remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9799584 
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. 24, 2020 
The Petitioner, a consulting and business development firm, seeks to employ the Beneficiary 
temporarily as a "software 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 Vermont Service Center Director 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 ltserve 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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. 
We note the following topics that the Director may wish to address. To begin, there are several entities 
involved with the Beneficiary's placement at the ultimate end-client (A-E-). The contractual chain the 
Petitioner and other relevant parties represented before the Director was:2 
Petitioner + N-1- (mid-vendor) + I- (prime-vendor) + (end-client). 
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 The Petitioner noted T-S-C-, not 1-, as the prime-vendor in its initial letter of support. However, N-1-, the mid-vendor 
stated that I- was the prime-vendor in its letter submitted with the petition. The Petitioner provided other material in 
response to the Director's request for evidence (RFE), such as the first and last pages of a 2014 sub-contracting agreement 
between the mid-vendor and 1-, a September 2018 work order from N-1 for the placement of the Beneficiary with I- and 
the end-client, and the Petitioner's own letters which outlined the contractual arrangements between and amongst the 
Petitioner, N-1-, 1-, and the end-client. 
However, a different situation emerged within the appeal. Now, the Petitioner claims that the contractual 
relationships have changed. 3 Specifically, it asserts that while the end-client who requires the Beneficiary 
services remains unchanged, the intermediary mid-vendor and the prime-vendor companies have 
changed to I-T-I- and T-C-S-, as follows: 
Petitioner ::t: I-T-I- (mid-vendor) ::t: T-C-S- (prime-vendor) ::t: (end-client). 
On appeal, the Petitioner submits a July 2015 professional services agreement with I-T-I-, and a 
September 2019 I-T-I- purchase order for the Beneficiary's placement with T-C-S- and the end-client. 
The Director should determine whether this changed situation adversely impacts the petition or the 
amount of weight the Director should ascribe to the Petitioner's claims.4 
Additionally, within the initial filing, the Petitioner indicated the duties required a bachelor's degree 
in "a computer background or any other related field." It is unclear how a degree in any 
computer-related discipline would sufficiently correlate with the proffered position's duties and 
responsibilities. For instance, how a bachelor's degree in graphics design, cartography, video game 
design, or computer networking would sufficiently relate to this position's duties. 
The Director should also consider whether the correspondence from the Petitioner's ultimate end­
client is in accord with the type of material as noted by the court in Defensor v. Meissner, 201 F.3d 
384, 387-88 (5th Cir. 2000). 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 
actually utilizing the Beneficiary's services (i.e. end-clients) required candidates to possess a 
qualifying degree.5 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. 6 
3 A petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l), (12). 
USCIS may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new set 
of facts. Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978) (finding that nonimmigrant eligibility 
criteria must be met at the time a petitioner files the petition). Nor should eligibility be heavily based on evidence a 
petitioner revises after USCIS points out the deficiencies in the petition, as such material is not necessarily independent 
and objective evidence. See Baldwin Dairy, Inc. v. United States, 122 F.Supp.3d 809, 816 (W.D. Wis. 2015) (concluding 
we were justified in questioning a petitioner's motives and whether the company simply amended its evidence so that it 
could demonstrate eligibility). 
4 The Director may consider asking the Petitioner to provide evidence to explain and resolve these inconsistencies and 
ambiguities in the record if she requests additional evidence relevant to a new determination. Matter of Ho, 19 l&N Dec. 
582, 591-92 (BIA 1988). 
5 Defensor, 201 F.3d at 388. 
6 Id. 
2 
Similar to the Defensor case, the duties and education details the Petitioner provided would appear to 
be less probative to this analysis than the end-client's requirements. The Director should determine 
whether the end-client letters and contractual material, as presented in the record, are sufficient to 
demonstrate eligibility in this matter. For instance, the Petitioner provided a set of duties consisting of 
8 items when it filed the petition. In response to the Director's request for evidence (RFE), it reiterated 
this list of 8 items. Also, initially and within its RFE response, the Petitioner provided letters from the 
original mid-vendor, N-1-, containing duties identical to its initial list. Notably, the end-client's July 
2019 letter, submitted in the RFE response and on appeal, indicates that "[the end-client has] been 
advised by [the original prime-vendor, 1-] that [the Beneficiary] has been assigned as [a] software 
developer," and also reiterates the Petitioner's initial job duty list. The Director should consider 
whether the signatory of the end-client's letter possessed a degree of familiarity with the terms and 
conditions of the Beneficiary's proposed employment sufficient to "confirm" the nature of his 
assignment with the end-client. 7 
Moreover, as a general concept when a petitioner has provided material from different entities, but the 
language and structure contained within it is notably similar, the trier of fact may treat those 
similarities as a basis for questioning a petitioner's claims. 8 When affidavits contain such similarities, 
it is reasonable to infer that the petitioner who submitted the strikingly similar documents is the actual 
source from where the similarities derive. 9 Given the unique similarities in the letters and the order 
that the Petitioner presented the evidence, the Director should also consider whether the Petitioner has 
established, by a preponderance of the evidence, that the duties originated from the end-client.10 
Because this case is affected by the new policy guidance, we find it appropriate to remand the matter 
for the Director to consider the questions 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. 
7 The Petitioner also did not explain why it resubmitted the July 2019 letter from the end-client on appeal, which discusses 
the Beneficiary's employment through a contractual relationship between the end-client and 1-, even though the Petitioner 
asserts on appeal that the Beneficiary's employment will be arranged through a contractual arrangement between T-C-S­
and the end-client. Matter of Ho, Dec. at 591-92. 
8 Cf. Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006). 
9 Cf. Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007). 
10 Although the Petitioner provided copies of the end-client's job postings for software developer positions, it did not offer 
material from the end-client conveying the proffered position's functions within its software development initiatives, and 
the end-client's position prerequisites. 
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