remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10106678 
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 and consulting organization, seeks to employ the Beneficiary 
temporarily 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 Citizenship and Immigration Services (USCIS) rescinded 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 the following issues . In the 
proceedings before the Director , the Petitioner offered a letter from the end-client. First, although the 
duties within that letter appear somewhat related to the Software Developers, Applications 
occupational category, the Director may wish to consider whether the duties listed within that letter 
are sufficiently detailed to support the Petitioner 's claims that those functions are specialized and 
complex. The Director should decide whether the duties comprise a position that is so complex or 
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). 
unique, that one must attain a bachelor's degree in a specific specialty in order to perform them. 5 The 
Petitioner should ensure the material duties sufficiently convey the Beneficiary's regular activities at the 
end-client location, which allows 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 and the duties are so complex, 
unique, or specialized. 6 And ultimately whether the Petitioner demonstrated a sufficient nexus between 
an established course of study leading to a specialty degree, while establishing how such a curriculum 
is necessary to perform the duties it claims are so specialized and complex. 
Additionally, the Director may elect to have the Petitioner explain why the end-client letter it submitted 
in response to the request for evidence provides nearly identical information as the Petitioner's initial 
filing statement. As a general concept, when a petitioner has provided correspondence from different 
persons, but the language and structure contained within the material is strikingly similar, the trier of fact 
may treat those similarities as a basis for questioning the claims within the documentation. 7 The Director 
may wish to consider more than just the identical language, but also the order in which the Petitioner 
presented it. As the first version originated with the Petitioner, the Director may elect to deduce that 
the petitioning organization is the probable source of the specific language and therefore, not attribute 
the job description to the end-client's representative. 
The Director's decision referenced to Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), in 
which it is necessary for the end-client to provide sufficient information regarding the proposed job 
duties to be performed at its location in order to properly ascertain the minimum educational 
requirements necessary to perform those duties. In other words, as the employees in that case would 
provide services to the end-client and not to the petitioning staffing company, the petitioner-provided 
job duties and alleged requirements to perform those duties were much less relevant to a specialty 
occupation determination than the end-client requirements. The Director may wish to have the 
Petitioner demonstrate the position requirements actually originated with the end-client. 
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. 
5 Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) (indicating USCIS must evaluate the actual 
tasks, demands, and duties to determine whether a petitioner has established the position realistically requires the 
specialized knowledge-both theoretical and applied-which is almost exclusively obtained at the baccalaureate level). 
A broad and generalized presentation of a position's responsibilities could prevent USCTS from making such a 
determination. See also Sagarwala v. Cissna, 387 F. Supp. 3d 56, 68 (D.D.C. 2019). 
6 See Sagarwala, 387 F. Supp. 3d at 68-70. 
7 See Matter of R-K-K-, 26 T&N Dec. 658. 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1. 8 (1st Cir. 
2011 ). When correspondence contains such similarities, it is reasonable to infer that the person or entity who submitted 
the strikingly similar documents is the actual source from where the suspicious similarities derive. See Mei Chai Ye v. 
US. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
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