dismissed H-1B Case: Data Analytics

U.S. Citizenship 
and Immigration 
Services 
In Re: 4831411 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 5, 2020 
The Petitioner, a data analytics services firm, seeks to temporarily employ the Beneficiary as a 
"consultant" 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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualified as a specialty occupation. On appeal, the Petitioner 
asserts that the Director erred in the decision. 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) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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). 
(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 New Jersey and stated it has a contractual relationship withl I 
,__ ___ ___,l(end-client). Based on this relationship, the Petitioner would place its personnel to 
perform work at an offsite location in California. The Petitioner requested the Beneficiary's dates of 
intended employment from August 6, 2018, through July 12, 2021. 
After a review of the record, 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)(l)-(4). 
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 presented evidence of the prospective work via assertions within the their 
own correspondence, a Master Consulting Agreement (master agreement) and an Exhibit A executed 
between these parties, and two letters from the end-client. 
The master agreement indicated that the services the Petitioner would provide would be outlined 
within an Exhibit A document, which the Petitioner offered before the Director. The Exhibit A 
outlines the type of work the end-client tasked the Petitioner to complete to include conducting a survey 
and creating reports gleaned from data that would be accompanied by further analysis. The Exhibit A 
listed a Schedule of Work from April 1, 2018, through November 30, 2018. 
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 
Even though a letter from the end-client reflected the master agreement would remain in effect until 
terminated, the Petitioner only offered evidence that it would have qualifying work available for the 
Beneficiary for 4 months out of the 35-month timeframe it requested on the petition. Even ifwe were 
to accept the end-client's second letter as sufficient, it only indicated it anticipated a need for the 
Beneficiary's services through August 2020; well short of the period the Petitioner requested. 
Additionally, the end-client's estimation is inconsistent with the Petitioner's claims that the client 
would require the Beneficiary's services through July 2021. The Petitioner must remedy this 
discordant information in the record. Such a revisal must be demonstrated through the submission of 
relevant, independent, and objective evidence that illustrates which assertions are the most accurate. 5 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 6 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 7 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-lB 
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 
enough qualifying work for the Beneficiary as requested on the petition. 8 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. 9 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. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 1° Foremost, 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. 
Also, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince U.S. Citizenship and Immigration Services (USCIS) 
5 Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
6 8 C.F.R. § 103.2(b)(l). 
7 See Matter of Michelin Tire COip., 17 l&N Dec. 248 (Reg'l Comm'r 1978). 
8 The agency has clearly indicated that it has not historically permitted 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). 
9 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"). 
10 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). 
3 
that the requisite eligibility parameters have been met (i.e., the obligation to persuade the trier of fact 
of the truth of a proposition). 11 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. 
In keeping with this standard, 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. 12 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. 
We cannot make a determination of whether the proffered position is a specialty occupation if a 
petitioner is unable to establish that qualifying work actually exists. 13 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. 
Employing foreign nationals inherently includes additional burdens a U.S. employer must satisfy when 
compared to hiring U.S. workers. As part of that burden in the H-lB context, a petitioner must 
demonstrate the existence of the proposed work. A possible method petitioners can employ 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. 14 
11 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
12 Matter ofSoffici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
13 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. 
14 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 rrom the end-client also does not contain the dates for the Beneficiary's services, the Petitioner has not demonstrated 
4 
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. 15 
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." 16 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. 17 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. 18 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. As 
a result, the Petitioner did not offer evidence that it would have qualifying work available for the 
Beneficiary as requested. 
Turning to the two end-client letters, the client listed the duties the Beneficiary would be expected to 
perform and the education prerequisites. We note inconsistent information relating to the position 
qualifications listed in the end-client letters when compared with those contained within Exhibit A. 
