remanded H-1B Case: It Staffing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9708766 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 27, 2020 
The Petitioner seeks to employ the Beneficiary temporarily 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 Form 1-129, Petition for a Nonimmigrant 
Worker, concluding in part that the Petitioner did not establish an employer-employee relationship 
with the Beneficiary. The Director also concluded that based on a lack of corroborating material, to 
include contracts, the Petitioner had not demonstrated it would have specific and non-speculative work 
available for the Beneficiary 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 All., 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rescinded previously issued policy guidance relating to H-lB petitions filed for workers who will be 
employed at one or more third-party worksites, 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 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. The matter 
is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
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 lack of evidence relating to the 
end-client's position prerequisites. 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 as appropriate in determining which entity should provide the requirements 
of an H-lB position and the actual duties a beneficiary would perform. 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). 
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. Defensor, 201 
F.3d at 388. 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. Id. 
The Defensor decision is seemingly 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. Id. at 387-88. 
And, the Director should decide which set of duties in the record should represent the work the 
Beneficiary would actually perform while assigned to the end-client worksite and the client's project, and 
whether those duties sufficiently convey what the position would consist of to support a favorable finding 
under the H-lB program. As it relates to the duties the Petitioner provided, it is unclear how the 
petitioning organization-acting as a staffing agency that was two entities removed from the 
end-client, located approximately 1,300 miles away, and with no apparent direct involvement with the 
end-client or the ongoing work-would have sufficient insight into the breadth and progress of the 
project between the vendor and the end-client, that it could ascertain the detailed activities necessary 
to adequately complete the project. 
If the Director determines that the duties as represented by the Petitioner should carry diminished 
evidentiary value because they did not originate from the entity where the Beneficiary will actually 
perform his work, she may wish to consider how that impacts the opinion letter, as the author of that 
letter formed the basis of his opinion from the Petitioner-provided duties within the response to the 
request for evidence. Additionally, it does not appear that the opinion letter author even considered 
the end-client and its operations when forming his opinion, and the Director may wish to factor that 
shortcoming into the evidentiary weight it ascribes to this evidence. 
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Finally, the Director may wish to inquire about the Petitioner's ability to conduct business in the 
Commonwealth of Virginia, as the resource relating to whether a corporation is in an active status and 
good standing with the state did not contain any information relating to the petitioning organization. 
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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