remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11797510 
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. 25, 2021 
The Petitioner, an information technology consulting and 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. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary would be employed in a specialty occupation or that a valid employer­
employee relationship would exist with the Beneficiary for the duration of the requested H-lB validity 
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Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance and 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/policy-memoranda. 
The Petitioner, which is located inl I Texas, states in the H-lB petition that it will outsource 
the Beneficiary to I I Massachusetts in order to work for I l(end-client), pursuant to 
contractual agreements between the Petitioner and I I (mid-vendor), as well as between the 
mid-vendor and the end-client. On the labor condition application (LCA) 1 submitted in support of the 
H-lB petition, the Petitioner designated the proffered position of "systems engineer" under the 
1 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1B 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. § 655.731(a). 
occupational category "Software Developers, Applications," corresponding to the Standard 
Occupational Classification code 15-1132. 2 
In our de nova review, we have identified several discrepancies that the Director may wish to consider. 
These discrepancies may indicate that the Petitioner has not met its burden in establishing that the 
proffered "systems engineer" position is a specialty occupation.3 Initially, the Director may wish to 
determine whether the Petitioner has sufficiently articulated the duties of the proffered position as they 
relate to the specific projects upon which the Beneficiary will work. As noted in the Director's 
decision, beyond a listing of general duties, the Petitioner has not sufficiently described the assignment 
upon which the Beneficiary will work. For instance, the duty of "[s]upport resolution of UAT 
identified issues and their triage" does not contain an explanation of how the Beneficiary will support 
resolutions, what UAT issues involve, or how triage operates in the context of the end-client's 
business. Nor can we ascertain how the performance of this work requires specialized knowledge. 
Further, duties related to interacting, collaborating, partnering, communicating, and working with 
others appear to involve basic life skills that do not readily feature specialized knowledge. The 
Director may wish to clarify why this work requires a bachelor's degree in a specific specialty to 
perform, as the Petitioner has not offered sufficient context for such duties. Similarly, the Petitioner 
lists several responsibilities that appear to be related to work culture, rather than an independent duty 
that requires a bachelor's degree in a specific specialty in order to perform. To illustrate, the Petitioner 
has not explained how giving "continuous attention to technical excellence and good design" or being 
"flexible to work with team members in different time zones" features specialty occupation work. 
Many of the proffered position's duties are generic in nature and have been found in multiple online 
job advertisements for a variety of information technology work. For instance, Perficient advertises 
for an "API Solutions Architect" and a "Senior Technical Architect, the job announcements for which 
contain duties nearly identical to those listed for the proffered position. Robotics Technologies LLC 
advertises for a Lead Mulesoft Consultant with similarly articulated duties.4 The proffered position's 
duties include "[c]ollaborate with application developers, end users, operational leadership, and 
subject matter experts to understand current and future goals," while the Perficient and Robotics 
Technologies positions include duties to "[w]ork with application developers, users, operational 
leadership, and subject matter experts to understand current and future operational data analysis 
2 The Petitioner classified the proffered position at a Level I wage. A wage determination starts with an entry-level wage 
{Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf. 
3 Since the filing of the petition, the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook 
(Handbook) has removed the "Applications" designation, which previously distinguished the occupational category from 
"Software Developers, Systems Software" under SOC code 15-1133. Currently, the Handbook has only one "Software 
Developers" occupational category. 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). 
4 For more information on the Perficient positions, refer to https://www.mendeley.com/careers/job/api-solutions-architect-
607717 and https://www.uzoes.com/us/details/2d68eee7983e9f0e034fb2ea8a44d3bb. For more information on the 
Robotics Technologies LLC position, visit https://roboticstechno.com/viewjob?mode=apply&id=16718&hr_id= (sites 
last visited Feb. 25, 2021). 
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goals" and "[c]ollaborate with the customer's operations and technology leadership on the future 
analytic goals of the organization, and design a technical architecture to meet those goals." Here, 
duties are similarly stated across a variety of computer-related positions, which suggests that the 
Petitioner has offered only generalized descriptions for its position duties. It is not apparent from these 
descriptions how the duty functions in the context of a specific business or project. Given the 
descriptions are broad and vague enough to apply to a variety of contexts, the Director may wish to 
determine whether the Petitioner has met its burden to establish that its position meets any of the 
specialty occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) with regard to the specific project(s) 
upon which the Beneficiary will work. 
