remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11810050 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 26, 2021 
The Petitioner, an information technology solutions provider, 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. 
In the Request for Evidence (RFE), the Petitioner received notification of evidentiary deficiencies in 
the record related to the Petitioner's employer-employee relationship with the Beneficiary. The 
Petitioner had an opportunity to submit evidence that would support a finding that it had specific , non­
speculative qualifying assignments in a specialty occupation for the duration of the requested 
employment period. Though the Petitioner responded to the RFE, it did not provide sufficient 
contractual documentation to evidence any specific , non-speculative assignments upon which the 
Beneficiary would work. The Director of the Vermont Service Center denied the petition , concluding 
that the Petitioner did not establish that the Beneficiary would perform services in a specialty 
occupation for the duration of the requested employment period. 
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and Immigration Services (USCIS) rescinded previously issued policy guidance and directed its 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/pol icy-memoranda. 
The Petitioner will outsource the Beneficiary to work as a "software engineer" for ._I __ __, 
I I, an information technology solutions company that likewise outsources IT 
~onnel to other entities. In its original filing, the Petitioner included are=J letter indicating that 
L_Jwill use the Petitioner's services to provide IT personnel to various third parties, including six 
government entities in thel lmetro area. The Petitioner provided a letter of support 
indicating that the Beneficiary will work atD's location onl I in Virginia, as well as 
a Vendor Agreement between the Petitioner andc=] The Director issued the Petitioner an RFE in 
order to clarify where the Beneficiary would work, noting that it appeared as though □ had end­
clients for which the Beneficiary would perform services but that documentation from the ultimate 
end-client(s) had not been provided. Thou h the Petitioner responded to the RFE and reiterated that 
the Beneficiary will work atc=Js L--.------..------l location, the Petitioner did not provide further 
clarification or information concerning send-clients and how that may affect the work performed 
by the Beneficiary. 
In most cases, our decision will be limited to the evidence in the record at the time of the unfavorable 
decision, as the appellate regulations have never explicitly allowed for the submission of evidence 
with regular appeals. Accordingly, when new evidence is submitted with an appeal, we will apply 
both Matter of Soriano1 and Matter of Obaigbena2 to determine whether we will consider the evidence 
in our decision. In applying the framework of those cases to the matter at hand, we conclude that the 
RFE provided notice to the Petitioner that an evidentiary deficiency prevented the Director from 
determining whether the Petitioner had specialty occupation work available for the Beneficiary to 
perform. The Petitioner had a reasonable opportunity to respond to the deficiency through the RFE 
process and, in fact, did provide an RFE response. Furthermore, we conclude that had the Petitioner 
wanted to, it reasonably could have submitted evidence of the specific contracts for which the 
Beneficiary's services would be utilized prior to the filing of the instant appeal. On appeal, the 
Petitioner submits various contractual documents that predate the petition filing date. Presumably, the 
Petitioner would have been in possession of and capable of submitting these documents within its 
initial filing or RFE response. Accordingly, the AAO is not required to consider this additional 
evidence submitted on appeal. Nevertheless, we conclude that the Director is the more appropriate 
party to consider the impact of the evidence on eligibility for the benefit sought. 
Among the new evidence on appeal, the Petitioner submits a blanket purchase agreement (BPA) issued 
by thel I toD concerning functional testing support provided on 
behalf of the.___ ________________ ___.,. The BPA provides an overview 
of the project and the personnel required but does not mention the proffered position specifically nor 
does it articulate the specific duties the Beneficiary will perform. The BPA indicates that the first year 
of work will be performed at thel I office location onl I in 
1
irg
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nia, after which, 
testing is to be performed remotely. The BPA provides that the agreement with will be reviewed 
annually, but that the work ends in April 2019. A separate document extends the period of 
performance until September 2023, though it is unclear what work is contained within this extension. 
