dismissed H-1B Case: Software Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 4839736 
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, a software services and staff augmentation firm, seeks to employ the Beneficiary 
temporarily as an "automation lead analyst" under the H-lB nonimmigrant classification for specialty 
occupations. 1 The H-lB program allows a U.S . employer to temporarily employ a qualified foreign 
worker in a position that requires both: (a) the theoretical and practical application of a body of highly 
specialized knowledge; and (b) the attainment of a bachelor's or higher degree in the specific specialty 
(or its equivalent) as a minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualified as 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. 
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 
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 ofChawathe, 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) . 
establish ... that the services the beneficiary is to perform are in a specialty occupation." Moreover, 
the regulations at 8 C.F.R. §§ 103.2(b )(8) and 214.2(h)(9)(i) provide U.S. Citizenship and Immigration 
Services (USCIS) with broad discretionary authority to require evidence such as contracts and 
itineraries to establish that the services to be performed by a beneficiary will be in a specialty 
occupation during the entire period requested in the petition. 
Finally, USCIS has the authority to administer the law that Congress enacted, and to determine 
whether an organization has sufficiently demonstrated that it would have (1) non-speculative work 
available for a beneficiary. 4 
II. ANALYSIS 
The Petitioner is in New Jersey and stated it has a contractual relationship with.__ _______ _. 
(vendor). Based on this relationship, the vendor would place the petitioning organization's personnel 
to perform work at an offsite location in New York for I • . I 
( end-client). The Petitioner requested the Beneficiary's dates of intended employment from October 
2018 through July 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 as 
requested on the petition. 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 actual, non-speculative employment 
for the Beneficiary, the record does not establish that the position described in this petition would 
actually exist as requested. 5 The evidence of the prospective work consists of assertions within the 
Petitioner's correspondence, letters from the vendor as well as the end-client, a Sub-contractor 
Agreement and two Work Orders executed between the Petitioner and the vendor, a portion of a 
Professional Services Agreement (PSA) executed between the vendor and the end-client as well as 
Invoices between these same parties, and the Beneficiary's employment offer letter. 
A. Contractual Documentation 
First, we discuss the contractual material in the record and whether any missing agreements would aid 
in demonstrating eligibility. We begin with the most important business agreement in the chain, the 
one involving the end-client who is actually providing the work for the Beneficiary. The PSA was 
executed between the vendor and the end-client in August 2016, reflected the services the end-client 
would receive, and that an accompanying schedule would be described in Statements of Work. The 
total agreement should consist of at least 27 pages and any attached Statements of Work. However, 
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). 
5 The Petitioner submitted documentation to suppmt the H-lB 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 
the contract does not convey many of its key elements as the Petitioner only provided 3 of the 27 
pages. Of particular importance, the Petitioner did not submit any Statements of Work. 
This contract does not aid the Petitioner in establishing it had non-speculative work available for the 
Beneficiary for the 34-month period it requested on the petition. Notably, even the partial PSA does 
not convey the duration of the agreement between these parties. Additionally, core agreements 
governing the terms and conditions of the business arrangement, are generally accompanied by a 
subordinate agreement such as a statement of work, or a work order that provides more granular details 
about the work to be completed, the pricing structure, and the project's expected duration. In other 
words, without the subordinate contractual material ( e.g., a Statement of Work), the PSA is but one 
part of the overall agreement between these two parties and is not a complete representation of the 
business arrangement. The PSA does not stand alone. 
The absence of the spectrum of the contractual material not only creates a break in the contractual 
chain, but it also deprives us from reviewing the remaining portions of the agreement that may reveal 
information either advantageous or detrimental to the petitioning organization's claims. This omission 
leaves a significant evidentiary gap regarding the vendor's obligation and the type of work it agreed 
to perform for the end-client. The current contractual material between these entities is not sufficient 
to support the Petitioner's claim that the Beneficiary would perform services in a specialty occupation 
throughout the duration of the requested H-1 B validity period. 
Notwithstanding the above evidentiary shortcoming, we will consider the agreement executed between 
the Petitioner and the vendor in August 2016. This Sub-contractor Agreement indicated that it would 
remain in effect as specified within an Addendum and that the services to be provided would also be 
contained in that document. The Petitioner provided two addenda titled Work Order and Extended 
Work Order. 
Regarding the Work Order executed in August 2016, it reflected a job title that is inconsistent with the 
title the Petitioner listed on the petition, specified the duration of the agreement was for 12 months 
and would be automatically renewed for similar periods until terminated, and it discussed a Master 
Consulting Agreement and states the Work Order would not be extended beyond the timeframe within 
that Master Consulting Agreement. 
