dismissed H-1B Case: Data Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting firm, seeks to temporarily employ the Beneficiary as a "data 
scientist" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 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 1-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish the Petitioner would have an employer-employee 
relationship with the Beneficiary, or that the proffered position is a specialty occupation. On appeal, 
the Petitioner asserts that it has demonstrated eligibility and the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 
I. BACKGROUND 
The Petitioner, which is located in Washin ton State, indicates that the Beneficiary will perform her 
duties in a neighborin ci for ( end-client) pursuant to contracts executed between 
the Petitioner an ___ ____,,, __ (vendor), and between the vendor and the end-client. The contractual 
path of succession therefore appears to flow from the Petitioner, to the vendor, which will ultimately 
provide personnel to the end-client. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the Petitioner has established that it meets the regulatory definition of a 
United States employer having "an employer-employee relationship with respect to employees under 
this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 1 
1 8 C.F.R. § 214.2(h)(4)(ii). 
Matter of A-S- Inc 
A. Legal Framework 
A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States 
employer." 2 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States 
employer" means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(]) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this part, as 
indicated by the.fact that it may hire, pay, fire, supervise, or otherwise control the work 
of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 3 
For purposes of the H-1B visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully define the term "employee," courts should conclude that the term was "intended to 
describe the conventional master-servant relationship as understood by common-law agency 
doctrine." 4 Thus, to interpret these terms, U.S. Citizenship and Immigration Services (USCIS) applies 
common-law agency principles, which focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common-law tests, USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; 
the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's 
discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and 
paying assistants; whether the work is part of the petitioner's regular business; the provision of employee 
benefits; and the tax treatment of the beneficiary. 5 When examining the factors relevant to determining 
control, we must assess and weigh each actual factor itself as it exists or will exist and not the employer's 
claimed right to influence or change that factor, unless specifically provided for by the common-law 
tests. 6 We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
2 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring 
to the "intending employer"). 
3 (Emphasis added.) 
4 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) ( quoting Onty. for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003) (quoting Darden). 
5 Darden, 503 U.S. 318, 322-23. 
6 See Darden, 503 U.S. at 323-24. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that 
even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true 
employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-lB beneficiaries). 
The Defensor court recognized that within the blended scenario created by firms that may outsource its personnel, it would 
be possible for more than one entity to serve as the beneficiary's quasi or semi-employer depending on which company 
performs the various functions we consider within the employer-employee context, (e.g., who manages or overseas the 
actual work, which entity performs administrative functions such as providing compensation and employee benefits, etc.). 
The Dcfcnsor court recognized both entities, the organization that provided the personnel, as well as the company that 
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Matter of A-S- Inc 
B. Analysis 
Companies that outsource their personnel to unsupervised projects, by their very nature, oftentimes 
relinquish some level of control over their employees. In the context of applying the Darden and 
Clackamas tests to this matter, we conclude that the Petitioner has not established that it will be a 
"United States employer" having an "employer-employee relationship" with the Beneficiary as an H­
lB temporary "employee." Several elements appear to weigh against the Petitioner's claim that it will 
maintain a qualifying employer-employee relationship with the Beneficiary. The Petitioner claims it 
will control the Beneficiary and her work, but only supports these assertions with flawed, insufficient, 
or contradicting evidence. Specifically, we conclude that the Petitioner has not submitted sufficient, 
consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. 
Therefore, the Petitioner has not substantiated the key element in this matter, which is who exercises 
control over the Beneficiary. 
Throughout the proceedings, the Petitioner has maintained that it would employ the Beneficiary and 
exercise its right to compensate, assign additional work, supervise, and otherwise control her work. 
The Petitioner further claims it would perform numerous administrative functions pertaining to the 
Beneficiary's employment. Social security, worker's compensation, unemployment insurance 
contributions, as well as federal and state income tax withholdings, and providing other employment 
benefits are relevant factors in determining who will control a beneficiary. 
Such factors may appear to satisfy a cursory review that a petitioning entity might be an individual's 
employer; however, meeting these more simplistic administrative elements does not extinguish a 
petitioner's requirement to illustrate control over a foreign national and over their work at an 
end-client worksite. We must also assess and weigh other intricate factors to determine who will be a 
beneficiary's employer. For example, we must consider who will oversee and direct a beneficiary's 
work, who will provide the instrumentalities and tools, where the work will be located, and who has 
the right or ability to affect the projects to which a beneficiary is assigned, among other factors. A 
petitioner must sufficiently address these relevant factors to enable us to evaluate whether the requisite 
employer-employee relationship will exist between a petitioner and a beneficiary. 
