dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7700450 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 4, 2020 
The Petitioner, an information technology staffing and consulting firm, seeks to extend the 
Beneficiary's temporary employment as a "software developer" 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 petitioning entity would have 
specialty occupation-level work available for the Beneficiary; (2) the proffered position is a specialty 
occupation; and (3) the Petitioner will have an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner submits additional evidence and contends that the petition should be 
approved. Upon de nova review, we will dismiss the appeal. 
I. PROCEDURAL SHORTCOMING 
The Director denied the petition based on three independent grounds: (1) the speculative nature of the 
offered position ( e.g., availability of specialty occupation work for the requested timeframe ); (2) the 
four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A); and (3) the employer-employee relationship-each of 
which would stand as an independent basis for a denial. Therefore, the appellant here, must 
demonstrate that every stated ground for the denial was incorrect. However, the Petitioner only 
addresses items 2 and 3 listed above without even making a reference to item 1. Therefore, the 
Petitioner has abandoned its eligibility claims under item 1. 2 
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 See Matter of Zhang , 27 l&N Dec. 569 n.2 (BIA 2019) (finding that an issue not appealed is deemed as abandoned); 
Matter of Valdez, 27 I&N Dec. 496,496 n.l (BIA 2018); Matter of R-A-M-, 25 I&N Dec. 657,658 n.2 (BIA2012); Matter 
of J-Y-C- , 24 I&N Dec. 260, 26 I n.1 (BIA 2007) ; Matter of Cervantes , 22 I&N Dec. 560, 561 n. l (BIA 1999) Matter of 
Edwards , 20 I&N Dec. 191, 196-97 n.4 (BIA 1990). See also Sepulveda v. U.S. Att y Gen., 401 F.3d 1226, 1228 n.2 (11th 
Cir. 2005). 
As a result, even if the Petitioner overcame the issues it addresses within the appeal brief (the 
employer-employee relationship and eligibility under the four criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)), it still would not demonstrate that the petition should be approved. When an 
appellant fails to properly challenge one of the independent grounds upon which the Director based 
their overall determination, the filing party has abandoned any challenge of that ground, and it follows 
that the Director's adverse determination will be affirmed. It is unnecessary to analyze additional 
grounds when another independent issue is dispositive of the appeal. 3 Consequently, we will briefly 
evaluate the correctness of the Director's conclusion on the availability of specialty occupation work 
issue to determine whether the petition should remain denied. 
II. 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. 4 
3 See INS v. Bagamasbad. 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible); Matter of M-A-S-, 24 T&N Dec. 762, 767 
n.2 (BIA 2009) (generally finding that a waived ground of ineligibility may form the sole basis for a dismissed appeal). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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. 5 
The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a specialty 
occupation shall be accompanied by [ d]ocumentation ... or any other required evidence sufficient to 
establish ... that the services the beneficiary is to perform are in a specialty occupation." Moreover, 
the regulations at 8 C.F.R. §§ 103.2(b )(8) and 214.2(h)(9)(i) provide U.S. Citizenship and Immigration 
Services (USCIS) with broad discretionary authority to require evidence such as contracts and 
itineraries to establish that the services to be performed by a beneficiary will be in a specialty 
occupation during the entire period requested in the petition. Finally, 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 that same foreign worker. 6 
III. ANALYSIS 
The Petitioner is located in Georgia and stated it has a contractual relationship with I D (vendor). Based on this relationship, the Petitioner indicated that the vend~o_r_w_o_u_l_d_P._l_a-ce-th-e~ 
petitioning organization's personnel to perform work at an offsite location in Georgia for I I I J ( end-client). The Petitioner requested the Beneficiary's dates of intended employment 
from March 2019 through March 2022. 
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). 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. 7 
The evidence of the prospective work consisted of assertions within the Petitioner's correspondence, 
a letter from the vendor and the end-client, a Master Services Agreement (MSA) and a Statement of 
Work (SOW) executed between the Petitioner and the vendor, a Work Order lacking a sufficient 
indication of the parties that executed that Work Order, and a Supplier Master Services Agreement 
executed between the vendor and the end-client. 
5 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). 
6 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 ), and 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
7 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. 
3 
We begin our discussion with the contractual material. This documentation does not demonstrate that 
the Petitioner had specialty occupation work available for the Beneficiary for the period it requested 
on the petition. The Petitioner offered the MSA and SOW executed between itself and the vendor. 
The MSA was dated January 1 7, 2019, to provide information technology services to a third party for 
an unspecified timeframe. 
Turning to the SOW, it referenced the MSA and identified the Beneficiary as a resource. The SOW, 
however, contains multiple deficiencies. First, it identified the project location at an address in a 
different state than the Petitioner indicated on the Form 1-129 and the U.S. Department of Labor's 
(DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA). 
