remanded H-1B Case: Software Analytics

U.S. Citizenship 
and Immigration 
Services 
In Re: 10547164 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 30, 2020 
The Petitioner, a software analytics and call center 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 California Service Center denied the petition, concluding 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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. USCIS Policy Memorandum PM-602-0114, 
Rescission of Policy Memoranda at 2 (June 17, 2020), http://www.uscis.gov /legal-resources/policy­
memoranda. 
In addition to the above, the Director 's decision did not include a discussion of the substantive nature 
of the proffered position. As such, the Director may wish to consider whether the Petitioner has met 
its burden in establishing that the "QA engineer" position is a specialty occupation. 1 In so doing, the 
Director may also wish to clarify whether the Petitioner selected the correct occupational category. 
Many duties described under SOC Code 15-1199.01 for "Software Quality Assurance Engineers and 
Testers" appear closely aligned with those of the proffered position. 2 
1 The Petitioner designated the proffered position under the SOC code and title 15-1132, "Software Developers, 
Applications." For more information, visit the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook 
Handbook, https://www.bls.gov/OOH/computer-and-information-technology /software-developers .htm#tab-2 and Dep't of 
Labor's O*NET summary report at https://www.onetonline.org/link/summary/l 5-l 132.00 (last visited Jul. 29, 2020). 
2 The summary report for "Software Quality Assurance Engineers and Testers" can be found at 
https://www.onetonline .org/link/summary/15-l 199.0l (last visited Jul. 29, 2020). 
The Director may also wish to clarify the educational qualifications required for the proffered position. 
The Petitioner stated that the position requires a bachelor's degree in computer science or computer 
engineering. However, questions arise when examining the job postings submitted for our 
consideration under criterion two and three. 
The Petitioner submitted job postings for our consideration of an industry standard under criterion 
two. In addition to providing little to no infmmation about the employers who placed the 
advertisements, many of the position descriptions are vague and general. The advertisements offer 
insufficient information with which to determine whether the positions parallel the proffered position. 
Descriptions such as "[ c ]ontribute to overall solution design" and "[b ]e a vocal proponent for quality 
in every phase of the development process" are insufficiently detailed, which inhibits a determination 
of how the positions compare to the proffered position. Furthe1more, while the Petitioner contends 
that these positions parallel the proffered position, nearly all of the advertised positions require 
experience beyond a bachelor's degree. These postings appear to advertise different roles than the 
proffered position, as evidenced by requirements for a bachelor's degree along with a range of two, three, 
three to five, and even ten years of additional experience. 
The Petitioner also submitted one job posting in order to establish that it normally requires a degree 
for the proffered position. 3 Initially, we note that this posting appears to be a job description typed 
into a Word document rather than an actual job advertisement. We observe no indicators of where or 
when the position was advertised, if at all. The Petitioner contends that the posting represents a position 
parallel to the proffered position; however, the document states that the required qualifications for the 
position are a bachelor's degree in computer science along with three to five years of experience. 
The Director may determine that these job postings raise substantive nature concerns, particularly 
given that the Petitioner stated the performance of the proffered position's duties requires a bachelor's 
degree in computer science or computer engineering with no mention of any additional required 
experience. If all of these are parallel positions as claimed, the Director may wish to resolve how the 
Petitioner's payment of a Level II wage to the Beneficiary correlates to the experience the position 
requires. Such a wage would appear inadequate in many cases. If alternatively, the positions are not 
parallel, but rather represent different or more specialized positions than the proffered position, then 
the Director may determine that the postings are not relevant in establishing the Petitioner's normal 
hiring practice or an industry standard for positions located within the occupational category. At 
minimum, the Director may question whether the LCA is inconsistent with the Petitioner's claims and 
the evidence within the record. 
In examining the descriptions of the proffered position, the Director may wish to clarify how the duties 
feature specialty occupation work. It is not readily apparent how several of the duties would require 
specialized knowledge, including those related to communication; training others; attending meetings; 
call routing; and prioritizing and planning. Without more, the Director may determine that the 
Beneficiary will be engaged in non-qualifying tasks. Some duty descriptions do not meaningfully 
convey the work to be perfmmed. For instance, the Petitioner describes the duty to "Support and 
Monitor Production Releases" with the circular te1minology of "[m]onitor the performance during 
3 The Petitioner also submitted one individual's resume as additional evidence under this criterion. 
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release." This description offers little explanation of the duty or the work required to produce the 
results within the duty. 
In the initial petition filing, the Petitioner described the proffered position using a list of ten bulleted 
duties. The end-client letters contain this identical list of duties. In response to the Request for 
Evidence (RFE), the Petitioner expounded upon this list using a table of the bulleted duties, adding 
sub-duties and percentages of time spent on the duties. The Petitioner also submitted a November 21, 
2019 letter from the Beneficiary's supervisor,! lwhich contains additional duties not 
previously articulated. For instance, the Petitioner did not previously state that the Beneficiary would 
use "J-Parrot & J-Console" or "Tellme Call Search tools," nor do we find these tools in the table of 
duties and sub-duties. Further, there are several project-specific tasksl llists in paragraph 
form that are not accounted for in the table of percentages. As such, the Director may wish to clarify 
whether one of these duties descriptions carries more evidentiary value and accuracy in capturing the 
substantive nature of the position than another, as well as whether the Petitioner is capable of providing 
a single, concrete, and consolidated list of duties for the proffered position. 
Because this case is affected by the new employer-employee policy guidance, we find it appropriate 
to remand the matter for the Director to consider the question anew to adjudicate in the first instance 
any additional issues as may be necessary and appropriate. The Director may also wish to determine 
whether the Petitioner has established the substantive nature of the proffered position and whether its 
duty descriptions support a finding that the proffered position requires a bachelor's degree or higher 
in a specific specialty. 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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