dismissed EB-2 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11989019 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 07, 2021 
Form 1-140, Immigrant Petition for Advanced Degree Professional 
The Petitioner seeks to employ the Beneficiary as a senior SAS programmer analyst under the second­
preference, immigrant classification for members of the professions with advanced degrees or their 
equivalents. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S .C. 
§ 1153(b)(2)(A). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner did not establish that a bona fide job offer of full-time permanent 
employment existed or that it intended to employ the Beneficiary in the offered position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
The Administrative Appeals Office (AAO) reviews the questions in this matter de novo. See Matter 
of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the 
appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as an advanced degree professional generally follows a three-step process. To 
permanently fill a position in the United States with a foreign worker, a prospective employer must 
first obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 
8 U.S.C. § 1182(a)(5). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, 
and available for a position. Id. Labor certification also indicates that the employment of a foreign 
national will not harm wages and working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a foreign national may finally apply for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
IT. THE BONA FIDES OF THE JOB OFFER 
A business may file a petition if it is "desiring and intending to employ [a foreign national] within the 
United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary 
under the terms and conditions specified in an accompanying labor certification. Matter of Izdeska, 
12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to the terms 
of the accompanying labor certification, the petitioner did not intend to employ the beneficiary as a 
domestic worker on a full-time, live-in basis). A petitioner must establish this intent to employ a 
beneficiary in a bona fide position at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971 ). USCIS must consider the merits of a petitioner's job offer to determine whether the 
job offer is realistic. Matter of Great Wall, 16 I&N Dec. 145 (Acting Reg'l Comm'r 1977). For labor 
certification purposes, the term "employment" means "[p ]ermanent, full-time work." 20 C.F.R. § 
656.3. 
Here, the Petitioner filed the accompanying labor certification on March 25, 2019. 1 The labor 
certification and the petition indicate that the Petitioner is located inl I New Jersey. On the labor 
certification, the Petitioner attested that it will permanently employ the Beneficiary in the full-time 
position of senior SAS programmer analyst at its own address. The labor certification describes the 
offered position as follows: 
Part H-11. Job duties: 
Analyze clinical data for the respective datasets. Create Study Data Tabulation Models 
(SDTM) and Analysis Data Models (ADAM) based on Clinical Data Interchange 
Standards Consortium (CDISC) for thel I of the trial data. Create tables, 
listin s, and ra hs for the client to support the outcome demonstrating the I I 
'---------....-------'-A~ssist clients in reviewing documentation. Study data 
for submission to the trials. 
Part H-14. Specific skills or other requirements: 
Travel/relocate to various unanticipated locations throughout the U.S. for long and 
short term assignments at client sites. 
The record includes a prevailing wage determination (PWD) requested by the Petitioner pursuant to 
the provisions of 20 C.F.R. § 656.40. The PWD also lists the work location as the Petitioner's address 
and notes that travel to "various unanticipated locations through the U.S. for long and short term 
assignments at client sites" is required. 
The Director noted that the Petitioner operates a computer consulting business but that it did not submit 
copies of agreements with potential clients where the Beneficiary will be placed. The Director issued 
a request for evidence (RFE), requesting that the Petitioner submit copies of agreements or contracts 
with all of its clients, with the Beneficiary, and between its clients and the Beneficiary. The Director 
1 The date DOL accepted the labor certification application for processing is the petition's priority date. See 8 C.F.R. § 
204.S(d) (explaining how to dete1mine a petition's priority date). 
2 
noted that the submitted evidence must establish the location where work will be performed, the length 
of employment, and which entity will supervise, assign and control the Beneficiary's work. 
In response to the Director's RFE, the Petitioner submitted a statement confirming its intention to 
employ the Beneficiary in the offered position at its headquarters and another work site, and to control 
the Beneficiary's work on a daily basis. The Petitioner also submitted a letter from its client) I 
I I identifying the Ben
1
ficiary y an employee of the Petitioner who will be assigned to work 
for its client,! !located in New Jersey. 
The Director denied the petition, concluding that the record did not establish that the job offer was for 
a full-time permanent position.2 The Director's conclusion was based on the following: 
• The Petitioner indicated that the Beneficiary will work at various unanticipated 
client locations, but the record demonstrates that the Beneficiary will be assigned 
to only one client location with the end-client,! I and through the Vendor, 
I l 
• The Work Order between the Petitioner and I I lists the term of the 
assignment as three years, from July 2019 to July 2022. 
• The Work Order reflects an agreement between only the Petitioner and the Vendor, 
and the record does not include evidence of any agreement between the Petitioner 
and the end-client, or the Vendor and the end-client. 
