remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12563615 
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 it has sufficient specialty occupation work available for the requested H-lB validity 
period. 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Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance and 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 /I egal-resou rces/po Ii cy-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 letters from the end-client appear to contain generalized and somewhat 
vague duties. For instance, the end-client letters state the following: 
• Requirements Gathering/ Analysis; High Level Design/ Detailed Design; 
• Development/ Coding, Testing and Bug Fixing; 
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). 
• Implementation/ Deployment; and Maintenance of existing systems. 
In addition, as recognized in Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000), it is appropriate 
to require a petitioner to demonstrate that an end-client, or the entity where a beneficiary will actually 
perform the work, requires at least a bachelor's degree in the specialty, or an equivalent. However, 
the end-client letters do not specify that it requires a bachelor's degree in a specific specialty - instead, 
only requiring a bachelor's degree "in a field related to their work." Notably, the end-client letter also 
states that the end-client "do[es] not have direct insight into the hiring criteria of Vendor." 
Moreover, the Petitioner provided several statements of work (SOWs). The sows state that the 
Beneficiary will be providing services as an "analyst" at the end-client's location in California. It does 
not indicate that the Beneficiary will serve as a software developer (as stated in the H-1B petition) but 
rather as a "analyst." The SOWs do not describe the duties of the "analyst" in order to determine 
whether they are sufficiently similar to those of the proffered position. Thus, the sows do not 
establish that the Beneficiary will serve as a software developer in California for the duration of the 
requested H-1B period. 
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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