However, the Petitioner did not supply any such Master Consulting Agreement. The Petitioner has 
not explained why it provided a Work Order that referenced a contract that it failed to provide for the 
record, nor has it demonstrated which termination statement is accurate (i.e., automatically renewed 
until terminated versus the term in the absent Master Consulting Agreement). The Petitioner must 
remedy this discordant information in the record. Such a remedy must be demonstrated through the 
submission ofrelevant, independent, and objective evidence that illustrates which elements are true. 6 
Regarding the second addendum, the Extended Work Order is also deficient as it referred to a 
"Sub-Contractor Agreement dated Oct 4th, 2017" between these entities. The Petitioner failed to 
provide any such Sub-Contractor Agreement; the only other document in the record bearing this title 
was dated September 12, 2016. This appears to constitute a second break in the contractual chain that 
6 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
3 
the Petitioner relied on in an attempt to demonstrate it would have qualifying work available for the 
timeframe it requested on the petition. This document also referred to a Master Consulting Agreement 
that is not in the record and offered still another job title that differed from the one listed on the petition. 
Even if the Extended Work Order was not deficient evidence it still would not show work available as 
requested, as it only covered the period between October 2017 and October 2019; not through 2022 
as the Petitioner requested on the petition. These are additional discrepancies the Petitioner must 
resolve through the submission of probative evidence that is lacking from the record. 7 These 
additional deficiencies diminish the Petitioner's claims that it could preponderantly show that it would 
be the entity to provide qualifying work for her at the client worksite as requested on the petition. 
Regarding the open-ended nature of the Sub-contractor Agreement/Work Order arrangement that the 
Petitioner requests us to recognize as sufficient, such an indefinite 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 did not cite to any relevant statute, regulation, or policy to 
support the position that open-ended arrangements are sufficient to satisfy its burden of proof. Nor 
has the Petitioner 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. 8 
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 active. 
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. These deficiencies are sufficient to warrant the petition's denial, and 
as a result we agree with the Director's ultimate adverse determination. 
The final remaining evidence the Petitioner identifies as demonstrating the work would exist is the 
Beneficiary's employment offer. This document represents the position's title, wages, and ordinary 
expectations the petitioning entity's employees can anticipate while working for the organization. It does 
not establish any client for which the Beneficiary will perform work, nor does it demonstrate the duties 
she will perform, or the duration in which she will perform them. 
As it stands, this employment offer establishes an agreement between the Petitioner and the Beneficiary 
that it will employ her, which is required under the regulation at 8 C.F.R. § 214.2(h)(4)(iv)(B). In the 
same manner that the "existence of a document styled 'employment agreement'" shall not inexorably 
lead to the conclusion that the worker is an employee, 9 nor will such a document, standing on its own, 
7 Ho, 19T&NDec.at591-92. 
8 Cf Matter of Ho, 22 T&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain sufficient 
detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service to determine 
whether the job-creation projections are any more reliable than hopeful speculation." Id. 
9 Cf Clackamas Gastroenterology Assocs., P. C v. Wells, 538 U.S. 440, 450 (2003). 
4 
establish that the work would exist as represented on the petition. From this perspective, it is unclear 
what the Petitioner based its request upon for the Beneficiary to work on this project for almost three 
years. 
B. Correspondence 
Regarding the letters from the end-client, that material facially contains a set of duties and the client's 
position prerequisites in accordance with the decision in Defensor v. Meissner, 201 F.3d 384, 387-88 
(5th Cir. 2000). The first end-client letter dated in March 2018 indicated the duration of the project was 
at least three years and that the project could be extended indefinitely while the second letter from August 
2018 reflected it would be for the same three-year timeframe with indefinite extensions. 
First, it is unclear why the end-client would offer the same three-year duration in two letters that were 
drafted more than five months apart, without indicating why the project duration was not also reduced by 
the same difference between the two letters (i.e., five months). This appears to support our conclusion 
that the end-client did not have a sufficiently reasoned basis for its three-year estimate, which was 
seemingly constructed to align with the Petitioner's requested timeframe on the petition. 
Second, in the same manner that the indications of indefinite project duration within the contractual 
material was not persuasive, neither are statements contained in the end-client letters that are not 
corroborated by probative evidence. The end-client's identical assessments presented several months 
apart do not appear to be based upon any project milestones, nor do they seem to be reasoned estimates. 
As we discuss within this decision, the Petitioner did not offer sufficiently probative evidence to 
corroborate this statement from the end-client. The vendor's letter contains essentially the same 
information relating to the project's duration. 
The Petitioner did not offer sufficient evidence by which we could verify the contents of any of these 
letters. The end-client's and the vendor's statements within its correspondence essentially equate to 
assertions rather than evidence to support such claims. 10 When such statements are made without 
supporting documentation, they are of limited probative value and do not carry the weight to satisfy the 
Petitioner's burden of proof. 11 Moreover, none of the involved parties described an adequate basis for a 
three-year estimate as represented on the petition. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 12 A visa 
petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under 
a new set of facts. 13 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 actually exists. Based on this shortcoming, we conclude the end-client 
letters, as well as correspondence from the other parties, is insufficient to corroborate the Petitioner's 
assertions. 
