dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7281558 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 29, 2020 
The Petitioner, an information technology solutions and outsourcing firm, seeks to employ the 
Beneficiary temporarily as a "QA lead" 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 California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, on multiple bases. Ultimately, the Director determined that the Petitioner did not establish 
the substantive nature of the offered position. The Director further issued adverse determinations 
related to: (1) the employer-employee relationship between the Petitioner and the Beneficiary; (2) the 
petitioning organization's eligibility under the four criteria within the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l)-(4); and (3) the Beneficiary's qualifications for the position. On appeal, the 
Petitioner asserts that the Director erred in denying the petition and offers new evidence . Upon de 
nova review, we will dismiss the appeal. 2 
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. 
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 Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 
375-76 (AAO 2010). While we may not discuss every document submitted, we have reviewed and considered each one. 
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: 
(]) 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. 3 
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. 4 
II. ANALYSIS 
A. Contractual Material 
The Petitioner is located in Michigan and stated it had a contractual relationship with._! _____ __, 
(vendor). Based on this relationship, the vendor would ~lace the oetitiaoing arnaoi,ation's personnel 
to perform work at an offsite location in California for[ !(end-client). The 
Petitioner requested the Beneficiary's dates of intended employment from October 1, 2018, through 
September 15, 2021. 
1. Evidence on Record before the Director 
Under the Director's denial section titled, Services in a Specialty Occupation, she explained the need 
for the Petitioner to document the full chain of contracts between all of the parties, broadly discussed 
the duties listed in a letter from the end-client, and concluded that the record did not establish that the 
Beneficiary would perform services in a specialty occupation for the requested period of intended 
employment. 
Within the initial filing statement, it appears the Petitioner acknowledged that it may not be able to 
prove that it had sufficient work available for the Beneficiary through the end-client when it stated 
"once the services [the] Petitioner is providing through [the] Beneficiary are completed[, the] 
3 8 C.F.R. § 214.2(h)(4)(iii)(A). 
4 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). 
2 
Petitioner reserves the right to assign additional work to [the] Beneficiary as necessary." We note that 
the initial filing was skeletal as it relates to the position and the work the Beneficiary would perform. 
For instance, the Petitioner's complete description of the duties consisted of: "Interact with 
management to determine system requirements, analyze, design, develop, test and implement software 
systems/applications." 
Additionally, relating to the position prerequisites, the Petitioner merely stated: "Position is a specialty 
occupation, and requires at least a Bachelor's degree, or its equivalent, in a field of study directly 
related to the position." These statements lack any degree of detail to inform U.S. Citizenship and 
Immigration Services (USCIS) of what functions the Beneficiary would actually perform and the 
necessary qualifications in order to perform those duties. 5 Notably, the Petitioner made no mention 
of the end-client, nor of the project upon which the Beneficiary would work. 
In response to the Director's RFE, the Petitioner offered correspondence from itself: the vendor, and 
the end-client that contained virtually identical information relating to the position duties and the 
prerequisites to qualify for the position. The vendor and end-client letters also contained almost 
identical information relating to the duration of the services the Beneficiary would provide, and how 
the Petitioner would remain the Beneficiary's employer. 
From the duplicative information within the record, we are unable to determine from which party the 
information originated, as the Petitioner did not offer any additional material from the end-client such 
as job announcements for this or similar positions. The Petitioner's RFE response also included a 
Supplemental Staffing Services Agreement (master agreement) executed between the Petitioner and 
the vendor dated and executed on July 24, 2018. Even though the Director's RFE informed the need 
for the Petitioner to provide the foll chain of contracts between all the parties, to include the end-client, 
the petitioning organization elected to omit any contractual material including the end-client. 
We conclude 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 
5 The Petitioner's limited information within the initial filing did not comply with the Form 1-129 instructions, which carry 
the force of the regulation. Every petition must be executed in accordance with the instructions on the form, which are 
incorporated into the regulation requiring its submission. 8 C.F.R. § 103.2(a)(l). Further discussion of the filing 
requirements for applications and petitions is found at 8 C.F.R. § I 03.2(6)(1 ): " .... Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and other USCTS instructions. Any 
evidence submitted in connection with a benefit request is incorporated into and considered part of the request." Part of 
the required initial evidence is "Evidence showing that the proposed employment qualifies as a specialty occupation." 
