dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 5199131 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner, a management consulting services provider, seeks to employ the Beneficiary temporarily 
as a "UI developer" under the H-lB nonimmigrant classification for specialty occupations. 1 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 California Service Center the Fonn I-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner asserts that the Director did not consider some evidence and 
ultimately erred in denying the petition. 
Upon de nova 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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive 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: 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5 )(H)(i)(b) . 
(]) 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 specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 2 
We construe 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. 3 
II. ANALYSIS 
The Petitioner is located inl I California and stated it has a contractual relationship with 
~~----__,le end-client) and the Beneficiary would perform work at the client's offsite location 
in I I California. The Petitioner requested the Beneficiary's dates of intended employment 
from October 2018 through September 2021. 
Based on a lack of sufficient evidence, we conclude that the Petitioner has not established the 
availability of specialty occupation work, or the actual work the Beneficiary would perform. 
Individually, each of these shortcomings preclude a determination that the proffered position qualifies 
as a specialty occupation under any of the regulatory criteria enumerated at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(])-( 4). 
We begin noting that because the Petitioner has not established definitive, non-speculative 
employment for the Beneficiary, the record does not establish that the position described in this 
petition would actually exist as requested. 4 The Petitioner relies on a December 2013 Staff 
Augmentation Services Agreement (master contract) and a letter from the end-client to demonstrate 
both that this position qualifies as a specialty occupation, and that it would provide the work it 
requested in the petition for a 35-month timeframe. 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 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, 201 F.3d at 
387. 
4 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
A. Contractual Material 
The master contract reflected that the agreement would continue indefinitely until terminated by either 
party. Regarding the agreement's termination, it specified that either party could terminate the 
agreement at any time, with or without cause. Further, this contract signified that the services the 
Petitioner would provide to the end-client would be contained within a Statement of Work (SOW) or 
a similar type of document. The master contract contained a separate provision indicating that in the 
absence of an SOW, the end-client would pay the Petitioner for the services rendered as agreed to in 
writing by the end-client at a specified rate, for which the petitioning organization would issue invoices 
to the client. The end-client letter identified the Beneficiary as a resource, reflected that the work she 
would perform would not fall under any of the SOW s these entities had in place, and listed the offered 
position's duties. 
First, the master contract and the other documentation agreed to in writing form the foll representation 
of the contractual agreement between these parties. As a result, the master contract, of its own accord, 
does not stand alone, and does not sufficiently support the Petitioner's claim that the Beneficiary would 
perform services in a specialty occupation through the duration of the requested H-1 B validity period. 
In other words, the Petitioner should not rely solely on the master contract or its indefinite validity. 
Next, we consider whether the Petitioner has offered evidence relating to work that is not covered by 
an SOW. We reiterate the master contract contained a provision that in the absence of an SOW, the 
end-client would compensate the Petitioner for its services "as agreed to in writing" by the end-client 
at a specified rate, for which the petitioning organization would issue invoices to the client. The 
Petitioner did not provide evidence of any written agreements executed between itself and the 
end-client illustrating the rate the client would pay the petitioning organization in return for the 
Beneficiary's services. As a result, the Petitioner has not offered evidence that comports with the 
master contract for work occurring outside of an SOW. In other words, the record does not establish 
a binding obligation on the part of the end-client to provide any work for the Beneficiary. 5 
Regarding the indefinite nature of the work discussed in the master contract, considering the current 
fact pattern and evidence within the record, such an unspecified and open-ended agreement does not 
demonstrate that the project will be ongoing without probative, corroborating material to establish the 
project's actual, or likely duration. The Petitioner has not presented a basis supported by sufficient 
analysis and probative evidence that demonstrates the prediction is reasonable, by a preponderance of 
the evidence. In general, such predictions should be sufficient for U.S. Citizenship and Immigration 
Services (USCIS) to reasonably deduce whether the prospective work will continue, as requested. 
Basic or conclusory assertions do not provide us with a legitimate basis to determine whether a project 
will continue to require a beneficiary's services, or whether such statements are simply speculation. 6 
Hypothetically, if we were to accept the Petitioner's position that perpetual arrangements are sufficient 
evidence, several years or decades could pass and the petitioning organization could continue to rely 
5 The agency has clearly indicated that it has not historically pe1mitted speculative employment in the H-1 B program. See, e.g., 
63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 Cf Matter of Ho, 22 l&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain sufficient 
detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service to determine 
whether the job-creation projections are any more reliable than hopeful speculation." Id. 
