remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11807121 
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Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance relating 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. 
Within her new decision, the Director may wish to decide whether the Petitioner has demonstrated the 
substantive nature of the proffered position. Here, the Petitioner states that the Beneficiary will work 
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 contract with a client fo r work on a particular project for 
that client. 
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). 
in-house on an iOS development project for its direct client but has not provided any specific 
information about the project, or documentation specifically outlining the Beneficiary's name and job 
title on particular tasks or deliverables, or a direct correlation between the listed duties and the 
identified project. 5 Further, 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 detai I 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-lB 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. 
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 The actual duties the Beneficiary will be expected to perform must be reviewed in order to ascertain whether those duties 
require at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task, we review the duties in conjunction with the specific project(s) to which the 
Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in 
some instances) to comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
2