dismissed H-1B Case: Computer Science

(b)(6)
DATE: MAR 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or p olicy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.P. R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
"Software Consulting and Development Firm" with "450+" employees established in In order 
to employ the beneficiary in what it designates as a "Computer Systems Analyst" position, the 
petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the visa petition, finding that the petitioner had not established that a reasonable 
and credible job offer exists. On appeal, the petitioner contends that the director's denial of the 
petition is erroneous and should be reversed. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the basis specified in her decision. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
petitioner's Form I -129 and the supporting documentation filed with it; (2) the service center's 
request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
denial letter; and (5) the Form I-290B and the petitioner's submissions on appeal. 
On the visa petition, the petitioner stated that it would employ the beneficiary as a full-time 
computer systems analyst at a location at in 
California from October 1, 2014 to August 6, 2017. The Labor Condition Application (LCA) 
submitted to support the visa petition is certified for employment at that location as well as two other 
locations on in. The LCA is valid from August 6, 2014 to August 6, 
2017. 
The LCA states that the proffered position is a Computer Systems Analyst position, and that it 
corresponds to Standard Occupational Classification (SOC) code and title 15-1121, Computer 
Systems Analysts, from the Occupational Information Network (O*NET). The LCA further states 
that the proffered position is a Level II position. 
With the visa petition, the petitioner submitted evidence that the beneficiary received a bachelor of 
technology degree in information technology from in India. An 
evaluation in the record states that the beneficiary's degree is equivalent to a U.S. bachelor's degree 
in information technology. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The petitioner also submitted: (1) a letter, dated March 5, 2014, from 
Finance Analyst, Category Supplier Management, Global Procurement Services, 
signing as 
( . ; and (2) a letter, dated March 28, 2014, from signing as the 
petitioner's "Director and Head- U.S. Immigration & Office Administration." 
In her March 5, 2014 letter,' of stated, inter alia: 
has engaged in a Services Agreement with [the 
petitioner] to provide specialized, technical services to As part of the 
agreement, [the petitioner] intends to draw upon the services of [the beneficiary] to 
perform work for · 
She further stated: 
[The petitioner] assures 
this capacity in 
2017. 
that it is their intention to employ [the beneficiary] in 
CA through August 6, 
In his March 28, 2014 letter, asserted that contracts with the 
petitioner for the completion of projects, rather than to obtain the services of individual employees. 
He stated that the beneficiary would work on a project with a team of the petitioner's employees, 
supervised by the petitioner. He also stated that issues statements of work (SOWs) in 
quarterly increments, but that the expiration of those SOWs does not indicate that no more work 
remains to be done, even on that specific project. He further stated, "Under the Master Services 
Agreement, it is presently anticipated that [the petitioner] will continue to have ongoing SOWs with 
through at least 2017." 
On May 21, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, "Copies of signed contractual agreements, statements of work, work orders, service 
agree ments, and letters between [the petit ioner] and the authorized officials of the ultimate end-client 
companies where the work will actually be performed by the beneficiary .. .. " The RFE requested 
evidence pertinent to the entire duration of the period of requested employment. 
In response, the petitioner submitted (1) portions of an "Offshore Development Agreement" (ODA) 
dated September 1, 2003; (2) portions of an amendment to the ODA; (3) SOWs for work to be 
performed by the petitioner's workers for' : and (4) a letter, dated July 23, 2014, from counsel. 
The provided portions of the September 1, 2003 ODA contain some of the general terms pursuant to 
which might assign work to be developed by the petitioner, in India, which assignments would 
be evidenced by SOWs. The paragraphs of that contract are numbered from 1.1 to 19.2. Paragraphs 
from 3.7 to 18.4 were not provided. 1 
1 We note that the ODA, an agreement for "Offshore Development," appears to only refer to services 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
The amendment to the ODA was signed by representatives of the petitioner on November 1, 2007 
and by a representative of on November 12, 2007. It amends various clauses of the ODA. 
One paragraph of the amendment states: 
Section 7.3 of the [ODA] is amended to add a new sentence after the first sentence 
therein to read as follows: "Further, [petitioner] agrees that such assignment is and 
shall be perpetual and the assignment shall not lapse under any circumstances 
including non exercise of such assignment by the assignee for the period of time."2 
The amendment further states: 
Section 13.1 of the Agreement is amended to delete the second sentence therein and 
replace it with the following: "This agreement shall be renewed automatically for 
additional successive one (1) year periods, unless notice of non-renewal is given to 
the other no later than sixty (60) days prior to the expiration of the then current 
renewal term. "3 
That amendment contains tables of monthly rates to be paid to the petitioner's workers utilized by 
for the periods November 1, 2007 to July 31, 2008 and August 1, 2008 to July 31, 2009. 
