dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4857825 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 29, 2020 
The Petitioner, an information technology consulting services firm, seeks to temporarily employ the 
Beneficiary under the H-IB nonimmigrant classification for specialty occupations.' The H-IB 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: (1) the proffered position qualified as a 
specialty occupation; and (2) the Petitioner would have an employer-employee relationship with the 
Beneficiary. On appeal, the Petitioner submits additional evidence and asserts that the record 
sufficiently demonstrates eligibility. Upon de novo 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 stated it has a contractual relationship with I !(end-client) to place the 
petitioning organization's personnel at the client's worksite to supplement their workforce. The 
Petitioner requested the Beneficiary's dates of intended employment from October 1, 2018, through 
August 15, 2021. 
We begin by addressing the Petitioner's appellate statements that U.S. Citizenship and Immigration 
Services (USCIS) does not possess the authority to ensure their contractual agreements demonstrate 
eligibility for the requested period. We disagree, as USCIS has the authority to administer the law 
that Congress enacted, and to determine whether an organization has sufficiently demonstrated that it 
would have: (1) non-speculative work available for a beneficiary, as well as (2) the requisite 
employer-employee relationship with a beneficiary. 4 
Next, 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. 5 The evidence of the prospective work consists of contractual materials, 
correspondence from the end-client, and statements within the Petitioner's correspondence. The 
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 See Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). USCIS 
possesses the authority to require evidence of prospective work, and when that evidence does not establish that a petitioner 
will have specialty occupation work available for a beneficiary for the period requested on the petition, that petitioning 
organization has not satisfied its burden of proof. See Altimetrik Co1p. v. USC1S, No. 2: 18-CV-11754, 2019 WL 3943053, 
at *2, *4 (E.D. Mich. Aug. 21, 2019). 
5 The Petitioner submitted documentation to support the H-1 B 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 
Petitioner initially offered a May 29, 2014, Independent Contractor Agreement (master agreement), a 
June 5, 2014, Amendment One to the master agreement, and a letter from the end-client dated in 
February 2018. 
A. Material Submitted before the Director 
After the Director issued a request for evidence (RFE) questioning whether the Petitioner had offered 
sufficient material to demonstrate eligibility, the Petitioner offered a Work Memo executed in 
September 2018, and an email chain in which the petitioning organization supplied a set of duties to 
the end-client and requested the client confirm those job functions. The end-client responded to that 
email offering 13 duties the Beneficiary would perform in the offered position. The Director 
determined that because the Work Memo was executed after the petition filing date, that it was 
insufficient to demonstrate eligibility on the date the organization filed the petition. 6 The Director 
ultimately concluded that the evidence in the record did not demonstrate that the Petitioner would be 
able to offer specialty occupation level work for the Beneficiary for the timeframe it requested on the 
petition. 
Considering the evidence in the record before the Director, the parties executed the master agreement 
in 2014. We observe that the Work Memo the Petitioner submitted in its RFE response before the 
Director reflected it was "governed by the terms of the [master agreement] by and between [the 
end-client and the Petitioner] dated as of 7/6/2017 ." Consequently, the Petitioner has not demonstrated 
that this Work Memo is associated with the 2014 master agreement, as it appears the parties executed 
a subsequent agreement in 2017. The Petitioner did not submit a 2017 master agreement for the record. 
This creates a material gap in the evidence, which serves as a significant obstacle that the Petitioner 
has not overcome. The Amendment One to the master agreement does not alter our analysis or assist 
the Petitioner in filling that evidentiary gap. 
Even if we were to set that fatal evidentiary flaw aside, the Work Memo submitted in the RFE response 
listed a start date for the Beneficiary's services as February 5, 2018, and an estimated end date of 
"TBD" or to be determined. Considering the current fact pattern, and the deficient evidence within 
the record, such an indefinite and open-ended agreement does not demonstrate that the project will be 
ongoing without probative, corroborating material to establish the project's actual, or likely duration. 
The Petitioner has not presented a basis supported by sufficient analysis and probative evidence that 
demonstrates the 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. 7 
6 A petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 8 C.F.R. § 103.2(b )(1 ), (12). 
USCTS may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new set 
of facts. Matter of Michelin Tire Cmp., 17 T&N Dec. 248, 249 (Reg'! Comm'r 1978) (finding that nonimmigrant eligibility 
criteria must be met at the time a petitioner files the petition). 
7 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 the job-creation projections are any more reliable than hopeful speculation." Id. 
