remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8797059 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 16, 2020 
The Petitioner, an information and technology development company, seeks to employ the Beneficiary 
temporarily as a "network architect" under the H-lB nonirnmigrant 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 Vermont Service Center denied the petition, concluding in part that the Petitioner 
did not establish an employer-employee relationship with the Beneficiary . While this appeal was 
pending, the U.S. District Court for the District of Columbia issued a decision in Itserve 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Immigration Services (USCIS) rescinded previously issued policy guidance and directed its officers 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. 2 The Director also concluded that based 
on a lack of corroborating material , to include contracts , the Petitioner had not demonstrated it would 
have qualifying work available for the Beneficiary. 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 . 
Within her new decision, the Director may wish to further address the following issues. The end-client 
letters reflected that they required a bachelor's degree in the relevant disciplines , but they did not 
mention any required work experience. However , the Task Orders each specified at least eight years 
of work experience plus a bachelor's degree in the relevant discipline, and Cisco certification. The 
Director should evaluate the impact these incongruencies have on the letters from the end-client. 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 USCIS Policy Memorandum PM-602-0114 , Rescission of Policy Memoranda at 2 (June I 7, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda . 
3 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
Additionally, were the Director to conclude that the position appeared to qualify as a specialty 
occupation, she should determine whether the Level II wage rate the Petitioner designated on the labor 
condition application was sufficient to account for the position requirements of eight years of work 
experience and Cisco certification. 
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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