remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6936790 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"AWS devops engineer" 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 record does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner asserts 
that the Director erred in the decision. 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision is insufficient for review. Specifically , 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 I&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]."). 
As presently constituted, the record does not demonstrate that the proffered position qualifies as a 
specialty occupation. See 8 C.F.R. § 214.2(h)(4)(iii)(A). We note the Petitioner has not submitted 
sufficient evidence to establish the substantive nature of the proffered position, and whether the 
Petitioner would have an employer-employee relationship with the Beneficiary when he would 
perform work at the end-client location. 
Notably, although the record contains two contracts between the Petitioner and the mid-vendor, it does 
not contain documentary evidence of the work for which the mid-vendor and prime vendor, and prime 
vendor and end-client, respectively contracted. Additionally, even to the extent that the record 
contains documentary evidence of the contract terms between the Petitioner and the mid-vendor, the 
contracts do not specify the work for the Beneficiary to perform. Further, the contracts are not valid 
for the period of employment requested; the first contract was for a period of six months beginning in 
May 2016, and the second contract was for the period of January 2017 through December 2018. 1 
Similarly, although the record contains a letter from the end-client, the letter states that the end-client 
will not provide the terms of the contracts to which it is party and, even if it did, the contract would 
expire in December 2018. 2 Although the end-client letter describes the Beneficiary's duties, the 
end-client's description contains verbatim language from other documents in the record from the 
Petitioner, mid-vendor, and prime vendor, raising questions regarding whether the letter provides the 
end-client's actual duty description and academic requirements. 
We also note that, although the record contains timesheets signed by the Beneficiary and the 
Petitioner's president between February 2016 and November 2018, the record also contains timesheets 
submitted by the Beneficiary and approved by either of two individuals named C-L- or S-D- between 
May and October 2018. The Petitioner's organization chart in the record for its 23 employees does 
not indicate that either C-L- or S-D- are the Petitioner's employees, which raises questions regarding 
why individuals outside of the Petitioner's organization are supervising the Beneficiary's work at the 
end-client location and approving his timesheets. Furthermore, although the Petitioner asserts that the 
Beneficiary "will be controlled and supervised by [the Petitioner's] Project Manager throughout the 
duration of the project," the limited evidence of contracts in the record do not indicate that any worker 
other than the Beneficiary would be assigned to the end-client location in order to direct and control 
the work he would perform there. Although the Petitioner states that it would appraise the 
Beneficiary's performance annually, after the Beneficiary has provided services to the end-client for 
a year, the record does not establish how the Petitioner would prospectively direct and control the 
Beneficiary's daily work at the end-client location. 
Accordingly, the matter will be remanded to the Director to consider the specialty-occupation and 
employer-employee relationship issues and enter a new decision. The Director may request any 
additional evidence considered pertinent to the new determination and any other issue. As such, we 
express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
1 Although the second contract refers to a "possible 3 years [ e ]xtension," the record does not establish whether the parties 
extended the contract beyond December 2018. 
2 Although the end-client letter states that "[t]he project is slated to last through the next three years," the letter also states 
that "[t]he current Statement of Work (SOW) will expire on December 31, 2018." The anticipated duration does not 
establish the actual duration of any contracts for the Beneficiary to provide services. We note that the letter informs that 
"[t]he contract has historically been extended." However, the record does not establish that the parties extended the 
contract, or moreover what the terms of the contract are. Accordingly, the record raises questions regarding the substantive 
nature of the work the Beneficiary would perform at the end-client location during the relevant period, and who would 
direct and control his work. 
2