Even though the Director noted this discrepancy in her denial decision, the Petitioner did not address 
this issue on appeal. Consequently, the Petitioner has not demonstrated that it complied with DOL 
regulations relating to compensating the Beneficiary based on the work and the location where the 
work would occur. 
Additionally, the SOW listed the Beneficiary's position as a "Senior Software Engineer," while the 
Petitioner and the vendor each identified it as a project manager. Also, on the petition and the LCA 
the Petitioner indicated the position title was project manager. The use of multiple job titles calls the 
reliability of the information the Petitioner provides into question, which adversely affects its ability 
to satisfy its burden of proof This mismatch leads us to question whether the end-client and the 
Petitioner have the same understanding of the Beneficiary's position. The Petitioner must resolve this 
inconsistency with independent and objective evidence that demonstrates the project manager and the 
senior software engineer positions are one and the same. 8 
Moreover, the SOW did not establish the agreement's duration, as it indicated the work would occur 
"beginning March 25, 2019 ('start date') and terminating approximately on TBD ('end date')." First, 
from the text within this quote, the use of "terminating approximately on" implies that an actual date 
was meant to follow this provision. Furthermore, considering the current fact pattern, and the deficient 
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 did not cite to any relevant statute, regulation, or policy to support the position that 
open-ended arrangements are sufficient to satisfy its burden of proof 
Nor has the Petitioner 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. 9 
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 
8 Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
9 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 asse1tions do not enable the Service 
to determine whether the job-creation projections are any more reliable than hopeful speculation." Id. 
4 
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. We note that U.S. employers take on additional burdens when 
employing foreign nationals in the United States. 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. Therefore, we conclude that the 
Petitioner's arguments that based on the material it offered before the Director, it had secured 
definitive, non-speculative employment for the Beneficiary are not sufficiently persuasive to meet its 
burden of proof 
Regarding the Supplier Master Services Agreement executed between the vendor and the end-client, 
this contract also does not aid the Petitioner in establishing it had non-speculative work available for 
the Beneficiary for the three-year period it requested on the petition. Specifically, the contract stated 
that it would become effective on the date the last party signs the document (June 29, 2018), and that 
it would continue in effect for a period of one year, then renew for one-year periods unless otherwise 
terminated. The primary shortcoming relating to this contract is that the Petitioner only provided 5 
pages of the 27-page document. The Petitioner's submission of only 19 percent of this contract 
diminishes its evidentiary value, as it deprives us from reviewing the remaining portions that may 
reveal information either advantageous or detrimental to the petitioning organization's claims. 
The Petitioner explained that the missing portions were due to confidentiality reasons. While a 
petitioner may decline to submit information it claims is confidential, in doing so it risks not being 
able to provide sufficient material to USCIS to meet its burden of proof: thereby risking a denial. 10 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. 11 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." 12 
We are not persuaded that this Supplier Master Services Agreement weighs in the Petitioner's favor 
relating to the duration that it will provide qualifying work for the Beneficiary on this project with the 
end-client. Specifically, this umbrella-type agreement, governing the terms and conditions of the 
business arrangement, is generally accompanied by a subordinate agreement such as a statement of 
work, or a work order that provides more granular details about the work to be completed, the pricing 
1° 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 l&N Dec. 314, 316 (BIA 1977) (holding the "respondent had every right to assert 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 USCTS. Sec 5 U.S.C. § 552(6)(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). 
11 In re Grand Jwy Subpoena Dated Jan 4, 1984, 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. Kave!, 296 F.2d 918, 923 (2d Cir. 1961)). 
12 In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). 
5 
structure, and the project's expected duration. In other words, without the subordinate contractual 
material, the Supplier Master Services Agreement is but one part of the overall agreement between 
these two parties and is not a complete representation of the business arrangement. The Supplier 
Master Services Agreement does not stand alone. 
This omission leaves a significant evidentiary gap regarding the vendor's obligation and the type of 
work it agreed to perform for the end-client. The current contractual material between these entities 
is not sufficient to support the Petitioner's claim that the Beneficiary would perform services in a 
specialty occupation throughout the duration of the requested H-1 B validity period. 
Turning to the end-client letter, it does not address the project's expected duration. As a result, it is 
not clear how this material supports the Petitioner's unsubstantiated claims that this client would have 
specialty occupation work available for the Beneficiary for the three-year period the petitioning 
organization requested on the petition. 
