dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-S-INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology consulting services firm, seeks to employ the Beneficiary 
temporarily as a "software quality assurance tester" under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 1-129, 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. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition , but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter of C-S- Inc 
(]) 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. 1 
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. 2 
B. Analysis 
The Petitioner is located in New Jersey and stated it has a contractual relationship withl I I I (vendor). Based on this relationship, the vendor would place the pet1t10ning 
organization's personnel to perform work at an offsite location in New York for the I I I I (end-client). 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the work the Beneficiary would perform during the period of intended employment, which precludes 
the determination of whether the proffered position qualifies as a specialty occupation. 3 Specifically, 
the Petitioner has not established the substantive nature of the position, which precludes a 
determination that the proffered position qualifies as a specialty occupation under at least one of the 
four regulatory criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). The material on record is 
insufficient to establish the Petitioner secured the Beneficiary's assignment on any particular project. 
The evidence of the prospective work the Petitioner presented to the Director consisted of assertions 
within the Petitioner's correspondence, a letter from the vendor, contractual material executed between 
the Petitioner and the vendor, and various other material discussed below. On appeal, the Petitioner 
also provides a statement from one of the Beneficiary's coworkers. 
First, we observe that the contractual material in the record is insufficient to satisfy the Petitioner's 
burden of proof. For example, the Vendor Agreement executed between the Petitioner and the vendor 
1 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 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). 
3 The Petitioner submitted documentation to support the H- IB 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. 
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Matter of C-S- Inc 
falls short of illustrating the possibility that any work would exist during the requested period. For 
instance, this contract and the associated material only reflected an agreement to provide work for 
three months out of the intended three-year work period the Petitioner requested on the petition. While 
the Work Order indicated that extensions to this agreement were possible, the Petitioner did not offer 
evidence of additional Work Orders demonstrating the existence of any such extensions. Considering 
the current fact pattern, and the deficient evidence within the record, such an indefinite and open-ended 
agreement does not demonstrate that the project will be ongoing without probative, corroborating 
material to establish the project's actual, or likely duration. The Petitioner has not presented a basis 
supported by sufficient analysis and probative evidence that demonstrates the prediction is reasonable, 
by a preponderance of the evidence. In general, such predictions should be sufficient for USCIS to 
reasonably deduce whether the prospective work will continue, as requested. Basic or conclusory 
assertions do not provide us with a legitimate basis to determine whether a project will continue to 
require a beneficiary's services, or whether such statements are simply speculation. 4 
Hypothetically, if we were to accept the Petitioner's position that perpetual arrangements are sufficient 
evidence, several years or decades could pass and the petitioning organization could continue to rely 
on the old contractual documents without having to demonstrate that such material remains valid. The 
context of the current scenario is not simply a business arrangement to provide services. Instead, the 
Petitioner has entered into such a relationship while simultaneously intending to assign H-lB 
personnel to perform the work. We note that U.S. employers take on additional burdens when 
employing foreign nationals in the United States. As a result, it does not appear that the Petitioner 
possessed assurances through the above-mentioned contractual material that the proffered position 
would be available for the Beneficiary as indicated on the petition. Therefore, we conclude that the 
Petitioner's arguments that it has secured definitive, non-speculative employment for the Beneficiary 
are not sufficiently persuasive to meet its burden of proof 
Furthermore, the record does not contain copies of any contracts executed between any party and the 
end-client. Nor are there any copies of the types of documents commonly executed pursuant to such 
contracts-associated with the end-client-such as work orders, statements of work, invoices, 
receipts, or similar evidence. The end-client, for whom the Beneficiary will actually perform the work, 
is not a party to the Vendor Agreement, as the agreement only included the Petitioner and the vendor. 
