dismissed H-1B Case: Data Analytics

U.S. Citizenship 
and Immigration 
Services 
In Re: 77234 77 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 6, 2020 
The Petitioner , a data analytics services firm, seeks to employ the Beneficiary temporarily as an 
"associate" under the H-IB nonimmigrant classification for specialty occupations.' 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 denied the Form 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 submits additional evidence and asserts that the record 
sufficiently demonstrates eligibility. 
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 in California and stated it has a contractual relationship withl I c=J( end-client). Based on this relationship, the Petitioner would place its personnel to perform work 
at an offsite location in Arkansas. The Petitioner requested the Beneficiary's dates of intended 
employment from October 1, 2018, through August 20, 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. 
§ 214.2(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 We illustrate this shortcoming through the fact pattern in 
the present case. The evidence of the prospective work consists of assertions within the Petitioner's 
correspondence, a letter from the end-client, a Master Services Agreement (MSA) and a Statement of 
Work (SOW) executed between the petitioning organization and the end-client, and an invoice between 
these same parties. 
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 v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
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 
First, the August 2017 MSA reflected that the agreement would be in effect for a two-year period and 
would automatically renew for 12-month periods unless otherwise specified. The parties executed the 
SOW in December 2017, and it broadly described the work the petitioning organization would 
complete as developing information management tools that visually track, analyze, and display key 
performance indicators. The section titled Timelines for delivery reflected that "7 fully functional & 
SSO enabled dashboards embedded in the existing web application (built during phase 1) to be 
delivered at the end of 8 weeks." Although an associated chart depicted a schedule of various 
milestones, it appears that this SOW only comprised eight weeks of those milestones. 
Of additional importance, the SOW stated "[t]he services under this SOW shall commence on 
____ and shall be completed in 8 weeks duration." Not only does the SOW only cover a period 
of eight weeks, but it also does not reflect the point at which those eight weeks would commence. 
This wholly insufficient evidence does not support the Petitioner's claims that it would have sufficient 
qualifying work available for the Beneficiary for the period it requested on the petition. Even if we 
presume that the eight-week period began in the month after the parties executed the SOW, this would 
only cover January and February of 2018, nine months before the start date listed on the petition. 
Within the Petitioner's response to the Director's request for evidence, it offered a single invoice. The 
invoice was dated January 31, 2019, and reflected a billable period for that same month. First, this 
invoice does not demonstrate that the end-client would provide specialty occupation-level work for 
the Beneficiary, nor does it illustrate the duration of any such work. This material merely shows an 
itemized transaction between the named parties. In fact, the invoice shows a balance due, which fails 
to establish that the end-client compensated the Petitioner for the invoiced services. Additionally, a 
petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 5 U.S. Citizenship 
and Immigration Services (USCIS) may not approve a visa petition at a future date after a petitioner or 
a beneficiary becomes eligible under a new set of facts. 6 In this case the new facts derive from the 
evidence that was not in existence when the Petitioner filed the petition. 
In summary, based on the contractual-related documentation, the Petitioner has not met its burden of 
proof as it relates to demonstrating it would have sufficient qualifying work available for the 
Beneficiary as requested on the petition. 
B. Correspondence 
Next, we tum to the correspondence from the involved parties. The Petitioner submitted one letter from 
the end-client claiming that it anticipated the need for the Beneficiary's services for one year. Not only 
are the contractual documents inadequate to show the Petitioner had sufficient work available for the 
requested period, but so is the correspondence from the end-client. We further note the inconsistency 
between the Petitioner's claims that the Beneficiary would work at the end-client worksite for a 35-month 
5 8 C.F.R. § 103.2(b)(l), (12). 
6 Matter of Michelin Tire Cmp., 17 T&N Dec. 248,249 (Reg'l Comm'r 1978) (finding that nonimmigrant eligibility criteria 
must be met at the time a petitioner files the petition). 
