dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8479163 
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 technology solutions firm, seeks to employ the Beneficiary temporarily 
as a "machine learning software developer" under the H-IB nonirnmigrant classification for specialty 
occupations.1 The H-lB program allows a U.S. employer to temporarily employ a qualified foreign 
worker in a position that requires both: (a) the theoretical and practical application of a body of highly 
specialized knowledge; and (b) the attainment of a bachelor's or higher degree in the specific specialty 
(or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the F01m I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de nova. 3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
1 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 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
( I) 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 
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 
II. ANALYSIS 
The Petitioner stated it has a contractual relationship with~-------~ ( end-client). Based 
on this relationship, the Petitioner would place its personnel to perform work at an offsite location for 
the end-client. On the petition, the Petitioner requested the Beneficiary's dates of intended 
employment from October 1, 2019, through September 1 7, 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 as 
requested on the petition. Individually, each of these shortcomings preclude a determination that the 
4 8 C.F.R. § 214.2(h)(4)(iii)(A). 
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); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
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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)(])-(4). 
A. Background 
The following comprises a timeline of the Petitioner's claims and evidence concerning the work the 
Beneficiary would perform relating to this petition: 
Work Claims Relating to Where/When Evidence Relating to its Claims 
Three years at the end-client worksite; 
Initial should that agreement terminate he would Master Services Agreement; Statement of continue working for the Petitioner from filing their office or at another end-client Work; Purchase Order 
location 
Request Three months at the end-client worksite; for 
evidence remainder of the three years in-house at Letter from the end-client; Itinerary 
Petitioner's location response 
Appeal Five months at the end-client worksite; no New letter from the end-client; new 
time at the Petitioner's location Itinerary; new Statement of Work 
It is apparent from the above table that the Petitioner has offered materially different claims within its 
own correspondence, as well as within evidence it submitted in support of those claims. 
B. Speculative Employment and Material Changes 
We begin this section noting that the Director specifically denied the petition because the Petitioner 
did not demonstrate that it would have work available for the Beneficiary with the end-client as 
proposed on the petition. We agree with that assessment, as the contractual material the Petitioner 
offered when it filed the petition reflected an ending date for the project upon which the Beneficiary 
would work as December 20, 2019; a period of less than three months. The end-client letter the 
Petitioner submitted when it responded to the Director's request for evidence (RFE) also contained 
that same ending date. 
Within the RFE, the Director questioned whether the Petitioner would have qualifying work for the 
Beneficiary in line with its requested timeframe on the petition. In response, the Petitioner made 
several changes as represented within the above table. The Petitioner reduced its unsupported claim 
that the Beneficiary would work at the end-client site from three years to three months. The rest of the 
Beneficiary's time would be spent working on in-house projects. Now on appeal, it again amends the 
end-client worksite claim to a five-month period and eliminated any in-house project work. 
These mercurial alterations constitute multiple material changes to the claims the Petitioner made in 
the initial petition. A petitioner may not make material changes to a petition that has already been 
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filed in an effort to make an apparently deficient petition conform to users requirements. 7 It appears 
more likely than not that the petitioning organization made these adjustments in an effort to mitigate 
deficiencies in its H-lB filing. 8 A petitioner must establish eligibility at the time it files the 
nonimmigrant visa petition. 9 users may not approve a visa petition at a future date after a petitioner or 
a beneficiary becomes eligible under a new set of facts. 10 The Petitioner's initial claims and evidence did 
not demonstrate eligibility, and in response it amended each. Upon the Director's adverse decision, the 
Petitioner again changed both its claims as well as its evidence. Based on these amendments, we conclude 
that this petition cannot be approved, and as a result, it is unnecessary that we offer a detailed analysis 
surrounding the basis for the Director's adverse decision. 
As further support that the petition should remain denied, the Petitioner's initial filing statement indicated 
that if the work at the end-client site was to end, the petitioning organization would file an amended H-lB 
petition before the change in employment. After the changes it made in the RFE response, the Petitioner 
submits a new Itinerary on appeal stating the Beneficiary would work at the client site until February 
2020, at which point they would file a new H-lB petition when they execute a new SOW with the client. 
Even though that February 2020 date has passed, a review ofUSeIS systems does not reveal any amended 
H-lB petition filed on the Beneficiary's behalf Despite the fact that the Petitioner's statement that it 
would file an amended petition was insufficient to support its work duration request on the present 
petition, it also failed to adhere to the commitment it made to file such an amended petition. 
We note additional reasons for which the Petitioner did not establish eligibility when it filed the petition. 
In response to the Director's RFE, the Petitioner indicated that the Beneficiary would spend his time from 
December 2019 through September 2022 working on in-house projects. It further stated that those 
projects would be related to a cloud-based data platform,! I As evidence to support its claims 
that the Beneficiary would work on projects utilizing I I, it stated that he would attend a bootcamp 
and it offered evidence relating to his attendance at the bootcamp. This bootcamp occurred in August 
2019, more than four months after the petition filing date. As a result, it appears the Beneficiary was not 
qualified or capable of properly performing those I ~related duties on the date the Petitioner 
filed the petition. As previously stated, the Petitioner and the Beneficiary must be eligible as of the 
date it files a petition. 11 
Furthermore, the Petitioner did not demonstrate that it had already implemented the ~I---~ 
platform, or that it was ramping up to include that service on or before the date it filed this petition. 
