remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 5555393 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 4, 2020 
The Petitioner, a software development and consulting firm, seeks to temporarily employ the 
Beneficiary as a "project manager" under the H-IB 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-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 petition, concluding that the record does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner asserts 
that the Director erred when it denied the petition . 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review . As noted, the Director concluded that 
the proffered position is not a specialty occupation . However, the record of proceedings is not 
sufficiently developed to allow us to determine whether the proffered position would exist as presented 
by the Petitioner. The scenario in the present case is one in which the chain of contracts was not 
established, and this Petitioner's claims that the work would exist as claimed are not supported by 
evidence that preponderantly supports its statements. 1 Such a scenario is generally one that can be 
prohibitive for this organization's attempts to demonstrate that it would have specialty occupation 
work available for a beneficiary while they would work offsite at an end-client location . 2 
1 We note that within the Petitioner's response to the Director's request for evidence it identified the end-client asc::J 
c=J. The record does not reflect the information technology work the Beneficiary would perform was for this financial 
services institution . The evidence the Petitioner provided is in direct conflict with its statements , creating a dissonance 
between its claims and the documentation within the record. The Petitioner must resolve this inconsistency in the record 
with independent , objective evidence pointing to where the truth lies. Matter ofHo , 19 I&N Dec. 582, 591-92 (BIA 1988). 
2 KPK Techs., Inc. v. Cuccinelli, No. 19-10342, 2019 WL 4416689 , at *6 (E.D. Mich. Sept. 16, 2019) (finding agency 's 
detem1ination reasonable that a petitioner bas 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) . 
Similarly, we question whether the Petitioner has demonstrated the existence of the 
employer-employee relationship between itself and the Beneficiary as the lack of sufficient evidence 
in the record limits our ability to make such a determination. 3 Within its employer-employee 
relationship evaluation, the Director should not only consider whether the Petitioner has demonstrated 
an adequate level of control over the Beneficiary and his work, but also whether it has shown that the 
evidence in the record confirms that it will have those business relationships for the period it requested 
on the petition. 
Now we address some of the Petitioner's appellate arguments. As recognized by the court inDefensor 
v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for entities other 
than a petitioner, evidence of the client companies' job requirements is critical. The Defensor court 
reasoned that the position requirements from the entity where the beneficiary would actually work­
be it the required degree or the position's actual duties a candidate would perform-should serve as 
the more relevant characteristics we should consider under our specialty occupation determination. 
The court further concluded that absurd outcomes could result from granting greater credence to the 
position requirements as represented by an outsourcing agency, rather than to those from its clients 
where a beneficiary would perform the work. Id. Such evidence must be sufficiently detailed to 
demonstrate the educational level and type of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. The Petitioner provided a set of duties and position 
qualifications within the initial filing and expanded upon those within its response to the Director's 
request for evidence. However, similar to the Defensor case, the duties, education details, and 
experience requirements the Petitioner provided are much less probative to our analysis than the 
end-client's requirements. 
The Petitioner has seemingly presented insufficient evidence to demonstrate the actual functions the 
Beneficiary would perform while assigned to the end-client's location. The only material from the 
end-client is two forms of correspondence: (1) an October 2018 letter confirming the Beneficiary 
would offer unspecified services for them in Missouri as a project manager until December 2018 with 
possible extensions, and the education requirements to perform the unspecified duties; and (2) an email 
offering a few amorphous functions the Beneficiary would perform for the end-client. 
When U.S. employers elect to employ foreign nationals, they take on additional burdens. For instance, 
they must demonstrate to U.S. Citizenship and Immigration Services (USCIS) the actual duties a 
beneficiary would perform while deployed to an end-client worksite, by a preponderance of the 
evidence. The most expedient method is to provide material directly from the entity where the work 
will take place, which is the entity that possesses the greatest knowledge and understanding of how a 
foreign national's contributions will factor into its business model and its projects. Id. An absence of 
such material can create inexorable fissures in the evidence, while also undermining a petitioner's 
eligibility claims. The scenario in the present case is one in which the Petitioner presented no duties 
from ( or endorsed by) the end-client. The Director should determine whether this sufficiently 
informed USCIS of the substantive nature of the duties to be performed. 
3 See Galaxy Software Sols., Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) (finding 
that an absence of evidence establishing the full chain of contracts-particularly including the end-client-calls into 
question the existence of a requisite employer-employee relationship). 
2 
Within the appeal brief, the Petitioner unpersuasively claims that the elements outlined within the 
Defensor decision should not be applied to the present case. The Petitioner posits that the employer 
involved in the Defensor case "wanted to mask the fact that nursing is not generally a specialty 
occupation." First, the Petitioner offers no support for its declaration that nursing is not generally a 
specialty occupation. Depending on the facts of a particular case, a registered nursing position may 
qualify as specialty occupation. Next, a comparison of the specific occupations (e.g., the occupation 
within the Defensor decision and that of the present petition) is not the factor one should utilize to 
determine whether the elements from the Defensor decision should be applied to a particular case. 
Rather, it is whether the end-client is familiar with the type of work the foreign worker would perform 
for them. 
