dismissed H-1B Case: Computer Systems Analysis

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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 
DATE: MAR 2 6 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
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 policy 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, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 bona fide 
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 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 
engineering 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 
systems engineering. 
The petitioner also submitted: (1) a letter, dated March 21, 2014, from 
Finance Analyst, Category Supplier Management, Global Procurement Services, 
signing as 
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'; 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 21, 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 
that it is their intention to employ [the beneficiary] in 
California through September 2017. 
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 June 20, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, the name of the project the beneficiary is assigned to and the contracted employment 
dates. 
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) an SOW for work to be 
performed between May 5, 2014 and July 18, 2014; 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 Developmen t,'' appears to only refer to services 
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 right to work in the United States, India, or other offices as 
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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 
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/or to implement, support and 
customize third-party application 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 
petitioner's assertion that " 
is agreeing to pay a set amount per worker per month casts doubt on the 
contracts with the petitioner for the completion of projects, rather than to 
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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 " 
' Although that title suggests that the work would be performed during the fourth quarter of 
fiscal year, the "Statement of Work Period" included in it is May 5, 2014 to July 18, 2014 . 
That SOW further states a "Maximum Budget" of $9,200 and identifies "Supplier Key Personnel" as 
." It states that the "Anticipated Headcount" is "1." 
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 SOWs5 (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 
throl!gh 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 subm itted purchase orders, additi onal SOWs, a brief, and additio nal copie s 
of evidence previously provided. 
A purchase order provided, . is dated July 28, 2014 for 
11 
_ _ _ _ " It states that the delivery date 
for those services is October 25, 2014 and that the total to be paid is $85,000. 
obtain the services of individual employees." 
5 Only one SOW had then been provided. 
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Another purchase order, , is dated May 28, 2014 for ' 
' It states that the delivery 
date for those services is July 25, 2014, and that the total to be paid is $20,000 . 
A third purchase order, is dated January 24, 2014 for ' 
_ 
" It states that the delivery date for those 
services is April 25, 2014, and that the total to be paid is $61,640. 
A fourth purchase order, is dated October 25, 2013 for 
" It states that the delivery date for 
those services is January 25, 2014, and that the total to be paid is $55,950. 
The SOW entitled ' 
"is for work to be performed from October 27, 2013 to January 25, 2014 at a maximum 
budget of $55,950. · is identified on that SOW as "Supplier Key Personnel." It does 
not state any "Anticipated Headcount." 
The SOW entitled " 
_ 
' is for work to be performed from January 27, 2014 to April 25, 2014 at a maximum 
budget of $61,640. is identified on that SOW as "Supplier Key Personnel." It states 
"Anticipated Headcount[:] 5." 
The SOW entitled " 
- - - � 
' is for work to be performed from May 22, 2014 to July 25, 2014 at a maximum budget of 
$20,000. is identified on that SOW as "Supplier Key Personnel." It states "Anticipated 
Headcount[:] 5." 
The SOW entitled ' ..... - .. ..... 
is for work to be performed from July 27, 2014 to October 25, 2014 at a maximum budget of 
$85,000. It identifies no "Supplier Key Personnel." It states "Anticipated Headcount[:] 2." 
On appeal, the petitioner asserts that the evidence demonstrates that the petitioner bas 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. 
II. ANALYSIS 
In her March 21, 2014 letter, of referred to a "Services Agreement" that would 
govern the terms of the beneficiary's employment in the United States. The petitioner repeatedly 
refers to a "Master Services Agreement" governing the work the beneficiary would perform. 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 
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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 has 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 October 1, 2014, which 
is the first day of the period of employment requested in this case. As such, they are not sufficient 
evidence of employment available through August 6, 2017, which is the last day of the period of 
requested employment. 6 
The SOW which by its title appears to be for work during the first quarter of fiscal year 2015 
is for work to be performed from July 27, 2014 to October 25, 2014. As such, it includes work to be 
performed during only 25 days of the period of employment requested in the instant visa petition. 
Further, it is for an Anticipated Headcount of only two of the petitioner's "450+" workers. 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"7 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 
that was submitted, and the series of SOWs, considered together, constitute persuasive evidence that 
the pet itioner would have sufficient work for the beneficiar y to perform at location 
throughout the period of requested employment. 
6 Further, the SOWs for FY14 evince work for an "Anticipated Headcount" of as few as one and as many as 
five of the petitioner's workers. Although some of those SOWs identify key personnel, none identifies the 
beneficiary as such. On the visa petition, the petitioner stated that it has "450+" employees in the United 
States. Even if those SOWs pertained to the proffered position, those SOWs would 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. 
7 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). 
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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,8 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, there is no 
indication that it will remain in effect through the end of the period of requested employment in 
2017. 
letter does state: "[The petitioner] assures that it is their intention to employ 
[the beneficiary] in this capacity in California through September 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 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 re asons, the evi dence 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-1B 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. 
8 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. 
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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.