dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4814553 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 4, 2020 
The Petitioner , an information technology services company, seeks to employ the Beneficiary 
temporarily as a "security analyst" under the H-lB nonimmigrant 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 Vermont Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as 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. 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: 
(J) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 2 
We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. 3 
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. 4 
II. ANALYSIS 
The Petitioner is located in New Jersey and stated it has a contractual relationship withn 
I kvendor one), who has an alleged contractual relationship withl~-------~-~ 
(vendor two). Based on these relationships, the vendors would place the petitioning organization's 
personnel to perform work at an off site location in Indiana fo~ I( end-client). 
The Petitioner requested the Beneficiary's dates of intended employment from October 2018 through 
September 2021. 
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). 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
4 See Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(!); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
2 
A. Employment is Speculative 
We begin noting that because the Petitioner has not established definitive, non-speculative 
employment for the Beneficiary, the record does not establish that the position described in this 
petition actually exists. 5 To illustrate, the record of proceedings does not contain copies of any 
contracts executed between vendor one and vendor two, or between vendor two and the end-client. 
Nor are there any copies of the types of documents commonly executed pursuant to such contracts, 
such as work orders, statements of work, invoices, receipts, or similar evidence. In other words, the 
record does not establish a binding obligation on the part of the end-client to provide any work for the 
Beneficiary. 6 The record lacks this material despite the fact that the Director requested documentary 
evidence from the ultimate end-client indicating the specific start and end date for the services 
required. Additionally, the Director requested copies of valid contracts, statements of work, work 
orders, service agreements, and letters between the Petitioner and the end-client. In response, the 
Petitioner only submitted a second letter from vendor one, the Beneficiaries identification badge and 
timesheets, and the petitioning organization's own tax returns, most of which was already in the record 
when the Director issued the request. 
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. 7 
Understanding that contracts underlie the reliability of business agreements establishes the importance 
that a petitioner present sufficient claims and evidence to demonstrate the existence of the full chain of 
contracts that includes the end-client. A petitioner's burden of proof comprises both the initial burden 
of production, as well as the ultimate burden of persuasion. 8 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 vendors, then from the vendors to 
the end-client. However, it hasn't offered sufficient material relating to the end-client, and as a result, 
it has not produced sufficient evidence to corroborate its testimonial claims. 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince USCIS that the requisite eligibility parameters have 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 9 Whether a 
petitioner is able to show that a particular fact or event is more likely than not to occur is the 
5 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
6 The agency has clearly indicated that it has not historically permitted speculative employment in the H-1 B program. See, e.g., 
63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
7 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"). 
8 Matter ofY-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). 
9 Dir., Office of Workers· Comp. Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994). 
3 
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. 10 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. 11 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 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 have specialty occupation work available for a 
beneficiary while they would work offsite at an end-client location. 12 
10 Matter of Soffici, 22 T&N Dec. 158, 165 (Comm'r 1998). 
11 We must review the actual duties the Beneficiary will be expected to perfonn 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. 
12 KPK Techs., Inc. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, at *6 (E.D. Mich. Sept. 16, 2019) (finding that where 
the contracts-including those executed by an end-client-do not cover the dates requested on a petition, and where the 
letter from the end-client also does not contain the dates for the Beneficiary's services, the Petitioner has not demonstrated 
that the foreign national would be employed in a specialty occupation for the entirety of the time period it requests on a 
petition). See also Galaxy Software 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. 
4 
Even the contractual material executed between the Petitioner and vendor one is inadequate to support 
the Petitioner's request, as the Assignment Purchase Order reflected a start date ofJanuary 3, 2018, for a 
six-month duration (approximately three months before the beginning work date requested on the 
petition). This does not support the Petitioner's claim that it has shown the end-client would require the 
Beneficiary's services for the full 35-month timeframe. 
The letters from the vendors do not add sufficient value as the correspondence from vendor one only 
reflected that the assignment was expected to continue "for long term," and vendor two indicated the 
engagement was ongoing and expected to exceed two years. Regarding the statements from vendor one, 
such open-ended arrangements-considering the current fact pattern and the supporting evidence-is 
inadequate to demonstrate that the project will be ongoing, without probative corroborating material 
to establish the project's actual duration. And the Petitioner did not submit evidence indicating vendor 
two's estimate was more likely than not to occur. 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. 13 
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 her role in future assignments requires "attainment of a bachelor's or higher degree 
in the specific specialty." 14 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. 15 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. 16 
B. Actual Work and Position Requirements 
Turning to the position's duties, even if we set aside the above deficiencies, we would still determine 
the evidence ofrecord was insufficient to establish that the proffered position is a specialty occupation. 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
13 Cf Matter of Ho, 22 T&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain 
sufficient detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service 
to determine whether [a petitioner's] projections are any more reliable than hopeful speculation." Id. 
