remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9685955 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 27, 2020 
The Petitioner seeks to employ the Beneficiary temporarily 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 Director of the California Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, 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 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Immigration Services (USCIS) rescinded previously issued policy guidance relating to H-lB 
petitions. 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. 
Additionally, it appears that a remand is warranted in this case for separate reasons. The record of 
proceeding is not sufficiently developed to allow us to determine whether the proffered position is 
actually located within the occupational category for which the Department of Labor (DOL) ETA 
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 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda 2 (June 17, 2020), 
http://www.usci s.gov/legal-resources/pol icy-memoranda. 
3 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) was 
certified. 5, 6 
Without knowing the answer to that question, we cannot determine the actual, substantive nature of 
the position. This means that we cannot make a determination on the specialty-occupation question 
based on the current record. We therefore are withdrawing the Director's decision and remanding the 
matter for further review of the record and issuance of a new decision. Specifically, the Director 
should first determine whether (1) the Petitioner obtained a certification from DOL that it filed an 
LCA in the occupational specialty in which the Beneficiary would be employed; and (2) the LCA was 
certified for the appropriate occupational category, and therefore corresponds to and supports this 
H-lB petition.7 
The Petitioner classified the offered position under the occupational title "Software Developers, 
Systems Software," corresponding to the standard occupational classificational (SOC) code 15-1133 
at a Level 111 wage rate. The primary function of that SOC code relates to operating systems-level 
software. However, the duties the Petitioner provided are not sufficiently detailed for us to determine 
whether the designated SOC code on the LCA is correct, or if the organization should have specified 
the position under the 15-1132 SOC code relating to Software Developers, Applications. That SOC 
code performs work primarily on general computer applications software or specialized utility 
programs. We note that the compensation for these two SOC codes differs, especially at the Level IV 
prevailing wage rate. 
That brings us to the second issue the Director should consider: whether the Petitioner designated the 
position at the correct wage level on the LCA. First, within the Petitioner's response to the Director's 
request for evidence it stated the position required a bachelor's degree in addition to a minimum of 
five years of work experience. That combination appears to require a Level IV wage rate on the LCA. 
Moreover, the position description appears to reflect a significant amount of work in a managerial or 
supervisory capacity over other software developers, which is not a customary duty for either software 
developer SOC codes we discussed above. As a result, the Director should determine whether such 
functions would require a Level IV wage rate designation on the LCA. 
Because this case is affected by the new policy guidance and for the additional issues the Director 
should consider, 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. 
5 While Department of Labor (DOL) certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's attestations and content corresponds with and supports the H-lB petition. See 20 C.F.R. § 655.705(b) 
("DHS determines whether the petition is supported by an LCA which corresponds with the petition .... "). See also 
Matter of Simeio Solutions, 26 l&N Dec. 542, 546 n.6 {AAO 2015). When comparing the standard occupation 
classification (SOC) code or the wage level indicated on the LCA to the claims associated with the petition, USCIS does 
not purport to supplant DOL's responsibility with respect to wage determinations. There may be some overlap in 
considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
LCA "corresponds with" the content of the H-lB petition. 
6 Before filing a petition for H-1B classification, the regulation requires petitioners to obtain certification from DOL that 
the organization has filed an LCA in the occupational specialty in which its foreign national personnel will be employed. 
8 C.F.R. § 214.2(h)(4)(i)(B)(1). 
7 See 8 C.F.R. § 214.2(h)(4)(i)(B)(1); Simeio Solutions, 26 l&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
2 
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. 
3