remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9504657 
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. 26, 2020 
The Petitioner, an information technology consulting firm, seeks to extend the Beneficiary's temporary 
employment as a "software developer, lead" 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 Alliance, Inc. 
v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (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Immigration Services (USCIS) rescinded previously issued policy guidance relating to H-lB petitions 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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition involving a specialty 
occupation shall be accompanied by [d]ocumentation . .. or any other required evidence sufficient to 
establish ... that the services the beneficiary is to perform are in a specialty occupation." Furthermore, 
the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) states that a petitioner must state that it will comply 
with the terms of the LCA for the duration of the foreign worker's authorized period of stay. 
Moreover, the regulations at 8 C.F.R. §§ 103.2(b)(8) and 214.2(h)(9)(i) provide U.S. Citizenship and 
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). 
Immigration Services (USCIS) with broad discretionary authority to require evidence to establish that 
the services to be performed by a beneficiary will be in a specialty occupation during the period 
requested in the petition. Finally, USCIS has the authority to administer the law that Congress enacted, 
and to determine whether an organization has sufficiently demonstrated that it would have qualifying 
work avai I able for a beneficiary as requested. 5 
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 Kollasoft Inc. v. Cuccinelli, No. CV-19-05642-PHX-JZB, 2020 WL 263618, at *7 (D. Ariz. Jan. 17, 2020) (generally 
finding that section 214(a){l) of the Act; 8 U.S.C. § 1184 (a){l); 8 C.F.R. § 214.2(h)(9)(i) provide such authority). 
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