dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8421515 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 3, 2020 
The Petitioner , an information and technology services organization, seeks to employ the Beneficiary 
temporarily as a "workday application developer" under the H-IB nonimmigrant classification for 
specialty occupations .1 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 F01m I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish the Petitioner will have an employer-employee 
relationship with the Beneficiary, or that the proffered position is a specialty occupation. 
On appeal , the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-IB 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: 
(1) 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 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 101(a)(l5)(H)(i)(b) . 
2 8 C.F.R. § 214 .2(h)(2)(i)(A). See section 101 (a)(l5)(H)(i)(b) of the Immigration and Nation ality Act (the Act) (referring 
to the "intending employer") . 
(3) Has an Internal Revenue Service Tax identification number. 
For purposes of the H-lB 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." 3 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.4 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. 5 We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
The reference to an employer-employee relationship within the definition of a United States employer 
is merely that: commentary reflecting some indications that might illustrate such a relationship. 
USCIS did not specify that those five elements (hire, pay, fire, supervise, or otherwise control the 
work) were an exhaustive list, nor did it state that any one of those five elements were definitive and 
exclusive factors that individually would establish that an employer-employee relationship existed. 
To illustrate, U.S. employers regularly engage with independent contractors at which time they hire 
and compensate those individuals, as well as terminate those relationships. We would hardly consider 
those elements to establish that such an arrangement with independent contractors constituted an 
employer-employee relationship. It is premature and precipitous to conclude the USCIS regulation 
defining a United States employer simultaneously offers comprehensive and fully considered 
definitions of the terms "employer-employee relationship" or "employee." This creates a genuine 
ambiguity within the regulation for USCIS to interpret. 
First, we consider the text, structure, history, and purpose of this regulation to evaluate whether USCIS 
should be accorded deference to interpret these terms that are not defined within the current regulation. 
3 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) ( quoting Cmty. 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). 
4 Darden, 503 U.S. 318, 322-23. 
5 See Darden, 503 U.S. at 323-24, 327. 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-1 B beneficiaries). 
2 
The former Immigration and Naturalization Service (INS) proposed a rule implementing the 
provisions of the Immigration Act of 1990, Public Law 101-649, November 29, 1990. 6 Although, that 
proposed rule did not provide a definition of a United States employer, it did state: 
A United States employer seeking to classify an alien as an H-lA, H-1B, H-2A, H-2B, 
or H-3 temporary employee shall file a petition on Form 1-129, Petition for 
Nonimmigrant Worker, only with the Service Center which has jurisdiction in the area 
where the alien will perform services or receive training, even in emergent situations, 
except as provided in this section. 
In response to public comments on the above proposed rule, INS offered the following commentary: 
The proposed rule contains a requirement that only United States employers can file an 
H-1 B petition. Six commenters suggested that foreign employers should also be 
permitted to file H-1B petitions. The labor condition application requires that a 
petitioner post a notice of the filing of a labor condition application at its place of 
employment. This obviously requires the petitioner to have a legal presence in the 
United States. As a result, this requirement will be retained in the final rule. In order 
to provide clarification, the Service has included a definition of the term "United States 
employer" in the final rule. 7 
Within that final rule, INS also presented a definition of a United States employer and promulgated 
the definition currently found at 8 C.F.R. § 214.2(h)(4)(ii). This reveals that the purpose behind the 
former INS' s actions was to preclude foreign employers that did not have a legal presence in the United 
States from filing H-1B petitions. 
Next, USCIS' interpretation appears to fall within the zone of ambiguity, meaning that there is a 
sufficient indistinctness within the regulation and the agency's interpretation is reasonable relating to 
the need and the methodology of defining these terms ("employer-employee relationship" and 
"employee") in accordance with the common-law. 
