remanded H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 8998085 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" 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 an employer-employee relationship with the Beneficiary and had not established the 
Beneficiary would perform services in 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, -
-- F.Supp.3d ---, 2020 WL 1150186 (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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner indicated the Beneficiary will 
work offsite at thel !(end-client) facility. On the labor condition application (LCA) 1 submitted 
in support of the H-lB petition, the Petitioner designated the proffered position under the occupational 
category "Software Developers, Applications" corresponding to the standard occupational 
classification code 15-1132 at a level I wage. We observe, however , that the Petitioner and the 
end-client in this matter provided different iterations of the proposed duties. Additionally, both 
versions of the duties for the proposed position are general, jargon-laced, and insufficiently detailed 
to communicate the duties the Beneficiary will be expected to perform . Moreover, the end-client in 
1 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a) . 
its September 3, 2019 letter listed the minimum requirements to perform the position at its facility as 
including a bachelor's degree in computer science or electronics or electrical engineering and four or 
more years of relevant work experience. 2 If more than two years of experience is required for a Job 
Zone Four occupation, the certified LCA must accommodate that requirement with an appropriate 
increase in the wage level in order to correspond to the petition. 3 The end-client also noted that this 
position requires work on problems of moderate and varied complexity and requires the position 
holder to act independently customarily and regularly (more than 50% of time). 4 The end-client's 
requirements are at odds with the Petitioner's designation of the proffered position as requiring only a 
level I wage. 
However, because this case appears to be affected by the new policy guidance, we find it appropriate 
to remand the matter for the Director to consider the petition 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. 
2 As recognized by the comt in Defensorv. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), where the work is to be performed 
for entities other than the petitioner, evidence of the client companies' job requirements is critical. The court held that the 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate 
the type and educational level of highly specialized knowledge in a specific discipline that is necessmy to perf01m that 
particular work. 
3 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdt!NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
4 A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic 
understanding of the occupation. This wage rate indicates: (1) that the Beneficiary will be expected to perform routine 
tasks that require limited, if any, exercise of judgment; (2) that she will be closely supervised and her work closely 
monitored and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and expected 
results. DOL's wage-level guidance specifies that a Level II designation is reserved for positions involving only 
moderately complex tasks requiring limited judgment. Id. 
2