dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5528770 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 7, 2020 
The Petitioner, an information technology consulting services firm, seeks to employ the Beneficiary 
temporarily as a "software engineer" 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 Vermont Service Center denied the Fo1m 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 record 
sufficiently demonstrates eligibility. 
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 10l(a)(l5)(H)(i)(b) . 
(]) 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. 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 
II. ANALYSIS 
The Petitioner is located in Virginia and stated it has a contractual relationship with I I I I (vendor). Based on this relationship, the vendor would place the petitioning 
organization's personnel to perform work at an offsite location in California forl ] 
(end-client). The Petitioner requested the Beneficiary's dates of intended employment from October 
1, 2018, through July 31, 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)(])-( 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. 4 We illustrate this shortcoming through the fact pattern in 
the present case. The evidence of the prospective work consists of assertions within the Petitioner's 
correspondence, two letters from both the vendor and the end-client, a portion of a Sub-contractor's 
Agreement (approximately 36 percent of the document) (master agreement) and two Work Orders 
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 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. 
2 
between the Petitioner and the vendor, and a Statement of Work (SOW) between the vendor and the 
end-client. 
None of the contractual material within the record between any of the parties was executed on the date 
the Petitioner filed this petition. The Petitioner submitted two of twenty-eight pages of the master 
agreement when it filed the petition. That document only contained the cover page and the first page 
of the document. The document did not include any signatories demonstrating both parties had 
executed and agreed to the missing terms within this document. Consequently, it carries little to no 
evidentiary value within these proceedings. 5 
Turning to the contractual material the Petitioner provided when it responded to the Director's request 
for evidence, it offered additional pages of the master agreement, but still only the previously 
mentioned 36 percent. This contract was executed by both parties, however they did not complete that 
action until after the petition filing date. As a result, the Petitioner has offered evidence that was not 
in existence on the date it filed the petition, and it appears that it initially offered that pre-existing 
material with the petition alleging that it was an existing contract. 
A petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 6 U.S. Citizenship 
and Immigration Services (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. 7 This material that does not establish the 
agreement when the Petitioner filed the petition is wholly insufficient to support its eligibility claims, and 
it will carry significantly diminished evidentiary value. Considering the Work Orders between these 
same parties, the Petitioner and the vendor also executed these agreements after the Petitioner filed 
the petition; in July 2018 and September 2018. As a result, this material is also insufficient to support 
the Petitioner's eligibility claims. 
Now we tum to the contractual material executed between the vendor and the end-client. Absent from 
the record is an umbrella or master-type agreement between these parties. The sole form of evidence 
is the SOW mentioned above. First, this contractual material suffers the same evidentiary flaw as the 
documentation previously discussed in that it was created after the petition filing date. But more 
importantly, page 15 of the SOW contains the portion for the parties to sign and date the document, 
which lacks a signature by hand or in electronic form. Consequently, we do not consider this to be an 
executed contract, and it also carries little to no evidentiary value in these proceedings. 8 
Even if the Petitioner submitted a master-type contract to accompany the SOW, and even if the SOW 
was signed and executed before the petition filing date, we would likely still determine that it does not 
sufficiently support the Petitioner's eligibility claims. In particular, the SOW only would have covered 
27 days of the period the Petitioner requested on the petition as the SOW listed the work period from 
July 29, 2018, through October 27, 2018. Moreover, the SOW stated that "No work on this project is 
5 In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. See 
Matter of Chawathe, 25 T&N Dec. 369, 376 (AAO 2010) (quoting Matter of E-M-, 20 T&N Dec. 77, 79-80 (Comm'r 
1989)). 
6 8 C.F.R. § 103.2(6)(1), (12). 
7 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). 
8 The value we ascribe to evidence will be determined by its quality. See Chawathe, 25 l&N Dec. at 376. 
3 
authorized or shall commence until a valid purchase order is duly issued by [the end-client]," and the 
Petitioner failed to submit any such purchase order. As a result, the Petitioner has not met its burden 
of proof as it relates to demonstrating it would have sufficient qualifying work available for the 
Beneficiary as requested on the petition. 
Next, we turn to the correspondence from the involved parties. The Petitioner submitted two letters from 
the end-client claiming that it anticipated the need for the Beneficiary's services until "the end of October 
2021 and the project can be extended indefinitely as the requirement is of an ongoing nature." Both letters 
from the vendor reflected the engagement between itself and the end-client for "12 months, which is 
expected to be extended after this initial period for a term of 36 months." We observe that all this 
correspondence fortuitously covered almost the exact amount of time the Petitioner requested for the 
Beneficiary's services on the petition. 
Nevertheless, the Petitioner failed to submit probative evidence to verify these contentions. The Petitioner 
did not offer sufficient evidence by which we could verify the contents of the client's letters, nor did it 
offer material to corroborate the content. The end-client's and vendor's claims within its correspondence 
essentially equate to assertions rather than evidence to support such claims, and when made without 
supporting documentation are of limited probative value and do not carry the weight to satisfy the 
Petitioner's burden of proof. 9 Moreover, none of the involved parties described an adequate basis for a 
three-year estimate. Such open-ended arrangements as described in the end-client letter-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. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 10 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 11 In other words, if a petitioner's request to employ a foreign national for an 
extended timeframe is based upon the willingness of another party to provide that position, then the 
H-1 B petition should not be based on general, notional possibilities of work. That petitioner should 
present evidence that the position would actually exist as requested on the petition. Based on this 
shortcoming, we conclude the end-client letter is insufficient to corroborate the Petitioner's assertions. 
Consequently, the record does not establish a binding obligation on the part of the end-client to provide 
sufficient work for the Beneficiary. 12 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. 13 Understanding that contracts underlie the reliability of business agreements 
establishes the importance that a petitioner present the full chain of contracts that includes the end-client. 
9 Matter of Sofjici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
10 8 C.F.R. § 103.2(b)(l). 
11 See Michelin Tire Co1p., 17 l&N Dec. at 249. 
12 The agency has clearly indicated that it has not historically permitted speculative employment in the H-lB 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). 
13 See Fletcher v. Peck, IO 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 parities "would be 
very seriously obstructed"). 
4 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 14 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 claims the chain of 
contracts flows from itself to the vendor, then from the vendor 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). 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. 
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. 
14 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden ofprooffi-om Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
15 Dir .. Office of Workers' Comp. Programs. Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
16 Sofjici, 22 l&N Dec. at 165. 
17 We must review the actual duties the Beneficiary will be expected to perform to asce1iain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
5 
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 of 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. 18 
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. 19 
Additionally, 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." 20 This evidence is insufficient to establish that, 
at the time of filing, the Petitioner had secured the Beneficiary's assignment on any particular project, 
which is insufficient to demonstrate eligibility. 21 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.22 
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 would perform. 
18 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 rrom 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). 
19 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 [a petitioner's] projections are any more reliable than hopeful speculation." Id. 
20 Section 214(i)(l)(B) of the Act. 
21 See 8 C.F.R. § 103.2(b)(l); Michelin Tire Co1p., 17 l&N Dec. at 249. 
22 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 
This precludes a conclusion that the proffered pos1t10n 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. 23 
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. 
23 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. 
7