The only evidence relating to when this platform factored into the Petitioner's business model is a 
single printed page of what the organization characterized as evidence of its partnership with 
I I The evidence does not represent a partnership as the Petitioner claimed because it did not 
identify the petitioning organization. And even if it did, the only dates on that printed page 
7 SeeMatteroflzummi. 22 l&NDec. 169,175 (Assoc. Comm'r 1998). 
8 See Baldwin Daily. Inc. v. United States, 122 F.Supp.3d 809, 816 (W.D. Wis. 2015) (concluding we were justified in 
questioning a petitioner's motives and whether the company simply amended its evidence so that it could demonstrate 
eligibility). 
9 8 C.F.R. § 103.2(b)(l), (12). 
10 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). 
11 8 C.F.R. § 103.2(b)(l ). (12); Michelin Tire Corp., 17 T&N Dec. at 249. 
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representing when that partnership initiated were in August 2019, well after the Petitioner filed the 
petition. In other words, the Petitioner has not demonstrated that this was a service it could have 
identified as work the Beneficiary would perform on the date it filed the petition because it has not 
shown this partnership existed between the two entities at that time. 
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.12 
Understanding that contracts underlie the reliability of business agreements establishes the importance 
that a petitioner present sufficient claims and evidence to demonstrate the agreed-upon elements within 
existing contracts. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 13 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 folly satisfied its burden of production. For instance, it originally claimed that 
the Beneficiary would work at the end-client worksite for almost three years. However, it hasn't 
offered sufficient contractual material supporting those claims, and as a result, it has not produced 
sufficient evidence to corroborate its assertions or statements. 14 
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). 15 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 would 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. 16 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. The scenario in the present case is a 
salient example of why petitioning entities must offer more than simple statements relating to the work 
12 See Fletcher v. Peck. 10 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 parties "would be 
very seriously obstructed"). 
13 Matter of Y-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
14 A statement is defined within the legal context as an assertion or nonverbal conduct intended as an assertion. 
STATEMENT, Black's Law Dictionary (11th ed. 2019). 
15 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994). 
16 Matter of Soffici. 22 I&N Dec. 158. 165 (Comm'r 1998). 
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they will have available for foreign workers under the H-lB program. If the Director was unable to 
question the Petitioner as it relates to the basis of its requested period of work, it would not have been 
forced to change its claims to correspond with what it could preponderantly prove. 
If a petitioner is unable to establish that qualifying work actually exists, we cannot determine whether 
the proffered position is a specialty occupation. 17 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. One method to establish the work's existence is to 
provide evidence that preponderantly demonstrates what the duration of the business relationship 
between all the associated parties would likely be, the lack of which can create material gaps within 
the evidence. The scenario in the present case is one in which the project's duration did not align with 
the Petitioner's assertions. 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. 18 
Evidence in the record does not support the Petitioner's claim that it would provide qualifying work at 
the end-client worksite for the requested timeframe. The Petitioner has not met its burden of persuasion 
demonstrating that it is more likely than not that the work would exist at the end-client worksite as 
requested. 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." 19 
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. 20 Again, the work relating to thel I project 
constituted a material change to the Petitioner's original claims. For the reasons discussed above, the 
17 We must review the actual duties the Beneficiary will be expected to perform to ascertain 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. 
18 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). 
19 Section 214(i)(l)(B) ofthe Act. 
20 See 8 C.F.R. ~ 103.2(b)(l); Michelin Tire Corp., 17 T&N Dec. at 249. 
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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. 21 
Additionally, the Petitioner provided two letters from the end-client, neither of which contained sufficient 
elements to adequately support the petition. As a central holding, the Defensor court determined that 
USCIS 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. 22 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 garnering greater credence to the position 
requirements for an outsourcing agency, rather than to the clients where a beneficiary would perform the 
work.23 
The first end-client letter did not contain any duties or education requirements to perform those functions. 
Although the second letter offered three abbreviated responsibilities, it lacked sufficient detail to discern 
that those duties would qualify under the H-lB program. Even if those abbreviated duties reflected 
sufficient complexity (which they do not), we would still conclude that the Petitioner has not offered 
sufficient evidence of the end-client's education requirements to qualify for the proffered position. As 
recognized in Defensor, 201 F.3d at 388, it is appropriate to require a petitioner to demonstrate that an 
end-client, or the entity where a beneficiary will actually perform the work, requires at least a bachelor's 
degree in the specialty, or an equivalent. However, the end-client letter did not specify any education 
requirements for prospective candidates. Additionally, the remaining material does not reflect what the 
end-client requires as a prerequisite for the proffered position. This lack of information alone is sufficient 
to preclude the petition's approval. 
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 
21 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 Beneficiaiy. 
22 Defensor, 201 F.3d at 388. 
23 Id. 
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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. 
III. CONCLUSION 
The Petitioner did not initially prove that it had sufficient work as indicated on the petition, and when 
challenged it made material changes to its claims not only in the RFE response, but also within the 
appeal. Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation. 
ORDER: The appeal is dismissed. 
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