We note that the end-client letter does contain information adverse to the Petitioner's eligibility. It 
appears that the end-client's position requirements would require an increase in the prevailing wage 
rate compared to the wage level the Petitioner designated on the LCA. While DOL certifies the LCA, 
USCIS determines whether the LCA's attestations and content corresponds with and supports the 
H-lB petition. 13 An employer "reaffirms its acceptance of all of the attestation obligations by 
submitting the LCA to [USCIS] in support of the Petition for Nonimmigrant Worker, Form 1-129, for 
an H-lB nonimmigrant." 14 
When comparing the Standard Occupational Classification (SOC) code or the wage level indicated on 
the LCA to the claims associated with the petition, USCIS does not purport to supplant DOL's 
responsibility with respect to wage determinations. There may be some overlap in considerations, but 
USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
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). 15 
The qualifications the end-client imposed within its job description (i.e., a bachelor's degree in addition 
to "5+ years of experience as a Business/Systems Analyst in a large application team") warrant an 
increase in the prevailing wage level at a higher rate than the Level II rate on the LCA. Step two of 
DOL's five-step process compares the experience described in the Occupational Information Network 
Job Zone to the Petitioner's requirements. 16 
13 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 of Simeio Solutions, 26 I&N Dec. 542,546 n.6 (AAO 2015). 
14 20 C.F.R. § 655.705. 
15 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). 
16 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 
6 
Based on the Petitioner's statements within its correspondence, it appears it selected the Computer 
Occupations, All Other category associated with SOC code 15-1199, under the sub-category Information 
Technology Project Managers. That occupation is classified within Job Zone 4 with a Specialized 
Vocational Preparation (SVP) rating of"7.0 < 8.0."17 This SVP rating means that the occupation requires 
"over 2 years up to and including 4 years" of specific vocational training. 
A bachelor's degree expends two years, permitting employers to require up to and including two years of 
experience as the position's prerequisite before it must increase the wage level. The end-client's 
requirements mandated at least a bachelor's degree and more than five years of work experience. This 
requirement is greater than the experience and SVP range, which requires a Level IV prevailing wage 
rate. A Level IV prevailing wage rate would mandate an annual wage increase from $34.76 per hour 
($72,301 annually) to the highest level at $52.19 per hour ($108,555 annually). 18 
As such, it appears as though the Petitioner, through the end-client's prerequisites, required experience 
at DOL's designated fully competent level, while only compensating its foreign worker with the 
designated "qualified" level wage. Consequently, the Petitioner proposed to compensate the 
Beneficiary below the required wage for either the prevailing wage for the occupational classification 
in the "area of employment" or the actual wage paid to other employees with similar duties, 
experience, and qualifications. 19 This would appear to undermine the purpose of the DOL wage 
requirement "to protect U.S. workers' wages and eliminate any economic incentive or advantage in 
hiring temporary foreign workers." 20 This issue, standing alone, would sufficiently warrant this 
petition's denial. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 21 First, a petitioner must satisfy the burden of production. As the term suggests, 
this burden requires a filing party to produce evidence in the form of documents, testimony, etc. Here, 
the Petitioner has not fully satisfied its burden of production. For instance, it claims the chain of 
contracts flows from itself to the vendor, then from the vendor to the end-client. However, it hasn't 
17 Appendix E of the DOL guidance provides that SVP is the amount of time for an individual to achieve average 
performance in a specific job-worker situation. The DOL guidance states: ·This training may be acquired in a school, 
work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, 
apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs." 
18 See the DOL guidance. For the wage figures, see FLC Wage Results, Foreign Labor Certification Data Center Online 
Wage Library (Mar. 4, 2020), https:/ /flcdatacenter.com/OESWizardStart.aspx. 
19 Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 201 O); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean 
Air Tech. Int"/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
20 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB 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]."). 
21 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). 
7 
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 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 22 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 is more likely than not to exist. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying the standard of proof This applies to whether the prediction 
is based on an existing project that a petitioner expects to continue into the future, or on an unspecified 
project. Materially relevant statements made without supporting documentation are of limited 
probative value and are insufficient to satisfy a petitioner's burden of proof 23 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 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. 
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. 25 
22 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
23 Matter ofSoffici. 22 l&N Dec. 158. 165 (Comm'r 1998). 
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. 
25 Cf Ho, 22 I&N Dec. at 212-213. 
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 
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." 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 that would likely last for 
the requested duration, 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 he 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 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. 29 Because we agree with the Director on this independent 
ground, and the Petitioner does not address it on appeal, it is unnecessary that we address the remaining 
two eligibility determinations within the Director's decision. 30 
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. 
26 Section 214(i)(l)(B) of the Act. 
27 See 8 C.F.R. ~ 103.2(b)(l); Michelin Tire Corp., 17 T&N Dec. at 249. 
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. 
29 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not discuss the Petitioner's other assertions on appeal. 
30 Bagamasbad, 429 U.S. at 25; L-A-C-. 26 I&N Dec. at 526 n.7; M-A-S-, 24 I&N Dec. 762, 767 n.2. 
9 
ORDER: The appeal is dismissed. 
10