remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7332696 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 30, 2020 
The Petitioner, a management consulting services provider, seeks to employ the Beneficiary temporarily 
as a "java developer" 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 the Fonn I-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the Department of Labor ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA), properly corresponds with and 
supports the petition. On appeal, the Petitioner asserts that the Director erred in denying the petition. 
While we conduct de nova review on appeal, a remand is warranted in this case because the Director's 
decision appears insufficient for review. Specifically , we note that the Director incorrectly indicated 
the Petitioner classified the proffered position under the Management Analysts occupational title, 
when the LCA actually reflected that the organization listed the Standard Occupational Classification 
code 15-1132 for the Software Developers, Applications category. As a result, we withdraw the 
Director's decision on this issue. 
Moreover, we observe other issues the Director may wish to address. Namely, the Director should 
consider whether the Petitioner sufficiently demonstrated that it had non-speculative and qualifying 
work available for the Beneficiary on the date it filed the petition. The record does not appear to 
contain sufficient contractual material establishing that the Petitioner would provide qualifying work 
for the Beneficiary for the timeframe it requested on the petition. 
Additionally, the correspondence from the Petitioner's client does not appear to be in accord with this 
type of material as noted by the court inDefensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). 
As a central holding, the Defensor comi determined that the former Immigration and Naturalization 
Service acted appropriately in interpreting the statute and the regulations as requiring petitioning 
1 See Immigration and Nationality Act (the Act) section l O l(a)(l 5)(H)(i)(b ), 8 U.S.C. § 1101(a)(l 5)(H)(i)(b). 
companies to provide probative evidence that the outside entities actually utilizing the Beneficiary's 
services (i.e. end-clients) required candidates to possess a qualifying degree. 2 The Defensor court 
reasoned that the position requirements from the entity where the beneficiary would actually work­
be it the required degree or the position's actual duties a candidate would perform-should serve as 
the more relevant characteristics we should consider under our specialty occupation determination. 
The court further concluded that absurd outcomes could result from granting greater credence to the 
position requirements as represented by an outsourcing agency, rather than to those from its clients 
where a beneficiary would perform the work. 3 Similar to the Defensor case, the duties and education 
details the Petitioner provided would appear to be less probative to this analysis than the end-client's 
requirements. The Director should determine whether the end-client letter, as presented within the first 
proceedings before her, was sufficient to demonstrate eligibility. 4 
Accordingly, we will remand the matter to the Director to consider these issues and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
2 Defensor, 201 F.3d at 388. 
3 Id. 
4 A petitioner must establish eligibility at the time it files the nonimmigrant visa petition. 8 C.F.R. § 103.2(b )(1 ), (12). 
USCTS may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new set 
of facts. Matter of Michelin Tire Cmp., 17 T&N Dec. 248, 249 (Reg'! Comm'r 1978) (finding that nonimmigrant eligibility 
criteria must be met at the time a petitioner files the petition). Nor should eligibility be heavily based on evidence a 
petitioner revises after USCTS points out the deficiencies in the petition, as such material is not necessarily independent 
and objective evidence. See Baldwin Daily. Inc. v. United States, 122 F.Supp.3d 809, 816 (W.D. Wis. 2015) (concluding 
we were justified in questioning a petitioner's motives and whether the company simply amended its evidence so that it 
could demonstrate eligibility). 
2