remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9683232 
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 a "software development engineer" 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 that the Petitioner did not establish that the Beneficiary would perform services 
in a specialty occupation for the requested period of intended employment. While this appeal was 
pending, the U.S. District Court for the District of Columbia issued a decision in ltserve 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Immigration Services (USCIS) rescinded previously issued policy guidance relating to H-lB petitions 
filed for workers who will be employed at one or more third-party worksites.2 The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility 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. 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 a petitioner, evidence of the client companies' job requirements is 
critical. The Defensor court reasoned that the position requirements from the entity where the beneficiary 
would actually work-be it the required degree or the position's actual duties a candidate would 
perform-should serve as the more relevant characteristics we should consider under our specialty 
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). 
occupation determination. The scenario in Defensor has repeatedly been recognized by federal courts as 
appropriate in determining which entity should provide the requirements of an H-1B position and the 
actual duties a beneficiary would perform.5 
The Defensor court further concluded that absurd outcomes could result from granting greater credence 
to the position requirements as represented by an outsourcing agency, rather than to those from its clients 
where a beneficiary would perform the work.6 We note that while the end-client letter the Petitioner 
submitted does contain duties the Beneficiary would perform for the client, lacking are the client's 
prerequisites it mandates to qualify to perform that work. The Director should consider whether the 
material within the record reflects what the end-client requires as a prerequisite for the proffered 
position as outlined within the Defensor decision. 
Additionally, the Director should determine whether the duties as presented within the end-client letter 
are sufficient to satisfy the requirements under the H-1B program. While the end-client provided the 
Beneficiary's duties, they appear abbreviated. The Director may wish to consider whether the 
proposed duties as described in this record of proceeding, and the position that they comprise, merit 
recognition of the proffered position as a specialty occupation. 
Turning to the contractual material, the Director noted the absence of this type of evidence executed 
between the mid-vendor and the end-client. In its appellate response, the Petitioner claims that such 
evidence could not be provided due to privacy concerns. Inherent with employing foreign nationals 
are additional burdens a U.S. employer must satisfy when compared to hiring U.S. workers. Part of 
that burden in the H-1B context is to demonstrate the existence of the proposed work. The Director 
may consider what, if any, impact this lack of evidence has on the Petitioner's claims that it has 
demonstrated it would provide any qualifying work for the Beneficiary. 
Not only is the record absent of agreements between the mid-vendor and the end-client, but some of 
the material executed between the Petitioner and the mid-vendor is deficient. For instance, the sole 
Purchase Order the Petitioner offered lacks a signature or the date as it pertains to the mid-vendor's 
representative. The Director may also consider what, if any, effect this has on the Petitioner's claims. 
Moreover, as the Director already sought this type of evidence in her request for additional evidence, 
it is unnecessary that she request new contractual material or factor new contractual material into her 
new decision. 7 
Turning to the position's duties, even though the Petitioner offered a brief explanation of why this 
position was properly classified on the labor condition application (LCA) under the standard 
occupational classificational (SOC) code 15-1132 corresponding with the Software Developers, 
Applications occupational title, it is not clear whether that is the most appropriate SOC code or if it 
should have listed the 15-1199.01 code relating to the Software Quality Assurance Engineers and 
5 See Altimetrik Corp. v. USCIS, No. 2:18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik Corp. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, 387 F. Supp. 3d 56, 69 n.5 (D.D.C. 2019). 
6 Id. 
7 See e.g., 8 C.F.R. § 103.2(b)(11) that states the submission of only some of the requested evidence will be considered a 
request for a decision on the record. 
2 
Testers occupation. We further note that within the Petitioner's appeal brief, it appears they incorrectly 
state that the "SDET" listed within the Purchase Order is an abbreviation for "Software Development 
Engineer," when it appears this initialism is widely accepted in the information technology industry 
to stand for "Software Development Engineer in Test."8 This also raises questions about whether the 
Petitioner utilized the most appropriate SOC code on the LCA. 
Also relating to the LCA, the Petitioner claimed the position required a bachelor's degree but did not 
specify any experiential requirements. However, within the response to the Director's request for 
evidence the Petitioner submitted one of the end-client's job announcements that it claimed was similar 
to the position offered in the petition. A review of that job announcement reflects the end-client required 
a bachelor's degree in addition to five years of work experience. The Director should evaluate whether 
this might indicate that the Level 11 wage rate the Petitioner specified on the LCA was correct, as a 
five-year experiential requirement would appear to mandate a Level IV prevailing wage rate designation. 
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 For instance, see Jobs, Glassdoor (July 24, 2020), https://www.glassdoor.com/Job/software-development-engineer-in­
test-sdet-jobs-SRCH_K00,42.htm. 
3