Those tables include rates to be paid to workers in the United States, which suggests that may 
utilize workers who are in the United States, rather than only those in India.4 The minimum amount 
performed in India. While the ODA states at paragraph 2.7 that the petitioner is responsible for "ensuring that 
[the petitioner's employees have] the legal righto work in the United States, India, or other 1 offices as 
specified by ' the portions of the agreement provided appear to contemplate that the work will 
exclusively be performed in India. For example, the ODA states the following: 
[T)he [petitioner] has represented to that [the petitioner] has the facilities, personnel, 
technical capability and expertise in India to form an exclusive offshore development team to 
design, develop and support hardware and/or software; and 
wishes to engage [the petitioner] in forming an Indian offshore development team to 
work exclusively on hardware and/or software development projects for and/or 
implement, support and customize third-party application software for .] 
2 Because much of the ODA was not provided, including Section 7.3, the effect of that portion of the 
amendment is unclear. 
3 Because Section 13.1 of the ODA was not provided, the effect of that paragraph is not entirely clear. 
However, it appears to make the ODA automatically renew and remain effective until actively repudiated. 
4 We note that the fact that is agreeing to pay a set amount per worker per month casts doubt on the 
petitioner's assertion that ' contracts with the petitioner for the completion of projects, rather than to 
obtain the services of individual employees." 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
the petitioner would pay for the use of one of the beneficiary's workers in the United States for one 
month is $10,000. 
The SOW entitled ' 
- -
I" is for work to be performed from April 27, 
2014 to July 26, 2014 at a maximum budget of $55,640. That SOW states: "Anticipated 
Headcount[:] 2." 
The SOW entitled 
' is for work to be performed from July 27, 2014 
to October 25, 2014 at a maximum budget of $58,240. That SOW states: "Anticipated Headcount[:] 
2." 
Counsel's July 23, 2014 letter states, inter alia: 
[The beneficiary] will be providing skilled information technology services to 
under the arrangements laid out in the master Development Agreement and in 
accordance with the scope of work outlined in the applicable Statement of Work 
(SOW). As seen by the enclosed SOWs (Exhibit 4), creates SOWs governed 
by the Master Services Agreement in quarterly increments, but the end date of a given 
SOW does not imply that there is not further work to be completed (even on the same 
project). issuance of SOW's in quarterly increments is solely due to its 
internal accounting practices, not whether work on a project remains to be completed. 
That is, even when projects are designed to be multi-year engagements, SOWs are 
issued in quarterly increments. Under the Master Services Agreement, it is presently 
anticipated that [the petitioner] will continue to have ongoing SOWs with 
through at least 2017. 
The director denied the petition on August 2, 2014, finding, as was noted above, that the petitioner 
had not demonstrated that a reasonable and credible job offer exists in this matter, as the petitioner 
has not demonstrated that it has employment for the beneficiary to perform throughout the period of 
requested employment at the location where the petitioner asserts it would employ the beneficiary. 
On appeal, the petitioner submitted purchase orders, an additional SOW, a brief, and additional 
copies of evidence previously provided. 
The additional SOW is entitled " 
It is for work to be performed from January 26, 2014 to April 
25, 2014 at a maximum budget of $35,000. That SOW states: "Anticipated Headcount[:] 8." 
One purchase order provided, dated January 7, 2014, is entitled '' 
" It states that the delivery date is 
January 25, 2014 and the total to be paid is $35,000. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Another purchase order, dated October 24, 2013, is entitled ' 
delivery date is January 25, 2014 and the total to be paid is $95,980. 
" It states that the 
Another purchase order, , dated February 5, 2014, is entitled ,. 
date is April 25, 2014 and the total to be paid is $35,000. 
" It states that the delivery 
Another purchase order, dated April 25, 2014, is entitled 
It states that the delivery 
date is July 26, 2014 and the total to be paid is $55,640. 
The final purchase order provided, , dated July 21, 2014, is entitled 
- - -
date is October 25, 2014 and that the total to be paid is $58,240. 
It states that the delivery 
On appeal, the petitioner asserts that the evidence demonstrates that the petitioner has sufficient 
work at which to employ the beneficiary throughout the period of requested employment pursuant to 
the terms of the visa petition and consistent with the terms of H-1B employment and the visa 
petition. 
II. ANALYSIS 
In her March 5, 2014 letter, ' of 1 referred to a "Services Agreement" that would 
govern the terms of the beneficiary's employment in the United States. Counsel refers to a Master 
Services Agreement in his July 23, 2014 letter. The SOWs refer to a "Master Agreement." 
However, the agreement provided by the petitioner is titled "Offshore Development Agreement." 
The ODA appears to pertain to work performed by the petitioner's employees offshore and 
exclusively in India. The record does not demonstrate that the ODA pertains to any work to be 
performed in the United States. As such, it has not been shown to have any direct relevance to any 
material issue in this case. 