• The Master Consulting Agreement between the Petitioner and.__ ____ ~ _ _. 
states that a background check (including drug screen, if necessary) on the 
Petitioner's personnel is required, but this requirement was not listed on the labor 
certification. 
• The record does not establish that the Beneficiary will be employed on a permanent 
full-time basis. 3 
On appeal, the Petitioner asserts that the Director did not take into account other additional evidence 
submitted in response to the RFE to establish a bona fide job offer, but instead focused on limited 
contractual documentation. The Petitioner cites to its Employee Handbook, the Beneficiary's 
performance evaluation, an organizational chart, the Beneficiary's pay stubs and IRS Form W-2, Wage 
and Tax Statements, and evidence of benefits the Petitioner provides to its employees including health 
insurance, as establishing that it made a bona fide job offer to the Beneficiary. 
With the appeal, the Petitioner submits evidence establishing that it paid for a Worker's Compensation 
and Unemployment Insurance program, the Beneficiary's recent pay stubs, and a letter from the 
Vendor] I stating that, due to privacy standards, it does not "provide detailed end­
client letters for tempora,y project consultants." (Emphasis added). The Petitioner asserts that the 
petition is a promise of future employment and "[USCIS] does not have the authority to request 
2 We note that, following the denial and appeal of this petition, the Petitioner obtained another labor certification from the 
DOL for a different position, that of software developer, and filed a second petition with the new underlying labor 
certification. That petition was approved on October 19, 2020. 
3 The record does not contain an agreement between the Petitioner and the end-client. It is also unclear whether the 
Petitioner will have the right to fire the Beneficiary and control the Beneficiary's work while working at the end-client's 
location, or that the Petitioner will remain the Beneficiaiy's employer. 
3 
Petitioner to establish existence of an employer/employee relationship or use it as a basis to deny the 
instant I-140 Petition." 
While we agree that the petition represents future employment, the Petitioner must intend to employ 
the Beneficiary in the offered position as described in the labor certification on a permanent, full-time 
basis. Although the additional evidence cited by the Petitioner does support the Petitioner's assertion 
that it intends to employ the Beneficiary, the record does not establish the permanent, full-time nature 
of the position. 
In his decision, the Director noted that the work order between the Petitioner and the Vendor lists the 
term of the agreement as three years and found that the Petitioner did not demonstrate its intention to 
employ the Beneficiary on a permanent, full-time basis. On appeal, counsel for the Petitioner asserts 
that "it is common in the I. T. industry for companies to issue work orders for the services of consultants 
for durations that are less than the full anticipated project length .... Given the nature and complexity 
of the project atl I Petitioner is confident that the need for Beneficiary's services may be 
extended." However, counsel's testimony that the Work Order may be extended is not sufficient to 
establish the permanent and full-time nature of the offered position. Assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statements must be substantiated in 
the record with independent evidence, which may include affidavits and declarations. 
The Work Order and the letter from the Vendor submitted on appeal are inconsistent with the 
Petitioner's assertion that it intends to employ the Beneficiary on a permanent, full-time basis. The 
Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to 
where the trnth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). While the Work Order may 
have been executed based on an estimated schedule for completion, the record does not contain 
independent, objective evidence of the Petitioner's intent to employ the Beneficiary on a permanent, 
full-time basis for the position. Id. Instead, the record indicates that the project is temporary and 
estimated to be completed in three years. The record does not include a statement or explanation from 
the Petitioner, or other independent objective evidence to support counsel's assertions. Therefore, it 
is unclear whether the project may be extended and under what circumstances, or whether the 
Beneficiary may be assigned other work outside of the Work Order. 4 Termination of the project or 
cancellation of the work would end the full-time work certified in the labor certification. A petitioner 
must establish eligibility for a requested benefit as of a petition's filing and continuing throughout its 
adjudication. 8 C.F.R. § 103.2(b )(1 ). 
Other evidence in the record casts further doubt on the Petitioner's assertion of the availability of 
permanent, full-time work for the Beneficiary. The offer of employment from the Petitioner to the 
Beneficiary lists only the Beneficiary's assignment to the end-client, with job duties specific to that 
project. The offer does not discuss the possibility of other, future assignments for the Beneficiary 
within the job duties of the labor certification, and as noted above, the Petitioner did not provide 
evidence of other assignments. Unresolved material inconsistencies may lead us to reevaluate the 
4 While we understand the importance of protecting confidential information and respect the Vendor's privacy standards, 
this does not absolve the Petitioner of its responsibility to provide independent, objective evidence to resolve 
inconsistencies. The Petitioner could have submitted a redacted Work Order, or relevant p01iions rather than the Work 
Order in its entirety, but it did not. 