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on the old contractual documents without having to demonstrate that such material remains valid. The 
context of the current scenario is not simply a business arrangement to provide services. Instead, the 
Petitioner has entered into such a relationship while simultaneously intending to assign H-lB 
personnel to perform the work. Even though the end-client indicated that the Beneficiary would not 
work under any SOW, it remains the Petitioner's burden to provide probative evidence that 
preponderantly establishes that it will provide qualifying work for the alien for the time period it 
requests on the petition. The end-client's statement that she will not work under an existing SOW does 
not absolve the Petitioner of its responsibilities when applying to employ a foreign worker under the 
H-lB program. Such responsibilities are distinct from those in place when an organization employs a 
U.S. worker. 
Business needs require companies to regularly amend and change previously stipulated plans. A 
contract provides the structure and expectations that allow all contracted entities to plan accordingly. 7 
Understanding that contracts-or similar written agreements as specified in the master contract­
underlie the reliability of business agreements establishes the importance that a petitioner present the 
full spectrum of documentation that binds the involved parties. Not only did the Petitioner fail to 
provide an "in writing" document for the services it would provide to the end-client, but it also did not 
submit invoices or more probative evidence demonstrating that the end-client actually compensated 
the petitioning organization for the services rendered. Moreover, the letter from the end-client did not 
reflect the compensation the Petitioner would receive in exchange for the Beneficiary's services for 
the end-client. We reiterate that U.S. employers take on additional burdens when employing foreign 
nationals in the United States. 
We conclude that the Petitioner has not offered sufficient evidence to support the master contract, and 
as a result, it has not satisfied its burden of proof that a qualifying position would exist for the 
Beneficiary for the period the organization specified in the petition. 
B. Correspondence 
Turning to the end-client letter, we conclude this evidence is insufficient to satisfy the Petitioner's 
burden of proof for multiple reasons. As a preliminary matter, and as recognized by the court in 
Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for 
entities other than a petitioner, evidence of the client companies' job requirements is critical. As a central 
holding, the Defensor court determined that the former Immigration and Naturalization Service acted 
appropriately in interpreting the statute and the regulations as requiring petitioning companies to provide 
probative evidence that the outside entities where the Beneficiary would actually provide their services 
(i.e. end-clients) required candidates to possess a qualifying degree. 8 The scenario in Defensor has 
repeatedly been recognized by Federal Courts as appropriate in determining which entity should provide 
the requirements of an H-lB position and the actual duties a beneficiary would perform.9 
7 See Fletcher v. Peck, IO U.S. 87, 133-34, 137-38 (1810) (describing the standard of adhering to the "obligations binding on 
the parties" within contracts, which if this principle were overturned, the interactions between the involved parities "would be 
very seriously obstructed"). 
8 Defensor, 201 F.3d at 388. 
9 See Altimetrik Corp. v. USCIS, No. 2: 18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
4 
Absent from the end-client letter are any prerequisites it requires to perform the duties we discuss below. 
Among those missing mandatory requirements are any education requirements for prospective 
candidates, even though the Director's request for evidence (RFE) notified the Petitioner that this 
information should be included in any end-client letter. Additionally, the remaining material within the 
record does not reflect what the end-client requires as a prerequisite for the proffered position. This lack 
of information alone is sufficient to preclude the petition's approval, as the Petitioner has not 
demonstrated that the offered position satisfies the definition of a specialty occupation found at section 
214(i)(l) of the Act. 
Moving on to the duties, we agree with the Director that the functions within the end-client letter were 
presented in a general and overly vague manner when considered in their totality. The end-client stated 
the duties would consist of the following: 
1. Performing detailed calculations to develop installation standards and specifications; 
2. Developing responsive pages for account creation and easy sign in, code review, E2E testing and 
deployment; 
3. Planning and developing applications and modifications for electric/electrical properties used in 
parts and systems in order to improve technical performance; 
4. Carrying out experiments and releases of new features to production, analyzing metrics and 
tweaking repeatedly; 
5. Implementing the responsive re-design with style guide compatible for mobile use; 
6. Developing maintenance and testing procedures for electronic/electrical components in the 
system; 