3 
timeframe, and the end-client's statement that it needed his services for one year. The Petitioner must 
resolve this dissonance in the record with independent, objective evidence pointing to where the truth 
lies. 7 To allow such inconsistencies to pass unchallenged would serve to undermine the concept that 
the burden rests with a petitioner to provide credible and consistent material that preponderantly 
supports its eligibility. 8 
Additionally, the Petitioner did not offer sufficient evidence by which we could verify the contents of the 
client's letter. The end-client's statements within its correspondence essentially equate to assertions 
rather than evidence to support such claims.9 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 10 
Moreover, none of the involved parties described an adequate basis for a three-year estimate. Such 
open-ended arrangements as described in the end-client letter-considering the current fact pattern and 
the supporting evidence-is inadequate to demonstrate that the project will be ongoing, without 
probative corroborating material to establish the project's actual duration. 
C. Petitioner's Burden of Proof 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 11 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 12 In other words, if a petitioner's request to employ a foreign national for an 
extended timeframe is based upon the willingness of another party to provide that position, then the 
H-1 B petition should not be based on general, notional possibilities of work. That petitioner should 
present evidence that the position actually exists. Based on this shortcoming, we conclude the end-client 
letter is insufficient to corroborate the Petitioner's assertions. 
Consequently, the record does not establish a binding obligation on the part of the end-client to provide 
any work for the Beneficiary during the period requested on the petition. 13 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. 14 Understanding that contracts 
underlie the reliability of business agreements establishes the importance that a petitioner present the full 
chain of contracts that includes the end-client. 
7 Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
8 See section 291 of the Act; Matter of Soo Hoo, 11 T&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not 
established eligibility by a preponderance of the evidence because the submitted evidence was not credible); see also 
Matter ofChawathe, 25 T&N Dec. 369,376 (AAO 2010) (discussing the necessity that evidence be relevant, probative, 
and credible). 
9 A statement is defined within the legal context as a verbal assertion or nonverbal conduct intended as an assertion. 
STATEMENT, Black's Law Dictionary (11th ed. 2019). 
10 Matter ofSoffici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
11 8 C.F.R. § 103.2(b)(l). 
12 See Michelin Tire Co1p., 17 l&N Dec. at 249. 
13 The agency has clearly indicated that it has not historically permitted speculative employment in the H-lB 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). 
14 See Fletcher v. Peck, 10 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"). 
4 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 15 First, a petitioner must satisfy the burden of production. As the term suggests, 
this burden requires a filing party to produce evidence in the form of documents, testimony, etc. Here, 
the Petitioner has not fully satisfied its burden of production. For instance it claims it would have 
almost three years of work on this particular project for the Beneficiary. However, it hasn't offered 
sufficient material relating to support this assertion, and as a result, it has not produced sufficient 
evidence to corroborate its testimonial claims. 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince USCIS that the requisite eligibility parameters have 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 16 Whether a 
petitioner is able to show that a particular fact or event is more likely than not to occur is the 
determinant of whether they have met the preponderance of the evidence standard of proof. While a 
petitioner may file an amended petition if a beneficiary's proposed work terminated with a client or 
otherwise changed, the fact remains that it should rely on prospective work that is more likely than 
not to exist. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying the standard of proof. This applies to whether the prediction 
is based on an existing project that a petitioner expects to continue into the future, or on an unspecified 
project. Materially relevant statements made without supporting documentation are of limited 
probative value and are insufficient to satisfy a petitioner's burden of proof. 17 This is particularly 
important in a case such as this where the impetus and existence of the proffered position appears 
dependent entirely upon outside clients to provide it. 
If a petitioner is unable to establish that qualifying work actually exists, we cannot determine whether 
the proffered position is a specialty occupation. 18 Within the petition, the Petitioner committed to 
assign the Beneficiary to specific work, at the end-client's location, for a particular timeframe. In the 
same manner that the Petitioner committed to compensate the Beneficiary at a particular wage in 
addition to multiple other factors it attested to, the organization must preponderantly demonstrate that 
all its essential commitments are more likely than not to occur. In other words, the Petitioner 
guaranteed USCIS that it would meet a set of parameters, and it is their duty to ensure their case gets 
to that preponderant apex. 
