U.S. Citizenship and Immigration Services

MATTER OFT- INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 19, 2017

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

The Petitioner, an information technology solutions provider, seeks to temporarily employ the Beneficiary as an "information technology consultant (software quality assurance analyst)" 1 under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-lB 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 Vermont Service Center denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation. In its appeal, the Petitioner asserts that the Director erred in her findings.

Upon de novo review, we will dismiss the appeal.

I. 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.

1 The Petitioner indicated on the H-1 B petition that the job title of the proffered position is "IT Consultant," but

elsewhere identified it as "IT Consultant (Software QA Analyst)."

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The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­exhaustive list of fields of endeavor. 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;

(3) The employer normally requires a degree or its equivalent for the position; or

( 4) The nature of the specific duties [is] so spec.ialized 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" 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 (5th Cir. 2000).

II. PROFFERED POSITION

The Petitioner initially stated that the Beneficiary would be assigned to provide services to its "direct client" S-S-T- related to an ' project. The Petitioner indicated that the Beneficiary would work at its client's "IT Development Center," located in Texas. In response to the Director's request for evidence (RFE), the Petitioner stated that S-S-T- "is a software development company that develops software solutions for its clients." On appeal, the Petitioner submits documentation reflecting that S-S-T- develops the software for two of its clients, S-and H-G-S-, Inc.

According to the Petitioner and S-S-T-, the duties of the proffered position are as follows: 2

• Design test plans, scenarios, scripts, or procedures. • Test system modifications to prepare for implementation. • Develop testing programs that address areas such as database impacts, software

scenarios, regression testing, negative testing or bug retests, or usability.

2 The Petitioner provided another job description which listed essentially the same job duties as these listed here.

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• Document software defects, using a bug tracking system, and report defects to software developers.

• Identify, analyze, and document problems with program function, output, online screen, or content.

• Monitor bug resolution efforts and track successes. • Plan test schedules or strategies in accordance with project scope or delivery

dates. • Participate in product design reviews to provide input on functional requirements,

product designs, schedules or potential problems. • Review software documentation to ensure technical accuracy, compliance, or

completeness, or to mitigate risks. • Document test procedures to ensure replicability and compliance with standards. • Develop or specify standards, methods, or procedures to determine product

quality or release readiness. • Update automated test scripts to ensure currency. • Investigate customer problems referred by technical support • Install, maintain, or use software testing programs • Provide feedback and recommendations to developers on software usability and

functionality • Monitor program performance to ensure efficient and problem-free operations. • Conduct software compatibility tests with programs, hardware, operating systems,

or network environments • Install and configure recreations of software production environments to allow

testing of software performance • Collaborate with field staff or customers to evaluate or diagnose problems and

recommend possible solutions • Identify program deviation from standards, and suggest modifications to ensure

compliance • Design or develop automated testing tools. • Coordinate user or third-party testing. • Perform initial debugging procedures by reviewing configuration files, logs, or

code pieces to determine breakdown source • Visit beta testing sites to evaluate software performance • Evaluate or recommend software for testing or bug tracking. • Conduct historical analyses of test results. • Other related duties as assigned.

In a support letter provided with the petition, the Petitioner stated that the position required "at least a Bachelor's Degree or its foreign equivalent in a specialized field of study that is directly related to this position." In its RFE response letter, the Petitioner indicated that the position requires "a Bachelor's Degree in Computer Science, Computer Information Systems or a related Engineering discipline."

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III. ANALYSIS

We determine that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. Specifically, the record does not (1) describe the position's duties with sufficient detail, and (2) establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupatiorl.3

As a preliminary matter and 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(s) 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 end­client 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 determination. See id.

The Petitioner initially stated and provided evidence in support of the petition indicating that the only end-client is its "direct client" S-S-T-. However, on appeal , the· Petitioner submits evidence, including letters, from other end-clients for whom the software development work is ultimately being performed. Despite submitting this new evidence on appeal, the Petitioner does not explain in detail the nature of these relationships, nor does it provide contractual documentation to substantiate and clarify the nature of the Beneficiary's services for these other end-clients. For instance, although the Petitioner provides a purchase order relevant to one of the other apparent end-clients H-G-S-, Inc. , the Petitioner does not submit the underlying "Software Purchase Agreement" under which this purchase order was issued. It is also notable that the submitted purchase order expired in July 2017, and is not accompanied by copies of subsequently issued or renewed purchase orders. The Petitioner provides no contractual documentation specific to the other apparent end-client S-; it only submits invoices to, and payments from, that company dated more than a year before this petition's filing

In addition, none of the apparent end-client letters or documents reference the Beneficiary, his duties, or the educational requirements of the proffered position. Due to the lack of explanation and evidence related to these other end-clients, the record does not include sufficient information regarding the proposed job duties for the proffered position from all end-clients receiving the Beneficiary's services, as required by Defensor.

