remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12773017 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 8, 2020 
The Petitioner, an information technology services provider, seeks to temporarily employ the 
Beneficiary 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 that the proffered position is a specialty occupation. While this appeal was pending, the U.S. 
District Court for the District of Columbia issued a decision in ltserve Alliance, 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rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 
definition at 8 C.F.R. § 214.2(h)(4)(ii) to assess whether a petitioner and a beneficiary have an 
employer-employee relationship. USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence.1 
We review the questions in this matter de novo.2 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 decide whether the Petitioner has demonstrated the 
substantive nature of the work the Beneficiary would perform during the intended period of 
employment. In particular, the Petitioner stated that the Beneficiary would work as a "software 
engineer" at an end-client location in Texas. As recognized in Defensor v. Meissner, 201 F.3d 384, 
387 (5th Cir. 2000), it is necessary for the end-client to provide sufficient information regarding the 
proposed job duties to be performed at its location(s) in order to properly ascertain the minimum 
educational requirements necessary to perform those duties. In other words, as the employees in that 
case would provide services to the end-client and not to the petitioning staffing company, the job duties 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
and alleged requirements to perform the duties that the Petitioner provided were irrelevant to a 
specialty occupation determination. See id. In the instant matter, the record of proceedings is devoid 
of information from the end-client regarding the nature of the Beneficiary's proposed position and the 
duties associated therewith. While the record contains job descriptions from the Petitioner and the 
vendor, there is no evidence in the record from the end-client to corroborate the claimed duties and 
scope of the Beneficiary's assignment. 
The Petitioner provided a Supplier Agreement and a work order between itself and the vendor. 
However, the documents do not contain sufficient evidence outlining the nature of the Beneficiary's 
proposed assignment on the end-client's premises for the requested validity period. Notably, the work 
order states that the Beneficiary will be providing services as a "JAVA Developer" at the end-client's 
location in Texas. It does not indicate that the Beneficiary will serve as a software engineer (as stated 
in the H-lB petition) but rather as a "JAVA Developer." The work order does not describe the duties 
of the "JAVA Developer" in order to determine whether they are sufficiently similar to those of the 
proffered position. Thus, the work order does not establish that the Beneficiary wi 11 serve as a software 
engineer in Texas for the duration of the requested H-lB period. 
Furthermore, the Petitioner has not provided information from the end-client outlining the company's 
educational requirements. The record, therefore, also lacks documentation or information about the 
end-client's educational requirements for the position and whether such educational requirements 
would match the Petitioner's requirements and qualify for a specialty occupation and meet the wage 
level specified on the labor condition application. Consistent with Defensor, where the work is to be 
performed for entities other than the Petitioner, evidence of the client companies' job requirements is 
critical. However, the record of proceedings does not contain such evidence. 
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. 
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