7. Creating all of the end point services required and testing it using API tool/REST; 
8. Designing and implementing lightweight Node and Java app; 
9. Designing single page application for creating customer account with Backbone models for form 
validation; and 
10. Creating the scaffolding using Polaris code generator. 
First, much of these functions are vague or generalized. 10 Such generalized information does not 
establish a necessary correlation between the proffered position and a need for a particular level of 
education, or educational equivalency, in a body of highly specialized knowledge in a specific 
specialty. Specifically, the record lacks sufficient material detailing the project the end-client will 
assign to the Beneficiary. As a result, the record leaves us questioning how the general statements or 
duties listed above factor into the day-to-day functions the Beneficiary would perform. For instance, 
under item 1 it is unclear how performing calculations leads to the development of installation 
parameters. This statement lacks sufficient information about the Beneficiary's specific role and the 
complexity of the task. 11 It is not evident that the proposed duties as described in this record of 
at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik Co1p. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *9 (D.D.C. July 15, 2019). 
1° For example, reference items one through six. 
11 Cf Matter of Michael Hertz Assocs., 19 T&N Dec. 558, 560 (Comm'r 1988) (indicating USCTS must evaluate the actual 
tasks, demands, and duties to detennine whether a petitioner has established the position realistically requires the 
specialized knowledge-both theoretical and applied-which is almost exclusively obtained at the baccalaureate level). 
5 
proceeding, and the position that they comprise, warrant recognition of the proffered position as a 
specialty occupation. 
Second, although some duties are less vague, it is not self-evident that they are complex due to the heavy 
use of jargon. 12 This makes it nearly impossible for the lay person to determine whether the duties 
sufficiently support the Petitioner's claims that the Beneficiary would perform in a specialty occupation. 
It is always the Petitioner's responsibility to explain what these jargon-laden functions involve, and how 
they demonstrate eligibility. 13 Additionally, the truth is to be determined not by the quantity of evidence 
alone but by its quality.14 The Petitioner should substitute or explain industry lingo with explanations 
and concepts that allow a person without a great familiarity with the technical nature of these functions 
to be able to grasp what the position consists of, and why it is so complex or unique, or the duties so 
specialized that the H-lB requirements are satisfied.15 Although the Director indicated the end-client 
letter was vague, even now the Petitioner does not offer more detailed duties. 
As the final point on the end-client letter, we further determine that it does not sufficiently support the 
Petitioner's eligibility. While the petitioning organization submitted a letter from the end-client claiming 
that the project was ongoing with no anticipated ending date, the Petitioner failed to submit probative 
evidence to verify these contentions. Moreover, none of the involved parties described an adequate basis 
for a 35-month estimate. Such claims are therefore equivalent to assertions rather than evidence to support 
the assertions, and when made without supporting documentation are of limited probative value and do 
not carry the weight to satisfy the Petitioner's burden of proof 16 
On the issue of whether the signatory on the letter was authorized to represent that organization, the 
Director indicated the Petitioner did not demonstrate the end-client's "Director, Customer domain" 
was authorized to opine on the Beneficiary's placement within that organization. On appeal, the 
Petitioner questions what they could have provided to address this issue. The Director's comments 
appear to sufficiently imply that they were not satisfied with the signatory's authority. As a result, 
some form of evidence relating to the signatory's authority would appear to suffice. However, the 
Petitioner provides nothing relating to this issue on appeal except to question the Director's actions. 
As we have established the evidentiary shortcomings associated with the end-client's letter, we do not 
consider this to be a determinative issue within this appeal. Nevertheless, the burden rests with the 
Petitioner to demonstrate the veracity of its evidence submitted in support of the petition. A similar 
requirement is outlined within USCIS policy guidance, which indicates that only certain individuals 
have the authority to sign a document that will be submitted to USCIS on behalf of a corporation or 
other legal entity. 17 Considering that this letter will not serve as a seminal form of evidence, and that 
A broad and generalized presentation of a position's responsibilities prevents USCTS rrom making such a determination. 
See also Sagarvvala, No. CV 18-2860 (RC), 2019 WL 3084309, at *8. 
12 For example reference items seven through ten. 
13 Section 291 of the Act, 8 U.S.C. § 1361. 
14 Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989)). 
15 Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *8-10 (D.D.C. July 15, 2019). 