Moreover, the provided job duties for the proffered position are vague and do not sufficiently convey the actual day-to-day tasks to be performed and the knowledge required to perform them. Letters from the Petitioner and S-S-T- reflect that the Beneficiary would be responsible for a number of general, vaguely stated tasks such as "design[ing] test plans, scenarios, scripts, or procedures," "develop[ing]

3 The Petitioner submitted documentation to support the H~ I 8 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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testing programs that address areas such as database impacts, software scenarios, regression testing, negative testing or bug retests, or usability;" "identify[ing], analyz[ing], and document[ing] problems with program function, output, online screen, or content," and "updat[ing] automated test scripts to ensure currency," among other similar duties. The submitted duty description does not reference the specifics of the project or the tasks the Beneficiary would complete over the asserted three years in the context of his asserted assignment, nor does it convey the knowledge required to perform these duties.

In fact, we find that the submitted job duties are essentially identical to those listed in the Occupational Information Network (O*NET) Summary Report for the "Software Quality Assurance Engineers and Testers" occupational category (a copy of which was submitted for the record). This type of description may be appropriate when defining the range of duties performed within an occupational category, but it does not adequately convey the substantive work that the Beneficiary would perform and, thus, generally cannot be relied upon when discussing the duties attached to specific employment.

Therefore, we find that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. 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 ( 1) the normal minimum educational requirement for entry into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for review for 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 for 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.

While these deficiencies preclude approval of the petition, for the purpose of providing a more comprehensive analysis, we will perform a specialty occupation analysis under each of the four, alternative criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), assuming that the Beneficiary will perform the job duties as generally described in the record.

A. First Criterion

We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which 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.

On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Occupations, All

4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 8 worker the higher of either

the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the

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Other" corresponding to the Standard Occupational Classification (SOC) code 15-1199, which includes the sub-category of "Software Quality Assurance Engineers and Testers" under SOC code 15.1199.01.5

We often look to the U.S. Department of Labor's Occupational Outlook Handbook (Handbook)as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.6 However, there are some occupations for which occupational profiles have not been developed, such as for the occupational category "Computer Occupations, All Other."7 Since the Handbook does not provide sufficient information regarding the designated occupational category for the proffered position, it is incumbent upon the Petitioner to provide probative evidence (e.g., documentation from other objective, authoritative sources) that supports a finding that the particular position qualifies as a specialty occupation.

The Petitioner references the O*NET summary report for 15-1199.01, Software Quality Assurance Engineering and Testers, as an objective source demonstrating a specific degree requirement for the proffered position. However, the summary report provides general information regarding the occupation and does-not support the Petitioner's assertion regarding the educational requirements for these positions. The O*NET assigns this occupational category a Job Zone "Four" rating, which states only that most but not all of the occupations within it require a bachelor's degree. Further, O*NET does not indicate that the four-year bachelor's degrees required by Job Zone Four occupations must be in a specific specialty directly related to the occupation. Therefore, the O*NET information is not probative of the proffered position qualifying as a specialty occupation.

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). 5 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 Department of Labor 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 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://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_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. 6 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. 7

Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Employment Statistics: Occupational Employment and Wages, May 2016 Computer Occupations, All Other, https://www.bls.gov/oes/current/oes 151199.htm (last visited Sep. 18,2017).

Matter ofT- Inc.

The Petitioner has not provided sufficient documentation to substantiate its assertion regarding the minimum requirement for entry into this particular position. The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

B. 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 upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. 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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the matter.

In support of this criterion, the Petitioner submits several job .advertisements for quality assurance analysts and engineers with other companies meant to demonstrate that there is a minimum bachelor's degree requirement for the proffered position. However, we are unable to determine that these companies are similar to the Petitioner and in the same industry, or that the submitted positions are parallel to the proffered position. For instance, the Petitioner does not articulate or support how these companies are similar, and some of the companies appear to operate in differing industries such as payment processing, telecommunications and digital signage, sporting goods, and healthcare.

