U.S. Citizenship and Immigration Services

MATTER OF A-T-S-, LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: JUNE 26, 2019

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a software consultancy company, seeks to temporarily employ the Beneficiary as a "software developer" under the H-lB 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-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, concluding that the record did not establish the Petitioner would have an employer-employee relationship with the Beneficiary, or that the proffered position qualified as a specialty occupation. On appeal, the Petitioner submits additional evidence and asserts that the Director's denial was in error.

Upon de nova review, we will dismiss the appeal.

I. BACKGROUND

The Petitioner, which is located in California, states that the Beneficiary will perform her duties in Colorado for I , , I (end-client) pursuant to contracts executed between the Petitioner andl le vendor), and additional contracts executed between the vendor and the end-client. The contractual path of succession therefore appears to flow from the Petitioner, to the vendor, which will ultimately provide personnel to the end-client.

II. PRELIMINARY MATTERS

We begin noting several eligibility-related concerns ranging from eligible evidence, to inconsistencies, to whether the Petitioner would compensate the Beneficiary with the appropriate wage. First, we will address some supplemental material the Petitioner provides on appeal-namely the contractual material between the vendor and the end-client-and how it will not factor into our analysis of the Petitioner's appeal. The Director specifically requested this material within the request for evidence (RFE), but the Petitioner did not provide it in its response and it offered no explanation for delaying

Matter of A-T-S-, LLC

the submission of this evidence until the appellate stage. The regulation states that the Petitioner shall submit additional evidence as the Director, in his or her discretion, may deem necessary. The purpose of a request for evidence (RFE) is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. 1 The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 2 As in the present matter, where the Director put the Petitioner on notice of a deficiency in the evidence and gave the Petitioner an opportunity to respond to that deficiency, we will not accept evidence offered for the first time on appeal. 3 If the Petitioner had wanted the Director to consider the submitted evidence, it should have offered the vendor/end-client contractual material in response to the RFE. 4

Even if the Petitioner had submitted the vendor/end-client contract before the Director, it would not fully resolve the issues within the denial decision. While it might have established the scope of the relationship between the parties, other issues would remain. For instance, the contract executed between the vendor and the end-client specified that the vendor would provide the end-client with professional services detailed in a Scope of Work or Exhibit A; however, the Petitioner did not provide any such documentation, thereby leaving a significant evidentiary gap regarding the vendor's obligation and the type of work it agreed to perform for the end-client. Additionally, the vendor/end-client contract 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 end-client to provide the position the Petitioner has described for the Beneficiary.

Next, we observe that the term of the contract ended on December 31, 2015, with possible renewals and extensions allotted that could lengthen the agreement to expire on December 31, 2020. This falls short of the proposed end date that the Beneficiary would perform work at the end-client worksite in excess of eight months. The Petitioner did not provide evidence that the vendor and end-client executed any renewals or extensions, which relates directly to the issue the Director identified-whether the Petitioner had specialty occupation work available for the Beneficiary for the period requested on the petition.

In addition to the fact that the Director specifically requested this vendor/end-client contractual evidence, 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. 5 An appeal is a request to a higher authority to review a decision. 6 The appeal is not intended as a petitioner's opportunity to perfect its eligibility claims. Instead, it is an opportunity to illustrate how the Director's determinations were incorrect. The Petitioner has not explained how the Director could have erred in her determination when considering evidence that was not part of the record until the appeal. The Petitioner-at this stage of the process-may not make such a significant change to an element that serves as the underlying basis for eligibility. A petitioner must establish eligibility at the time it files the

1 See 8 C.F.R. § 103.2(b)(8), (12). 2 8 C.F.R. § 103.2(b)(l4). 3 See Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). 4 Id. 10 The initialism LCA represents Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers. 10 The initialism LCA represents Department of Labor's (DOL) ET A Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers.

