remanded H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 7881437 
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 21, 2020 
The Petitioner, a software consulting business, seeks to temporarily employ the Beneficiary under the 
H-lB nonirnrnigrant classification for specialty occupations. 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). 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 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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 . 1 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 novo. 3 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. 
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ORDER: The decision of the Director is withdrawn.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. 
1 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June I 7, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda . 
2 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015).