remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8480141 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 3, 2020 
The Petitioner, a software development firm, seeks to temporarily employ the Beneficiary as a 
"Workday software developer" under the H-IB nonimmigrant classification for specialty occupations . 
See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b). The H-IB 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 Petitioner had non-speculative employment available for the Beneficiary as requested 
on the petition . The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de novo.2 While we conduct de nova review on appeal, we 
conclude that a remand is warranted in this case because the Director 's decision appears insufficient 
for review. As noted, the Director concluded that the Petitioner's claims that the work would exists 
for the period it requested in the petition are not corroborated by evidence that preponderantly support 
its statements . 
Although the Petitioner provided contractual materials executed between the relevant parties, the 
Director concluded this material was insufficient to illustrate the petitioning organization would have 
qualifying work available as requested on the petition. On the surface, the contracts appear to show 
that the Petitioner would have sufficient work for a portion of the requested timeframe and the Director 
should evaluate whether those contracts might support a petition approval for the demonstrated 
period. 3 Additionally, the agency conducted a site visit days before the Director issued the adverse 
decision. It is unclear whether the findings of the site visit officer's report were considered and 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 We note that the IT Master Agreement executed between the middle vendor and the end-client should consist of ten pages 
and the Petitioner only provided three of those pages. The Director should consider what effect, if any, the absent pages 
have on the Petitioner's claims when also considering the rest of the evidence in the record. 
whether those findings might raise any employer-employee related issues that the Director may also 
wish to address. We note that the Director addressed the employer-employee issue within the request 
for evidence, and the Petitioner was afforded an opportunity to provide evidence on that matter. 
The Director may also wish to address a possible issue relating to the labor condition application. The 
end-client indicated within correspondence that they require a bachelor's degree for the proffered 
position. Additionally, within the Statement of Work executed between an involved vendor and the 
end-client, the contract specified that the resource for the project was required to possess "7+ years" 
of experience. The requirement for a bachelor's degree and more than four years of experience would 
appear to require a Level IV wage rate for the occupational category specified on the labor condition 
application. 
Finally, the wage the Petitioner stated it would pay to the Beneficiary on the petition was less than the 
required prevailing wage for the location and timeframe specified on the labor condition application. 
The Director should consider whether this affects the veracity of the Petitioner's statements under the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) (i.e., it will pay the 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 experience and qualifications who are 
performing the same services. 4 
Accordingly, the matter will be remanded to the Director to consider the above 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. 
4 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Matter of Simeio Solutions, 26 l&N Dec. 542. 546 n.6 (AAO 
2015)). 
2