16 Matter ofSoffici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
17 See USCTS Policy Memorandum PM-602-0134.1, Signatures on Paper Applications, Petitions, Requests, and Other 
Documents Filed with U.S. Citizenship and Immigration Services 5 (Feb. 15, 2018), http://www.uscis.gov/legal­
resources/policy-memoranda. 
6 
an Internet search appears to indicate that the end-client's department under the "customer domain" 
title may relate to its information technology group, the appearance that the signatory is the director 
of that department tends to mitigate our concerns somewhat. 18 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that identifies the essence and duration of the project, the substantive nature of the duties they will 
carry out, and any particular academic or work experience requirements for the proffered position. 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. This precludes a conclusion 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 one; (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 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 normally 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. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
C. Other Issues 
We disagree with the Petitioner that the Director provided conflicting statements in the denial. 
Specifically, the Petitioner asserts that the Director stated the end-client did not provide a job 
description within one portion of the decision, only to later signify that the end-client's description 
was insufficient. The first mention of a lack of a job description was the Director's reference to the 
contractual material, not to the end-client. Moreover, we will not discuss the portions of the 
Petitioner's appeal brief related to its employer-employee relationship with the Beneficiary, as that 
issue was not included in the Director's decision to deny this petition. 
Additionally, we question whether the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) corresponds to and supports the 
petition. As this issue was not part of the Director's decision, we simply note it here. Namely, we 
observe that the Petitioner classified the proffered position under the occupational title "Electrical 
Engineers," corresponding to the Standard Occupational Classification (SOC) code 17-2071. 
However, the offered position appears to be comprised of duties from another SOC code under the 
"Industrial Engineers" occupational subcategory of "Human Factors Engineers and Ergonomists," 
(17-2112.01). 19 We searched the O*NET for part of the job title (user interface, which is what the 
18 We utilized a Google search with the following text that raised the possible connection between the signatory's position 
and the end-client's organizational structure: "'customer domain' department [end-client's name].com." 
19 Compare the following O*NET definitions. Electrical Engineers: Research, design, develop, test, or supervise the 
manufacturing and installation of electrical equipment, components, or systems for commercial, industrial, military, or 
7 
"UI" represents in the job title) to achieve this result. Within the appeal brief the Petitioner discusses 
the Electrical Engineers entry in the DOL Occupational Outlook Handbook (Handbook) in support of 
its eligibility claims. When identifying the correct SOC code on the LCA, DOL guidance indicates­
and DOL administrative appeals decisions confirm-the public is to evaluate the elements within the 
O*NET and not the Handbook. 2° Consequently, it appears the Petitioner may have selected the incorrect 
SOC code designation on the LCA. 
Finally, the Petitioner indicates on appeal that the RFE did not pertain to any specialty occupation 
issues, or it would have submitted more documentation relating to this topic. First, the regulation at 
8 C.F.R. § 103.2(b)(8)(i) provides in pertinent part: "If the record evidence establishes ineligibility, the 
benefit request will be denied on that basis." Further, 8 C.F.R. § 103.2(b )(8)(ii) provides: "If all required 
initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its 
discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the 
missing initial evidence be submitted within a specified period of time as determined by 
USCIS." Therefore, not only was the Director not required to issue an RFE at all in this potentially 
deniable case, but she was also not required to solicit further documentation for every evidentiary 
shortcoming.21 Second, even now the Petitioner does not offer the additional evidence that it claims it 
would have, had the Director raised the additional issues within the RFE. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
scientific use. Human Factors Engineers and Ergonomists: Design objects, facilities, and environments to optimize 
human well-being and overall system performance, applying theory, principles, and data regarding the relationship 
between humans and respective technology. Investigate and analyze characteristics of human behavior and performance 
as it relates to the use of technology. For additional information, see https://www.onetonline.org/. 
20 DOL, Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdtYNPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
Furthermore, the Board of Alien Labor Certification Appeals has affirmed that information within the Handbook is not 
suitable for the purpose of determining whether an employer's job opportunity in a given case fits what is in the Handbook, 
or for classitying occupations in the LCA context. Sec Janrain, Inc., 2016-PWD-00003 (Nov. 16, 2016). They further 
explained that the Handbook offers general, career-oriented information, often too broad to align fully or consistently with 
the job code information within the O*NET. Id. 
21 See 8 C.F.R. § 103.2(b)(8). 
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