Further, it is not clear from these job advertisements that a bachelor's degree in computer science, computer information systems, or a related engineering discipline is required for software quality assurance analyst positions. For instance, one announcement indicates only that a degree in a

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"related area" is needed without further specification. In addition, another job announcement references bachelor's degrees in computer science, engineering, or geography. Therefore, the submitted job advertisements suggest that a number of bachelor's degrees could suffice for the position, including a non-specific engineering degree or a degree in geography. Moreover, many of the positions require significant experience, including as much as five years, in contradiction to the wage level I wage designation for the proffered position on the LCA contemplating an entry-level employee with only a basic understanding of the occupation who will perform routine tasks requiring limited judgment. Therefore, the submitted positions appear to be more senior and of greater responsibility than the proffered position.

In addition, the Petitioner provided nearly identical letters from two companies in response to the RFE stating that they are the same size as the Petitioner and conveying that they had been asked, to provide a "professional opinion if a specific degree in Computer Science, Management Information Systems, Engineering, Electronics/Electrical, Mathematics or related field is a common requirement for the position of Software QA Analyst (IT Consultant) in the industry in which the company operates based on its size." First, the Petitioner did not disclose in response to the RFE that these letters were, in fact, from the two end-clients subsequently revealed on appeal, S- and H-G-S-, Inc. As such, these opinions do not appear to be from objective industry sources. Further, the language of the opinions leaves question as to whether the two end-clients reached their conclusions independently, since it appears that the companies were asked to confirm a preconceived notion as to the required degrees, not objectively assess the proffered position and opine on the minimum bachelor's degree required. And despite referring to "organizations of our size," neither letter actually identifies the respective company's size or provides other details about the company's general characteristics. Further, the minimum degree requirement referenced by these two end-client letters is even broader than the stated degree requirement offered by the Petitioner, which in tum is broader than the single degree requirement articulated by S-S-T- (i.e., a "degree in IT or equivalent"). For all of these reasons, we assign these industry letters limited probative value.

As the record does not include sufficiently probative evidence that a "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, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. 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.

In support of its assertion that the proffered positiOn qualifies as a specialty occupation, the Petitioner submitted a job description for the proffered position and information regarding its business operations. However, as discussed, the Beneficiary's duties were vague, general tasks, not

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specific to his proposed assignment to the end-client. Therefore, the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the quties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them.

Moreover, the Petitioner's designation of the proffered position as a Level I entry-level position within the "Computer Occupations, All Other" occupational category doe~ not support its claim that the position is particularly complex, specialized, unique compared to other positions within the same occupation. Therefore, it does not appear that the position is one with complex or unique duties relative to other software quality assurance analyst positions requiring a significantly higher prevailing wage, as such a Level III (experienced) or Level IV (fully competent) wage level. 8

The Petitioner claims that the Beneficiary is well-qualified for the position, and references his education and experience as evidence that the proffered position is a specialty occupation. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them.

As such, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

C. 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 Petitioner asserts that it normally requires a bachelor's degree in computer science, computer information systems, or a related engineering discipline. In support of this assertion, the Petitioner submits foreign degrees, educational equivalency opinions, and IRS tax documentation related to five software quality assurance employees. However, we do not find that the degrees of these colleagues are sufficient to support the Petitioner's stated degree requirement. The Petitioner has not

8 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex, unique, and specialized 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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provided objective evidence that these individuals, despite their similar job titles, are employed in the same capacity as the proffered position. Notably, the Petitioner stated in its RFE response that it "currently [does not] have any employees working Olf the Project at [S-S-T-]" and that it "did not have any employees working on the project at [S-S-T-] in 2015 or first quarter of 2016." Without knowing what job duties these employees perform and other specifics about what project or client these employees service, we cannot determine the relevance of these five employees' educational credentials.

Even if relevant, it is not clear that evidence related to five software quality assurance analysts can lead to a valid conclusion as to the degree requirement for the position. We acknowledge the Petitioner's assertion that it has employed "countless individuals" as software quality assurance analysts and that submitting evidence with respect to all former employees may be overly burdensome. Nevertheless, without knowing how many other software quality assurance analysts the Petitioner has employed and their educational credentials, we cannot determine what statistically valid inferences, if any, can be drawn from this claimed "sampling" of evidence. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). This lack of clarity is notable since the Petitioner identified by name, job title, and receipt number 13 "future employees" who, along with the Beneficiary, would be assigned to the same project. This again leaves question as to how many such IT consultants/software quality assurance analysts the Petitioner has employed, and in tum, what valid inferences can be made from its submission of credentials for only five employees.

Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

D. 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.

Again, as previously mentioned, the Beneficiary's duties were vague, general tasks, not specific to his proposed assignment to the end-client(s) or project. We also recall that the submitted job description is nearly identical to the O*NET report for the "Software Quality Assurance Engineers and Testers" occupational category. We further refer to our earlier comments and findings with regard to the implication of the Petitioner's designation of the proffered position in the LCA as a Level I wage, and hence one not likely distinguishable by relatively specialized and complex duties. Therefore, the job description submitted for the record does not establish that the duties are more specialized and complex than other software quality assurance analysts.

The Petitioner has not demonstrated that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

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Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

IV. EMPLOYER-EMPLOYEE RELATIONSHIP

We will also address the issue of whether or not the Petitioner qualifies as an H -1 B 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 "employer­employee relationship" with the Beneficiary as an H-1 B temporary "employee." Specifically, we 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 his assignment to the end-client. Although on appeal the Petitione~ identifies the Beneficiary's supervisor as M-B-, it does not describe in detail the nature of this supervision during his assignment to the end-client, including how often and in what form this supervision will take place. This lack of explanation and evidence in notable since the Petitioner had previously only submitted an itinerary listing only a client manager.

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On appeal, the Petitioner states that M-B- "works at the [S-S-T-] office and manages the [Petitioner's] employees as their Technical Lead." The Petitioner then provides "an organizational chart listing the names of all the [Petitioner's] employees who are currently assigned to work on the

project at the [S-S-T-]." We note, however, that the Petitioner previously said that it did not and currently does not have any employees assigned to the project. Moreover, according to this organizational chart, M-B- is not the Beneficiary's direct supervisor; instead, the organizational chart depicts the Beneficiary as being directly supervised by an unnamed "Test Lead" who occupies a position parallel to M-S-. Additionally, the submitted project documentation does not specifically list a "Technical Lead" as one of the required resources. We further note that one of the emails submitted on appeal identify M-S- as a "developer." The Petitioner has not clarified these discrepancies.

Therefore, without further explanation or evidence, the record is insufficient to determine who would exercise control over the Beneficiary while assigned to the client location. The Petitioner states that it would control the Beneficiary while assigned to the client, but provides little evidence to substantiate this assertion, particularly given the distance between the Petitioner and the client worksite. In contrast, a provided master services agreement between the Petitioner and S-S-T- states in Section 3.1 that the client would specify the "scope of work" of the assigned "LT. professional," including his or her "minimum qualifications" and "hours to be worked." Section 3.6 also indicates that the client may remove "placement candidates" in cases of "unsatisfactory performance." Likewise, the provided work order from the Petitioner's client references "project based staffing requirements." Therefore, these documents not only indicate that the Beneficiary would be placed at the client site in a staffing arrangement, they also reflect that the client would assess the performance of any placed staff, therefore suggesting control on the part of the client.

Although we acknowledge the letter from S-S-T- stating that it would not control the work of the Beneficiary nor manage nor supervise him, the record does not contain supporting documentary evidence to sufficiently substantiate this assertion. Furthermore, the Petitioner does not submit relevant contractual documentation between S-S-T- and its clients, S- and H -G-S-, Inc., to fully corroborate the terms of the Beneficiary's assignment. This lack of evidence is particularly notable given the frequent references to a staffing arrangement for the benefit of S-S-T-'s clients.

Although it appears that the Beneficiary would be paid and that his benefits would be administered by the Petitioner, the evidence currently on the record does not sufficiently establish that the Beneficiary would primarily be under the direction of the Petitioner during his assignment to the client location. 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. Here, we find that the preponderance of the evidence demonstrates that the Beneficiary would more likely be primarily under the control of an entity other than the Petitioner.

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For these reasons, the Petitioner has not demonstrated that it would have an employer-employee relationship with the Beneficiary during the period of the requested employment. For this additional reason, the appeal will be dismissed.

V. CONCLUSION

The Petitioner has not established that the proffered position qualifies as a specialty occupation or that it would have an employer-employee relationship with the Beneficiary.

ORDER: The appeal is dismissed.

Cite as Matter ofT- Inc., ID# 613400 (AAO Sept. 19, 2017)

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