remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11969460 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 25, 2020 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary 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 Vermont Service Center denied the petition, concluding that, based on a lack of 
corroborating material, to include contracts, the Petitioner had not demonstrated that the proffered 
position qualifies as a specialty occupation and that it would have qualifying work available for the 
Beneficiary. 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Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance relating 
to H-lB petitions filed for workers who will be employed at one or more third-party worksites, 1 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. 2 The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity 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. 
1 We recognize that the Petitioner stated that it will not place the Beneficiary at a third-pa rty work site; however, the 
Petitioner indicated that the proffered position is dependent on its contracts with clients for work on their projects. 
2 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov/legal-resource s/policy-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). 
Within her new decision, the Director may wish to decide whether the Petitioner has demonstrated 
that the proffered position qualifies as a specialty occupation.5 Here, the Petitioner states that the 
Beneficiary will work in-house on multiple projects for its direct clients. However, the Petitioner has 
not sufficiently described the duties of the proffered position such that we may discern the nature of 
the position and whether the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge attained through at least a baccalaureate degree in a specific 
discipline. The Director should determine whether the provided descriptions of the Beneficiary's 
duties provide the specificity and detail necessary to support the Petitioner's contention that the 
position is a specialty occupation. In establishing such a position as a specialty occupation, the 
description of the proffered position must include sufficient details to substantiate that the Petitioner 
has H-1B caliber work for the Beneficiary. 
Without a meaningful job description, we cannot determine (1) the actual work that the Beneficiary 
would perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or (3) the 
correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
Similarly, it is the substantive nature of the work that determines (1) the normal minimum educational 
requirement for the particular position, which is the focus of criterion 1; (2) industry positions which 
are parallel to the proffered position and thus appropriate for review for a common degree requirement, 
under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion 2; (4) the factual justification for 
a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and 
(5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 4. 
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 Additionally, we note that the record is not currently sufficient to establish that the Beneficiary is qualified to perform 
the duties of the proffered position. Specifically, the Petitioner did not submit an evaluation of the Beneficiary's foreign 
degree or sufficient evidence to establish that his degree is equivalent to a U.S. bachelor's degree in a specific specialty. 
2