remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9871146 
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 . 24, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer" under the H-lB 
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 Petitioner did 
not establish an employer-employee relationship with the Beneficiary and did not establish the 
Beneficiary would perform services in a specialty occupation. While this appeal was pending, the 
U.S. District Court for the District of Columbia issued a decision in ltserve Alliance, Inc. v. Cissna, 
443 F. Supp. 3d 14 (D.D.C. 2020). Subsequently, U.S. Citizenship and Immigration Services (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rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 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. USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner identified the proposed 
position as a "software developer." On the labor condition application (LCA) 1 submitted in support 
of the H-lB petition, the Petitioner designated the proffered position under the occupational category 
"Software Developers, Applications" corresponding to the standard occupational classification (SOC) 
code 15-1132. We observe that the Petitioner and the vendor services manager in this matter provided 
different iterations of the proposed duties. Additionally, both versions of the duties for the proposed 
position are general and insufficiently detailed to communicate the duties the Beneficiary will be 
expected to perform. For example, the duties as generally described suggest the position may require 
the Beneficiary to perform the duties of a "Software Developers, Systems Software," SOC code 
1 A petitioner submits the LCA to DOL to demonstrate that it will pay an H-1B worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
15-1133, an occupation that requires a higher paying wage.2 As the descriptions do not sufficiently 
illustrate the actual duties the Beneficiary will be required to perform, the record does not establish 
the nature and level of responsibility of the proposed position, including whether the duties as 
generally described correspond to the occupation designated on the LCA. 
Further, the Petitioner, the vendor in this matter, and the vendor services manager all indicate that the 
duties require different educational requirements. For example, the Petitioner claims the duties require 
a bachelor's degree in computer science, information systems, or the equivalent, in order to perform 
them. The vendor states that the position requires a master's degree in business administration, 
information technology, or science to perform the duties it describes. The vendor services manager 
claims that the same duties the vendor described require a "Bachelor's Degree in Computer Science 
or a combination of education and experience equating to the U.S. equivalent of a Bachelor's Degree 
in one of the aforementioned subjects." The vendor services manager does not further elaborate on 
these requirements or set forth its standards for determining any equivalency. 
Thus, the record is inconsistent and insufficient to establish the substantive nature of the proffered 
position and demonstrate that performing the duties described would require the theoretical and 
practical application of highly specialized knowledge and the attainment of at least a bachelor's degree 
in a specific specialty or its equivalent. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation). 
However, because this case appears to be affected by the new policy guidance, we find it appropriate 
to remand the matter for the Director to consider the petition 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. 
2 See Foreign Labor Certification Data Center Online Wage Library for "Software Developers, Systems Software" at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=15-1133&area~year=19&source=1. If a position 
incorporates the duties of more than one related occupation, the Petitioner should default to the higher-paying occupation 
on the certified LCA. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); 
http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. 
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