remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10344317 
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 16, 2020 
The Petitioner, a staffing and consulting company, seeks to employ the Beneficiary temporarily as a 
"software developer applications" 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 initially approved the Form 1-129, Petition for a Nonimmigrant 
Worker, then revoked that approval. After the Director approved the petition, U.S. Citizenship and 
Immigration Services (USCIS) performed a site visit to the end-client's worksite in December 2018, 
but did not find anyone working in the facilities at that time. In April 2019, the Director issued the 
notice of intent to revoke (NOIR) the petition approval. In response to the NOIR, the Petitioner 
provided a letter from the end-client that explained its offices were closed at the time of the site visit 
because of an unusual work schedule the end-client implemented to complete work for some of its 
overseas clientele. The Director found this explanation inadequate as the record lacked sufficient 
material to corroborate the end-client's claims. The Director revoked the petition's approval based on 
that inadequate explanation in addition to the following grounds : 
• When responding to the NOIR , the end-client representative did not mention the project upon 
which the Beneficiary was working; 
• The end-client offered inconsistent information given to the agency regarding the number of 
personnel needed or the length of the time those employees would be needed on the project; 
• The lack of an employer-employee relationship with the Beneficiary; and 
• Discrepancies relating to the type and scope of the Petitioner's business . 
When the Director revoked the petition's approval, she included a finding of fraud. 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 nova. 3 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
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 l&N Dec. 537, 537 n.2 (AAO 2015) . 
While we conduct de novo review on appeal, we conclude that a remand is warranted in this case. 
First, it appears the Director's fraud finding was based on the questionable outcome of the site visit; 
however, the Director's fraud finding is not fully explained within the revocation decision. We are 
therefore withdrawing the Director's fraud finding from the present revocation decision. If within a 
new decision, the Director can address how the Petitioner committed fraud or made a willful 
misrepresentation as described in the USCIS Policy Manual, she may reimplement such a finding. 4 
Second, the portion of the revocation relating to discrepancies surrounding the type and scope of the 
Petitioner's business, was not an element the Director included within the NOIR. The regulation at 
8 C.F.R. § 214.2(h)(l l)(iii)(B) partly provides that any NOIR "shall contain a detailed statement of 
the grounds for the revocation .... " As a result, any basis that was not included within an NOIR 
cannot be relied upon in the final revocation decision. 
Third, the NOIR did not offer sufficiently detailed information pertammg to the inconsistent 
information from the end-client regarding the number of personnel needed or the length of the time 
those employees would be needed on the project. The NOIR provided this general statement in 
addition to the years in which the end-client offered the information, but it did not provide the dates, 
the point of contact at the end-client, the number of personnel the end-client offered each time, nor the 
project duration dates. The Director provided all of this information within the decision to revoke the 
petition's approval. We reiterate that the regulation at 8 C.F.R. § 214.2(h)(ll)(iii)(B) requires that 
any NOIR "shall contain a detailed statement of the grounds for the revocation .... " The Director's 
reference to this information within the NOIR did not comply with this regulation. 
While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision 
inltserveAlliance, Inc. v. Cissna, ---F.Supp.3d---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, 
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. 5 Consequently, we withdraw this portion of the Director's 
revocation decision. 
We observe one aspect the Director may wish to address within any new decision. A review of the 
duties the Petitioner offered in the initial petition filing reveals several duties relating to testing and 
quality assurance within the position. However, a review of the December 22, 201 7, end-client letter 
reveals no discemable testing and quality assurance elements. The Director may elect to address the 
impact of this seemingly inconsistent information on the nature of the position as well as on the 
veracity of these parties' claims. Additionally, the Director may wish to have the Petitioner explain 
why it presented a letter from the end-client naming a different alien within the response to the NOIR 
at Exhibit 6. 
Accordingly, the matter will be remanded to the Director to consider the above issues and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
4 See Volume 8 USC1S Policy Manual Part J.3(A)(2), https://www.uscis.gov/policymanual. 
5 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www. uscis. gov /legal-resources/policy-memoranda. 
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determination and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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