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nonimmigrant visa petition. 7 U.S. Citizenship and Immigration Services (USCIS) may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new set of facts. 8 Accordingly, a petitioner may not make material changes to a petition in an effort to make an apparently deficient petition conform to USCIS requirements. 9 Consequently, within this appeal, we will only consider the contractual material the Petitioner presented before the Director.

Next, the record contains inconsistent job titles for the proffered position as represented in the following table:

Stage of Document Job Title

Filing LCA, 10 petition, and cover letter Software developer Employment offer Senior software engineer

First March 21, 2018, vendor letter Programmer analyst and software developer

Initial (within the same document) Second March 21, 2018, vendor letter Software developer

March 21, 2018, end-client letter Programmer analyst and software developer (within the same document)

RFE Cover letter Software developer August 17, 2018, vendor letter Dot net developer

response August 17, 2018, end-client letter Dot net developer

Appeal Brief Software developer

This disparity leads us to question whether the end-client, the vendor, and the Petitioner have the same understanding of the Beneficiary's position. At a minimum, it leads us to question the reliability of the various job descriptions contained in the record. Furthermore, inaccurate information anywhere on the Form I-129 or in the evidence submitted in connection with the petition potentially supports its denial. 11

We also question whether the Petitioner has offered consistent claims regarding the timeframe during which the Beneficiary would provide services, or consistency relating to the duration of the contractual agreements. On the petition, the Petitioner requested the Beneficiary's services for approximately three years until September 15, 2021, and it discussed the possibility of future extensions. Within its cover letter accompanying the RFE, the Petitioner slightly adjusted the date to September 8, 2021. One of the vendor's March 2018 letters stated "the current contract term is 12/31/2023. We expect this term to be extended for at least another year, till completion of the project." From this statement,

10 The initialism LCA represents Department of Labor's (DOL) ET A Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers. 10 The initialism LCA represents Department of Labor's (DOL) ET A Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers. 10 The initialism LCA represents Department of Labor's (DOL) ET A Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers. 10 The initialism LCA represents Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers. 11 See 8 C.F.R. § 214.2(h)(I0)(ii).

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it appears the vendor is indicated the project would be extended until December 2024. The vendor's August 2018 letter however, indicated the Beneficiary's services would be needed until the project completion, which would run through August 2021 or beyond. Neither the vendor nor the Petitioner explained the variances in the dates. The end-client's August 2018 letter also provided two separate expected completion dates within the same letter; August 2023 and December 2023. We note that none of the contractual material in the record correlates with any of the dates listed above.

The Petitioner has also offered conflicting information pertaining to the position's qualifications. Namely, within the initial filing cover letter, the Petitioner stated the minimum requirements for the position were the required degree in addition to "0-3 years of experience." Within the RFE response cover letter, the Petitioner changed the requirements to the required degree plus "1-3 years of experience." Even if we were to ignore this slight adjustment, the Petitioner's own job announcement it provides on appeal states the minimum qualifications are the requisite Bachelor of Science degree "+5 Years Experience or [ a Master of Science degree]." Moreover, the Petitioner offered varying accounts of the Beneficiary's annual salary within the initial filing when it stated it would compensate her with $73,000 on the petition, but stated her salary would be $73,216 in its cover letter. It also offered a separate amount of $74,000 within the employment offer to the Beneficiary.

Furthermore, the Petitioner mistakenly and repeatedly uses masculine gender pronouns when referencing the Beneficiary. The record provides no explanation for this inconsistency. Thus, we must question the accuracy of the documents and whether the information provided is correctly attributed to this particular Beneficiary and the proffered position.

