dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 4562180 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2020 
The Petitioner, an information technology consulting firm, seeks to employ the Beneficiary 
temporarily as a "software engineer" 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 Vermont Service Center Director denied the Form 1-129, 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 was 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. 
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 ofCha wathe, 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) . 
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 non-speculative work available for a beneficiary. 4 
II. ANALYSIS 
The Petitioner, which is located in New Jersey, states that the Beneficiary will perform his duties in 
California for end-client) pursuant to contracts executed between the 
Petitioner and vendor one between vendor one and I I 
(vendor two), then between vendor two an~------~(vendor three), and finally between 
vendor three and the end-client. The contractual path of succession therefore appears to flow from the 
Petitioner and through the vendors, which will ultimately provide personnel to the end-client. 
The Director concluded that due to a lack of sufficient and probative evidence ( e.g., contractual 
material) the Petitioner did not establish that it would enjoy an employer-employee relationship with 
the Beneficiary, or that it had qualifying work available for the Beneficiary for the period it requested 
on the petition. The Director raised an issue with the Professional Services Agreement executed 
between the Petitioner and vendor one. Of particular concern was the removal of a business name as 
an involved party from the contract, yet much of the remainder of the contract remained unchanged, 
to include the signatures and the execution date. The Director noted that the Petitioner made these 
changes without an explanation. 
On appeal the Petitioner addresses the changed text, but it does not offer a sufficient explanation for 
the changed contractual content. The Petitioner only states that this was a typographical error without 
explaining why they should be allowed to physically alter the text of a contract that is more than three 
years old without either highlighting and annotating the changes within the document, executing a 
new agreement, or obtaining any material from vendor one acknowledging the amendments and 
verifying their agreement to those changes. The Petitioner has not established that we should consider 
these two separate documents (i.e., either version of the Professional Services Agreement) as probative 
evidence if it can change the contents at-will without any indication that it made those changes. 
Consequently, this evidence carries significantly diminished evidentiary value and creates a break in 
the contractual chain between the involved parties. 
4 See Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a)(l) of the Act; 8 U.S.C. § 1184 (a)(l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
2 
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. 5 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 to the end-client. However, it hasn't offered sufficient 
material executed between itself and vendor one as noted above, nor has it offered any Purchase Order 
or similar subordinate contractual material between vendors two and three. 6 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). 7 Whether a 
petitioner is able to show that a particular fact or event is more likely than not to occur is the 
determinant of whether they have met the preponderance of the evidence standard of proof. While a 
petitioner may file an amended petition if a beneficiary's proposed work terminated with a client, the 
fact remains that it should rely on prospective work that is more likely than not to exist. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying the standard of proof. This applies to whether the prediction 
is based on an existing project that a petitioner expects to continue into the future, or on an unspecified 
project. Materially relevant statements made without supporting documentation are of limited 
probative value and are insufficient to satisfy a petitioner's burden of proof. 8 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. 9 Within the petition, the Petitioner committed to 
5 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof fi-om Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
6 Although the Petitioner provided a small p01tion of the Professional Services Agreement between vendors two and three, 
that document is missing 41 of 43 pages. The Director raised this issue, but the Petitioner failed to remedy it on appeal. 
The Petitioner's submission of only five percent of this contract diminishes its evidentiary value, as it deprives us from 
reviewing the remaining p01tions that may reveal information either advantageous or detrimental to the petitioning 
organization's claims. Moreover, without the subordinate Purchase Order, the Professional Services Agreement is but one 
part of the overall agreement between these two parties and is not a complete representation of the business arrangement. 
The Professional Services Agreement does not stand alone. 
7 Dir., Office of Workers· Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
8 MatterofSofjici, 22 T&NDec. 158,165 (Comm'r 1998). 
9 We must review the actual duties the Beneficiary will be expected to perfonn to asce1tain whether those duties require at 
least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. 
3 
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 fully 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. 10 
The Director also noted that the parties executed the Statement of Work between vendor three and the 
end-client after the petition filing date. The Director determined that such arrangements that occur 
after the Petitioner files a petition should not be considered because the petitioning organization must 
demonstrate eligibility on the date of filing. The Director cited to Matter of Michelin Tire Corp., 
17 I&N Dec. 248, 249 (Reg'l Comm'r 1978) as a basis for this conclusion. On appeal, the Petitioner 
attempts to distinguish this case from the findings within Matter of Michelin Tire Corp., as that 
decision related to a different nonimmigrant classification. We disagree with that assessment, but 
even if we didn't the regulation at 8 C.F.R. § 103.2(b)(l), (12) requires that eligibility be established 
at the time of filing for the benefit request. Consequently, other authorities beyond Matter of Michelin 
Tire Corp. required the Petitioner to demonstrate eligibility on the date it filed the petition. 