Finally, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B 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 USCIS with broad 
discretionary authority to require evidence such as contracts and sufficiently probative material to 
establish that the services to be performed by a beneficiary will be in a specialty occupation in 
accordance with a petitioner's request in the petition. And, USCIS has the authority to administer the 
law that Congress enacted, and to determine whether an organization has sufficiently demonstrated 
6 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 31553 (July, 
11, 1991). 
7 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 
(Dec. 2, 1991). 
3 
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. 8 
B. Analysis 
The Petitioner is located in Texas and stated it has a contractual relationship with j II 
(vendor one). The Petitioner farther indicated that vendor one contracted withl I 
(vendor two) who contracted with.__ ____________ .....,(end-client). Based on these 
relationships, the Petitioner would place its personnel to perform work at an offsite location in 
California for the end-client. The Petitioner requested the Beneficiary's dates of intended employment 
from October 2019, through July 2022. 
Under this portion of the decision, the Director concluded that the Petitioner did not demonstrate it 
would have control over the work the Beneficiary would perform or the ability to oversee his work. 
The Director noted a lack of contractual material between vendor two and the end-client that defined 
the Petitioner's role at the client worksite where the Beneficiary would actually work. The Director 
farther concluded that the end-client letters did not establish which person within the Petitioner's 
organization that would supervise and control the Beneficiary, who would provide the materials 
necessary to complete his work, or who would have the ability to affect the project upon which he 
would work. 
On appeal the Petitioner identifies claims contained within various letters from the involved parties as 
well as other material within the record as proof that it has satisfied the relevant factors to demonstrate 
the employer-employee relationship with the Beneficiary, which it notes are "the degree of 
supervision, direction and control exercised over the services. Generally, an employer controls what 
will be done, i.e. the manner, means, and results." 
Companies that outsource their personnel to projects lacking in-person supervision, 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 their 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 control over its right to compensate, assign additional work, supervise, and otherwise control 
their work. The Petitioner farther claims it would perform numerous administrative functions 
pertaining to the Beneficiary's employment. Social security, worker's compensation, unemployment 
8 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). 
4 
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. 
The Petitioner asserts that it will maintain an employer-employee relationship with the Beneficiary; 
however, it has presented an inchoate explanation and submitted little supporting documentation to 
corroborate that it will have control over the Beneficiary while assigned to the end-client. The 
Petitioner has provided inconsistent accounts of who will supervise the Beneficiary, how often it 
receives status reports, and the frequency in which the Beneficiary's performance evaluations would 
occur. The Petitioner claims its president would supervise the Beneficiary. On the petition the 
Petitioner indicated it employed 30 employees. Within the past 24 months, the Petitioner filed 138 
H-1 B petitions, 25 of which it filed within the last year. This raises questions concerning the 
sufficiency of supervision the Petitioner would exercise over the Beneficiary. If the Petitioner's 
standard process is for its president to provide supervision over the company's offsite personnel, it is 
unclear how the president would be able to supervise all of these individuals and control the manner 
and means of the Beneficiary's work under the common-law tests, in addition to his own day-to-day 
executive responsibilities. 
Moreover, we note an inconsistency in the Petitioner's claims on the petition when compared to other 
evidence in the record. As noted, the Petitioner claimed it employs 30 personnel on the petition. 
However, it offered an organizational chart representing that it at least employs 42 individuals. While 
this inconsistency is not significant, it represents one additional shortcoming associated with this 
filing. 
Additionally, the Petitioner indicated that it learns of the Beneficiary's performance and task 
completion based on emails and telephone calls in which the foreign worker reports his own 
performance. The Petitioner has not demonstrated that the Beneficiary's self-reporting assessments 
would result in an accurate representation of his work performance. The Petitioner's reliance on the 
Beneficiary's self-reporting, without an alternate method to verify the accuracy of his assessment, is 
not sufficient to demonstrate that it will objectively monitor and evaluate personnel it places with 
end-clients. These circumstances are not indicative of an employer-employee relationship, and 
actually weigh against the Petitioner's claims of control. Such a lack of an established means to 
observe, record, and report the Beneficiary's actual conduct significantly reduces the evidentiary value 
of the Beneficiary's performance review process. 