While some of the above-discussed inconsistencies may not individually cause us to question the reliability of the information the Petitioner has provided with this petition, considered collectively they do have this effect. The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 12 Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 13

Finally, referring back to the experiential requirements within its job announcement, the Petitioner's prerequisites appear to warrant an increase in the prevailing wage level at a higher rate than the Level I rate the Petitioner designated on the LCA. Step two of DOL's five-step process compares the experience described in the Occupational Information Network Job Zone to the Petitioner's requirements. 14 Software Developers are classified within Job Zone 4 with a Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." 15 This SVP rating means that the occupation requires "over 2

12 Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 13 Id. 14 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 15 Appendix E of the DOL guidance provides that SVP is the amount of time for an individual to achieve average perfonnance in a specific job-worker situation. The DOL guidance states: "This training may be acquired in a school, work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs."

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years up to and including 4 years" of specific vocational training. A bachelor's degree expends two years, permitting the Petitioner to require up to and including two years of experience as the position's prerequisite before it must increase the wage level. The Petitioner's requirements mandated at least a bachelor's degree and more than five years of work experience. This requirement is greater than the experience and SVP range, which requires a three increment wage level increase. 16 Of additional concern, the annual salary the Petitioner listed on the petition was less than the minimum prevailing wage for a Level I rate.

III. EMPLOYER-EMPLOYEE RELATIONSHIP

Next, we will address whether the Petitioner has established that it meets the regulatory definition of a United States employer having "an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." 17

A. Legal Framework

A petitioner seeking to file for an H-1B beneficiary must meet the definition of a "United States employer." 18 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, contractor, organization, or other association in the United States which:

( I) Engages a person to work within the United States;

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the.fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and

(3) Has an Internal Revenue Service Tax identification number.

(Emphasis added). For purposes of the H-1B visa classification, the terms "employer-employee relationship" and "employee" are undefined. The United States Supreme Court determined that, where federal law does not helpfully define the term "employee," courts should conclude that the term was "intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." 19 Thus, to interpret these terms, USCIS applies common-law agency principles, which focus on the touchstone of control.

16 See the DOL guidance. A three-increment wage level increase would mandate an annual wage increase from the lowest level at $73,216 to $122,096. For additional information, see https://flcdatacenter.com/OesQuickResults.aspx?code=l5-l 132&area= l 9740&year= l 8&source= 1 (last visited June 26, 2019). 17 8 C.F.R. § 214.2(h)(4)(ii). 18 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring to the "intending employer"). 19 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) ( quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden).

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In determining whether a petitioner controls the manner and means of a beneficiary's work under the common-law tests, USCIS will consider such factors as: the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; the petitioner's right to assign additional projects to the hired party; the extent of the beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the provision of employee benefits; and the tax treatment of the beneficiary. 20 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists or will exist and not the employer's claimed right to influence or change that factor, unless specifically provided for by the common-law tests. 21 We will assess and weigh all of the incidents of the relationship, with no one factor being decisive.

B. Analysis

In the context of applying the Darden and Clackamas tests to this matter, we conclude that the Petitioner has not established that it will be a "United States employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary "employee." Specifically, we conclude that the Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. Therefore, the Petitioner has not substantiated the key element in this matter, which is who exercises control over the Beneficiary.

Throughout the proceedings, the Petitioner has maintained that it will employ the Beneficiary and exercise control over its right to manage, supervise, conduct performance evaluations, provide employment benefits, and to terminate her employment. The Petitioner farther claims it will perform numerous administrative functions pertaining to the Beneficiary's employment. Social security, worker's compensation, unemployment insurance contributions, as well as federal and state income tax withholdings, and providing other employment benefits are relevant factors in determining who will control a beneficiary. Such factors may appear to satisfy a cursory review that a petitioning entity might be an individual's employer; however, meeting these administrative elements does not extinguish a petitioner's requirement to illustrate control over a foreign national and over her work at an end-client worksite. We must also assess and weigh other intricate factors to determine who will be a beneficiary's employer. For example, we must consider who will oversee and direct a beneficiary's work, who will provide the instrumentalities and tools, where the work will be located, and who has the right or ability to affect the projects to which a beneficiary is assigned, among other factors. A petitioner must sufficiently address these relevant factors to enable us to evaluate whether the requisite employer-employee relationship will exist between a petitioner and a beneficiary.

