remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 11807724 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT. 24, 2020 
The Petitioner, an information technology solutions provider, seeks to temporarily employ the 
Beneficiary under the H-lB nonirnrnigrant 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 qualifies as a specialty occupation. While this appeal was pending, 
the U.S. District Court for the District of Columbia issued a decision in Itserve 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rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 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 "computer 
systems analyst" at an end-client location in Texas. With the initial petition, the Petitioner provided a 
work order executed between itself and the vendor. The work order states that the Beneficiary will be 
providing services as a "Scrum Master" at the end-client's location in Texas. It does not indicate that 
the Beneficiary will serve as a computer systems analyst (as stated in the H-lB petition) but rather as 
a "Scrum Master." The work order does not describe the duties of the "Scrum Master" in order to 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
determine whether they are sufficiently similar to those of the proffered position. Moreover, the work 
order indicates that the Beneficiary services will end approximately ten months prior to the requested 
H-lB validity period. Thus, the work order does not establish that the Beneficiary will serve as a 
computer systems analyst in Texas for the duration of the requested H-1 B period. 
Furthermore, we observe that the letters from the Managed Service Provider appear to contain 
generalized and somewhat vague duties, as well as extensive industry jargon. For instance, the duties 
of"[ e ]nsures team maintains focus on quality and continuous delivery" and "[p ]rovide visibility into 
delivery targets, commitments and progress" do not contain an explanation of what the Beneficiary 
will do while performing these duties. 
We also note an additional deficiency that would also appear to preclude approval of this petition, and 
the Director may wish to explore it on remand as well. For instance, the end-client does not state the 
educational requirements for this position. As recognized by the court in Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000), where the work is to be performed for entities other than the 
petitioner, evidence of the client companies' job requirements is critical. The court held that the former 
Immigration and Naturalization Service had reasonably interpreted the statute and regulations as 
requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation 
on the basis of the requirements imposed by the entities using the beneficiary's services. Id. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
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 farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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