remanded H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 10449000 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 23, 2020 
The Petitioner seeks to employ the Beneficiary temporarily under the H-IB 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 Director of the Vermont Service Center denied the petition , concluding that the evidence ofrecord 
does not establish that: (1) the Petitioner 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, --- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, U.S . Citizenship and 
Immigration Services (USCIS) rescinded previously issued policy guidance relating to H-IB petitions 
filed for workers who will be employed at one or more third-party worksites. 2 The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 3 
We review the questions in this matter de novo.4 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 "Java developer" 
at an end-client location in Virginia. With the initial petition and in response to the Director's request 
for evidence, the Petitioner provided work orders and letters from the end-client and vendor that state 
that the Beneficiary's services will be needed until September 2019, approximately one month prior 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 USCIS Policy Memorandum PM-602-0114 , Rescission of Policy Memoranda at 2 (June I 7, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda . 
3 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
to the requested H-lB start date. Thus, the referenced documents do not establish that the Beneficiary 
will serve as a Java developer in Virginia for the duration of the requested H-1 B period. 
On appeal, the Petitioner submits a third work order extending the Beneficiary's services through 
September 2020; however, this document also does not demonstrate the Petitioner's eligibility at the 
time of filing because it was executed in December 2019, nearly eight months after the petition was 
filed. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved 
based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under 
a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
The agency made clear long ago that speculative employment is not permitted in the H-lB program. 
See, e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
Moreover, we observe an additional deficiency that would also appear to preclude approval of this 
petition, and the Director may wish to explore it on remand as well. For instance, the end-client does 
not state the educational requirements for this position. As recognized by the court in Defensor v. 
Meissner, 201 F.3d 384, 387 (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 necessary to perform that particular work. 
It is also noteworthy that the Petitioner, vendor, and end-client mistakenly and repeatedly reference 
the Beneficiary in the masculine pronoun case. The record lacks an explanation for these 
inconsistencies. Thus, we must question the accuracy of the documents and whether the information 
provided is correctly attributed to this particular Beneficiary and position. 
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 further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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