The Petitioner opens its appellate claims stating the following "documents by itself established Employer-Employee Relationship":

• Copy of a support letter dated August 22, 2018; • Copy of employment off er letter;

20 Darden, 503 U.S. 318, 322-23. 21 See Darden, 503 U.S. at 323-24. See also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-IB beneficiaries).

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• Copy of a Professional Services Agreement (PSA) between the petitioning organization and the vendor;

• Copy of the Exhibit A - Labor Rates and Exhibit B - Purchase Order between the petitioning entity and the vendor;

• Copy of vendor letter; and • Copy of end-client letter.

The Petitioner contends that the Director either failed to consider these documents or that her adjudicative representative did not understand the material. Regarding the material within the bulleted list above, we observe that the Director's analysis discussed evidence and eligibility relating to the specialty occupation nature of the position under the employer-employee section, and the Petitioner's appeal brief follows that same structure. However, we will separate these factors under their relevant sections within this decision. 22

We agree with the Petitioner that the Director incorrectly indicated that the record was devoid of an acknowledgement from the end-client that the petitioning entity would retain control over the Beneficiary while working at the end-client worksite. Within the RFE response, the Petitioner provided a letter from the end-client that discussed this topic. The Director determined that the material within the bulleted list above was insufficient to demonstrate the extent of the employer-employee relationship between the Petitioner and the Beneficiary. The Director listed some of the required elements that these documents did not show, to include: the Petitioner's right to assign additional duties to the Beneficiary; the discretion over when and how long the Beneficiary would work; and the source of the instrumentalities and tools the Beneficiary would use to perform her work. The Director also specified that the lack of contractual material between the vendor and the end-client further diminished the Petitioner's claims of a sufficient employer-employee relationship with the Beneficiary. Ultimately, the Director stated that the insufficient contractual material left it unable to determine whether the Petitioner had the right to control when, where, and how the Beneficiary would perform her work at the end-client site.

Turning to the sufficiency of the evidence in the bulleted list above, we observe that the Petitioner argues on appeal that this material demonstrates that it will maintain the required relationship with the Beneficiary. While the letters from the Petitioner, vendor, and end-client are not devoid of any evidentiary value, this correspondence contains assertions from these parties that has not been corroborated by more probative material within the record. Essentially, the letters' content is equivalent to assertions rather than evidence to support the assertions. Such statements made without supporting documentation are of limited value and are insufficient to satisfy the Petitioner's burden of proof 23 Setting this aside, we reiterate that these letters contain inconsistencies, further diminishing their evidentiary value within these proceedings.

Next, the PSA between the Petitioner and the vendor, and the accompanying Exhibits A and B are also not sufficient to demonstrate the Petitioner would exercise a sufficient level of control over the

22 In other words, we will limit our discussion of employer-employee issues under its own section and we will incorporate the specialty occupation related topics under that section. 23 MatterofSofjici, 22 l&N Dec. 158, 165 (Comm'r 1998). See also MatterofChawathe, 25 l&N Dec. 369, 371-72 (AAO 2010) ( discussing assertions that are not supp01ted by probative material will not meet a filing paity' s burden of proof).

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Beneficiary while she works several states away. The PSA demonstrated a contractual relationship between these two entities, effective in September 2016, and discussed several aspects of the relationship between the Petitioner and the vendor. The PSA listed a period of performance that was amended by the Purchase Order, which reflected an ending date of December 31, 2018. Additionally, this contractual material does not lay out the specific services the Petitioner or the Beneficiary would provide to the end-client other than indicating the Petitioner would provide software development services. The central shortcoming of this contractual material is that it does not establish a binding obligation on the part of the end-client to provide any work for the Beneficiary. 24 Even after the Director identified the shortcoming of no contractual material between the vendor and the end-client, the Petitioner remained unresponsive to this aspect within its RFE response. This is particularly important in a case such as this where the existence of the proffered position appears dependent entirely upon the willingness of the end-client to provide it. 25

