remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8911521 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 1 7, 2020 
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. 
The Director of the Vermont 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, 
--- 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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. § 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 the Director's decision did not include a discussion of the substantive nature of the proffered 
position, the Director may wish to consider whether the Petitioner has met its burden in establishing 
that the "software developer" position is a specialty occupation. 1 We observe several discrepancies 
and inconsistencies within the record, in addition to position descriptions that do not support a finding 
that the proffered position requires a bachelor's degree or higher in a specific specialty. 
Preliminarily, we note that the Petitioner, which is located in New Jersey, has outsourced the 
Beneficiary to work at an end-client location in Texas, pursuant to a series of contracts. The 
contractual path appears to flow from the Petitioner tol I (first-vendor), between 
1 The Petitioner designated the proffered position under the SOC code and title 15-1132, "Software Developers , 
Applications." 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 and Dep't of 
Labor's O*NET summary report at https:/ /www.onetonline .org/link/summary / 15-1132.00 (last visited July 16, 2020) . 
the first-vendor andl !(second-vendor), and between the second-vendor andl ~end­
client). As such, the contractual path of succession between the actors in this case may be summarized 
as: Petitioner ➔ First-Vendor ➔ Second-Vendor ➔ End-Client. 
In its initial filing, the Petitioner submitted a support letter describing its position using six numbered 
duties. The Petitioner also submitted the Beneficiary's employment offer letter, which contains a list 
of six duties that differ from the six numbered duties articulated in the Petitioner's support letter. The 
Petitioner has not explained or acknowledged the differences in the two lists of duties, and we cannot 
determine which list is accurate or whether both lists should be read together. 
We also question the organizational structure of the Petitioner and the claims it has made as an 
employer. The petition, certified labor condition application (LCA), and appeal all bear a signature 
from I I CEO. Many of the contracts, letters, and supporting documents in the record 
are signed by '1 I President" or I I CEO." It is unclear whether these names 
represent the same person or different people and which individual, if any, has the legal authority to 
sign for the Petitioner. Furthermore, it should be noted that the Petitioner's organizational chart 
features! lin three different positions, whilel lis not in the organizational chart 
at all. 
The Petitioner submitted a letter from.__ ______ ___.which purports to contain the end-client's 
educational qualifications and a list of position duties. This letter contains significant discrepancies 
that raise questions as to its credibility and probative value. First, the letter is unsigned and appears 
on another entity's letterhead, that ofl I Neither the Petitioner nor I I has explained 
what rela:irship thil lentity has with the end-client. In the signFe blo~~ area, we read thatl • I I I is a program manager and may be located in~-___ JArizona. The Petitioner 
describes as the Beneficiary's "direct manager," which is relevant as the Petitioner has 
stated the Beneficiary will be placed at an end-client site in I I Texas, not in Arizona. The 
Petitioner has not explained how I I will directly manage the Beneficiary if they are not 
located in the same state. Moreover, I ts letter states that the Petitioner maintains "full 
control and supervisory powers over [the Beneficiary's] duty and performance," which appears to 
contradict the Petitioner's claims thatl !directly manages the Beneficiary. The Director 
may wish to clarify these issues. 
In examining the contents ofl Is letter, we read about a "database software developer" 
position, which slightly differs from the title of the proffered position. We do not know if these two 
differently-titled positions have the same or similar duties or why the titles are different. According 
to the letter, the minimum qualifications for the position are "at least a master's degree in Information 
Technology and Management, Computer Information Systems or related field." The Petitioner stated 
in its initial support letter that the requirements of the position are a minimum of a bachelor's degree 
in computer science or a related field. Neither the Petitioner nor the end-client has acknowledged or 
explained the discrepancy, which the Director may wish to address, along with whether the payment 
of a Level I wage is consistent with the requirements of a master's degree. 2 
2 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1 B 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; 
2 
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. 
If we assume without deciding that the I I letter contains the end-client's pos1t10n 
requirements, including the duties the Beneficiary will perform at the end-client location, we would 
question whether the position, as described, is a specialty occupation. Many duties are described in 
vague and general terms, which do not assist in our understanding of the position. Examples of such 
descriptions include the following verbatim duties: 
• Using normalized and/or Star schemas to load data for Data Marts and Data Warehouses and 
developing different data models; 
• Performing OLAP cube development SSAS; 
• Designing SSIS Packages for importing and exporting the data from various databases to 
Excels and flat files by making use of BCP, Bulk Insert; and 
• Improving existing procedures and data flows based on users' requests. 
From these descriptions, it is unclear what the Beneficiary will do to carry out these undefined duties. 
For instance, neither the Petitioner nor the end-client has defined what various terms mean, including 
Star schemas, Data Marts, Data Warehouses, and Bulk Insert, to name a few. Further, we have little 
information concerning what "existing procedures" includes or how the Beneficiary will improve 
them. The Petitioner must ensure the material duties sufficiently convey the Beneficiary's activities at 
the end-client location in such a manner that a person without a great familiarity with the technical 
nature of these functions would be able to grasp what the position consists of, and why it and the duties 
are so complex. 3 Neither the Petitioner nor the end-client have done so here. 4 Furthermore, the Petitioner 
has not explained how the duties, as articulated in its support letter and the Beneficiary's employment 
offer letter, relate to the duties listed in the I I letter. Specifically, we question whether the 
database duties in th~ I letter indicate that the position is more properly categorized as falling 
within the occupational category of"Database Architects," corresponding to SOC code 15-1199.06.5 
Because this case is affected by the new policy guidance, we find it appropriate to remand the matter 
for the Director to consider the employer-employee question anew and to adjudicate in the first 
20 C.F.R. § 655.731 (a). See also U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://t1cdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
3 See Sagarwala v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *8-10 (D.D.C. July 15, 2019). 
4 The Beneficiary's work product samples do not assist in our understanding of the position. The Petitioner does not 
explain what the samples represent. Further, it is not apparent how use of Excel, a third-party resource for which 
proficiency courses and trainings are widely available, would require specialized knowledge. 
5 For more information, v1s1t the O*NET summary report for "Database Architects" at 
https://www.onetonline.org/link/summary/15- l l 99.06 (last visited July 16, 2020). 
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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. 
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