February 14, 2017 end-client letter contained several irregularities that, when considered with other evidentiary oddities discussed below, causes us to question the letter's veracity. Specifically. several unexplained spaces were present in the letter's regarding line immediately before the author discussed the position the end-client offered to the Benefic iary, and the position title, for this position, seems to have been added to the middle of the letter over what appears to be whited-out space. As this end-client letter appears to have been altered, it carries dimir1ished evidentiary value. The Petitioner must resolve this discrepancy in the record with independent. objective evidence pointing to where the truth lies. iV!auer of l/o, 19 I&N Dec. 582, 591-92 (BIA 1988).

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Team Three and Four as an additional organizational layer between the Beneficiary and The Petitioner did not discuss how these "tech teams" factor into the Beneficiary's reporting structure, leaving us questioning to whom he will actually report. Moreover, the Petitioner did not identify in what form this supervision would occur, such as telephone calls, email, or on-site supervision, nor the frequency in which would contact the Beneficiary. Additionally, as the company's co-president, it is unclear how much time would be able to dedicate to overseeing multiple employees in addition to her executive responsibilities, or whether this is a practical option. As such, the record suggests that the Beneficiary would act largely autonomous from the Petitioner, in essence, under the direction or the end-client. Here, it appears that based on the preponderance of the evidence, the Beneficiary will be primarily under the control of the end­client and not the Petitioner.

Additionally within the appeal, the Petitioner discusses the extent of its discretion over when and how long the Bencticiary will work. The evidence the Petitioner offered to support these statements consisted of the Employment Agreement and the MOU. Each of these items post-dates the petition filing date and is. therefore, of limited probative value. Consequently, this evidence will not support the Petitioner's assertions and the Petitioner's statements made without supporting documentation are insufficient to satisf}' its burden of prooL

Within the initial filing statement the Petitioner indicated that it would .provide the Benet1ciary with the tools needed to perform his assigned work. In the RFE response and on appeal, the Petitioner claims that· it provides all its personnel working at the end-client site with the necessary tools, software, hardware, and other materials needed to perfonn the work. However, the Petitioner did not offer probative evidence to corroborate its statements. Who would provide the tools was not contained in any of the contractual materials ofJered prior to the appeal. 5 Statements alone, without supporting documentation are of limited probative value and are insufficient to satisfy the Petitioner's burden of proof. Further, we must examine the actual source of the instrumentalities and tools required to complete an assigned projec.t when determining whether a hired party is an employee under the general common lmv. See Darden, 503 U.S. at 322-23. Consequently, the Petitioner has not satistied its burden as it relates to this element of the common-law tests.

Based on the tests outlined above, the Pelitioner" has not established that it will be a "United States employer" having an "employer-employee relationship" with the Beneficiary as an H-I 8 temporary

5 Most importantly. we note that the Petitioner and the Beneficiary signed the MOU aA.er the Director issued the denial. According to 8 C.F.R. § I 03.2(b)( J ), ( 1.2), a petitioner must establish eligibility at rhe time of filing the nonimmigrant visa petition. And. a visa petition may not be approved at a future date aA.er a petitioner or a beneficiary becomes eligible under a new set of, facts. Michelin Tire Corp., 17 I&N Dec. at 249. The Petitioner may not rely on documentation it creates after learning of deficiencies in its evidence, as. this material bears significantly dirnin ished probative value. Furthermore, the MOU states: '"j. Employer or its designee has the right to provide and insist that the Employee use only the provided hardware and sot1ware to perform an assigned project." We find this statement is vague in that it does not specify that the Petitioner wi II be the entity t.o provide the hardware and the software to the Beneficiary. Therefore, even if this evidence carried sufficient probative value, which it does not, it would not verify the Petitioner's claim that it will provide the Beneficiary with the instrumentalities and tools to perfonn the assigned work.

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"employee." 8 C.F.R. § 214.2(h)(4)(ii).

Ill. SPECIALTY OCCUPATION

We determine that the evidence is insufficient to establish that the proffered position qualifies for classification as a specialty occupation. As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient information regarding the proposed job duties to be performed at its location in order to properly ascertain the minimum educational requirements necessary to perform those duties. In other words, as the nurses in that case would provide services to the end-client hospitals 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 detern1ination. See id.

Here, the record lacks su11icient substantive documentation from the end-client regarding not only the specific job duties the Beneficiary will perform, but also importantly information regarding whatever the client may or may noi have specified with regard to the educational credentials of persons to be assigned to its project6

As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary will perform. This 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: (I) the normal minimum educational requirement tor the particular position, which is the focus of criterion one; (2) industry positions which are parallel to the proffered position and thus appropriate for review tor a common degree requirement, under the tirst alternate prong of criterion two; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; (4) the factual justification for a petitioner nom1ally requiring a degree or its equivalent, when that is an issue under criterion three; and (5) the degree of specialization and complexity of the specific duties, which is the focus of criterion four, and we cannot conclude that the proffered position qualities as a specialty occupation.

IV. SPECULATIVE EMPLOYMENT

Additionally, on appeal the Petitioner indicates that the service agreements with the end-client demonstrate that specialty occupation work would be available throughout the intended employment period. According to the petition, this period is from October I, 2017, through September 15,2020. The Subcontract Services Agreement provided' that the agreement became effective in February 2017 and that the parties could terminate it at any time by providing 15 days written notice7 This

6 We reiterate the anomalies within. the end-client's February 14, 2017letter, and it garners insufficient evidentiary value to meet the Petitioner's burden of proof. 7 We question why the dates the Petitioner and the end-client signed the Subcontract Services Agreement are spread apart by approximately II months. We conclude that such questions surrounding this evidence reduce its evidentiary value.

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document further referred to the terms and conditions set forth in Exhibit A, the Work Schedule.x The Work Schedule document referred to an agreement between the end-client and the Petitioner that was "dated 3/14/2016." The Petitioner did not submit any such document for the record.

Even if we were to presume that the Work Schedule document was referring to the Subcontract Services Agreement in the record, the Work Schedule provided for an anticipated service period between October I, 2017, and October I, 2019. This falls short of the Petitioner's requested employment period by more than II months. As a result, the Petitioner has not established non-speculative work for the Beneficiary existed at the time it filed the petition and for the entire requested period until September of2020. 9

V. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benetit sought.

ORDER: The appeal is dismissed.

Cite as Muller ofV- Inc, ID# I 187440 (AAO Mar. 23, 2018)

8 We further question the dates the Petitioner and the end-client signed the Work Schedule document. as the end client signature and the Petitioner's signature are separated by almost two years, thereby diminishing this document's evidentiary value. Of additional concern. the end-client's address on the Work Schedule document is a ditTerent typeface fr01n the rest of the letter. 9 We further observe that the expanded duties submitted on appeal include several aspects of supervision despite the Petitioner'S classification of the position at a Level I wage rate on the LCA. For instance, the Petitioner describes the supervisory duties as the "[h]ighest level of responsibility in [the] engineering unit of the company ." U.S. Department of Labor (DOL) guidance states that a Level I (entry) wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. U.S. Dep·t of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/ NPWHC_Guidance_Revised _11_2009.pdf. The statements regarding the claimed level of complexity, independent judgment, and understanding required for the proffered position appear to be inconsistent with the Level I designation on the LCA. This raises an issue regarding in what capacity the Beneficiary will be employed. While DOL certifies the LCA, USCIS determines whether the LCA's content corresponds with the 1-1-IB petition. See 20 C.F.R. § 655.705(b) ("DHS detennines whether the petition is supported by an LCA which corresponds with the petition ... ").

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