1. Contractual Material and Correspondence 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary; 
however, it has submitted little supporting documentation to corroborate that it will have control over 
the Beneficiary while assigned to the end-client. The Petitioner indicates that its presidentj I I I will supervise the Beneficiary when she visits the petitioning organization's office 
received the candidate's services, as employers. Further, the court in the Defensor case did not preclude an outsourcing 
firm from being able to demonstrate that it maintains the requisite employer-employee relationship. Instead. it carved out 
one aspect of the scenario-the position requirements-and required those to originate from the entity that would actually 
utilize the beneficiary's services. Consequently, we interpret no contradiction within the Defensor decision as to which 
entity is the employer that must file the petition. Ultimately, USCIS determines whether the Petitioner has satisfied its 
burden of demonstrating that it would have the requisite employer-employee relationship with the Beneficiary in such a 
scenario. 
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Matter of A-S- Inc 
approximately one day per week, as well as within other online methods. 7 Although the Petitioner 
claims the Beneficiary would reduce her time at the end-client worksite by one day per week, it did 
not provide documentation to corroborate this claim. A review of the contractual material executed 
between the Petitioner and the vendor, as well as correspondence from the vendor and the end-client, 
lack any indication that the Beneficiary would be absent from the client worksite one day each week 
while she reported to the petitioning organization's facilities. 
A lack of sufficient contractual materials between all three parties comprised a large portion of the 
Director's decision under the employer-employee section. The Director considered all of the 
contracts, correspondence from the vendor and the end-client, as well as other material the Petitioner 
offered. The Director indicated that because of the absence of sufficient contractual documentation, 
the Petitioner did not establish the full relationship between the parties. Additionally, the Director 
determined that the organization did not provide sufficient material to enable the Director to assess 
whether an employer-employee relationship would exist between the petitioning company and the 
Beneficiary. In response, the Petitioner essentially restates its claims presented before the Director. 
Within the appeal, the Petitioner does not provide contractual material executed between the vendor 
and the end-client. Instead, the Petitioner states that the vendor cannot be expected to relinquish its 
service agreement with the end-client because those types of contracts are confidential. While a 
petitioner may always decline to submit information it claims is confidential, in doing so it risks its 
ability to provide sufficient material to USCIS to meet its burden of proof: thereby risking a denial. 8 
It goes without saying that the burden is on a party claiming the protection of a privilege to establish 
those facts that are the essential elements of the privileged relationship. 9 Such a "burden is not, of 
course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose 
meaningful inquiry into the existence of the relationship, and any spurious claims could never be 
exposed." 10 Instead, the Petitioner indicated that contracts are unwarranted as the terms and conditions 
between all three parties are clearly detailed through the submission of the Master Services Agreement 
(MSA), Statement of Work, and the Work Orders executed between the petitioning entity and the 
vendor, as well as the letters from the vendor and the end-client. 
7 As the company's president it is unclear how much time I lwould be able to dedicate to overseeing this 
foreign national, as well as the others for which it has filed H-1 B petitions, in addition to his executive responsibilities. or 
whether this is a practical option. 
8 Cf United States v. Rylander. 460 U.S. 752, 758 (1983) (The exercise of Fifth Amendment privilege has never been 
thought to be in itself a substitute for evidence that would assist in meeting a burden of production.); Matter of Marques. 
16 T&N Dec. 314. 316 (BIA 1977) (holding the "respondent had every right to assen his claim under the Fifth Amendment 
[; however], in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). Both the Freedom oflnformation Act and the Trade Secrets Act provide for the protection of a petitioner's 
confidential business information when it is submitted to USCIS. See 5 U.S.C. § 552(b)(4). 18 U.S.C. 
§ 1905. Additionally. a petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, 
"Predisclosure Notification Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 
23,781 (June 23. 1987). 