Furthermore, the Petitioner has presented conflicting information regarding the frequency and to 
whom the Beneficiary reports. Within the appeal brief: the Petitioner indicated that the Beneficiary 
reports to the president weekly. In a subsequent paragraph, the Petitioner specified the Beneficiary is 
5 
under constant supervision and constant contact with his managers. Then, it subsequently stated the 
Beneficiary has a mentor and a supervisor in which he "updates his progress to the team and supervisor 
on daily stand-ups." Next, the Petitioner claims that on a bi-weekly basis, it discusses the 
Beneficiary's progress with him. Based on the several differing accounts, we are unable to determine 
where the truth lies. 9 
Further still, the Petitioner provided conflicting information regarding the frequency of the 
Beneficiary's performance reviews. Within the response to the request for evidence (RFE), the 
Petitioner stated these occur on a monthly basis, while the performance evaluation the it initially 
provided appears to be more in line with a quarterly basis. These widely varying accounts go to the 
heart of the manner in which the Petitioner claims it controls the Beneficiary and his work. We 
conclude that the inconsistent statements and qualitatively deficient evidence in the record undermines 
the Petitioner's eligibility claims under this provision. These deficiencies lead us to determine that 
the Petitioner has not demonstrated that it would maintain the requisite employer-employee 
relationship with the Beneficiary for the duration it requested. Nor has it shown that it will feasibly 
be able to exercise its claimed right to control the Beneficiary and his work while working offsite at 
the end-client worksite. 
Within the appeal, the Petitioner also places heavy reliance on the correspondence from vendor one 
and the end-client as it relates to their claims that the petitioning organization will supervise and control 
the Beneficiary and his work. Notably, extensive text relating to the Petitioner's supervision and 
control over the Beneficiary and his work is essentially identical within all of the letters from vendor 
one and the end-client. As a result, it appears that it was the petitioning organization that provided this 
text to these other entities to include within their correspondence. As a general concept, when a 
petitioner has provided material from different entities, but the language and structure contained within 
is notably similar, the trier of fact may treat those similarities as a basis for questioning a petitioner's 
claims. 10 When affidavits contain such similarities, it is reasonable to infer that the petitioner who 
submitted the strikingly similar documents is the actual source from where the similarities derive. 11 
Given the unique similarities in the letters we conclude that the Petitioner has not established, by a 
preponderance of the evidence, that the content it directly relies upon within its appeal brief originated 
from vendor one and the end-client. Notwithstanding that evidentiary deficiency, the letters from the 
other parties provide insufficient detail regarding the manner in which the Petitioner would supervise the 
Beneficiary, other than to merely state that only the petitioning entity would perform administrative 
9 The Petitioner must remedy this discordant information in the record. Such an amelioration must be demonstrated 
through the submission of relevant independent, and objective evidence that divulges which assertions are true. Matter 
of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). To allow such inconsistencies to pass unchallenged would serve to 
undermine the concept that the burden rests with a petitioner to provide credible and consistent material that preponderantly 
supports its eligibility. See section 291 of the Act; Matter of Soo Hoo, 11 l&N Dec. 151, 152 (BIA 1965) (finding that the 
petitioner had not established eligibility by a preponderance of the evidence because the submitted evidence was not 
credible); see also Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010) (discussing the necessity that evidence be 
relevant, probative, and credible). 
10 See Matter of R-K-K-, 26 l&N Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d L 8 (1st Cir. 
2011). 
11 See Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
6 
functions on his behalf, and that it would control and supervise him. Such claims within correspondence 
essentially equate to assertions rather than evidence to support such claims. The Petitioner did not 
offer probative evidence by which we could verify the contents of the client's letters. Such statements 
made without supporting documentation are of limited probative value and are insufficient to satisfy 
the Petitioner's burden of proof 12 
Pertaining to the Petitioner's final appellate claim relating to the employer-employee relationship, it 
identifies a Statement of Work (SOW) it claims was executed between vendor two and the end-client. 
