remanded H-1B

remanded H-1B Case: Information Technology

📅 Date unknown 👤 Company 📂 Information Technology

Decision Summary

The Director initially denied the petition for failing to establish a valid employer-employee relationship. The case was remanded because a recent U.S. District Court decision and a subsequent USCIS policy memorandum rescinded previous guidance, requiring the Director to re-evaluate the employer-employee relationship under the current regulatory definition.

Criteria Discussed

Employer-Employee Relationship

View Full Decision Text

U.S. Citizenship 
and Immigration 
Services 
In Re: 9605709 
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 . 28, 2020 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary under the H-lB nonirnrnigrant 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. 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rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 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. 
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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