remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9742848 
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. 27, 2020 
The Petitioner, an information technology consulting company, 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 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 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(USCIS) rescinded previously issued policy guidance relating to H-lB petitions filed for workers who 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. After 
reviewing the duties within the end-client letter, the Director should compare those with U.S. 
Department of Labor's (DOL) Occupational Information Network (O*NET) Online report for the 
Computer Systems Analysts occupation, as well as the subcategory for the Information Technology 
Project Managers occupation under the Computer Occupations, All Other designation (standard 
occupational classificational (SOC) code 15-1199.09) to determine if the Petitioner utilized the correct 
SOC code on the labor condition application (LCA). It may be necessary for the Petitioner to explain 
how each duty within the end-client letter compares with the O*NET definition and other information 
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). 
for the Computer Systems Analysts occupation, as well as why the Information Technology Project 
Managers is not the most appropriate occupational category. 
If the Director concludes that the Computer Systems Analysts occupation was incorrect, it does not 
appear that USCIS can make a determination on the specialty-occupation question in this case. We 
offer examples. First, the statutory and regulatory definitions of a specialty occupation focus on the 
broader occupation as a whole, and the use of an incorrect SOC code may result in an erroneous 
decision, or one that does not properly assess the actual nature of the occupation in which a beneficiary 
would engage. 
Second, the education requirements we consider under the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(1) may differ markedly from one occupational classification to the next. 
Likewise, under 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the 
industry for one occupation may also be distinct in comparison to others. It would not be a valuable 
use of USCIS resources to analyze the position requirements under an incorrect SOC code. These two 
factors alone, that hinder USCIS' ability to provide a salient analysis, could potentially preclude this 
petition's approval. 
On the other hand, if the Director concludes the Computer Systems Analysts occupation was the most 
appropriate SOC code, they may wish to require the Petitioner to explain why the end-client posted 
what appears to be the exact same job as the one in the petition, but with different position 
requirements. Specifically, the end-client job advertisement in question requires a bachelor's degree 
in addition to at least five years of experience. 5 We note that the Petitioner designated a Level 11 wage 
rate on the LCA, but if the end-client's actual position requirements for this position are reflected in 
the job advertisement, that would mean the Level 11 rate on the LCA should have been a Level IV 
wage rate. The difference in pay between these two wage rates is more than $33,500 for the 
end-client's location and the designated date on which the Petitioner filed the LCA. 6 
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. 
5 See Business S stems Anal st Senior ·ob 
----------------~which is also attached to this decision. 
6 We observe this Petitioner filed a subsequent H-18 petition I b for this same Beneficiary, with the same 
job title, to work at the same end-client. The Director may wish to inquire whether the newly filed H-lB petition shares 
the same concerns as this case, which might preclude the new petition's approval. 
2