However, the record does not contain any such SOW. If in fact the Petitioner is referring to the Task 
Specifications that contain similar information, this material too is insufficient to support the 
Petitioner's eligibility claims. The Petitioner submitted one Task Specification before the Director 
and a new one on appeal. Both Task Specifications contain essentially the same information except 
for the estimated ending date for the project and the date the parties executed each agreement. 
Considering the Task Specification before the Director, the parties executed the document before the 
petition filing date, it identified the Beneficiary and the work location, and it contained an ending date 
of October 31, 2019. However, this document reflected that it was an amendment to the SOW 9 dated 
March 6, 2018, and it also instructed the parties to refer to the SOW for details of the job description. 
As the Petitioner failed to offer any SOW executed between vendor two and the end-client, the record 
lacks salient contractual material that the Petitioner errantly claimed was included in the record. 
Inherent with employing foreign nationals are additional burdens a U.S. employer must satisfy when 
compared to the requirements of U.S. workers. Part of that burden in the H-lB context is to demonstrate 
not only the existence of the proposed work, but also that it will maintain an employer-employee 
relationship with a beneficiary. One method to meet this burden is to provide evidence of the full 
chain of contracts between all the associated parties-the lack of which can create material gaps within 
the evidence. 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. 
Such a scenario is generally one that can be prohibitive for a petitioner attempting to demonstrate that 
it would maintain an employer-employee relationship with a beneficiary while they would work offsite 
at an end-client location. The Petitioner's failure to provide all of the contracts governing the 
relationships between the corporate entities in the chain results in insufficient evidence concerning the 
organization's right to control and supervise the Beneficiary's work at the end-client worksite. 13 In 
other words, the record does not establish a binding obligation on the part of the end-client to provide 
work for the Beneficiary as requested on the petition. 
We observe other deficiencies with this Task Specification. Namely that the Beneficiary's job title is 
inconsistent with the title listed on the petition and the title within each of the letters from the vendors 
12 MatterofSoffici, 22 l&NDec. 158,165 (Comm'r 1998). 
13 See Galaxy So(iware Sols., Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (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. 
7 
and the end-client. As a result, the Petitioner has not shown that this Task Specification relates to the 
same job requested on the petition and discussed within the correspondence from the other parties. 
Finally, absent from the Task Specification is the hourly rate the end-client would pay to vendor two 
for the services rendered. 
We note additional issues within the record. First, according to the Vendor Services Agreement 
executed between the Petitioner and vendor one, the vendor or its clients possess the sole discretion to 
terminate the Beneficiary's work at the end-client worksite. Based on this provision, it appears the 
Petitioner has relinquished a certain level of control over the Beneficiary's continued work on the 
end-client project. Furthermore, this same Vendor Services Agreement reflected that vendor one could 
hire the Petitioner's personnel whether it is because of a dispute or through a normal job posting or 
advertisement. This further diminishes the level of control the Petitioner may exert over the 
Beneficiary and his continued employment. 
Turning to the Consulting Agreement executed between vendor two and the end-client, this document 
has large portions redacted. Such an obscuration diminishes this document's 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. And we reiterate that although the Petitioner 
did provide one Task Specification before the Director, absent from the record was a relevant 
agreement, SOW 9. This reinforces the need to provide the full contractual material instead of heavily 
redacted portions. Even within the appeal the Petitioner offers another Task Specification, but it did 
not include SOW 9. 
We note that the Petitioner and Beneficiary executed an Employment Agreement and a memorandum 
of understanding relating to their employment relationship. While an employment agreement may 
provide some insights into the relationship of a Petitioner and a Beneficiary, we observe that the "mere 
existence of a document styled 'employment agreement'" shall not inexorably lead to the conclusion that 
the worker is an employee.14 We conclude that the deficiencies described above significantly outweigh 
any favorable consideration these two documents might lend to the Petitioner's claims. 
