remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12161115 
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 solutions 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: (1) it will have an employer-employee relationship with the Beneficiary; and (2) 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 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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 el igibi I ity 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 
developer" at an end-client location in California. With the initial petition, the Petitioner submitted a 
statement of work (SOW) executed between itself and the vendor. Although the SOW references the 
Beneficiary, it does not reference the job title of the proffered position; the job duties and tasks to be 
performed by a software developer, the proffered position; or the end-client. Moreover, the SOW does 
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). 
not state the duration of the Beneficiary's services.3 Thus, the SOW does not establish that the 
Beneficiary will serve as a software developer in California for the duration of the requested H-1B 
period. 
Moreover, we observe that the letter from the end-client appears to contain generalized and somewhat 
vague duties, as well as extensive industry jargon. Notably, the end-client letter also mentions a 
second vendor in the contractual chain, which was not mentioned in the Petitioner's itinerary or 
throughout the record. 
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. 
3 Though acknowledged, the second work order indicating the duration of the Beneficiary's services through June 2021 
does not demonstrate the Petitioner's eligibility at the time of filing because it was executed in December 2019, 
approximately eight months after the petition was filed and approximately seven months after the Director issued her 
request for additional evidence. We therefore question whether the second work order was created for purposes of 
bolstering this H-1B petition. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. § 103.2(b)(1). A visa petition may not be approved based on speculation of future eligibility 
or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N 
Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an eff01i to make a 
deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
The second work order executed between the vendor and the Petitioner therefore carries little evidentiary weight. 
2