remanded H-1B Case: Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10213869 
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 20, 2020 
The Petitioner, a company engaged in consulting, product implementation and staffing services, 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, in part, that the 
Petitioner did not establish an employer -employee relationship with the Beneficiary, and did not 
establish that the Beneficiary has sufficient specialty occupation work to perform throughout the 
requested validity period . While this appeal was pending, the U.S. District Court for the District of 
Columbia issued a decision in Jtserve 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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. § 2 l 4.2(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 . 
Additionally, we note that, regardless of whether the Petitioner would have an employer-employee 
relationship with the Beneficiary and whether sufficient work would be available, the record does not 
establish the services that the Beneficiary will ultimately provide through the Petitioner, mid-vendor, 
prime vendor and vendor management company, and end-client. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
corning temporarily to the United States to perform services .. . in a specialty occupation described in 
section 214(i)(l) . .. "(emphasis added). To determine whether the Beneficiary will be employed in a 
specialty occupation, we review the record to ascertain the services the Beneficiary will perform and 
whether such services require the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a bachelor's degree or higher in a specific specialty or its 
equivalent. Without sufficient evidence regarding the duties the Beneficiary will perform, we are unable 
to determine whether the Beneficiary will be employed in an occupation that meets the statutory and 
regulatory definitions of a specialty occupation and a position that also satisfies at least one of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: 
(1) the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (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 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree 
or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (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 necessary to perform that particular work. 
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. 
2