In other words, the record does not demonstrate a binding obligation on the part of the end-client to 
provide any work for the Beneficiary. 5 This is particularly important in a case such as this where the 
impetus and existence of the proffered position appears entirely dependent upon outside clients to provide 
it. Without greater detail relating to the projects and the Beneficiary's role within them, the Petitioner 
has not demonstrated how his role in future assignments requires "attainment of a bachelor's or higher 
degree in the specific specialty." 6 Furthermore, permitting petitioners to essentially name their desired 
employment timeframe, as long as it is three years or less, is a right that no court has ever recognized. 
4 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 USCTS to draw reasonable inferences.) "Mere conclusory asse1iions do not enable the Service to determine 
whether the job-creation projections are any more reliable than hopeful speculation." Id. 
5 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). 
6 Section 214(i)(l)(B) of the Act. 
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Matter of C-S- Inc 
If permitted, this would dramatically broaden an employer's ability to secure foreign labor for 
extended periods for which it has no actual work. 
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, by a preponderance of the evidence. 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 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. 7 
Even setting these shortcomings aside, as the court in Defensor recognized, 201 F.3d at 387-88, where 
the work is to be performed for entities other than a petitioner, evidence of the client companies' job 
requirements is critical. The 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. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. Similar to the Defensor case, the duties and education 
details the Petitioner has provided throughout these proceedings are less probative to our analysis than 
the end-client's requirements. 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-regarding the specific duties he would perform, or the education 
required to perform those duties. Consequently, the end-client job duties are not sufficiently established 
for us to properly determine whether the proffered position would qualify as a specialty occupation. 
Finally, the remaining material within the record is also inadequate to demonstrate qualifying work 
would be available for the Beneficiary at the end-client worksite for the period requested. First, the 
Itinerary of Services and Engagements document only reflected a project duration of "Long Term." 
The Petitioner did not offer probative material that illustrated what was meant by long term. 
Additionally, within the letter from the vendor, it indicated that their company "anticipates a 
long-term, ongoing need for the services of [the Beneficiary]." These unsupported and nebulous 
concepts do not provide an adequate basis for the Petitioner's three-year estimate. Such claims are 
equivalent to assertions rather than evidence to support assertions, and when made without supporting 
documentation are of limited probative value and do not carry the wei ht to satisf the Petitioner's 
burden of proof 8 On appeal, the Petitioner provides a letter from~--~----~----
who claims to be the Petitioner's coworker at the end-client worksite . .__ ____ _. states the 
7 Cf Galcccy Software Sols., Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) (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 lack of such a relationship creates significant 
doubt of whether a petitioner can demonstrate it would provide sufficient specialty occupation work for a beneficiary as 
requested. 
8 Matter of Sofjici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
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Matter of C-S- Inc 
Beneficiary's position is a "senior quality systems analyst." This conflicts with the Petitioner's claim 
that the Beneficiary's job title is a "software quality assurance tester." I I also states that 
the Beneficiary works on several Lrojects, his employer is the Petitioner, and his assignment will be 
for at least the next three years. I claims to occupy the position of a Senior Business 
Analyst. I ldoes not explain how he possesses the authority to express upon what projects 
the Beneficiary works, who his actual employer is, or the length of time the end-client will require the 
Beneficiary's services. I I has not established that he occupies an authoritative position that 
would allow him to provide such statements on the end-client's behalf. As a result, his statements 
lack probative value in these proceedings. The Petitioner has not established the veracity of this 
coworker's statements with unsupported testimonial evidence alone. 9 In fact, the Petitioner has not 
demonstrated that the end-client even employs I I 
This evidence of record 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. 1° For the reasons discussed above, the Petitioner has not shown that the petition was filed for 
non-speculative employment. If it is not preponderant that the position exists, then we cannot determine 
the substantive nature of its associated duties. 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that identifies the essence and duration of the project, the substantive nature of the duties he will carry 
out, 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 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. 11 
II. 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 
9 Id. 
10 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). 
11 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. 
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Matter of C-S- Inc 
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. 
Cite as Matter ofC-S-Inc, ID# 3135823 (AAO Oct. 31, 2019) 
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