9 In re Grand Jury Subpoena Dated Jan. 4, I 984, 750 F.2d 223, 224-25 (2d Cir. 1984) ( citing to United States v. Stern, 511 
F.2d 1364, 1367 (2d Cir. 1975); United States v. Kovel, 296 F.2d 918,923 (2d Cir. 1961)). 
10 In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). 
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Matter of A-S- Inc 
First, the Petitioner did not submit any document bearing the title Statement of Work for the record. 
While the Petitioner quotes extensively from such a Statement of Work in its appeal brief, it remains 
that no such document exists within the record of proceedings. More importantly, 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. 11 Understanding that 
contracts underlie the reliability of business agreements establishes the necessity that the Petitioner 
present the full chain of contracts that includes the end-client. 
Moreover, without sufficient material executed between the vendor and the end-client, the record does 
not establish a binding obligation on the part of the client to provide any work for the Beneficiary. Ifwe 
are unable to determine whether a position actually exists, then we cannot determine whether it is a 
specialty occupation. 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 full chain of contracts between all of the associated parties-the lack of which can create 
material gaps within the evidence. A scenario, such as the one in the present case in which the chain of 
contracts is not established, is generally one that can be prohibitive for a petitioner attempting to 
demonstrate its right and ability to control the foreign national while working offsite at an end-client 
location. 12 
Regarding the correspondence from the vendor and the end-client, both letters indicated that the 
Beneficiary would serve as a contractor. Within the vendor letter, the company indicated that neither it 
nor the end-client would have any role in hiring, paying wages, controlling or directing the Beneficiary's 
work. 13 The end-client letter simply indicated it did not have the right to control the Beneficiary. While 
we accord this correspondence with some evidentiary weight, it is insufficient to meet the Petitioner's 
burden of proof. The claims within the vendor's and the end-client's correspondence essentially equate 
to assertions rather than evidence to support such claims. The Petitioner did not offer a means by 
which we could verify the contents of these letters, nor did it offer material to corroborate the 
content. Such statements made without supporting documentation are of limited probative value and 
are insufficient to satisfy the Petitioner's burden of proof. 14 
11 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"). 
12 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). Sec also Galaxy Software Sols., Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 
2019). 
13 The vendor's representative mistakenly and repeatedly uses masculine gender pronouns when referencing the 
Beneficiary. The record provides no explanation for this inconsistency. Therefore, we question the accuracy of the 
documents and whether the information provided is correctly attributed to this particular Beneficiary and the proffered 
position. 
14 Matter ofSoffici. 22 l&N Dec. 158. 165 (Comm'r 1998). 
5 
Matter of A-S- Inc 
2. Other Factors 
Turning to the Petitioner's remaining arguments on appeal, it claims to exhibit control over the 
Beneficiary and her work because it chooses which person to send on assignment, that they control all 
aspects of the work to be assigned to the Beneficiary, and the Beneficiary receives assistance 
pertaining to software issues arising from the end-client project. 
Although the Petitioner identifies which of its personnel to send on assignment to a client project, this act 
is in sufficient to demonstrate that the Petitioner exercises any form of control over the type of work that 
the Beneficiary would perform while assigned to such a project. By selecting the personnel it wishes to 
designate for work, the Petitioner does exhibit some level of control over whether a beneficiary would 
actually perform any work. However, it appears the Petitioner equates assigning its personnel to a 
company, with determining a candidate's day-to-day work functions they would perform for an outside 
entity. In other words, it appears the Petitioner ascribes itself with a greater level of involvement in the 
actual work these individuals would perform. 
For instance, the Petitioner states it "controls all aspects of the work to be assigned to [the] Beneficiary, 
including placement at a particular end-client location, project, length of commitment, etc. As such, [the] 
Petitioner holds ultimate control over the assignment of [the] Beneficiaries work, including sole discretion 
over where, when, and what work is assigned." We disagree with the characterization here. Specifically, 
the Petitioner has not explained how selecting and sending an individual for the vendor to consider 
whether or not it will accept the candidate, establishes that it has: (1) selected a client location, (2) the 
commitment's duration, or (3) the work that would be assigned. The Petitioner has not demonstrated how 
it could impact the actual work the Beneficiary would perform while at the end-client worksite. The 
evidence does not bear out the Petitioner's claim of control over "all aspects of the work," and instead 
appears to limit their control to assignment selection. 