In addition to the BPA and its extension, the Petitioner provided a one-page amendment contract issued 
toe=] byl I in 2016, but containing a contract number different from that which the BPA 
references. Based upon this amendment document alone, it is unclear what entity has a contract with 
~Though the Petitioner claims the entity associated with this contractual amendment is referenced 
inl_Js letter, the Petitioner has not clarified which one. As noted.D"s letter listed six different 
1 Matter of Soriano, 19 l&N Dec. 764 (BIA 1988). 
2 Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). 
3 The one-page amendment extends the referenced contractual engagement until August 2021. 
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entities to which it provides outsourced staff and therefore simply providing a contract number does 
not clarify what entity is associated with the amendment document. 
To evidence thatD..h_as office space for the Beneficiary to work in, the Petitioner provided a lease 
agreement betweenlJand a landlord for office space onl din Virginia. While we 
acknowledge that the Petitioner claims the Beneficiary will work at s location on I I 
I I the variety of location documentation raises Juestions as to whether the Beneficiary will 
also work atDs location on~-----~• at the_ location atl I remotely 
tori I. or at some other end-client location. As this information is essential in establishing 
compliance with the requirements of the H-lB visa, the Director may wish to clarify where the 
Beneficiary will be located. Although the Petitioner is correct that third-party worksites are permitted 
in the H-lB program, it remains critical that the Petitioner provide clear and consistent information on 
who the third party is and where the Beneficiary will be located. 
In addition to confusion concerning the Beneficiary's physical location, the Petitioner has not provided 
sufficient detail concerninl the project(s) upon which the Beneficiary will work. Though the 
Petitioner provides! documents on appeal, the Petitioner has not definitively stated that the 
BenefTary willl work on thel I project. It remains unclear whether the Beneficiary will work 
on the project, another entity's project, projects from multiple other entities, or some 
combination of these. In its letterDprovided a list of bulleted duties identical to the bulleted duties 
provided by the Petitioner in its support letter. In response to the RFE, the Petitioner provided an 
expanded table of duties with percentages of time spent on each duty but did clarify what entity or 
entities will receive this work. Both the original bulleted list of duties and the expanded table of duties 
are general in nature and do not provide specific information on theD or third-party projecµo...,which 
~ apply. In fact, we cannot ascertain whether the Beneficiary will provide services toLJ or to 
L_Js end-client(s). 
In addition to the above, the Director's decision did not include a discussion of the substantive nature 
of the proffered position. As such, the Director may wish to consider whether the Petitioner has met 
its burden in establishing that the proffered position is a specialty occupation.4 In the expanded list, 
the Beneficiary takes on new duties including prototyping, technical consulting, setting up pipelines, 
testing, debugging, troubleshooting, as well as building and managing virtual machine environments 
in a single workflow. While it is certainly permissible to provide additional detail on preexisting 
duties, this expanded table appears to list new and additional work not articulated with the original 
filing, and which also appears to change the very nature of the position. This expanded table of duties 
further calls into question the substantive nature of the position, as the new duties appear to alter the 
nature of the position when compared with the original filing. 
4 The Petitioner designated the proffered position under the SOC code and title 15-1132, "Software Developers, 
Applications." Since the filing of the petition, the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook has removed the "Applications" designation, which previously separated the occupational category from 
"Software Developers, Systems Software" under SOC code 15-1133. Currently, the Handbook has only one "Software 
Developers" designation, which is classified under SOC code 15-1132. For more information, visit the Bureau of Labor 
Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, https://www.bls.gov/ooh/computer-and-information­
technology/software-developers.htm#tab-2. (last visited Feb. 25, 2021). 
3 
In general, a petitioner must establish that all eligibility requirements for the immigration benefit have 
been satisfied from the time of the filing and continuing through adjudication.5 A visa petition may 
not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set of 
facts.6 Accordingly, eligibility for the benefit sought must be assessed and weighed based on the facts 
as they existed at the time the instant petition was filed. In order for a petitioner to comply with 8 
C.F.R. § 103.2(b)(1) and USCIS to perform its regulatory duties under 20 C.F.R. § 655.705(b), a 
petitioner must file an amended or new petition, along with a new LCA certified by DOL, in order to 
capture any material changes in terms or conditions of employment or the beneficiary's eligibility. 