14 Section 214(i)(l)(B) of the Act. 
15 See 8 C.F.R. § 103.2(b)(l); Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978) (finding that 
nonimmigrant eligibility criteria must be met at the time a petitioner files the petition). 
16 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. Moreover, vendor two's letter appeared 
to reflect that the Petitioner would relinquish a significant amount of control over the Beneficiary when it indicated that 
she would work under the oversight of one of vendor two's managers. 
5 
entities other than a petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. 17 Such evidence must be sufficiently detailed to demonstrate the educational 
level and type of highly specialized knowledge in a specific discipline that is necessary to perform that 
particular work. 
The Petitioner and the vendors provided varying sets of duties and position requirements throughout 
these proceedings. However, similar to the Defensor case, the duties, education details, and experience 
requirements the Petitioner and the vendors provided are much less probative to our analysis than the 
end-client's requirements. We note that the end-client's website contains job postings for similar 
information technology security positions, meaning this organization should have its own job 
requirements for this or similar positions. 
The Petitioner has presented insufficient evidence to demonstrate the actual functions the Beneficiary 
would perform while assigned to the end-client's location. The record lacks any correspondence from 
the end-client that might provide the type of information required as outlined in the Defensor decision. 
As previously stated, when U.S. employers elect to employ foreign nationals, they take on additional 
burdens. For instance, they must demonstrate to users the actual duties a beneficiary would perform 
while deployed to an end-client worksite, by a preponderance of the evidence. The most expedient 
method is to provide material directly from the entity where the work will take place, which is the 
entity that possesses the greatest knowledge and understanding of how a foreign national's 
contributions will factor into its business model and its projects. 18 
An absence of such material can create inexorable fissures in the evidence, while also undermining a 
petitioner's eligibility claims. The scenario in the present case is one in which the Petitioner presented 
no duties or position requirements from ( or endorsed by) the end-client. This does not sufficiently 
inform users of the substantive nature of the duties to be performed, and any particular academic 
requirements for the proffered position. 
What is not clear, is how the Petitioner-acting as a staffing agency that is situated two entities away 
from the end-client, located more than 700 miles away, and with no apparent direct involvement with 
the ongoing work-would have sufficient insight into the breadth and progress of the project between 
vendor two and the end-client, that the petitioning organization could ascertain the detailed activities 
necessary to adequately complete the project. Although the Petitioner provided a letter from each 
vendor, these are not the entities where the Beneficiary would perform the work. 
Additionally, the Petitioner did not provide contractual documentation executed between vendors one 
and two, or between vendor two and the end-client that might serve to corroborate the vendors' 
statements in their letters that amounts to assertions rather than evidence to support such claims. 19 
17 See Defensor, 201 F.3d at 387-88. 
18 Id. 
19 A statement is defined within the legal context as a verbal assertion or nonverbal conduct intended as an assertion. 
STATEMENT, Black's Law Dictionary (11th ed. 2019). 
6 
When such statements are made without supporting documentation, they are of limited probative value 
and do not carry the weight to satisfy the Petitioner's burden of proof 20 Moreover, none of the involved 
parties described an adequate basis for a three-year estimate. 
In this matter, the record does not contain sufficient probative documentation on this issue from ( or 
endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, that 
identifies the essence and duration of the project, the substantive nature of the duties she will perform, 
and any particular academic or work experience requirements for the proffered position. Since the 
Petitioner did not provide the end-client's requirements, we must question the accuracy of its 
statements and how it determined the precise day-to-day functions the Beneficiary would perform. 
These Petitioner-provided details appear to be notional or anticipated at best. A petitioner's preference 
for high-caliber employees is not sufficient to establish a position as a specialty occupation. 
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. 21 
III. 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. 
20 Sofjici, 22 l&N Dec. at 165. 
21 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 claims on appeal. 
7