remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8635832 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 20, 2020 
The Petitioner , a technology consulting and software company, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H-IB nonimmigrant classification for specialty 
occupations . See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 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 record did not 
establish that the Beneficiary is qualified to perform services in the proffered position. 
While we conduct de nova review on appeal, a remand is warranted in this case because the Director's 
decision is insufficient for review. Specifically, the Director is required to follow long-standing legal 
standards and determine first, whether the proffered position qualifies for classification as a specialty 
occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation] ."). 
According to the Petitioner, it will place the Beneficiary at an end-client location via a mid-vendor. As 
recognized by the court in Defensor v. Meissner, 201 F.3d 387-88 (5th Cir. 2000), where the work is 
to be performed for entities other than the petitioner , evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perfmm that particular work. 
Although the Petitioner submitted a partial copy of the mid-vendor's "Inbound Services Agreement" 
(ISA) with the end-client , it is missing pages 13-44 and the effective date is blacked out. The 
accompanying "Statement of Work" (SOW) is dated after the petition was filed 1 and lacks the "Valid 
Purchase Order" which is required to begin service. In addition, the SOW does not include the name 
of the Beneficiary, but rather a need for 4-5 temporary workers and only provides a general overview 
of the project without sufficiently describing the actual work the Beneficiary will perform or the 
minimum requirements for the proffered position. 
Although the Petitioner also submitted two letters from the end-client which contain more specific 
duties and an educational requirement, it is not readily apparent that it is for the same project 
referenced in the SOW. Further, the authority of the signatories to sign such a letter on behalf of the 
end-client has not been established. The letters also raise questions as to whether the signatories were 
the true authors. For example, as there does not appear to be any direct contractual relationship 
between the Petitioner and end-client, it is unclear as to how either signatory would be able to discuss 
the relationship between the Beneficiary and the Petitioner. In addition, although both letters state that 
"This statement was produced by the following individual, who is an authorized representative of [the 
end-client]," it is unlikely that both individuals would use identical language, including grammatical 
errors ( except for the provided duties, for which no explanation was provided for the differences). 
Further, both the ISA and SOW indicate that the mid-vendor is not allowed to subcontract out the 
work, but the letters provide no explanation for the apparent exception to permit the Beneficiary to 
work on the project. 
We would also briefly note that, according to the Petitioner, its net annual income is $90,000, it has 
29 employees, and it will pay the Beneficiary $109,500. It is, therefore, unclear whether the Petitioner 
will be able to meet its financial obligations with regard to the submitted labor condition application. 
The Director should review the record to determine whether it contains sufficient evidence to establish 
that the Beneficiary will perform services in a specialty occupation, and then the Director may 
determine whether the Beneficiary is qualified. 
The Director should also examine whether the Petitioner has established that it will have an employer­
employee relationship with the Beneficiary as a "United States employer." The Petitioner's generalized 
assertions regarding this issue lack specificity and probative detail of the degree of supervision, 
direction, or control that the Beneficiary would receive from a long-distance employer. 
In light of the above, we remand the petition for the Director to farther review the record and request 
any additional evidence deemed necessary. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
1 The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be 
eligible for the benefit through adjudication. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Co1p., 17 l&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 
2