Even accepting the expanded list, the Petitioner has not clearly explained how duties such as 
"[m]aintain the developed code via Source Control" would require specialized knowledge to perform. 
Coding duties can be performed by individuals with a variety of educational backgrounds and indeed 
require no specific education at all to perform. Further, the Petitioner lists duties such as "[d]evelop 
the core applications using python, shell script technologies." Such a description does not assist in 
our understanding of what the Beneficiary does to develop the applications, nor does it explain why 
the use of third-party technology, such as Python, requires a bachelor's degree in a specific specialty 
to learn. 
The Petitioner I isted " [ e ]xpertise with automati on/configuration management," "[i] nfrastructure 
monitoring service, with a dashboard, alerting, and visualization of metrics," "[g]eneralist for software 
development in java/python," and "experience in webservices," as collectively occupying a full 10% 
of the Beneficiary's time, yet it is difficult to understand how any of these could be construed as a 
duty. For example, it cannot be understood why the Beneficiary spends 3% of his time on "experience 
in webservices," when such a description appears to capture knowledge the Beneficiary might need 
rather than the work he performs. Finally, if mere experience in webservices or a generalist-level of 
knowledge in Python and Java is all that is required to perform the duty, it cannot be ascertained how 
this would represent complex or specialized work for which a bachelor's degree in a specific specialty 
is required. 
Overall, the duty descriptions provided are of such a vague and general nature that they could apply 
to a wide variety of projects within almost any entity in need of information technology services. The 
Petitioner's descriptions raise significant questions as to what work the Beneficiary will actually 
perform. Without more specific information, the Director may wish to examine whether the Petitioner 
has described its position with sufficient detail such that its substantive nature can be understood. If 
a position's substantive nature cannot be understood, the Director may be precluded from determining 
that the proffered position satisfies any of the regulatory specialty occupation criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The opinion letter offered byl I of I I University School of Management 
provides little clarity in this regard. ~ocuses the bulk of his opinion on how the 
knowledge to perform the duties of the position are taught in three qualifying bachelor's degree 
programs, rather than providing an analysis of (1) why the education would be required to perform the 
duties and (2) why the duties would be considered specialized, unique or complex. In his letter, D 
5 8 C.F.R. § 103.2(b){l). 
6 See Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg'I Comm'r 1978). 
4 
~--~I repeats the expanded list of the Beneficiary's duties and follows it with a discussion of the 
coursework involved in typical bachelor's degree programs in computer engineering, computer 
science, and information technology. I I then lists some of the duties of the proffered 
position under broad course categories of study in these bachelor's degree fields. While we 
acknowledge tha~ I may be attempting to demonstrate how an established curriculum of 
courses leading to a bachelor's degree in a specific specialty is required to perform the duties of the 
proffered position, his letter offers more of an analysis of education programs than it does a discussion 
of the nature of the duties or the proffered position. 
Moreover, many of the coursesl I identified as imparting the knowledge required to perform 
a particular duty appear to conflict with the classes the Petitioner has listed as providing this 
knowledge. One such example includes! l's statement that the proffered position duties 
include "[b]uilding and managing virtual machine environments in a single workflow," for which he 
declares, "[h]ence, the position's duties include software requirement gathering and analysis, which is 
a core area of above standard curriculum." I I has not explained why such a duty involves 
requirements gathering and analysis or what the specific courses associated with requirements 
gathering and analysis are. Furthermore, we cannot reconcile! l's statements with the 
Petitioner's identification of programming language concepts as the source of knowledge required to 
perform this duty. As such, the Director may wish to examine whetherl , I has adequately 
supported his inference that a specialty degree is required in order to perform the duties of the proffered 
position. 
While we have identified a number of shortcomings in the record that obscure the substantive nature 
of the position, the Director may identify additional areas of concern. 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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