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 
employee while supporting such statements with conflicting, inconsistent, or flawed evidentiary 
material falls far short of the Petitioner's burden of proof in the present case. That is the situation we 
have here, 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." 15 
14 Clackamas, 538 U.S. at 450. 
15 8 C.F.R. § 214.2(h)(4)(ii). 
8 
II. SPECIAL TY 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 offered position 
must meet one of the following criteria to qualify as a specialty occupation: 
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 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. 16 
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). 
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. 17 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. 
16 See Kollasofi Inc., 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 such authority). 
17 The Petitioner submitted documentation to supp01t 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. 
9 
Within the Director's decision, it noted that the Petitioner did not offer the SOW executed between 
the vendors that the Master Services Contract Agreement between these parties indicated would be 
attached. However, Exhibit 8 within the Petitioner's RFE response does contain an SOW executed 
between these parties. Nevertheless, the presence of this SOW does not satisfy the Petitioner's burden, 
as the parties executed the agreement after the petition filing date. A petitioner must establish eligibility 
at the time it files the nonimmigrant visa petition.18 USCIS may not approve a visa petition at a future 
date after a petitioner or a beneficiary becomes eligible under a new set of facts. 19 
On the topic of absent contractual material, we return to our previous discussion of the missing SOW 
9 executed between vendor two and the end-client. The Task Specifications within the record reflect 
that these documents are amendments of SOW 9 that contained additional information relating to the 
position in this petition. Regarding the new Task Specification the Petitioner offers on appeal, it not 
only contains the same deficiencies as the first version, but the parties also executed this document 
approximately six months after the petition filing date. This constitutes a material change to the 
agreement within the first Task Specification, as it extended the estimated project duration from 
October 2019 to December 2020. 
Furthermore, the absence of SOW 9 reveals that the Petitioner has not met its burden of proof in filing 
for a foreign worker to demonstrate the full relationship between all of the associated parties. A scenario, 
such as the one in the present case in, is generally one that can be prohibitive for a petitioner attempting 
to demonstrate the availability of specialty occupation work for the Beneficiary.20 Particularly 
problematic, is the absence of the contractual material relating to the end-client. As a result, we question 
whether the Petitioner has demonstrated a binding obligation on the part of the end-client to provide work 
for the Beneficiary in accordance with the Petitioner's request on the H-1B petition. 
We are not persuaded by the Petitioner's arguments that this is merely a continuation of the already 
agreed-upon contractual material. The Petitioner asserts that this is not a material change, but instead 
that it was providing further evidence of a project that was available and contracted for, prior to the 
petition filing date. We disagree. At the time it filed the petition, the evidence associated with the 
end-client-the entity where the actual work would occur-was estimated to last until October 31, 
2019. We reiterate that even that Task Specification contains multiple deficiencies eroding its 
probative value. The Petitioner must establish eligibility at the time it files the petition and even if we 
ignore the shortcomings within the Task Specification document, the Petitioner only would have 
demonstrated a binding agreement on the end-client's part for a one-month period. 
What the Petitioner requests is that we base a 33-month approval on material that only demonstrates 
qualifying work would exist for one month. None of the parties provided a sufficiently reasoned 
18 8 C.F.R. § 103.2(b)(l), (12). 
19 Matter of Michelin Tire Corp .. 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). 
2° KPK Techs., Inc. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, at *6 (E.D. Mich. Sept. 16, 2019) (finding agency's 
determination reasonable that a petitioner has not demonstrated a foreign worker would be employed in a specialty 
occupation for the entirety of the time period it requests on a petition where the contracts-including those executed by an 
end-client-do not cover the dates requested on a petition). 