In addition to our concerns about the duties, the Petitioner also inconsistently describes the minimum 
qualifications for entry into the position. For example, the Petitioner stated several times that the 
position requires a bachelor's degree in Computer Science, Information Science, Information 
Technology, or a closely related field. However, in the letters submitted with the initial filing of the 
petition and in response to the Director's request for evidence (RFE), the mid-vendor stated that the 
position requires a bachelor's degree in the stated fields, in addition to "relevant prior work 
experience." Moreover, the end-client's letter submitted with the initial filing requires a bachelor's or 
a master's degree in computer science, along with at least six years of experience in developing 
industrial software and a host of other technology skills. Finally, the end-client's letter submitted in 
the RFE response stated that, in addition to a bachelor's degree in one of the previously-stated 
qualifying fields, another field would be acceptable, that of Real-Time Interactive Simulation. The 
Petitioner has not explained or acknowledge these changes in its degree and experience requirements, 
and as such, the Director may wish to clarify the minimum qualifications for entry into the proffered 
position and how they relate directly to the claimed duties. If the position requires additional 
experience, certifications, or training, this could indicate a required wage level increase. At minimum, 
this raises questions as to the accuracy of the Petitioner's stated minimum qualifications, as well as to 
whether the LCA corresponds to and supports the petition as required. 
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. 
On appeal, the Petitioner states that the proffered position falls within the "Computer Network 
Architect" occupational category, a distinct and different occupational category from that which was 
claimed in the petition and for which the LCA was certified. 7 On appeal, the Petitioner additionally 
claims the dates of intended employment are September 12, 2019 through September 12, 2022. 
However, the petition indicates that the requested employment period is from October 1, 2019 to 
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). 
7 The "Computer Network Architect" occupational category corresponds to the SOC code 15-1241. 
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September 15, 2022. Lastly, the Petitioner claims on appeal that the LCA was certified on March 19, 
2019, however the record indicates the LCA was certified on March 21, 2019, and that the Petitioner's 
representative signed it on April 1, 2019. These inconsistent claims on appeal raise doubts as to the 
accuracy of the Petitioner's claims throughout these proceedings and undermines the credibility of the 
overall petition. Additionally, these inconsistencies suggest the Petitioner may be initiating material 
changes in an effort to make a deficient petition conform to USCIS requirements. At minimum, the 
Director may question whether the Petitioner's appeal was prepared for a different beneficiary. 8 
Overly general duties combined with material inconsistencies in the education and experience required 
for the proffered position collectively raise questions as to the whether the Petitioner has established 
that the position is a specialty occupation. The opinion letter offered by I I of 
I !university School of Management provides little clarity in this regard.I lfocuses 
the bulk of his opinion on his qualifications to provide an opinion and on repeating the proffered 
position duties. He breaks down the Beneficiary's education and experience in a chart which links 
them to the specific duties of the position, thereby establishing how they are directly related. In so 
doing.I !attempts to define the position based upon the qualifications of the proposed 
Beneficiary. Instead of relating how each of the qualifying fields relates to the duties of the position, 
I I has correlated how each of the Beneficiary's qualifications meet the Petitioner's claimed 
education requirements. Moreover.I !appears to confuse the ability of a degreed computer 
science person to perform the duties of the proffered position with a degree requirement in order to 
perform the duties. As such, he misconstrues the statutory and regulatory requirements of a specialty 
occupation. 
Whi lei I documents how the knowledge to perform the duties of the position is taught in 
a computer science bachelor's degree program, he does not provide 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. Notably, he identifies where the knowledge to perform the duties could be 
obtained, but not why the knowledge is required. To add any value to this matter.I ts 
analysis must flesh out his fundamental presupposition that the position requires specialized 
knowledge before discussing the knowledge areas involved or explaining where the knowledge could 
be obtained. 
While we have identified a number of shortcomings in the record that suggest the Petitioner has not 
established eligibility for the requested benefit, 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. 
8 The Petitioner's appeal brief also references an RFE response date of March 22, 2019, which is inconsistent with the 
documents in the record containing an RFE response dated November 14, 2019. The appeal brief also references an RFE 
response Exhibit 1, which appears to be RFE response Exhibit 6 in the record. Finally, the RFE response itself references 
that it is in response to a "pending 1-130 Nonimmigrant Petition." 
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