We acknowledge that electronic correspondence between the Beneficiary and the Petitioner shows that 
she receives assistance from the petitioning organization regarding software issues. However, the 
interactions between the Beneficiary and the petitioning company appear to be instances in which the 
organization assists her with difficulties and coding errors she encounters while executing the daily 
duties on the end-client's project. While this could be construed to illustrate a level of control over 
the Beneficiary's work, it is an insignificant amount when compared with controlling the full spectrum 
of work she would perform on a day-to-day basis. Stated differently, we do not consider the directions 
the Petitioner provided to the Beneficiary to sufficiently demonstrate that it was directing her in the 
daily performance of her duties, as opposed to helping her with difficulties imposed by the end-client. 
The Petitioner discusses additional elements that support its eligibility under the employer-employee 
relationship requirements. As the Petitioner did not specifically identify the manner in which the 
Director erred in considering these elements, we will not discuss each and every one of them here; 
however, we will reference some of the Petitioner's points. The first of the Petitioner's claims relates 
to the skills required to perform in this specialty occupation. The Petitioner asserts that it determines 
what skill sets are required to complete a client's project, and it then assigns the appropriate employee 
with that skill set to the project. The Petitioner claims that it, acting as the employer, is the one that 
makes this determination, and not the employee. The factor of determining which skills are required 
6 
Matter of A-S- Inc 
to perform in the job originates from the Reid decision in which the Supreme Court was considering 
the hiring party's right to control the manner and means by which the end product is accomplished. 15 
The context for this "skills required" element was to aid in determining whether an individual was an 
employee or an independent contractor, which is not the issue in the present case. The issue here 
relates to whether the petitioning organization can sufficiently be considered to enjoy the requisite 
employer-employee relationship with the Beneficiary, or whether the end-client is supplanted into 
significant portions of that relationship. Consequently, the fact that the Petitioner, as opposed to the 
individual worker, determines the skills required to perform on a project does not appear to further the 
Petitioner's eligibility claims in the present case. 
Second, the Petitioner indicates it would provide any instruments and tools the Beneficiary might need 
to perform the work. The Petitioner also indicated that it would determine the tools necessary to 
perform the work taking into consideration the client, the project, and the employee's skill set. 
However, even though the Beneficiary has been working at the client location, the Petitioner did not 
provide a specific list of materials or items the Beneficiary requires to perform the work at the 
end-client worksite. This tends to undermine the effect of the Petitioner's assertion that it would 
provide the Beneficiary's instrumentalities and tools to perform the work. 
Next, the Petitioner claims that it has the right to assign additional work to the Beneficiary. The 
Petitioner states that it assigns work to the Beneficiary as her employer, and those assignments are 
determined by the Petitioner through their direct agreements with clients or based on in-house projects. 
Although we agree that the Petitioner may possess the ability to withdraw the Beneficiary from the 
end-client's project altogether, the petitioning organization has not demonstrated how it may have an 
effect on her daily activities while assigned to the end-client worksite. 
We note an inconsistency within the record regarding which company the Beneficiary considers as 
her employer. Her resume reflected that she worked for the end-client-not for the Petitioner-as a 
software engineer in machine learning from May 201 7 until the present day. This was the same 
timeframe that the Beneficiary signed the job offer letter with the petitioning company. We also note 
the absence of any mention of the petitioning company on her resume. This further diminishes the 
veracity of the Petitioner's claims that it has the requisite employer-employee relationship with the 
Beneficiary. 
We offer a final note on the contractual material. The Professional Services Work Orders executed 
between the Petitioner and the vendor reflect that the Beneficiary "will be working on different 
software projects for [the vendor], [the] majority of which has been outsourced to [the vendor] by the 
[end-client]." This contractual material causes us to question whether all of the Beneficiary's work 
would occur at the end-client worksite, as asserted within the record. It is unclear whether the 
Beneficiary would perform the same duties on any other projects that she would perform as a data 
scientist on the project presented in the petition. 
Maintaining a sufficient level of control over a worker is a paramount aspect within an 
employer-employee setting. An employer that claims it will achieve this level of control over an 
individual while supporting such statements with conflicting, inconsistent, or flawed evidentiary 
15 See Reid, 490 U.S. at 751. 
7 
Matter of A-S- Inc 
material falls short of a petitioner's burden of proof. That is the situation we have in the present case 
and the Petitioner's counter arguments do not sway the results. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary 
"employee." 16 
III. AVAILABILITY OF SPECIALTY OCCUPATION WORK 
A. 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: 
(]) 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. 17 
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. 18 
16 8 C.F.R. § 214.2(h)(4)(ii). 