Neither the abridged duties nor the imprecise degree requirement were sufficiently detailed to show that the employment 
qualified as a specialty occupation. As a result, the Director would have been justified in denying the petition without 
issuing a request for evidence (RFE). 8 C.F.R. § 103.2(b )(8)(ii). Within the initial filing, the Petitioner also failed to 
provide other initial evidence. Specifically, the form instructions required "Evidence showing that the beneficiary has the 
required degree by submitting ... [a] copy of a foreign degree and evidence that it is equivalent to the U.S. degree; 
or ... [ e ]vidence of education, specialized training, and/or progressively responsible experience that is equivalent to the 
required U.S. degree." However, the Petitioner only offered copies of the Beneficiary's foreign degree without evidence 
that it was equivalent to the required U.S. degree. Finally, the Petitioner did not comply with the initial evidence 
requirements within the form instructions when it failed to provide "[a] copy of any written contract between the petitioner 
and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed." 
3 
actually exist as requested. 6 We add to the discussion under the Director's specialty occupation section 
of the decision, and we come to the same conclusion, albeit for a different reason. After discussing a 
lack of sufficient contractual material, the Director decided the Petitioner did not demonstrate the 
substantive nature of the position, in part, because the duties from the end-client lacked enough details 
for USCIS to determine whether the Beneficiary would engage in a position that qualified as a 
specialty occupation. 7 Our primary focus will be on the lack of sufficient material that the Petitioner 
presented before the Director showing the work was non-speculative. 
While the Petitioner submitted a letter from the end-client claiming that the position was for "a long-term 
ongoing project" and was anticipated to continue for three years-with similar claims within the vendor 
letter-it failed to submit probative evidence to verify these contentions. The Petitioner did not offer a 
means 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 claims within its correspondence 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 8 Moreover, none of the involved 
parties described an adequate basis for a three-year estimate. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 9 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 10 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 or notional possibilities of work. That petitioner should 
present evidence that the position actually exists. The Petitioner in the present case has not done so 
here. Based on this shortcoming, we conclude the end-client letter is insufficient to corroborate the 
Petitioner's assertions. 
To that point, as the record of proceedings existed before the Director, it did not contain copies of any 
contracts executed between the vendor 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. 11 Business needs 
6 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. 
7 We acknowledge the Petitioner's argument on appeal pertaining to the Director's analysis of the end-client letter. On 
appeal, the Petitioner states that the Director discredited the end-client letter "because it 'does not describe the duties in 
detail."' We do not view this as the Director's characterization of the end-client letter. The Director did not state that the 
end-client provided general or vague duties. Instead she stated: "This letter generally describes the beneficiary's proposed 
duties. The letter does not describe the beneficiary's duties in detail so that USCIS can determine whether the beneficimy 
will engage in services in a specialty occupation at the end-client location." We do not consider this as the Director 
discrediting the letter; simply that it lacked the type of detailed analysis to demonstrate the nexus between the position's 
responsibilities and the education in a specific specialty one must attain in order to properly perform those functions. 
8 Matter of Sofjici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
9 8 C.F.R. § 103.2(b)(l). 
10 See Matter of Michelin Tire Corp., 17 T&N Dec. 248 (Reg'l Comm'r 1978). 
11 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). 
4 
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 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. 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 fully 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). 14 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. 15 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. 16 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 
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 parities "would be 
very seriously obstructed"). 
13 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). 
14 Dir .. Office of Workers' Comp. Programs. Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
15 Sofjici, 22 l&N Dec. at 165. 
16 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 
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 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. 17 
Even the master agreement executed between the Petitioner and the vendor is inadequate to support the 
Petitioner's request. First, the parties executed this contract in July 2018, which postdated the petition 
filing date by nearly four months. That means it does not aid the Petitioner in showing it demonstrated 
eligibility on the date it filed the petition. 18 
Second, the Petitioner did not offer several documents described in the master agreement. For instance, 
the agreement indicated that any "work assignment or purchase order in the form attached hereto as 
Attachment A (the 'Work Assignment') which shall specify ... [the] [d]escription and scope of Services 
to be performed for [the vendor] or Client ... [and the] [s]cheduled start and completion dates." This 
leaves a significant evidentiary gap regarding the vendor's obligation and the type of work it agreed to 
perform for the Petitioner. Additionally, the master agreement also referred to several other exhibits that 
are absent from the record. Without these exhibits, the contract would not be evidence of an obligation 
on the part of the vendor to provide the position the Petitioner has described for the Beneficiary. The 
absence of an "Attachment A" results in an incomplete representation of the contractual agreement 
between the Petitioner and the vendor. 
Third, other provisions of the master agreement adversely affect the Petitioner's claim that it would 
provide non-speculative work for the Beneficiary for the period designated on the petition. Section 1.B. 
provided that the vendor "may direct changes in the scope, nature, or duration of Services assigned to [ the 
Petitioner's personnel]" and that the petitioning organization's personnel would "perform such amended 
17 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, 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. USCIS, 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. 