3 
Hypothetically, if we were to accept the Petitioner's position that perpetual arrangements are sufficient 
evidence, several years or decades could pass and the petitioning organization could continue to rely 
on the old contractual documents without having to demonstrate that such material remains active. 
The context of the current scenario is not simply a business arrangement to provide services. Instead, 
the Petitioner has entered into such a relationship while simultaneously intending to assign H-1 B 
personnel to perform the work, along with which come additional burdens. As a result, it does not 
appear that the Petitioner possessed assurances through the above-mentioned contractual material that 
the proffered position would be available for the Beneficiary as indicated on the petition. 
Regarding the end-client correspondence, its February 2018 letter verified the Beneficiary would serve 
as a Java developer through the petitioning organization, and that the Petitioner would be his primary 
employer. The letter did not discuss the duties the Beneficiary would perform, the end-client's 
requirements to qualify for the position, nor did it reflect the length of time it would need the 
Beneficiary to serve in the position. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than a 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 occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. 8 Such evidence must be sufficiently detailed to demonstrate the educational 
level and type of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. The Petitioner provided a set of duties and position qualifications within the initial 
filing, and within its response to the Director's request for evidence. However, similar to the Defensor 
case, the duties, education details, and experience requirements the Petitioner provided are much less 
probative to our analysis than the end-client's requirements. 
While the end-client email provided the Beneficiary's duties, the stated responsibilities were 
abbreviated and vague when considered in totality, or contained industry jargon. 9 Such generalized 
information does not establish a necessary correlation between the proffered position and a need for a 
particular level of education, or educational equivalency, in a body of highly specialized knowledge 
in a specific specialty. Specifically, the record lacks sufficient material detailing the project the 
end-client will assign to the Beneficiary. In fact, the end-client did not mention the project or how it 
8 See Defensor, 201 F.3d at 387-88. 
9 Although some duties are less vague, it is not self-evident that they are complex due to the heavy use of jargon. This 
makes it nearly impossible for the lay person to determine whether the duties sufficiently comply with this criterion. It is 
always the Petitioner's responsibility to explain what these jargon-laden functions involve, and how they demonstrate 
eligibility. Section 291 of the Act, 8 U.S.C. § 1361. Additionally, the truth is to be determined not by the quantity of 
evidence alone but by its quality. Matter of Chawathc, 25 T&N Dec. 369, 376 (AAO 20 I 0) ( citing Matter of E-M-, 20 
I&N Dec. 77, 80 (Comm'r 1989)). The Petitioner should substitute its lingo with 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 
of, and why it is so complex or unique. Sagmwala v. Cissna, 387 F. Supp. 3d 56, 68-70 (D.D.C. 2019). 
4 
factors into its operations until it offered a new letter on appeal, and even then the information only 
consisted of two sentences. 
As a result, the record leaves us questioning how the general statements or duties listed above factor 
into the day-to-day functions the Beneficiary would perform. For instance, within the end-client's 
email it is unclear how (1) coordinating with other teams to understand dependencies, 
(2) implementing programs for new systems or enhancements to existing systems, or (3) analyzing 
test results and recommending modifications to applications to meet project specifications each factor 
into the proffered position's core duties. Many of these functions lack a nexus to any project and 
appear to be skills the Beneficiary might employ rather than duties he will execute. It is not evident 
that the proposed duties as described in this record of proceeding, and the position that they comprise, 
warrant recognition of the proffered position as a specialty occupation. The duties within the end-client 
letter the Petitioner offers on appeal are identical except for two additional functions that do not appear 
to aid the Petitioner in demonstrating eligibility. 
B. Material Submitted on Appeal 
On appeal, the Petitioner submits a letter from the end-client and a Work Memo that predate the one it 
submitted to the Director. Regarding the Work Memo the Petitioner submits on appeal, the petitioning 
organization did not indicate why it did not offer this material before the Director within the previous 
proceedings. Moreover, this document suffers from the same evidentiary flaw as the previously 
discussed Work Memo: it references to, and is governed by, a master agreement that the Petitioner 
did not offer for the record. 
Nevertheless, we note other important elements related to the Work Memo submitted with the appeal. 
First, the Petitioner and the end-client electronically signed this document in January 2018; before the 
Petitioner filed the petition. As a result, were we to set aside the fact that this document's master 
agreement is missing, this appears to be material that could serve in the Petitioner's favor, as it is a 
document that existed before the petition filing date. 