10 
analysis supported by probative evidence that would persuade us to find in the favor of an approval 
for the fully requested timeframe. This falls short of meeting the Petitioner's burden of proof. 
The remaining contractual material did not offer a consistent timeframe in which the project would 
occur. The varying time periods consisted of long term and extendable, December 2020, and October 
2019. Nor did the correspondence from the involved parties establish a consistent estimated time 
necessary to complete the project. The information within these letters within the initial filings varied 
from (1) March 2020, (2) throughout 2020, (3) October 2019, and (4) one that was subsequently 
amended to October 2020. None of the entities offered a reason for the variances between the 
contractual documentation and their letters, nor did they provide a sufficiently reasoned basis for any 
of the predictions. To rectify this discordant information, the Petitioner must offer relevant, 
independent, and objective evidence that illustrates which information is accurate. 21 
On appeal, the Petitioner references section 212(n)(2)(C)(vii)(r) of the Act stating that it is not required 
to demonstrate every single project on which the Beneficiary would work during the requested period. 
The Petitioner further states that it is not the availability of work or the contracts that determine the 
length of the H-1 B petition approval, but "that the Petitioner has submitted a signed LCA confirming 
that they will pay the Beneficiary the full offered wage over a 3- year period. If the Petitioner fails to 
pay the Beneficiary the full wage during any 'non-productive' status then the Beneficiary can file a 
complaint against the Petitioner with the Department of Labor." 
First, associated with section 212(n)(2)(C)(vii)(r) of the Act are at least two presumptions: (1) that 
users has already approved a petition; and (2) that the beneficiary has been working for the employer. 
The statute provides that based on some circumstance-whether due to work or personal factors of 
the nonimmigrant-that the foreign national will not be able to work for a period of time. The statute 
lays out the guidelines for when an employer would either be required to pay the foreign national, or 
when it would not be required to do so. 
These provisions do not apply to the pre-employment scenario users encounters when adjudicating 
an initial H-lB petition, as Congress wrote them in the past tense for situations in which the violation 
could have already occurred. Read prospectively, these provisions make no sense because the 
petitioner has not yet began compensating the beneficiary, has not placed them as an employee, and 
the nonimmigrant has not entered into employment with the employer. Simply stated, an employer 
could not violate section 212(n)(2)(C)(vii)(r)-(II) of the Act prospectively on an initial H-lB petition. 
Additional support that Congress did not intend for these provisions to be read prospectively lies 
within section 212(n)(2)(C)(vii)(IIr), which discusses H-lB nonimmigrants who have not yet entered 
into employment with a petitioner, and states that the nonproductive provisions will not apply to an 
employer until "30 days after the date the nonimmigrant first is admitted into the United States 
pursuant to the petition, or 60 days after the date the nonimmigrant becomes eligible to work for the 
employer (in the case of a nonimmigrant who is present in the United States on the date of the approval 
of the petition)." 22 Based on the plain statutory language, we are not persuaded by the argument that 
21 Ho, 19 l&N Dec. at 591-92. 
22 See also 20 C.F.R. § 655.73l(c)(5)-(7) (discussing nonproductive status for those already working for an employer); 
US. States v. Narang, No. 1:16-CR-43 (LMB), 2019 WL 3949308, at *6 (E.D. Va. Aug. 21, 2019). 
11 
because the statute covers payment obligations for time in a nonproductive status, that USCIS should 
approve petitions when a petitioner has not demonstrated-by a preponderance of the evidence-that 
it will be able to provide equally qualifying work for the foreign national for the requested period. 
Based on the foregoing, references to limiting the validity period of H-1 B approvals to the amount of 
time a petitioner demonstrates does not constitute a new mandatory evidentiary standard, as Congress 
delegated such authority to the Homeland Security Secretary, and the agency subsequently 
promulgated 8 C.F.R. § 214.2(h)(9)(iii)(A)(l). 23 Instead, USCIS is exercising its responsibility to 
ensure petitioners sufficiently demonstrate that the work they propose to provide to H-1 B 
nonimmigrants is more likely than not to exist. USCIS does not need to derive its authority to limit 
validity periods by promulgating new regulations, as Congress delegated that authority within section 
214( a)( 1) and the agency put a corresponding rule in place. 