18 Eligibility must be demonstrated as of the petition filing date. 8 C.F.R. § 103.2(b)(l), (12). 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. Michelin Tire 
Co1p., 17 I&N Dec. at 249. 
6 
Services in conformance to [the vendor's] direction .... " This illustrates that the nature of the 
Beneficiary's work could change at any time, meaning the duties he would perform could also change. 
Additionally, the master agreement at section 11.C. specified that the Petitioner agreed that the vendor 
could hire the petitioning organization's personnel as set forth in a Work Assignment, and that the 
Petitioner would be precluded from asserting or enforcing any non-compete or non-hire clauses the 
Petitioner might have in place with its own personnel. 
Finally, the master agreement indicated that the vendor could terminate any Work Assignment associated 
with the Petitioner's individual personnel at the vendor's sole discretion, at any time, and without any 
liability. 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 letter from the vendor does not add sufficient value as it indicated the project was "an on-going 
project, and will run until at least September 2021." 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. 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 
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 
2. Evidence Submitted on Appeal 
Accompanying the appeal, the Petitioner submits several new forms of evidence. The evidence 
relevant to the issues we discuss within this decision are several contractual documents executed 
between the vendor and the end-client. We note that the Director requested this type of material within 
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. 
7 
the RFE, but the Petitioner did not submit it at that time, nor does it explain why it is only submitting 
these documents at this stage of the process. 
Multiple precedent decisions address whether newly submitted evidence on appeal will be considered. 
First, in Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988), the Board of Immigration Appeals 
(BIA) determined that where a petitioner failed to timely and substantively respond to agency 
correspondence, the appellate body will not consider any evidence first offered on appeal as its review 
is limited to the record of proceeding before the director. 
Further, in Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the BIA held that if a petitioner was 
put on notice of an evidentiary requirement (by statute, regulation, form instructions, RFE, etc.) and 
was given a reasonable opportunity to provide the evidence, then any new evidence submitted on 
appeal pertaining to that requirement would not be considered, and the appeal would be adjudicated 
based on the evidentiary record before the director. 
Conversely, if the petitioner had not been put on notice of the deficiency or given a reasonable 
opportunity to address it before the denial, and on appeal the petitioner submits additional evidence 
addressing the deficiency, the record would generally be remanded to allow the director to initially 
consider and address the new evidence. 23 Such late-asserted claims and evidence are not 
contemporaneous and appear to be a direct response to an adverse aspect of the Director's decision. 
Without adequately presenting this issue before the Director, the Petitioner deprived the Director of 
the ability to sufficiently review the relevant factors. This is not a proper basis to raise these matters 
( or evidence) within the appeal. 
For these reasons, except in exigent circumstances and at USCIS discretion, we will not consider 
evidence submitted for the first time on appeal if: (1) the affected party was put on notice of an 
evidentiary requirement; (2) the affected party was given a reasonable opportunity to provide the 
evidence; and (3) the evidence was reasonably available to the affected party at the time it was 
supposed to have been submitted. 
The reason for filing an appeal is to provide an affected party with the means to remedy what it perceives 
as an erroneous conclusion of law or statement of fact within a decision in a previous proceeding. 24 An 
appeal is a request to a higher authority to review a decision and is an opportunity to illustrate how the 
Director's determinations were incorrect. The Petitioner should not make such a significant change to an 
element that serves as the underlying basis for eligibility at this stage of the process. A petitioner must 
establish eligibility at the time it files the nonimmigrant visa petition. 25 USCIS may not approve a visa 
23 Id. A remand to a previous trier of fact for new claims or evidence occurs within other appellate venues, as well. See 
Jander v. Ret. Plans Comm. of IBM. 910 F.3d 620 (2d Cir. 2018), cert. granted, 139 S. Ct. 2667 (2019), and vacated and 
remanded, --- S.Ct. ---- (U.S. Jan. 14. 2020); F. Hoffmann-La Roche Ltd. v. Empagran SA., 542 U.S. 155, 175 (2004). 
Further, matters that are raised for the first time on appeal will not normally be considered within the appellate proceedings; 
McKenzie v. USC1S. 761 F.3d 1149, 1154-55 (10th Cir. 2014) cert. denied, 135 S.Ct. 970 (2015); also see Emu/ex COip. 
v. Va1jabedian, 888 F.3d 399 (9th Cir. 2018), cert. granted, 139 S. Ct. 782 (2019), and cert. dismissed as improvidently 
granted, 139 S. Ct. 1407 (2019) (finding that a party should not be permitted to present material for the first time before 
an appellate body that it did not raise before the previous trier of fact.) 
24 See 8 C.F.R. § 103.3(a)(l)(v). 
25 8 C.F.R. § 103.2(b)(l), (12). 
