remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9799315 
Appeal of Vermont 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 services provider, seeks to employ the Beneficiary 
temporarily 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 Vermont Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish that it would have non-speculative work for 
the requested validity period for the Beneficiary. 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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. 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. First, it 
appears that the duties within the end-client letter actually originated with the Petitioner. The duties 
within the end-client letter are identical to the Petitioner's initial set it provided nearly eight months 
earlier, including formatting, verb tense, capitalizations and a typographical error. As a general 
concept, when a petitioner has provided material from different entities, but the language and structure 
contained within is notably similar, the trier of fact may treat those similarities as a basis for questioning 
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). 
a petitioner's claims.5 When correspondence contain such similarities, it is reasonable to infer that the 
petitioner who submitted the strikingly similar documents is the actual source from where the similarities 
derive.6 
Given the unique similarities in the letters and the order in which the Petitioner presented the evidence, 
the Director may wish to evaluate whether the Petitioner has established, by a preponderance of the 
evidence, that the duties originated from the end-client. In accordance with Defensor v. Meissner, 
201 F.3d 384, 387-88 (5th Cir. 2000), which provides that when the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. It is unclear 
whether the Petitioner has demonstrated these elements are the end-client's actual requirements. The 
Petitioner may need to resolve this ambiguity in the record with independent, objective evidence pointing 
to where the truth lies.7 Because someone other than the author appears to have drafted a portion of the 
end-client letter, the Director could determine this evidence possesses diminished probative value. In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its 
quality.8 While we are unable to determine the original source of the proposed duties, it remains the 
Petitioner's burden to establish the duties are the requirements actually imposed by the entity using 
the Beneficiary's services. 9 
Second, even if the origin of the presented duties was not an issue, it appears that a significant portion 
of them were copied from other sources (e.g., job postings and descriptions on the Internet). While a 
general description may be appropriate when defining the range of duties that one may perform within an 
occupation, such a generic description generally cannot be relied upon when discussing the duties 
attached to specific employment for H-lB approval. In establishing such a position as a specialty 
occupation, the proffered position's description should include sufficient details to substantiate that the 
Petitioner has H-lB caliber work for the Beneficiary, and should adequately convey the substantive work 
that the Beneficiary will usually perform within the end-client's business operations.10 Here, the job 
description in the record does not seemingly communicate: (1) the actual work that the Beneficiary would 
perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or (3) the correlation 
between that work and a need for a particular level of knowledge in a specific specialty. The Director 
should assess the effect of this factor on the case. 
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. 
5 See Matter of R-K-K-, 26 l&N Dec. 658, 665 {BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 
2011). 
6 See Mei Chai Ye V. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007). 
7 Ho, 19 l&N Dec. at 591-92. 
8 See Chawathe, 25 l&N Dec. at 376 (quoting Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989)). 
9 Defensor, 201 F.3d at 387-88. 
10 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
2 
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. 
3