Furthermore, these third-party or offsite arrangements are less likely to be scenarios in which an 
employer does not demonstrate work for a single, one-month period. Rather, the more likely 
circumstance is an employer establishes work for a small portion of the requested period on the 
petition-or none at all-but requests the maximum of three years. We agree that some work in H-1 B 
petitions is speculative; whether it is work associated with an initial petition or an extension for already 
existing work. However, the question we must answer on an individual, case-by-case basis, is whether 
a petitioner has shown that it is more likely than not that the qualifying work will exist for the amount 
of time requested. 
Were we to adopt the view that the nonproductive provisions of section 212(n)(2)(C)(vii) preclude 
USCIS from ensuring a petitioner demonstrates it will have specialty occupation work available for 
the period of time it is requesting, this would serve to strip the agency of its authority to administer a 
critical part of the H-1B program. Such an application would limit the agency to only evaluating 
whether a position and a beneficiary qualifies for specialty occupation nonimmigrant status, and would 
remove from its determinative ability, the authority to assess the length of time a U.S. employer 
demonstrates it will be able to provide qualifying work. We do not consider this as a practicable option 
as it would do harm to the H-1B program as a whole. 
On appeal, the Petitioner claims that the agency regularly accepts and approves cases on the basis of 
updated contractual material that is executed after the petition filing date. The Petitioner offered this 
anecdotal assertion without presenting material to corroborate it. the Petitioner's statements made 
without supporting documentation are of limited probative value and are insufficient to satisfy its burden 
of proof 24 
23 Although we do not place reliance on the following, long-standing agency guidance illustrates that USCIS procedures 
call for ascertaining the nature and length of the employment so that it can confirm the employment qualifies as a specialty 
occupation and ascertain the petition's appropriate approval duration. See generally, USCIS Policy Memorandum AD 
I 0-24, Determining Employer-Employee Relationship for Adjudication of H-1 B Petitions, Including Third-Party Site 
Placements (Jan. 8, 2010), http://www.uscis.gov/legal-resources/policy-memoranda. In the same manner that it is a 
requirement that an "employer will maintain an employer-employee relationship with the beneficiary for the duration of 
the requested validity period," so too must a petitioner demonstrate qualifying work will be available for that same validity 
period. 
24 Sofjici, 22 l&N Dec. at 165. 
12 
Relating to the Petitioner's argument that presenting contractual material that postdates the petition 
filing date does not present any material change issues, we are not persuaded in the organization's 
favor. The Petitioner's view does not take into account the possibility that every provision within a 
new SOW would be subject to change as long as the parties spell out the changes in the new contractual 
documentation. In other words, under the Petitioner's permissible scenario an employer could submit 
binding documents spelling out qualifying work under the H-lB program, but it could subsequently 
amend any portion of that agreement to include the type of work the Beneficiary would perform. The 
Petitioner has not offered sufficient support persuading us that this should be permitted. 
On appeal, the Petitioner claims there is no requirement that it submit a letter from the end-client 
relating to the work he would perform and the qualifications to perform that work. The Petitioner cites 
to a question and answer posting on the USCIS website in support of its statement. It is important to 
note that the content the Petitioner cites to on the website relates to the employer-employee 
relationship and not to whether the position at a client worksite qualifies as a specialty occupation. 
