remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10556237 
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. 24, 2020 
The Petitioner, an information technology staffing services provider, seeks to temporarily employ the 
Beneficiary under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality 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. The Director also concluded 
that the record did not establish that the proffered position qualifies as a specialty occupation, or that 
the Beneficiary is qualified for the proffered position. 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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. USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
We note the following topics that the Director may wish to address.1 The Petitioner, located in 
Georgia, initially sought to employ the Beneficiary as an "application developer offsite for an end­
cl ient." It designated the proffered position under the occupational category "Software Developers, 
Applications" corresponding to the Standard Occupational Classification (SOC) code 15-1132 on the 
labor condition application (LCA) submitted in support of the H-lB petition, with the sole place of 
employment listed as the end-client's location in Maryland. 2 The Petitioner also indicated in a letter 
submitted with the petition that the Beneficiary "is expected to work only in D, Maryland." 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-lB 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)(1) of the Act; 20 C.F.R. 
§ 655.731(a). 
There were several entities involved with the Beneficiary's placement at the ultimate end-client.3 The 
contractual chain the Petitioner and other relevant parties initially represented before the Director 
was:4 
Petitioner ::t: V- (mid-vendor #1) ::t: P- (mid-vendor #2) ::t: I- (prime-vendor) ::t: C- (end-client). 
However, a different situation emerged within the Petitioner's response to the Director's request for 
evidence (RFE). The Petitioner asserted then that the contractual relationships had changed, as follows: 
Please note that the Petitioner had filed the instant petition requesting employment of the 
Beneficiary for providing services to [C-], [in] Maryland. The Beneficiary's project with 
[C-] came to an abrupt end. Thereafter the Petitioner assigned the Beneficiary to work for 
a new [end-client, A-W-], located [in] New Jersey. 
The contractual chain the Petitioner and other relevant parties represented before the Director in the 
Petitioner's RFE response was: 
Petitioner ::t: N- (mid-vendor #1) ::t: P- (mid-vendor #2) ::t: I- (prime-vendor) ::t: A-W- (end-client). 
The Director should consider whether the Petitioner has demonstrated that the Beneficiary will be 
employed pursuant to the original terms and conditions of the H-1B petition and LCA. See 8 C.F.R. 
§ 103.2(b)(1) (the petitioner must establish eligibility at the time of filing its petition and must continue 
to be eligible for the benefit through adjudication); Matter of Michelin Tire Corp., 17 l&N Dec. 248, 
249 (Reg'I Comm'r 1978) (a visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts). 
Simply stated, the Petitioner maintains in its response to the RFE and on appeal that the Beneficiary 
will not be employed in the same, original capacity specified on the H-1B petition and in the LCA to 
work for C- in Maryland for the entire validity period requested. As the Petitioner admits, the original 
contractual employment opportunity "came to an abrupt end" in August 2019, after the filing of the 
petition and prior to the requested start date therein. Later, the Petitioner offered the Beneficiary a 
different employment arrangement in New Jersey with A-W-, and sought to amend the petition by 
providing evidence about the new position. However, a change in the location of the Beneficiary's 
work to a geographical area not covered by the LCA is a material change in the terms and conditions 
of employment.5 After filing the petition, the Petitioner cannot offer a new position to the Beneficiary, 
or materially change aspects of the proffered position. A petitioner may not make material changes to 
a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
3 We note that, regardless of whether the Petitioner would have an employer-employee relationship with the Beneficiary, 
the record does not establish the services that the Beneficiary will ultimately provide through the initially presented 
contractual relationship between the Petitioner, mid-vendor #1, mid-vendor #2, prime vendor, and the end-client. 
4 The Petitioner claimed that the Beneficiary was to perform services for a project under development by M-. While it 
references C- as the end-client, the record does not substantiate the nature of the contractual relationship between C- and 
M-, if any, which raises questions regarding the identity of the ultimate end-client said to initially require the Beneficiary's 
services. 
5 See 20 C.F.R. § 655.705(b). See also Matter of Simeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 2015). 
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Therefore, the Director should consider whether the Petitioner materially changed the proffered 
position after filing the petition, so that an LCA covering the proposed location of employment in New 
Jersey, as well as other aspects of the new employment opportunity presented after the filing of the 
petition had to be submitted to USCIS as part of an amended or new petition, before the Beneficiary 
would be permitted to begin working in the place of employment as an H-lB nonimmigrant.6 
Lastly, the Director determined that the record did not establish that the Beneficiary was qualified for 
the proffered position. However, the Director is required to follow long-standing legal standards and 
determine first, whether the proffered position qualifies for classification as a specialty occupation, 
and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa 
petition was filed. Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) {"The 
facts of a beneficiary's background only come at issue after it is found that the position in which the 
petitioner intends to employ him falls within [a specialty occupation]."). Therefore, the Director 
should consider whether the Beneficiary is qualified for the proffered position only if she ultimately 
determines that the position qualifies as a specialty occupation. 
Because this case is affected by the new policy guidance, we find it appropriate to remand the matter 
for the Director to consider the questions 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. 
6 See 8 C.F.R. § 214.2(h)(2)(i)(E); See Simeio, 26 l&N Dec. 542. 
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