remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-C-G- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 17, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services company, seeks to temporarily employ the 
Beneficiary as a "software developer-application developer" 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 eligibility at the time of filing the petition. On appeal, the Petitioner submits a brief and 
additional evidence, and asserts that the Director erred in denying the petition. 
Upon de nova review, we will withdraw the Director's decision and remand the petition for further 
review of the record and a new decision. 
I. ANALYSIS 
The Director concluded that the duties the Petitioner initially provided did not relate to the duties of a 
software developer and the duties submitted in response to the Director's request for evidence (RFE) 
were significantly different than what the Petitioner initially submitted. Therefore , the Director 
concluded that the Petitioner did not establish eligibility at the time of filing the petition. 
While we acknowledge the Director's concerns , we conclude that the Director's decision is insufficient 
for review. There are fundamental issues in the record that the Director did not address that underlie 
the eligibility issue. The Director did not fully explain the reasons for the denial so that the affected 
party has a fair opportunity to contest the decision and the AAO an opportunity for meaningful 
appellate review. Cf Matter of M-P-, 20 l&N Dec. 786 (BIA 1994) (finding that the reasons for 
denying a motion must be clear to allow the affected party a meaningful opportunity to challenge the 
determination on appeal). 
Matter of B-C-G- Inc. 
Specifically, as presently constituted, the record does not demonstrate that the proffered position 
qualifies as a specialty occupation or the Petitioner will have an employer-employee relationship with 
the Beneficiary. See 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
The Petitioner states that the Beneficiary will be performing her duties at the end-client's location in 
I I Illinois pursu:nt to agreements executed by the Petitioner,! l 
(vendor),! J(prime-vendor), and._l ________________ ____.] 
( end-client). The Director should review the record and address whether it contains sufficient evidence 
to establish the services the Beneficiary will perform for the end-client and whether they qualify as a 
specialty occupation. 
For example, in support of the claimed contractual relationship, the Petitioner submitted an agreement, 
titled "Subcontractor Master Services Agreement For Consulting and Information Technology 
Services" (SMSA) executed with the vendor. The SMSA states that the Petitioner agrees to provide 
"personnel, its expertise and professional, technical and project management services as are called for 
by each statement of work or purchase order .... " The record contains a purchase order that identifies 
the client as 'I I' and indicates the project's end-date as December 28, 2018. The 
record, however, does not contain a purchase order identifying the end-client and its project. The 
Petitioner submitted an amendment to an agreement between the prime-vendor and the end-client; but 
the record does not contain the referenced agreement. 1 Further, the record does not contain an 
agreement between the vendor and the prime-vendor. Instead, the Petitioner submitted letters from 
the involved parties, but these letters do not provide sufficient details regarding the project2 to which 
the Beneficiary will be assigned. Furthermore, the Director should address whether the record 
contains varying degree and experience requirements for the position. 
If the Director concludes that the record demonstrates that the Beneficiary will perform services in a 
specialty occupation, then the Director should examine whether the Beneficiary is qualified to perform 
services in the specialty occupation. 
The Director should also examine whether the record contains sufficient evidence demonstrating that the 
Petitioner will have an employer-employee relationship with the Beneficiary as a "United States 
employer." The Petitioner asserts that it will maintain supervision and control over the Beneficiary 
during her assignment at the end-client's location. For example, the Petitioner states that it has the 
right to assign additional duties to the Beneficiary, that the benefits are paid by it, and that it will 
supervise the Beneficiary; however, the manner of the Petitioner's claimed supervision appears to be 
largely in the form of "weekly status reports" and "emails at client site." The record does not explain 
how the Petitioner will communicate the necessary information regarding the project, assign the daily 
work, or monitor the Beneficiary's performance from a remote location. Although the Petitioner 
submits an organizational chart depicting the Beneficiary as the subordinate of the Petitioner's 
1 In its RFE response, the Petitioner lists the Master Managed Services Agreement between the end-client and the 
prime-vendor among the documents submitted; however, the record does not contain this agreement. 
2 The Petitioner states that the Beneficiary will be assigned to the Enterprise Customer Relationship Management (ECRM) 
project and provides a brief overview. However, the record contains insufficient evidence corroborating the Petitioner's 
assertion. 
2 
Matter of B-C-G- Inc. 
president, the number of employees indicated on this chart is inconsistent with the number of 
employees the Petitioner indicated on the petition, raising questions about the veracity of the chart. 
II. CONCLUSION 
We will remand the record for farther review of these issues. The Director may request any additional 
evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of B-C-G-Inc., ID# 4779007 (AAO Sept. 17, 2019) 
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