15 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden ofproofrrom Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
16 Dir .. Office of Workers' Comp. Programs. Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
17 Sofjici, 22 l&N Dec. at 165. 
18 We must review the actual duties the Beneficiary will be expected to perform to asce1iain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
5 
Moreover, inherent with employing foreign nationals are additional burdens a U.S. employer must 
satisfy when compared to hiring U.S. workers. Part of that burden in the H-lB context is to 
demonstrate the existence of the proposed work. One method to establish the work's existence is to 
provide probative evidence that sufficiently supports its claims-the lack of which can create material 
gaps within the evidence. The scenario in the present case is one in which the petitioning 
organization's claims are supported by insufficient evidence. Such a scenario is generally one that 
can be prohibitive for a petitioner attempting to demonstrate that it would have specialty occupation 
work available for a beneficiary while they would work offsite at an end-client location. 19 
The Petitioner has not presented a basis supported by sufficient analysis and probative evidence that 
demonstrates its three-year prediction is reasonable, by a preponderance of the evidence. In general, 
such predictions should be sufficient for 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. 20 
Additionally, the Petitioner has not met its burden of persuasion demonstrating that it is more likely 
than not that the end-client would provide qualifying work for the Beneficiary for the requested 
timeframe. Without greater detail relating to the projects and the Beneficiary's role in the projects, 
the Petitioner has not demonstrated how his role in future assignments requires "attainment of a 
bachelor's or higher degree in the specific specialty." 21 This evidence is insufficient to establish that, 
at the time of filing, the Petitioner had secured the Beneficiary's assignment on any particular project, 
which is insufficient to demonstrate eligibility. 22 For the reasons discussed above, the Petitioner has 
not demonstrated that the petition was filed for non-speculative employment. If it is not preponderant 
that a position would exist as requested, then we cannot determine the substantive nature of its associated 
duties.23 
Moreover, the Petitioner provided the position's description and indicated its education requirements 
for the proffered position and an opinion letter based off these same duties. However, as recognized 
by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than 
the petitioner, evidence of the client companies' job requirements is critical. The court held that the 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations 
as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
19 KPK Techs., Inc. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, at *6 (E.D. Mich. Sept. 16, 2019) (finding that where 
the contracts-including those executed by an end-client-do not cover the dates requested on a petition, and where the 
letter from the end-client also does not contain the dates for the Beneficiary's services, the Petitioner has not demonstrated 
that the foreign national would be employed in a specialty occupation for the entirety of the time period it requests on a 
petition). 
2° 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 [a petitioner's] projections are any more reliable than hopeful speculation." Id. 
21 Section 2 l 4(i)(l )(B) of the Act. 
22 See 8 C.F.R. ~ 103.2(b)(l); Michelin Tire Corp., 17 T&N Dec. at 249. 
23 Further, without full disclosure of the contractual chain, we are unable to determine whether the requisite 
employer-employee relationship will exist between the Petitioner and Beneficiary. 
6 
occupation on the basis of the requirements imposed by the entities using the beneficiary's services. 24 
Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
We observe that the present scenario is analogous to that of the Defensor decision, as one in which the 
duties the Beneficiary will actually perform and the qualifications to perform them should originate 
from the end-client. 25 The material from the end-client should sufficiently convey the functions the 
Beneficiary would actually perform in his daily work. In this matter, it is not self-evident that the 
duties the end-client provided are complex due to their heavy use of industry-related jargon. This 
makes it nearly impossible for the lay person to determine whether the duties sufficiently convey the 
substantive nature of the proffered position. 
It is always the Petitioner's responsibility to explain-or to ensure others explain-what these 
jargon-laden functions involve, and how they demonstrate eligibility. 26 Additionally, the truth is to 
be determined not by the quantity of evidence alone but by its quality. 27 The Petitioner should ensure 
that industry lingo is accompanied by 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 
ot: and why it is so specialized. 28 We further note that the duties the Petitioner offered did serve to 
clarify the end-client's use of industry jargon. This further demonstrates that the Petitioner has not 
satisfied its burden of proof within these proceedings. 
D. Summary 
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. 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. 
24 Id. 
25 It is important to note that within the reference to the Defensor decision, we are not correlating the Petitioner's business 
model as a simple token employer. However, it is apparent that the Beneficiary would provide services to the end-client, 
not to the Petitioner. Furthermore, we conclude that it is more likely than not that the end-client possesses the technical 
knowledge of the duties that would comprise the proffered position, as well as the requirements to perform those duties. 
26 Section 291 of the Act, 8 U.S.C. § 1361. 
27 Chawathe, 25 T&N Dec. at 376. 
28 Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68-70 (D.D.C. 2019). 
7 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 29 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
29 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not discuss the Petitioner's asse1tions on appeal. 
8