Nevertheless, were we to find the Petitioner's explanation as acceptable, and even ifwe were to ignore 
that that the contractual material in the record is not only deficient but also missing, even under all 
these forgiving and favorable views the Petitioner only demonstrated work available at the client 
worksite for less than three months. That determination is based on the contractual material in which 
the end-client was directly involved. Even the rest of the contractual material in the record would only 
show work available for one-third of the requested timeframe. The Petitioner has not demonstrated 
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. 
1° 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). 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 
why users should approve this petition for a three-year period when it has only demonstrated the 
end-client would provide work for a much shorter interval. 
The Petitioner also argues that it should be able to rely on "a pattern of renewal" to meet its burden of 
proof to show that the project will continue for the three years requested on the petition. First the 
Petitioner only provided one SOW executed between vendor three and the end-client for work 
occurring between July and September 2018; it did not offer previous SOWs to illustrate any such pattern. 
Moreover, the existence of past work demonstrates just that; work that has occurred in the past. 
Business arrangements regularly terminate or change for various reasons, sometimes without much 
prior notice. The Petitioner has not illustrated a pattern in the present case that leads us to determine 
it has shown that the same work will likely continue in the future for the amount of time it requested 
on the petition. 
If the Petitioner was relying on the correspondence from these two entities, those letters only provide that 
the services would be "long term durational" and "of ongoing nature." First, the content of these letters 
is insufficient to establish any pattern of renewal. Second and more importantly, the Petitioner did not 
offer sufficient evidence by which we could verify the contents of the vendor and end-client 
letters. Therefore, the statements within that correspondence essentially equate to assertions rather than 
evidence to support such claims. 11 When such statements are made without supporting documentation, 
they are oflimited probative value and do not carry the weight to satisfy the Petitioner's burden of proof. 12 
Furthermore, the open-ended arrangements as described in the vendor and end-client letters­
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. The Petitioner has not presented a basis supported by sufficient analysis and probative 
evidence that demonstrates its near three-year prediction is reasonable, by a preponderance of the 
evidence. In general, such predictions should be sufficient for users 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 
Second, even if we heavily relied on this inadequate material, this demonstrated work that was 
completed in short three-month timeframes and the Petitioner does not explain how such short spans 
sufficiently reflect work for three years as requested on the petition. Additionally, these short 
three-month stints related to work arrangements between vendor three and the end-client. The 
Petitioner has not offered its reasoning why we should construe that it would be a party involved in 
that vendor/end-client arrangement for the requested three years. The simple fact that the Petitioner is 
involved at the front end of the arrangement-four entities removed from the end-client-is 
insufficient to establish that its inclusion would continue in accordance with its request on the petition. 
11 A statement is defined within the legal context as a verbal assertion or nonverbal conduct intended as an asse1iion. 
STATEMENT, Black's Law Dictionary (11th ed. 2019). 
12 Sofjici, 22 T&N Dec. at 165. 
13 Cf Matter of Ho, 22 l&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain 
sufficient detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service 
to determine whether [a petitioner's] projections are any more reliable than hopeful speculation." Id. 
5 
The Petitioner should offer more than assertions that establishes its claims are more likely than not to 
occur. 
On appeal, the Petitioner also mentions that the Director may have been implementing a July 2018 
policy memorandum to its case that was filed before that date. We do not view the Director's actions 
to be associated with that memorandum. Instead, the Petitioner initially made several claims that were 
not sufficiently transparent ( e.g., the business arrangement between all five entities) and the Director 
was focused on ascertaining the truth of that matter, as well as other aspects. 
Finally, the Petitioner discusses the preponderance of the evidence and states that it has satisfied that 
standard. The Petitioner notes that even if USCIS has some doubt as to the truth, if it submits relevant, 
probative, and credible evidence that leads the officer to believe that the claim is probably true or more 
likely than not, then it has satisfied the preponderance standard. 14 However, in the present case, the 
Petitioner has not offered sufficiently probative and credible evidence that leads us to believe their 
claims are more likely than not true. Consequently, it has not satisfied that standard 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." 15 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. 16 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. 17 
III. CONCLUSION 
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 
14 Chawathe, 25 T&N Dec. at 376. 
15 Section 214(i)(l)(B) ofthe Act. 
16 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249. 
17 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. 
6 
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. 
ORDER: The appeal is dismissed. 
7