Despite the Petitioner's claims to the contrary, this is not a case where the petitioning organization is 
assigning the Beneficiary to work at a business that does not normally engage in the type of work the 
foreign worker would perform. Instead, it appears that the end-client is familiar with and normally 
employs personnel in-or very similar to-the proffered position ( e.g., the client needs supplemental 
contracted personnel to augment their regular staff). 4 As a result, the client likely possesses the 
knowledge of what duties the Beneficiary would engage in, and the requirements in which to perform 
those responsibilities. This is a scenario in which the duties and the qualifications to perform in the 
proffered position should originate from the entity where the Beneficiary would actually perform their 
work. Id. The scenario in Defensor has repeatedly been recognized by federal courts as appropriate 
in determining which entity should provide the requirements of an H-lB position and the actual duties 
a beneficiary would perform. 5 
As the Director requested evidence relating to the above eligibility requirements, she should decide if 
she wishes to issue another request, or to make a determination on the current record, as the Petitioner 
was required to demonstrate eligibility based on the evidence in existence when it filed the petition. 
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. Matter of Michelin Tire Corp., 17 I&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). 
In the event the Petitioner demonstrates it will have non-speculative employment and maintain an 
employer-employee relationship with the Beneficiary for the period requested on the petition, the 
Director should consider other factors relating to whether the position qualifies as a specialty 
occupation. Namely, whether the opinion letter should carry diminished evidentiary value as it only 
discussed the duties as they related to the Petitioner's operations without a significant analysis of how 
those functions fit into the end-client's project, which is a more salient examination. 
4 We make this observation as a simple Internet search reveals several similar positions working directly for the end-client. 
See Careers at Equifax. Equifax (Mar. 4, 2020), https://careers.equifax.com/global/en/search­
resul ts? keywords=proj ect%2 0manager. 
5 See Altimetrik Corp. v. USCIS, No. 2: 18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS. at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs., No. 19-10342, 2019 WL 4416689, at *10; 
Altimetrik COip. v. Cissna. No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala v. Cissna, 387 F. Supp. 3d 56, 
69 n.5 (D.D.C. 2019). 
3 
As with most administrative proceedings, the standard of proof for H-1 Bs is the preponderance of the 
evidence. The preponderance standard of proof is the degree, or level, of proof demanded in a specific 
case. We are ultimately deciding whether the petitioner's claims are sufficiently supported by relevant, 
probative, and credible evidence. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) reiterated the 
longstanding principle for the preponderance standard of proof 
We often see petitioners state that they submitted evidence that satisfies the regulatory requirements 
by a preponderance of the evidence. However, that is a perfunctory method to apply the preponderance 
standard. Instead, we consider a piece of evidence by evaluating its quality, reviewing its contents, 
and finally coming to a conclusion of whether that material supports the petitioner's claims. That 
analysis should result in an officer determining whether the petitioner has preponderantly demonstrated 
that its claims are true, and that those claims are sufficient to satisfy the statutory and regulatory 
requirements, in addition to the interpretations of those legal sources as outlined in agency guidance. 
Ultimately, the truth is to be determined not by the quantity of evidence alone but by its 
quality. Chawathe, 25 I&N Dec. at 376 (citing Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
We also frequently see petitioners citing to the portions of the above precedent decisions in which an 
officer may have doubts, but they can still approve the filing. The E-M- decision speaks to this factor 
noting that the preponderance standard does not require an officer to review the evidence and form the 
belief that the petitioner's claims are "certainly true," which is more in line with the beyond a reasonable 
doubt standard. Nor does the preponderance standard require an officer to form the belief in line with the 
clear and convincing standard where the proof must demonstrate that the petitioner's claims are "highly 
probably true." However, simply because a petitioner has offered evidence ( even in large quantities) and 
an adjudicator may have some doubts about their eligibility, this doesn't mean that a petitioner has met 
the preponderance of the evidence standard. 
Instead, the Chawathe decision informs us that the filing party must submit relevant, probative, and 
credible evidence that leads the trier of fact to believe that the claim is "more likely than not" or 
"probably" true. If a petitioner's evidence, or lack of evidence, was the cause for the doubt, then 
unless the remainder of the evidence considered in totality is sufficiently persuasive, then the petitioner 
has not met its burden as described in Chawathe. If an officer can articulate a material doubt, they 
should request more evidence, or they should deny the filing if that doubt leads them to conclude that 
the petitioner has not demonstrated that the claim is probably true. We reiterated this concept in a 
subsequent decision, Matter of Dhanasar, 26 I&N Dec. 884, 889 n.8 (AAO 2016). Under the 
preponderance of the evidence standard, a petitioner must establish that the arguments and the 
evidence presented make it more likely than not that it has satisfied the regulatory requirements. Id. 
(citing to Chawathe 25 I&N Dec. at 376). 
A petitioner should not simply disagree with the director's conclusions, then claim that the director held 
them to an elevated standard. Instead, petitioners should provide an indication of how the director 
improperly required a heightened burden of proof ( e.g., degree to which the director would find the 
petitioner's statements as credible or sufficient), and they should explain the manner in which the director 
held its evidence or statements to an elevated standard. If the appeal brief lacks these elements, then a 
4 
petitioner has not likely demonstrated a failure to apply the preponderance of the evidence standard. 6 In 
this instance, the Petitioner has only alleged the application of a heightened standard without specific 
examples to substantiate its contentions. As a result, we conclude it has not demonstrated the Director 
held its evidence or its claims to any standard other than the preponderance. 
Accordingly, the matter will be remanded to the Director to consider the above discussed issues and 
enter a new decision. The Director may request any additional evidence considered pertinent to the 
new determination and any other issue. As such, we express no opinion regarding the ultimate 
resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
6 See Xiaotong Liu v. Baran, No. SACV1800376JVSKESX, 2018 WL 7348851, at *13 (C.D. Cal. Dec. 21, 2018) (finding 
that a petitioner's failure to explain its contentions of a heightened standard is insufficient to satisfy its burden of proof). 
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