17 8 C.F.R. § 214.2(h)(4)(iii)(A). 
18 See Royal Siam Co1p. 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. 
8 
Matter of A-S- Inc 
B. Analysis 
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)(l)-( 4). 
1. Employment is Speculative 
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. 19 The evidence of the prospective work consists of 
assertions within the Petitioner's correspondence, a letter from the vendor as well as the end-client, an 
Independent Contractor Agreement, and a related "Attachment 1" between the Petitioner and the 
vendor. 
Although the Petitioner submitted a letter from the end-client claiming that the project was ongoing, 
it failed to submit probative evidence to verify these claims. Such claims are equivalent to assertions 
rather than evidence to support 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 20 To 
that point, the record of proceedings does not contain copies of any contracts executed between the 
vendor and the end-client. Nor are there any copies of the types of documents commonly executed 
pursuant to such contracts, such as work orders, statements of work, invoices, receipts, or similar 
evidence. 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. 21 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 22 Here, the Petitioner has not fully satisfied its burden of production. For 
instance it claims the chain of contracts flows from itself to the vendor, then from the vendor to the 
end-client. However, it hasn't offered sufficient material relating to the end-client, 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 
19 The Petitioner submitted documentation to support the H-lB 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. 
20 Sofjici, 22 l&N Dec. at 165. 
21 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). 
22 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). 
9 
Matter of A-S- Inc 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 23 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, the 
fact remains that it should rely on prospective work that it can demonstrate 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. 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. 24 
As we previously discussed, 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 evidence of the full chain of contracts between all of the associated parties-the lack of 
which can create material gaps within the evidence. We acknowledge the Petitioner's claim that it is 
common practice in the industry to execute one year contracts subject to future extensions. First, the 
Petitioner did not offer evidence to corroborate this assertion. Second, even if that claim were true, it 
does not absolve the Petitioner of its added responsibilities when petitioning for a foreign national 
under the H-lB program. The scenario in the present case is one in which the chain of contracts was 
not established, and the petitioning organization's claims are supported by qualitatively deficient 
evidence. 
Even the contractual material executed between the Petitioner and the vendor is inadequate to support the 
Petitioner's request. The MSA and the Work Orders only reflected an agreement through December 2018 
for the evidence before the Director, or December 2019 based on the new material submitted with the 
appeal. This does not sufficiently support the Petitioner's claim that it has shown the end-client would 
require the Beneficiary's services for the full 35-month timeframe. 
The letter from the vendor does not add sufficient value as it indicated the project was an ongoing 
long-term project with possible future extensions. Such open-ended arrangements-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. The 
23 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
24 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. 
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Matter of A-S- Inc 
Petitioner has not presented a basis supported by sufficient analysis and probative evidence that 
demonstrates its nearly 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. 25 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. 
The Petitioner has not met its burden of 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 her role in future assignments requires "attainment of a bachelor's or higher degree in the specific 
specialty." 26 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. 27 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. 28 
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 she 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 would 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. 
2. Position's Actual Duties not Established 
We conclude that the fact pattern in the present petition sufficiently correlates with that within the 
Defensor case. The scenario in Defensor has repeatedly been recognized by Federal Courts as 
25 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. 
26 Section 214(i)(l)(B) of the Act. 
27 See 8 C.F.R. § 103.2(b)(l); Matter of Michelin Tire Co1p., 17 l&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). 
28 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. 