4 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 
See Matter of Ho, 19 I&N Dec. at 591-592. The Petitioner also did not provide evidence that it had 
similar work involving the same job duties in-house or for another project upon completion of the end­
client's current project. 
The use of extensive industry-specific language in the job duties listed on the labor certification also 
casts doubt on the Petitioner's intent to employ the Beneficiary on a permanent and full-time basis, 
beyond the current assignment to the end-client. 5 The job duties as described on the labor certification 
indicate that the Beneficiary will develop programs to study and analyze data "for submission to the 
I I trials." The duties also include, "Create Study Data Tabulation Models (SDTM) and 
Analysis Data Models (ADAM) based on Clinical Data Interchange Standards Consortium (CDISC) 
for tht:C7 Review of the trial data." The Petitioner has not established that, upon completion or 
termination of the end-client's current project, it intends to continue to employ, or is able to employ, 
the Beneficiary in the same position described on the labor certification. 6 It is unclear that the 
Petitioner has other such specific work related to thel I industry to complete in-house to 
establish full-time work in the specific job duties listed in the certified labor certification. 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). In 
view of the evidentiary deficiencies discussed above, we conclude that the Petitioner has not 
established that a bona fide job offer of permanent, full-time employment exists. Therefore, we will 
dismiss the appeal. 
III. THE JOB REQUIREMENTS 
In his decision, the Director found that the minimum requirements for the offered position were not 
accurately reflected on the labor certification as the labor certification did not list requirements for a 
background check or drug screening. The Petitioner does not address the job requirements of the 
offered position on appeal. 
As the Director noted, the Master Consulting Agreements states as follows: 
The terms of any Work Order will be strictly subject at all times to the terms and 
conditions of this Agreement and is contingent upon a background check on the 
Consultant's Personnel, and drug screen if required by Sponsor. Such Work Order may 
be terminated byl I immediate at any time based upon information received in the 
Background Report. 7 
5 According to its website, the end-client, is a biotechnolo com an with a focus on ~I----~ 
development. Se..,.__~---~-----~--~---~------~--' 
6 On the labor certification, the Beneficiary states that he has been employed with the Petitioner in the position of SAS 
programmer since April 3, 2017. While the job details for that position are similar to the job duties of the offered position 
in developing programs to study and ,ana].Yzi; data, the job duties of the Bene · ' position since 2017 do not mention 
any specific regulatory body, such asL_____.,l' or a specific trial type, such as L____r-~-----, 
7 The te1m "Sponsor" is defined in the Master Consulting Agreement as clients o '-----~---' 
5 
Drug tests for offered positions generally constitute job requirements. See, e.g., Matter of Honeywell 
Int'!, Inc., 2016-PER-00434, 2018 WL 3232449 *2 (BALCA June 27, 2018) (finding contingency on 
the successful completion of a background check and drug test to constitute a job requirement). 8 In 
this case, the Petitioner did not list any drug testing requirement on the labor certification. As the 
Petitioner does not discuss this issue, we consider the issue of whether the minimum requirements 
were accurately reflected on the labor certification abandoned or waived on appeal. 9 
Based on the foregoing, we dismiss the appeal because the Petitioner did not establish that a bona fide 
job offer of permanent, full-time employment exists, or that it intends to employ the Beneficiary under 
the terms and conditions specified in the accompanying labor certification. Because the Petitioner 
does not address it on appeal, we also affirm the Director's finding that the minimum requirements for 
the offered position were not accurately reflected on the labor certification. The Petitioner has not 
established eligibility for the requested benefit as of the petition's filing and continuing throughout its 
adjudication as required by 8 C.F.R. § 103 .2(b )(1 ). 
ORDER: The appeal is dismissed. 
x Decisions of the Board of Alien Labor Certification Appeals (BALCA) do not bind USCIS. See 8 C .F.R. § 103 .9(b) 
(stating that, in Department of Homeland Security (DHS) proceedings involving the same issues, precedent decisions of 
the Attorney General and the Board of Immigration Appeals bind OHS officers). But USCIS defers to DO L's reasonable 
interpretations of its labor certification regulations. See Martin v. Occupational Safety & Health Review Comm 'n, 499 
U.S. 144, 152 (1991) (requiring one administrative agency to defer to another's reasonable interpretation of regulations 
that Congress authorized it to promulgate and enforce). 
9 See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (when a respondent fails to substantially appeal an issue 
addressed in a decision, that issue is waived on appeal); see also Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 
2009) (generally finding that a waived ground of ineligibility may form the sole basis for a dismissed appeal); Matter of 
Zhang, 27 I&N Dec. 569 n.2 (BIA 2019) (finding that an issue not appealed is deemed as abandoned). 
6