Further, as was noted earlier, the petitioner did not submit complete copies of the ODA and the 
amendment that it claims are pertinent to the submitted SOWs. Even if they were shown to be 
relevant, many of the terms of those documents have not been revealed. For both reasons, it cannot 
be found that the ODA is evidence of the terms of work available for the beneficiary in the United 
States throughout the requested validity period. 
We also note that most of the SOWs are for work which was to end prior to the beginning of the 
requested employment period on the Form 1-129. Only one of the SOWs is for work to be 
completed during the requested period of employment, i.e., October 25, 2014, which is just 25 days 
into the period of employment requested in this case. As such, they are not sufficient evidence of 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
employment available through August 6, 2017, which is the last day of the period of requested 
employment. 5 
The SOW and Purchase Order that purport to be for work to be performed during the first quarter of 
the petitioner's FY15 are for work to be concluded by October 25, 2014 and state an anticipated 
headcount of two. Thus, they encompass only 25 days of the period of employment requested in this 
case, which begins on October 1, 2014. That SOW and purchase are evidence of no more than 25 
days of employment for no more than two of the petitioner's "450+" workers during the period of 
requested employment. For both reasons, it is not evidence that the petitioner would have sufficient 
work at which to employ the beneficiary as a full-time computer systems analyst from October 1, 
2014 to August 6, 2017, the period of employment requested in the visa petition. 
Counsel asserted, in his July 23, 2014 letter, "Even when projects are designed to be multi-year 
engagements, SOWs are issued in quarterly increments"6 and that "Under the Master Services 
Agreement, it is presently anticipated that [the petitioner] will continue to have ongoing SOWs with 
through at least 2017. " 
Counsel appears to urge that the Master Services Agreement, which may or may not be the ODA 
submitted, and the series of SOWs, considered together, constitute persuasive evidence that the 
petitioner would have sufficient work for the beneficiary to perform at location throughout 
the period of requested employment. We observe, first, that even if the ODA is the agreement 
governing the beneficiary's proposed work for in California, which has not been 
demonstrated, the only evidence that the ODA is still in effect, other than the amendment to its 
terms, which indicates that it remains in effect until repudiated, 7 is the statement of a 
finance analyst at that "has engaged in a Services Agreement with [the petitioner]." 
Even if construed to mean that the provided ODA, rather than a Master Services Agreement that has 
not been provided, remains in effect, it is no indication that it will remain in effect through the end of 
the period of requested employment in 2017. 
5 Further, the SOWs for FY14 evince work for an "Anticipated Headcount" of as few as two and as many as 
eight of the petitioner's workers. None of those SOWs specifically indicates that the beneficiary would work 
on the project to which they pertain. On the visa petition, the petitioner stated that it has "450+" employees in 
the United States. As such, those SOWs do not show that the petitioner had work for any appreciable number 
of its U.S. employees or that it had work specifically available for the beneficiary. 
6 Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). 
7 Although the record contains no evidence that the ODA has been repudiated by either party, it also contains 
no evidence sufficient to demonstrate that it has not been repudiated. 
(b)(6)
Page 8 
NON-PRECEDENT DECISION 
letter does state: "[The petitioner] assures that it is their intention to employ 
the [beneficiary at J in California through August 6, 
2017. " That is far short of a statement that agrees to utilize the beneficiary full-time 
throughout that period, or that it will utilize an appreciable number of the petitioner's workers full­
time throughout that period, or even that it will continue its contractual relationship with the 
petitioner through August 6, 2017. We also note that Ms. does not specify what the 
agreement is called, nor does she provide the date of the agreement to which she refers. There are 
simply not enough details in her letter to determine that the ODA provided bears any direct 
relevance to the work the beneficiary would perform. 
stated, in his March 28, 2014 letter, "Under the Master Services 
Agreement, it is presently anticipated that [the petitioner] will continue to have ongoing SOWs with 
through at least 2017." Counsel echoed that assertion in his July 23, 2014 letter. 
Even if this present anticipation, which has not been shown to be likely, is realized, the record 
contains insufficient evidence that any appreciable number of the petitioner's "450+" employees 
would work pursuant to those anticipated SOWs or that, more particularly, the beneficiary would 
work pursuant to them. The record also fails to demonstrate that the petitioner's workers who might 
be utilized by would work full-time. 
For all of these reasons, the evidence submitted is insufficient to show that the petitioner is able to 
employ the beneficiary in the capacity specified in the visa petition and the LCA and pursuant to the 
terms and conditions of H-lB employment. As such, the petitioner has not demonstrated that a 
reasonable and credible job offer exists in this matter. The appeal will be dismissed, and the petition 
will be denied. 
III. CONCLUSION 
In visa petition proceedings, 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 Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.