10 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). 
11 MatterofSoffici, 22 l&NDec. 158,165 (Comm'r 1998). 
12 8 C.F.R. § 103.2(b)(l). 
13 See Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). 
5 
C. Other Inconsistencies 
Additional inconsistent information or evidence within the record undermines the Petitioner's 
eligibility claims. First, the Sub-contractor Agreement relating to the Petitioner and the vendor 
identified I I as the client or customer. However, the Petitioner did not offer any discussion or 
evidence associated with I I and that information is inconsistent with the identified end-client in 
this case. Second, the claims within the end-client and vendor's letters that the Petitioner would remain 
responsible for all of the Beneficiary's activities to include supervision appears to be in conflict with 
information contained in the Sub-contractor Agreement executed between the Petitioner and the 
vendor reflecting that the end-client would "have foll authority over the work effort of the 
[Beneficiary], will furnish day-to-day assignments and guidance in the work efforts of [the personnel 
the Petitioner provides]." 
Next, the record contains inconsistent references to the proffered position's job title varying between 
the petition, the Work Order, and the Extended Work Order. And finally, we conclude the letters from 
the end-client carry farther diminished evidentiary value, as they reflected that in addition to a 
bachelor's degree, it required work experience as "an important prerequisite" for the position. 
However, none of the involved parties offered more specific information to establish the number of 
years of experience the client required. This is an important aspect because this requirement could 
impact the prevailing wage level the Petitioner must designate on the labor condition application 
depending on the number of years the client required. 
D. Burden of Proof 
Ultimately, the record does not establish a binding obligation on the part of the end-client to provide 
work for the Beneficiary that aligns with the Petitioner's request on the petition. 14 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. 15 Understanding that 
contracts underlie the reliability of business agreements establishes the importance that a petitioner 
present sufficient claims and evidence to demonstrate the agreed-upon elements within existing contracts. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. 16 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 originally claimed that 
the Beneficiary would work at the end-client worksite for almost three years. However, it hasn't 
14 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). 
15 See Fletcher v. Peck, 10 U.S. 87, 133-34, 137-38 (1810) (describing the standard ofadhering to the "obligations binding on 
the parties" within contracts, which if this principle were overturned, the interactions between the involved parties "would be 
very seriously obstructed"). 
16 Matter of Y-B-, 21 T&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
6 
offered sufficient contractual material supporting those claims, and as a result, it has not produced 
sufficient evidence to corroborate its assertions or statements. 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their evidence should persuade or convince users that the requisite eligibility parameters have 
been met (i.e., the obligation to persuade the trier of fact of the truth of a proposition). 17 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 a 34-month 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 do not satisfy a petitioner's burden. 18 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. The scenario in the present case is a salient example of why petitioning 
entities must offer more than simple statements relating to the work they will have available for foreign 
workers under the H-lB program. 
If a petitioner is unable to establish that qualifying work actually exists, we cannot determine whether 
the proffered position is a specialty occupation. 19 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 users 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 that preponderantly demonstrates what the duration of the business relationship 
between all the associated parties would likely be, the lack of which can create material gaps within 
the evidence. The scenario in the present case is one in which the project's duration did not align with 
17 Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267,274 (1994). 
18 Sofjici, 22 l&N Dec. at 165. 
19 We must review the actual duties the Beneficiary will be expected to perform to ascertain 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. 
7 
the Petitioner's assertions. 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. 20 
Evidence in the record does not support the Petitioner's claim that it would provide qualifying work at 
the end-client worksite for the requested timeframe. The Petitioner has not met its burden of persuasion 
demonstrating that it is more likely than not that the work would exist at the end-client worksite as 
requested. 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." 21 
III. CONCLUSION 
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. 22 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.23 
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 she 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 
2° 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). 
21 Section 214(i)(l)(B) ofthe Act. 
22 See 8 C.F.R. ~ 103.2(b)(l); Michelin Tire Corp., 17 T&N Dec. at 249. 
23 Further, without full disclosure of the contractual chain, we are unable to determine whether the reqms1te 
employer-employee relationship will exist between the Petitioner and Beneficiary. Additionally, the Sub-contractor 
Agreement executed between the Petitioner and the vendor reflected that the end-client would "have full authority over the 
work effort of the [Beneficiary], will furnish day-to-day assignments and guidance in the work efforts of [the personnel 
the Petitioner provides]." This raises significant employer-employee concerns that would likely be detrimental to the 
Petitioner's eligibility even if the availability of specialty occupation work was not an issue. 
8 
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. 
ORDER: The appeal is dismissed. 
9