Namely, that within Exhibit A the end-client required the candidate in the Beneficiary's position to 
possess at least four years of work experience, but did not specify any degree requirement. When we 
juxtapose that information with the end-client letters in which it mandated a degree requirement but 
no such experiential prerequisites, we conclude that this constitutes further inconsistent information 
the Petitioner must resolve with probative evidence. 19 
We note additional material within the record that appears to be inconsistent. For example, the more 
detailed list of duties the end-client provided within its second letter do not appear to sufficiently align 
with those the Petitioner provided within its response to the request for evidence. As a result, it is unclear 
which set of functions the Beneficiary would perform, which causes us to question whether the Petitioner 
has demonstrated the substantive nature of the offered position. Additional discrepancies that weigh 
that the foreign national would be employed in a specialty occupation for the entirety of the time period it requests on a 
petition). 
15 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. 
16 Section 214(i)(l)(B) of the Act. 
17 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249. 
18 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. 
19 See Ho, 19 T&N Dec. at 591-92. 
5 
against the Petitioner's eligibility claims are the Beneficiary's compensation when comparing the 
information from the petition and the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA), to the employment offer letter. 
Additionally, the Beneficiary's beginning work date differs when comparing the information on the 
petition to his employment offer. The Petitioner must resolve these incongruities with independent, 
objective evidence pointing to where the truth lies. 20 
Based on the speculative nature of the Beneficiary's work as requested, and the discordant information 
we discussed above, 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. 21 
III. LCA 
Since the identified basis for denial is dispositive of the Petitioner's appeal, it is unnecessary that we 
address additional issues we observe in the record of proceeding. Nevertheless, we will briefly note 
and summarize one issue here so that the Petitioner may address this additional factor in any future 
filing. We question whether the LCA corresponds to and supports the petition. While DOL certifies 
the LCA, users determines whether the LCA's attestations and content corresponds with and 
supports the H-1 B petition. 22 An employer "reaffirms its acceptance of all of the attestation 
obligations by submitting the LCA to [USCrS] in support of the Petition for Nonimmigrant Worker, 
Form r-129, for an H-lB nonimmigrant." 23 
When comparing the Standard Occupational Classification (SOC) code or the wage level indicated on 
the LCA to the claims associated with the petition, users does not purport to supplant DOL's 
responsibility with respect to wage determinations. There may be some overlap in considerations, but 
users' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
20 Ho, 19 l&N Dec. at 591-92. 
21 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 assertions on appeal. 
22 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the 
petition .... "). See also Matter ofSimeio Solutions, 26 I&N Dec. 542,546 n.6 (AAO 2015). 
23 20 C.F.R. § 655.705. 
6 
LCA "corresponds with" the content of the H-lB petition. The regulation at 20 C.F.R. § 655.705(b) 
was amended by 65 Fed. Reg. 80,110, 80,210 (proposed Dec. 20, 2000). 24 
Namely, we question whether the position's requirements would necessitate an increase in the 
prevailing wage level. On the LCA, the Petitioner designated the prevailing wage at a Level II wage 
rate and indicated it would compensate him within that rate. However, the requirements that the 
candidate possess four to seven years of experience, and that he would serve in a supervisory position 
appears to indicate the Petitioner should have increased the wage rate to a Level IV rate, which would 
have resulted in a much higher wage. 25 Additionally, several of the duties appear atypical to the SOC 
code the Petitioner specified on the LCA. In particular, some functions would fall under the Software 
Developers, Applications occupational category, while others exceed the statistical aspects included 
within the SOC code on the LCA and more closely align with the Statisticians occupational code. 
This would appear to undermine the purpose of U.S. Department of Labor's (DOL) wage requirement 
"to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers." 26 This issue, standing alone, would sufficiently warrant this petition's 
denial. 
IV. 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. 
24 USCIS may consider DOL regulations when adjudicating H-lB petitions. See Int'! Internship Programs v. Napolitano, 
853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'/ Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013). 
25 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC_Guidance_ 
Revised_ 11 _ 2009 .pdf 
26 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [ the filing of an LCA] 
with [DOL]."). 
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