11 
Matter of A-S- Inc 
appropriate in determining which entity should provide the requirements of an H-1 B position and the 
actual duties a beneficiary would perform. 29 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 actually utilizing the foreign national's services (i.e. end-clients) required candidates who 
possessed a qualifying degree. 30 The Defensor court reasoned that the position requirements from the 
entity where the beneficiary would actually work-be it the required degree or the position's actual 
duties a candidate would perform-should serve as the more relevant characteristics we should 
consider under our specialty occupation determination. The court farther concluded that absurd 
outcomes could result if we were to accord greater credence to the position requirements as represented 
by an outsourcing agency, rather than to its clients where a beneficiary would perform the work. 31 
Even if the Petitioner established the employer-employee relationship with the Beneficiary, which it 
did not, we conclude that the material originating from the end-client is insufficient. While the 
Petitioner provided a letter from the end-client, this letter did not reflect the duties or the education 
and experience the client requires of prospective candidates for the proffered position. An indication 
to support that the end-client had particular position prerequisites is found within the appeal brief in 
which the Petitioner states that it assigns an appropriate employee to an end-client project "while 
taking into consideration the requirements of the client." Consequently, the end-client job duties and 
prerequisites are not sufficiently established for us to properly determine whether the offered position 
would qualify as a specialty occupation. 32 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 33 
IV. ADDITIONAL TOPICS 
In addition to the record lacking sufficient information from the end-client, we observe that the duties 
the Petitioner provided within the request for evidence response were copied from websites that 
existed before this petition's filing date. 34 Such a use of copied responsibilities erodes the Petitioner's 
29 See Altimetrik COip. v. USC1S. No. 2:18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Gip. v. 
USCIS, No. 13-1209-CV-W-ODS. at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, at *10 (E.D. 
Mich. Sep. 16, 2019); Altimetrik Corp. 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). 
30 Defensor, 201 F.3d at 388. 
31 Id. We note that our determination of whether the Defensor decision was applicable might have a different outcome if 
the end-client did not normally engage in-or employ personnel in-the type of work the foreign national would perform. 
In such a case, the client might not possess the knowledge of what duties the Beneficiary would engage in, or the 
requirements in which to perform those responsibilities. 
32 We note that the Petitioner and the vendor provided letters containing duties for the prospective position. However, 
these are not functions from ( or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's 
services, that establishes the nature and duration of the project, the substantive nature of the duties to be performed, and 
any particular academic requirements for the proffered position. 
33 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. 
34 See the search, 
12 
Matter of A-S- Inc 
claim that the proffered position's duties are specialized and complex. In other words, this collection 
of duties existed before the Petitioner filed the petition, and it appears the petitioning organization 
simply copied the information from other companies. While a general description may be appropriate 
when defining the range of duties that one may perform within an occupation, such a generic 
description generally cannot be relied upon when discussing the duties attached to specific 
employment for H-1 B approval. In establishing such a position as a specialty occupation, the proffered 
position's description must include sufficient details to substantiate that the Petitioner has H-1 B caliber 
work for the Beneficiary. 
We also note the use of inconsistent job titles throughout the record. The Petitioner identified the job 
title as a data scientist on the petition, but its job offer letter to the Beneficiary reflected her initial 
position was titled as a systems developer. The Beneficiary's resume reflected that she worked for 
the end-client-not for the Petitioner-as a software engineer in machine learning. Within the vendor 
letter, it indicated the Beneficiary was a Hadoop developer. 
Furthermore, it does not appear that the Beneficiary's U.S. doctoral degree in philosophy-without 
any indication in the specified field of study-sufficiently qualifies her for the proffered position in 
which the petitioning entity required at least a bachelor's degree or equivalent in information 
technology, or a related field. Although the Beneficiary possesses foreign degrees that might qualify 
her, the record lacks evidence sufficient to establish that her foreign educational credentials are 
equivalent to a U.S. bachelor's degree in a specific specialty, or the equivalent. 
In summary, we conclude that the Petitioner did not substantiate its claims that the Director abused 
her discretion and deviated from the preponderance of the evidence standard. The evidence was not 
only insufficient, but also contains inconsistencies and discrepancies that undermine the Petitioner's 
claims. As a result, we disagree with the Petitioner that when considering the totality of their evidence, 
they have demonstrated this petition should have been approved. 
V. 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. 
Cite as Matter of A-S- Inc, ID# 4442686 (AAO Oct. 31, 2019) 
https://www.google.com/search?q=%22assess+the+effectiveness+and+accuracy+of+new+data+sources+and+data+gathe 
ring+techniques%22&source=lnt&tbs=cdr%3Al %2Ccd _ min%3Al %2F 1 %2F2000%2Ccd _ max%3A4%2Fl %2F20 l 8&t 
bm= accessed on Oct. 30, 2019, and incorporated into the record of proceedings. Additionally, similar searches relating 
to other duties result in comparable findings. 
13