remanded H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
In Re : 11977258 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 24, 2020 
The Petitioner, a custom computer programming services company, seeks to temporarily employ the 
Beneficiary 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 petition, concluding that the Petitioner did 
not establish that: (1) it will have an employer-employee relationship with the Beneficiary; and (2) the 
proffered position qualifies as a specialty occupation. While this appeal was pending, the U.S. District 
Court for the District of Columbia issued a decision in Itserve Alliance, Inc. v. Cissna, 443 F. Supp . 
3d 14 (D.D.C. 2020). Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 
previously issued policy guidance and directed its officers to apply the existing regulatory definition 
at 8 C.F.R. § 214 .2(h)( 4 )(ii) to assess whether a petitioner and a beneficiary have an employer­
employee relationship. USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda 
at 2 (June 17, 2020), http: //www .uscis .gov/legal-resources /policy-memoranda. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de novo.2 While we conduct de nova review on appeal, we 
conclude that a remand is warranted in this case in part based on the new USCIS policy guidance. 
Within her new decision, the Director may wish to decide whether the Petitioner has demonstrated the 
substantive nature of the work the Beneficiary would perform during the intended period of 
employment. In particular, the Petitioner stated that the Beneficiary would work as a "software 
developer" at an end-client location in Pennsylvania . In support of this assertion, the Petitioner 
provided several statements of work (SOW) . Notably, some of the SOWs indicate that the project will 
end approximately seven months after the requested H-lB start date. Thus, the SOWs do not establish 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
that the Beneficiary will serve as a software developer in Pennsylvania for the duration of the requested 
H-lB period. 
Moreover, we observe that the letters from the end-client appear to contain generalized and somewhat 
vague duties, as well as extensive industry jargon. For instance, the duty of "[a]ssist in testing, 
deployment, production support and implementation" does not contain an explanation of what the 
Beneficiary will do while "assist[ing]." 
Because this case is affected by the new policy guidance, we find it appropriate to remand the matter 
for the Director to consider the question anew and to adjudicate in the first instance any additional 
issues as may be necessary and appropriate. Accordingly, the following order shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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