Second, this document did not reflect that the agreement between the parties was perpetual with no 
foreseeable end date. Instead, it contained a beginning date of February 5, 2018, and an estimated end 
date of December 31, 2018. While this date-limited agreement bodes better for the Petitioner than the 
other Work Order, it only covers 3 of the 34 months of services the Petitioner requested for the 
Beneficiary on the petition. This is insufficient to demonstrate that when the Petitioner filed the 
petition, it had a sufficient amount of qualifying work available for the Beneficiary as requested. 
While the Petitioner submitted a letter from the end-client on appeal claiming that the project was 
expected to continue for three years, it failed to submit probative evidence that existed on the date it 
filed the petition to verify these contentions. Moreover, none of the involved parties described an 
adequate basis for a three-year estimate. Such claims are therefore equivalent to assertions rather than 
5 
evidence to support the 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. 10 
Additionally, the Petitioner claims within its appeal brief that it is providing a new end-client letter on 
appeal that "provides detailed information about the specialized duties being performed by the 
Beneficiary which would require the completion of at least a" bachelor's degree in the same fields the 
Petitioner specified within the RFE response. However, the new letter from the end-client scarcely 
contains any more detail than the email previously provided. Furthermore, the new letter does not 
contain any information regarding the education requirements necessary to perform the duties within, 
and therefore does not comply with the types of information that should be contained within such 
evidence according to the Defensor decision. 
Observing the content within each Work Memo, and within the email and letter from the end-client, 
we question whether the changes to this material occurred organically from their business 
arrangement. We raise this issue because the parties made these changes after the Director conveyed 
adverse information within the RFE and within the denial. As a result, it appears the changes were 
made in response to the RFE or the denial, rather than based on the end-client's needs relating to the 
project upon which the Beneficiary would work. Evidence that the Petitioner creates after USCIS 
points out the deficiencies in the petition is not necessarily independent and objective evidence. 
Fundamentally, independent and objective evidence would be evidence that is contemporaneous with 
the event to be proven and existent at the time of the Director's notice. 11 While we consider the new 
evidence, the post-RFE contractual material and the post-appellate end-client letter carry much less 
evidentiary weight than if the Petitioner had provided them prior to being notified of the deficiency. 
C. Additional Issues 
We observe additional issues within the contractual material. First, an additional indication that this 
master agreement may not be the "Agreement" referenced in the Work Memos is contained within the 
contract's language, which states: "[The end-client] may retain [ the Petitioner], on a subcontract basis, 
in connection with [the end-client's] provision of consulting services to one or more of [the 
end-client's] clients." The contract continues stating that if the end-client retains the Petitioner's 
services, then the petitioning organization will provide the services "described in any Work 
Memo ... to the specific [end-client] client identified in such Work memo (the 'Assigned Client')." 
From this text, it appears that the end-client would not utilize the Petitioner's assigned resources for 
its own use on its own systems, but instead would further assign the personnel to a separate company. 
That is not the scenario the Petitioner described within this petition, and it is raises further questions 
regarding the applicability of the master agreement to the Work Memos in the record. 
Second, the master agreement reflected it would be effective for a one year period, and would be 
extended for a period equivalent to the term of any Work Memo executed in connection with this 
master agreement. It also contains a provision that states "[ n ]o new Work Memos can be executed in 
connection with this Agreement during the extension period." The Work Memo executed on January 
10 Matter of Soffici, 22 T&N Dec. 158, 165 (Comm'r 1998). 
11 See Innova Solutions, Inc. v. Baran, Case No. 18CV09732DDPRAOX, 2019 WL 5748215, at *4 (C.D. Cal. Nov. 5, 
2019) (finding that USCIS may assign evidence less probative weight because it was created after the agency issued an 
RFE informing a petitioner of the evidentiary shortcoming). 
6 
25, 2018, for a validity period between February 2018 and December 2018 appears to have constituted 
its own extension period. As a result, the Work Memo containing a TBD ending date (the one 
submitted with the RFE response) was executed on September 28, 2018, during the extension period 
created through the previous Work Memo. This act appears to be precluded by the language within 
the master contract. The Petitioner did not offer probative evidence to resolve this apparent conflict. 12 
Finally, Amendment One to the master agreement stated that the end-client could hire any of the 
Petitioner's personnel who were engaged on an assignment as outlined in a Work Memo after that 
individual worked a number of hours approximately equal to six months of full-time work. This 
reveals that the Petitioner has relinquished a certain level of control over whether "it may hire, pay, 
fire, supervise, or otherwise control the work of' the Beneficiary, which are mandatory requirements 
as it relates to the petitioning organization demonstrating it has met the definition of a United States 
employer. 13 It also diminishes the veracity of the Petitioner's claims that it would provide qualifying 
work for the Beneficiary for the period requested on the petition through October 2021, as the 
Beneficiary would be subject to this contractual provision in approximately March or April of 2019. 
