remanded H-1B Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 9732145 
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, a consulting firm, seeks to extend the Beneficiary's temporary employment as an 
"integration developer" 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the Beneficiary was qualified to occupy the position. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. 2 We review the questions in this matter de nova. 3 
Upon de nova review, we will dismiss the appeal. 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review. Specifically, the Director is required 
to follow long-standing legal standards and determine first, whether the proffered position qualifies 
for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the non immigrant visa petition was ti led. 4 
The Director issued the denial based on the position requirements expressed by the Petitioner. But in 
the present case, the Petitioner is not the entity from which the position specifics should have 
originated. As recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), 
where the work is to be performed for entities other than a petitioner, evidence of the client companies' 
job requirements is critical. The scenario in Defensor has repeatedly been recognized by federal courts 
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 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm ' r 1988) ('The facts of a beneficiary's background 
only come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]. "). 
as appropriate in determining which entity should provide the requirements of an H-lB position and the 
actual duties a beneficiary would perform.5 
As a central holding, the Defensor court determined that the former Immigration and Naturalization 
Service acted appropriately in interpreting the statute and the regulations as requiring petitioning 
companies to provide probative evidence that the outside entities where the Beneficiary would actually 
provide their services (i.e. end-clients) required candidates to possess a qualifying degree.6 The Defensor 
court reasoned that the position requirements from the entity where the beneficiary would actually work­
be it the required degree or the position's actual duties a candidate would perform-should serve as the 
more relevant characteristics we should consider under our specialty occupation determination. The court 
further concluded that absurd outcomes could result from granting greater credence to the position 
requirements as represented by an outsourcing agency, rather than to those from its clients where a 
beneficiary would perform the work. 7 
We conclude that the Defensor decision is particularly applicable to the present case. This is not a case 
where the Petitioner is assigning the Beneficiary to work at a business that does not normally employ 
personnel in the type of work the foreign national would perform. Instead, it appears that the end-client 
is familiar with and normally employs personnel in-or very similar to-the proffered position (e.g., 
the client needs supplemental contracted personnel to augment their regular staff). As a result, the 
client likely possesses the knowledge of what duties the Beneficiary would engage in, and the 
requirements in which to perform those responsibilities. This is a scenario in which the duties and the 
qualifications to perform in the proffered position should originate from the entity where the 
Beneficiary would actually perform their work. 8 As a result, the Director should have required 
additional information from the end-client. 
Additionally, the Director may wish to inquire further about the end-client's actual position 
prerequisites because we found multiple expired job advertisements from the end-client for very 
similar positions in which it required between six and eight years of work experience. Were the 
end-client to require that much experience for the position in the present petition, it would require a 
Level IV wage rate on the labor condition application; however, that is higher than the prevailing wage 
rate the Petitioner designated. 
Accordingly, the matter will be remanded to the Director to consider the specialty-occupation and 
other issues and enter a new decision. The Director may request any additional evidence considered 
pertinent to the new determination and any other issue. As such, we express no opinion regarding the 
ultimate resolution of this case on remand. 
5 See Altimetrik Corp. v. USCIS, No. 2:18-cv-11754, at *3 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik Corp. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, 387 F. Supp. 3d 56, 69 n.5 (D.D.C. 2019). 
6 Defensor, 201 F.3d at 388. 
7 Id. 
8 Id. at 387-88. 
2 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3