8 
petition at a future date after a pet1t1oner or a beneficiary becomes eligible under a new set of 
facts. 26 Accordingly, a petitioner may not make material changes to a petition, to its claims, or to the 
evidence in an effort to make an apparently deficient petition conform to USCIS requirements. 27 
The Petitioner has not explained why we should consider this material at the appellate stage, when it 
failed to present it before the Director. The Petitioner has not persuaded us why we should essentially 
provide the first in-depth legal analysis of this as a separate eligibility question at the appellate stage. 
If the Petitioner wished to address this question, it should not start at the appellate stage, but before 
the initial reviewing authority. Therefore, to address this issue, the Petitioner must take this up by 
filing a new petition. 28 Consequently, we will only factor into our determination the claims and evidence 
the Petitioner presented before the Director. 
Even ifwe allowed this new evidence to factor into our determination, it would remain insufficient to 
demonstrate the Petitioner's eligibility. A review of the contractual material between the vendor and 
the end-client are qualitatively deficient and do not meet the Petitioner's burden of proof. The 
Petitioner now submits the original Master Services Agreement (MSA), which the parties executed in 
2006. Large segments of this contract are redacted. Such an obscuration diminishes this MSA's 
evidentiary value, as it deprives us from reviewing the remaining portions that may reveal information 
either advantageous or detrimental to the petitioning organization's claims. 
Additionally, the Petitioner provides the September 2014 Amendment #1 to the MSA, which laid out 
changes to each organization's name. The final MSA the Petitioner offers on appeal is the January 
2019 Amendment #3 to the MSA. The Petitioner did not present Amendment #2 to the MSA; 
however, Amendment #3 refers to another agreement effective as of May 11, 2015, which might be 
Amendment #2. Nevertheless, Amendment #3 should not factor into our determination for a separate 
reason; it postdates the petition filing date by nine months, and it does not demonstrate eligibility on 
the date the Petitioner filed the petition, which is required under the regulation. 29 
Additionally, the Petitioner furnishes seven Statements of Work (SOW) executed between the vendor 
and the end-client with the appeal. Each SOW suffers the same evidentiary shortcoming as 
Amendment #3 to the MSA in that it postdates the petition filing date and does not support the 
Petitioner's claims that it had qualifying work available for the Beneficiary for the full requested 
period on the date it filed the petition. We observe additional evidentiary anomalies that call the 
reliability of the SOWs into question. Not only were six of the SOWs executed after the listed start 
date, but of greater concern, two of them were executed well after the listed end date. The Petitioner 
has not explained why these ex post facto agreements should carry sufficient evidentiary weight to 
preponderantly support its eligibility claims, or meet its burden of proof. 
26 Michelin Tire Corp., 17 T&N Dec. at 249. 
27 See Matter of lzummi, 22 T&N Dec. 169, 175 (Assoc. Comm'r 1998). 
28 See Soriano, 19 T&N Dec. at 766; Obaigbena, 19 T&N Dec. at 537. Cf Matter of Jimenez, 21 T&N Dec. 567,570 n.2 
(BIA 1996) ( finding that claims of eligibility presented for the first time on appeal are not properly before the appellate 
body and generally, that body will not issue a determination on the matter). 
29 8 C.F.R. § 103.2(b)(l), (12). 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. Michelin Tire Co1p., 17 l&N Dec. at 249. 
9 
3. Closing 
In this matter, the record as it existed before the Director did 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 would 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. 
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. 30 
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 the 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 here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
30 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 decline to reach and hereby reserve the Petitioner's remaining 
appellate arguments. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds 
when another independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 l&N Dec. 516. 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). Nor is it necessary that 
we make a determination on whether the Petitioner demonstrated that the Beneficiary is qualified to occupy the proffered 
position, or on the issue of the employer-employee relationship. However, we observe the lack of evidence of the full 
chain of contracts (that existed in the record before the Director) also negatively implicates whether the Petitioner has 
demonstrated the employer-employee relationship would exist between itself and the Beneficiary. Additionally, regarding 
the master agreement between the Petitioner and the vendor, provisions within this document challenge the Petitioner's 
claims that it would be able to exercise its right to control the Beneficiary and his work while assigned to the end-client 
worksite. For instance, the provision we previously discussed in which the vendor could change the scope, nature, or 
duration of services the Petitioner's personnel would perform significantly diminishes the amount of control the Petitioner 
would exercise over the Beneficiary. A separate provision at section 2.B. titled "Control" specified that the services the 
Petitioner's personnel would perform would be under the general direction of the vendor or their client, unless otherwise 
specified in a Work Assignment document. 
10