remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10188003 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: WL Y 16, 2020 
The Petitioner, a software development company, seeks to employ the Beneficiary temporarily as a 
"software developer" under the H-lB nonimrnigrant 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 Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary would perform services in a specialty occupation for the requested 
period of intended employment. 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 Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded 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 relating to H-lB petitions filed for workers who will be employed 
at one or more third-party worksites. 2 The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 3 
We review the questions in this matter de novo.4 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 whether the Petitioner has 
demonstrated the substantive nature of the work the Beneficiary would perform. The Petitioner 
indicated that the Beneficiary would be employed in-house as a software developer. However, the 
record of proceeding appears to lack consistent material relating to the work the Beneficiary would 
perform remotely for the end-client. Initially, the Petitioner offered a set of duties consisting of several 
bullets. When it responded to the Director's request for evidence, the Petitioner changed those duties 
1 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) . 
2 USCIS Policy Memorandum PM-602-0114 , Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov /legal-resources/policy-memoranda. 
3 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
and provided a lengthy set of duties the Beneficiary would perform. Although those functions appear 
to relate to duties any software developer might perform, they are presented in a generalized form and 
contain a significant amount of industry jargon. First, the Director may wish to consider whether the 
Petitioner has demonstrated eligibility through the use of duties that appear vague and filled with 
jargon. 5 One issue the Petitioner raises on appeal is the situation presented in the petition does not 
require it to offer material from the end-client relating to the position and its requirements. The 
Director should consider that argument, but even if the Director were to agree with the Petitioner that 
it was not required to submit material from the end-client, its own duties might not be sufficient to 
demonstrate eligibility under the H-lB program. 
Second, the Director should evaluate whether the Petitioner has demonstrated what duties the 
Beneficiary would actually perform for the end-client. As the Director noted, the Petitioner offered a 
master contract that did not identify the work the Petitioner's organization would perform for the 
end-client. Instead, it specified the work would be described in a statement of work (SOW) and the 
only such document offered was executed well after the petition filing date. Even though the Director 
explained why this SOW was not probative evidence, the Petitioner failed to offer any SOW s executed 
before the petition filing date. 
Even if the Director was to consider this SOW as acceptable, which is not required of her, the services 
outlined in that document that the Petitioner would perform for the end-client do not appear to 
sufficiently align with the duties the Petitioner provided. Not only do we question why the SOW 
contained multiple large blank sections that might indicate the document originally contained 
additional information that may have been purposely removed, but it also listed the following under 
the deliverables section: 
Project: Claims Modernization 
Develop I I UI application in support of the Claims Business Users and provide support 
and do maintenance and fixes . 
.._ _ _.I is a JavaScript library for building user interfaces." 6 The abbreviation "UI" from the SOW 
stands for user interface, which was also contained in our quote from thel !website at the 
beginning of this paragraph. User interface is associated with front-end or client-side website and 
application development. A review of the end-client's website portal relating to the service discussed 
in the SOW also appears to relate to user interface. 
A review of the duties the Petitioner offered barely included any functions associated with JavaScript 
(see I I website) or the concept of UL As noted, the Petitioner-provided duties appear to relate to 
any general software developer functions. The Director should decide if the Petitioner specifically 
5 Tt is always the Petitioner's responsibility to explain what these jargon-laden functions involve, and how they demonstrate 
eligibility. Section 291 of the Act, 8 U.S.C. § 1361. Additionally, the truth is to be determined not by the quantity of 
evidence alone but by its quality. Matter of Chawathe, 25 T&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-. 20 
T&N Dec. 77. 80 (Comm'r 1989)). The Petitioner should substitute its lingo with explanations and concepts that allow a 
person without a great familiarity with the technical nature of these functions to be able to grasp what the position consists 
of, and why it is so complex or unique. Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68-70 (D.D.C. 2019). 
6 Getting Started,.__ __________ __. org! docs/ getting-started.html. 
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explained the duties and role of the proffered position in the context of this project. Even the SOW 
that postdates the petition filing date does not contain any reference to the Beneficiary's name, or job 
title. We must review the actual duties the Beneficiary will be expected to perform-in conjunction with 
the specific project(s) to which he will be assigned-to ascertain whether those duties require at least a 
baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To allow otherwise, results in generic descriptions of duties that, while they may appear (in 
some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. This collectively relates to the substantive nature of the proffered 
position. 7 
Additionally, the SOW reflected the end-client would pay the petitioning organization more than 
$1 million for these services over the period of approximately one year. However, the Petitioner did 
not submit any evidence that the end-client actually compensated the petitioning organization for these 
services. 
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 farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
7 It is important to note that we do not purport to be information technology industry experts. Instead we are looking at 
the broader context of the work to be performed within the SOW as compared to the petitioner-provided duties. At the 
appellate stage we are considering the overall position. 
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