remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9731237 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2020 
The Petitioner, an information technology consulting company, seeks to employ the Beneficiary 
temporarily as an "informatica developer" under the H-lB 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 California Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, concluding in part that the Petitioner did not establish an employer-employee relationship 
with the Beneficiary. The Director also concluded that based on a lack of corroborating material, to 
include contracts, the Petitioner had not demonstrated it would have qualifying work available for the 
Beneficiary throughout the period requested on the petition. While this appeal was pending, the U.S. 
District Court for the District of Columbia issued a decision in ltserve All., 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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 relating to H-lB petitions filed for workers who will be employed 
at one or more third-party worksites, 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. 2 The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity 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 further address the following issues. The end-client 
indicated in its letter the Petitioner submitted in the response to the Director's request for evidence, 
that the position required at least a bachelor's or a master's degree in computer science. The client 
further stated that the Beneficiary was selected for this project as he holds a master's degree in 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda 2 (June 17, 2020), 
http://www.uscis.gov/legal-resources/pol icy-memoranda. 
3 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
computer science and a bachelor's degree in computer engineering, and the coursework he 
encountered in both of those programs "laid the principal foundation and knowledge required to 
perform the duties seamlessly." Subsequently in the same letter, the end-client offered different 
position prerequisites indicating the position only required a bachelor's degree or its equivalent in 
computer science. The Director may elect to have the Petitioner offer probative evidence explaining 
why the end-client offered inconsistent position prerequisites and what that organization actually 
requires for this position.5 
The Director may also request evidence that the employer included a notice or posting of the U.S. 
Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA) at the end-client worksite in accordance with section 212(n)(1)(C) of 
the Act and the regulation at 20 C.F.R. § 655.734. Specifically, the requirements found at 20 C.F.R. 
§ 655.734(a)(1) mandate that for situations in which the H-1B nonimmigrant will be employed at a 
third-party worksite, the petitioning organization must ensure that a specific set of information, as well as 
the LCA, is available for public inspection at the worksite in hard-copy form or in an electronic form that 
is readily available, as a practical matter, to all affected employees. 6 
As the notice or posting requirements directly relate to the concerns for U.S. worker protections covered 
by both the LCA and the Form 1-129, the Petitioner should be willing and prepared to demonstrate 
compliance.7 While a petitioner's failure to demonstrate compliance with the notice or posting 
requirements provision does not serve as an independent ground to preclude this petition's approval, 
it can serve as an additional element that adversely affects eligibility. The Director may elect to have 
the Petitioner demonstrate that it complied with its declaration under the penalty of perjury on the LCA, 
within which it attested to the notice or posting requirements in the LCA's Employer Labor Conditions 
Statements section. Additionally, the Director may inquire to determine whether the record reflects the 
end-client's actual position prerequisites as its website contains similar positions that require more than 
four years of work experience, which could have implications on the correctness of the prevailing wage 
rate required on the LCA.8 
Continuing on the issue of this position's actual prerequisites, the Petitioner provided a document titled 
"Relationship between job duties and course opted during B-Tech and M.S. in Computer Science 
Engineering" in which it explained the nexus between each job duty, the associated skillsets, and the 
coursework that provided the Beneficiary with the knowledge to perform those duties. A review of 
the listed coursework reveals that a significant number of the courses were part of the Beneficiary's 
master's degree program. This would appear to establish that the position actually required the 
knowledge achieved through a master's degree program in computer science and that the position 
5 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
6 See also DOL, Wage and Hour Division, Field Assistance Bulletin No. 2019-3, Compliance with the H-lB Notice 
Requirement by Electronic Posting (Mar. 15, 2019), https://www.dol.gov/whd/FieldBulletins/. 
7 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
8 See Application Development Senior Advisor, I I (Aug. 19, 2020), 
https:/I !Application-Development-Senior-Advisor; Sr. Software Engineer - Data 
Architecture, I O I (Aug. 19, 2020), https:/A.__ ________ ____.tsr-Software-Engineer-Data-
Architecture. Although these positions do not contain the exact same duties listed in the petition, we observe similar 
responsibilities and discussion of the Informatica product. 
2 
required a master's degree similar to the end-client's statement. As the education prerequisite 
generally required for the Software Developers, Applications occupation is a bachelor's degree and it 
appears this position required a master's degree, the Director should consider whether the Level I wage 
rate was correct. 
Furthermore, the opinion letter reflected that the author reviewed the Beneficiary's academic 
credentials-including his master's degree credentials-and stated it was the author's opinion that the 
foreign worker's "background has clearly prepared him for the position of Informatica Developer for 
[the Petitioner]. This is because the knowledge attained by [the Beneficiary] during the course of his 
academic studies corresponds to, and is a necessary requirement for, the specific duties of the 
position." (Emphasis added). The author did not differentiate between the Beneficiary's foreign 
bachelor of technology degree and his master's degree. So, the author is clearly stating the knowledge 
associated with the master's degree "is a necessary requirement for[] the specific duties of the 
position." The Director may desire to evaluate the impact this information has on the propriety of the 
Level I wage rate designated on the LCA. 
Lastly, we observe some database-related duties that may surpass those associated with the Software 
Developers, Applications occupation within the Occupational Information Network (O*NET). The 
Director may wish to evaluate the extent of the database related duties to decide whether they warrant 
an increment increase in the wage level. Although those within the Software Developers, Applications 
occupation analyze and design databases, those responsibilities are only within a limited "application 
area." We question whether this position's duties exceed that limited area. 
We offer several examples. For instance, the end-client stated the Beneficiary would build "an 
enterprise data warehouse .... " Data warehouses are often associated with large amounts of data. 
That would appear to exceed the limited "application area" for those at the entry-level for the Software 
Developers, Applications occupation, and building such constructs could be considered to venture into 
the 15-1199.06 SOC code relating to the Database Architects occupation in the O*NET. Additionally, 
the duty to design and develop Teradata Stored Procedures and TPT Load, FastLoad, Multi Load, and 
Fast Export uti I ities for data refresh in the tables also appears to exceed the functions of entry-level 
Software Developers, Applications and is seemingly more aligned with the Database Architects 
occupation or the 15-1141 SOC code corresponding with the Database Administrators occupational 
title. 
More glaringly, the duties to"[p]rovide day to day Data Warehouse support by debugging, 
maintaining, problem solving, data discrepancy resolutions and validation of procedures for schedule 
jobs or processes running in production Environment," "[i]mprove the existing Teradata databases, 
performing tuning and maintenance using tools like Teradata Viewpoint," and "enhance the existing 
informatica power center workflow .... " appear to far exceed the database-related duties of the 
Software Developers, Applications occupation and directly fall under the database SOC codes we 
identified above. The Director may wish to inquire about these responsibilities to determine their 
effect on the prevailing wage rate designation on the LCA. 
Ultimately, the Director may wish to inquire why the Petitioner committed to compensating the 
Beneficiary with the minimum pay it could under the DOL's wage system (at the Level I wage rate or 
the 17th percentile), when it appears the position's requirements might mandate a higher rate of pay 
3 
(possibly at the Level 111 wage rate or the 50th percentile; more than $30,000 over what the Petitioner 
would pay the Beneficiary). 
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. 
4