Therefore, we do not find this information particularly persuasive. Furthermore, the Petitioner has not 
demonstrated that content posted for informational purposes should carry the force of the regulation 
or even agency policy guidance. Additionally, 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 scenario in Defensor has repeatedly been recognized by 
federal courts as appropriate in determining which entity should provide the requirements of an H-lB 
position and the actual duties a beneficiary would perform. 25 
As a central holding, the Defensor court determined that the former INS acted appropriately in interpreting 
the statute and the regulations as requiring petitioning companies to provide probative evidence that the 
outside entities where the Beneficiary would actually provide their services (i.e. end-clients) required 
candidates to possess a qualifying degree. 26 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 further concluded that absurd outcomes 
could result from granting greater credence to the position requirements as represented by an outsourcing 
agency, rather than to those from its clients where a beneficiary would perform the work. 27 We conclude 
that the Defensor decision is particularly applicable to the present case. 
On appeal the Petitioner states that if we determine that it is required to demonstrate that qualifying 
work would actually exist as reflected on the petition that we should provide the relevant legal 
authority to support our determination. We have done so above. 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 did not cite to any relevant statute, regulation, or 
25 See Altimetrik COip. v. USC1S. No. 2:18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Gip. v. 
USC1S, No. 13-1209-CV-W-ODS. at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342. 2019 WL 
4416689, at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik COip. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); 
Sagarwala v. Cissna, 387 F. Supp. 3d 56. 69 n.5 (D.D.C. 2019). 
26 Defensor, 201 F.3d at 388. 
n Id. 
13 
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. 28 
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-lB 
personnel to perform the work. We reiterate 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, or other probative 
documentation within the record, that the proffered position would be available for the Beneficiary as 
indicated on the petition. Therefore, we conclude that the Petitioner's arguments that it has secured 
definitive, non-speculative employment for the Beneficiary are not sufficiently persuasive to meet its 
burden of proof. 
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." 29 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. 3° 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, the substantive nature of the duties he will carry 
out for that duration, 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 
28 Cf Matter of Ho, 22 T&NDec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain 
sufficient detail to permit USCTS 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. 
29 Section 214(i)(l)(B) of the Act. 
30 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249. 
14 
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. 31 
III. OTHER DEFICIENCIES 
We observe additional shortcomings relating to the Petitioner's evidence in the record that weigh 
against the Petitioner's eligibility. First, the opinion letter froml !failed to mention the 
end-client, the project upon which the Beneficiary would work, or how the position factors into the 
end-client's business operations. There is no indication that he possessed any knowledge of the 
proffered position beyond this limited job description prior to documenting his opinion regarding the 
proffered position (e.g., interviewed the end-client's managerial teams, observed the client's 
employees about the nature of their work, or documented the knowledge that these workers apply on 
the job). His level of familiarity with the actual job duties as they would be performed in the context 
of the end-client project has therefore not been substantiated. This greatly reduces the evidentiary 
value of this opinion letter. 
Next, the Petitioner did not offer evidence that consistently presented this position's job title. 
Throughout the petition, the parties referred to the position title as ServiceNow Developer. However, 
both Task Specification documents executed between vendor two and the end-client identify the 
position as an ITSM Product Administrator. The Petitioner did not offer probative evidence 
establishing that these two job titles were referencing the same position. 
Further, the duties identified in the end-client letter contained a significant amount of industry jargon. 
This makes it nearly impossible for the lay person to determine whether the duties sufficiently comply 
with the regulatory requirements for the position. It is always the Petitioner's responsibility to 
explain-or to ensure the end-client explains-what these jargon-laden functions involve, and how 
they demonstrate eligibility. 32 Additionally, the truth is to be determined not by the quantity of 
evidence alone but by its quality. 33 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 and the duties are so complex, unique or 
specialized. 34 This forth er demonstrates that the Petitioner has not satisfied its burden of proof within 
these proceedings. 
31 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. 
32 Section 291 of the Act, 8 U.S.C. § 1361. 
33 Chawathe, 25 l&N Dec. at 376 ( citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989)). 
34 Sagarwala, 387 F. Supp. 3d at 68-70. 
15 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
16