D. Summary 
Our foregoing discussion illustrates the shortcomings in the record. Namely that the Petitioner has 
not demonstrated a binding obligation on the part of the end-client to provide qualifying work for the 
Beneficiary for the timeframe the Petitioner requested on the petition. 14 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. 15 Understanding that contracts 
underlie the reliability of business agreements establishes the importance that a petitioner present 
sufficient contractual material that supports its claims regarding the need for the Beneficiary's services 
on a particular project. 
A primary issue within this case is that a petitioner must demonstrate eligibility when it files a 
petition. 16 The Petitioner has not met its burden relating to that aspect. A petitioner's burden of proof 
comprises both the initial burden of production, as well as the ultimate burden of persuasion. 17 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. 
12 The Petitioner should resolve this ambiguity in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
13 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"). 
14 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). 
15 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"). 
16 8 C.F.R. § 103.2(b)(l), (12); Michelin Tire Co1p., 17 l&N Dec. at 249. 
17 Matter of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden ofprooffi-om Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
7 
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). 18 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 prove 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 would have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying its 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. 19 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. 
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. 
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. 20 One method to establish the work's existence is to 
provide evidence that the contractual relationship will continue throughout the period the Petitioner 
requested on the petition-the lack of which can create material gaps within the evidence. The 
scenario in the present case is one in which the duration of the work, and the petitioning organization's 
claims are supported by qualitatively deficient 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. 21 
18 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
19 Sofjici, 22 l&N Dec. at 165. 
20 See Kollasofi Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (generally finding that section 
214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide with the authority to determine whether an 
organization has sufficient demonstrated that it would have non-speculative work available for a beneficiary). 
21 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, 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). See also Galaxy Software Sols., Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 
8 
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 
more probative evidence at the time of filing that established the likely existence of the prospective 
work for the requested period, the Petitioner has not demonstrated how the Beneficiary's role in the 
prospective assignments requires "attainment of a bachelor's or higher degree in the specific 
specialty." 22 This evidence is insufficient to establish that, at the time of filing, the Petitioner had 
secured the Beneficiary's assignment on a qualifying project that would last the duration of the 
requested timeframe, which is insufficient to demonstrate eligibility. 23 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. 
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 that would comprise 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. 24 
(E.D. Mich. May 30, 2019) (finding that an absence of evidence establishing the full chain of contracts-particularly 
including the end-client-calls into question the existence of a requisite employer-employee relationship). In the same 
manner, the absence of such evidence creates significant doubt of whether a petitioner can demonstrate it would provide 
sufficient specialty occupation work for a beneficiary as requested. 
22 Section 214(i)(l)(B) of the Act. 
23 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249 (finding that nonimmigrant eligibility criteria must 
be met at the time a petitioner files the petition). 
24 The Petitioner's failure to demonstrate the substantive nature of the work (e.g., that the work would exist and in what 
form) may explain why the Director did not weigh in on the four regulatory criteria. Instead, the Director determined that 
due to a lack of sufficient documentation in the record, the Petitioner did not show the Beneficiary would perform services 
in a specialty occupation for the requested period of intended employment. In other words, the Director did not ignore the 
Petitioner's evidence related to the criteria, rather the Petitioner did not demonstrate that it was necessary to get to that 
point. 
9 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 25• 26 
IIL 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 US.C § 1361, The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
25 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 other assertions on appeal nor is 
it necessary that we substantively address the employer-employee relationship issue. 
26 We also address the Petitioner's claim on appeal that if it had satisfied one of the regulatory criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). that would have been sufficient to demonstrate the position was a specialty occupation. Even if the 
Petitioner were to demonstrate that it satisfied one of the listed criteria, this would not result in this petition's approval, as 
it still has not shown that the proffered position satisfies the statutory or regulatory definition of a "specialty occupation." 
See section 2 l 4(i)(l) of the Act and 8 C.F.R. § 2 l 4.2(h)( 4)(ii). The statutory definition constitutes the primary requirement 
for a position to qualify as a specialty occupation. Therefore, a petition may not solely rely on meeting one of the 
supplementary criteria at 8 C.F .R. § 2 l 4.2(h)( 4 )(iii)(A) to demonstrate eligibility. 
10