While the end-client acknowledges that the Petitioner will retain control over the Beneficiary while working at its facility, the Petitioner should provide additional evidence and information that demonstrates a sufficient level of control is feasible and that it has made arrangements to adequately maintain the requisite employer-employee relationship with the Beneficiary. However, the Petitioner does not offer such evidence or information. The Petitioner's plan to control the Beneficiary's work should be sufficiently thorough such that it allows us to draw reasonable inferences about the organization's potential to actually control the foreign national. Mere conclusory assertions do not provide us with a reasonable basis to determine whether the Petitioner's plans are any more likely than hopeful speculation that it would be able to control the Beneficiary's daily functions. We note that the record lacks a description of the methodology the Petitioner would utilize to observe and evaluate the work performed at the end-client site. The absence of an onsite Petitioner-supplied manager, or an established means to monitor the Beneficiary's work in a first-hand manner undermines the end-client's assertions that the Petitioner would retain control over the Beneficiary.

Within the RFE, the Director indicated that USCIS must determine whether the Petitioner satisfied the employer-employee requirements through evidence that described several specific elements that comprise the requisite relationship. In response, and repeated on appeal, the Petitioner provided responses to the elements the Director posed. For example, the following excerpt represents some of the responses the Petitioner provided:

• Item 1: Whether and to what extent you supervise the Beneficiary's work • Response: 100% • Item 2: Whether you have the right to assign additional work to the Beneficiary • Response: Yes, within the scope of specialty occupation - Job duties described in the petition. • Item 3: Whether the Beneficiary reports to someone higher in your organization

24 The agency has made clear that speculative employment has not historically been permitted 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). 25 Again, we stress the importance of a binding agreement in this type of scenario where it is the end-client that will actually determine whether the proffered position will exist. See, e.g., Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) (describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate entities in the chain" as "material gaps in the evidence concerning [ the petitioner's] right to control and supervise [the beneficiary's] work at the [end-client])."

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• Response: No, to the undersigned, the Director. [We note the Petitioner changed "Director" to "CEO" in the appeal brief without an explanation].

• Item 4: The source of the instrumentalities and tools required to perform the specialty occupation

• Response: Various software tools/software and computers. The incumbent will be required to work independently or on a team to design, build, stabilize, and deploy applications using SQL Server 2012, ASP.NET MVC 4.0 to enable full control over rendered HTML and JQuery for client side scripting.

• Item 5: The extent of the Beneficiary's discretion over when and how long to work • Response: The Beneficiary will work under the supervision and direction of the Petitioner.

The Petitioner determines when and how the work for any project has to be performed. • Item 6: Whether you can hire or fire the Beneficiary or set rules and regulations on the

Beneficiary's work • Response: Yes.

The Petitioner provided these responses without sufficient explanations or corroborating evidence. For instance, the Petitioner's limited response to item 1 falls short of providing USCIS with a claim that can be verified. Simply asserting that it fully supervises the Beneficiary's work is insufficient, and the Petitioner has not offered probative evidence that demonstrates how it planned to perform such supervision. The Petitioner should provide probative material that not only corroborates its claims, but that also demonstrates an environment would exist in which the supervision may actually occur. Merely claiming that one of the Petitioner's managers will supervise the Beneficiary (see item 3) is insufficient to meet the Petitioner's burden of proof. Whether and to what extent an organization supervises a foreign national's work, and whether he or she reports to a senior employee of the petitioning organization are important factors in the analysis. 26

Further, under item 2, the Director not only required an explanation-rather than this limited response-but also evidence that would confirm the Petitioner's claims demonstrating how the Petitioner would possess a means to exercise its right to assign the Beneficiary additional work. Instead, the Petitioner's brief response offered no methods the Petitioner could utilize to adjust the Beneficiary's duties. The Petitioner has not demonstrated that it can exercise its right to control the Beneficiary, in this instance, where it has not established its ability to assign her with additional work while at the end-client worksite.

The Petitioner essentially offered conclusory statements regarding several elements that comprise the employer-employee relationship and collectively demonstrate the Petitioner's control over the Beneficiary and her work. However, such conclusory statements are insufficient.

Considering the Beneficiary has worked for the Petitioner on the project at the end-client site since July 2016, it is reasonable to expect it to possess evidence that sufficiently demonstrates its ability to exercise control over the Beneficiary and her work at the end-client site. However, the record as it existed before the Director falls short of satisfying the Petitioner's burden of proof. Based on the tests outlined above,

26 Cf Clackamas, 538 U.S. at 449-50.

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the Petitioner has not established that it will be a "United States employer" having an "employer­employee relationship" with the Beneficiary as an H-lB temporary "employee."27

IV. SPECIALTY OCCUPATION

The second issue before us is whether the evidence of record demonstrates that the Petitioner will employ the Beneficiary in a specialty occupation position.

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 offered position must meet one of the following criteria to qualify as a specialty occupation:

(I) 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. 28

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. 29

27 8 C.F.R. § 214.2(h)(4)(ii). 28 8 C.F.R. § 214.2(h)(4)(iii)(A). 29 See Royal Siam Co1p. 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. 201 F.3d at 387.

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B. Analysis

For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, we conclude that the record does not demonstrate definitive, non-speculative employment for the Beneficiary. As a result, 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 specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4).

We conclude 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 consists of two letters each from the vendor and the end-client, and contractual material between the Petitioner and the vendor. The end-client letters are not sufficiently probative to demonstrate specialty occupation work exists for the Beneficiary, and will not meet the Petitioner's burden of proof. 30 Although the vendor letters reflected the project was ongoing and expected to continue for several years, our previous discussion established why this material carries reduce evidentiary value. Additionally, the content of the vendor letters is equivalent to an assertion rather than evidence to support an assertion, as it is not corroborated by probative documentation within the record. Such statements made without supporting documentation ( e.g., contractual documents in this case) are generally oflimited evidentiary value and are insufficient to satisfy the Petitioner's burden of proof. A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit throughout adjudication. 31 A visa petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set of facts. 32

Additionally, the PSA and accompanying exhibits are also inadequate, as this contract is between the Petitioner and the vendor, but does not include the end-client. As a result, this is not a binding contractual agreement demonstrating the end-client will provide qualifying work for the Beneficiary. The record contains little evidence of an obligation on the part of the end-client to provide any work for the Beneficiary, let alone the position described in this petition. Without greater detail relating to the projects and the Beneficiary's role in the projects, the Petitioner has not demonstrated how her role in future assignments requires "attainment of a bachelor's or higher degree in the specific specialty. " 33

The agency has made it clear that speculative employment has historically not been permitted in the H-lB program. 34 This is particularly important in a case such as this where the existence of the proffered position appears dependent entirely upon the willingness of the end-client to provide it. If we are unable to determine whether a position actually exists, then we cannot determine whether it is a specialty occupation.

Therefore, we conclude that the Petitioner has not established the substantive nature of the work the Beneficiary would perform. This precludes us from evaluating whether the proffered position satisfies

30 We reiterate that the evidentiary value of the end-client letters is diminished based on the inconsistencies listed earlier in this decision. 31 8 C.F.R. § 103.2(6)(1). 32 See Michelin Tire Co1p., 17 l&N Dec. at 249. 33 Section 214(i)(l)(B) of the Act. 34 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214).

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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.

Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty occupation, and we will dismiss the appeal. 35

V. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter of A-T-S-, LLC, ID# 3751339 (AAO June 26, 2019)

35 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 relating to the eligibility criteria found at 8 C.F .R. § 2 l 4.2(h)( 4 )(iii)(A).

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