remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8887355 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 16, 2020 
The Petitioner , a software development company, seeks to employ the Beneficiary temporarily under 
the H-lB nonirnrnigrant 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 Vermont Service Center denied the petition, concluding in part that the Petitioner 
did not establish an employer-employee relationship with the Beneficiary . While this appeal was 
pending, the U.S. District Court for the District of Columbia issued a decision in Itserve Alliance , Inc. 
v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (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Immigration Services (USCIS) rescinded previously issued policy guidance and directed its officers 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. 2 The Director also concluded that based 
on a lack of corroborating material, the Petitioner had not demonstrated it would have qualifying work 
available for the Beneficiary throughout the requested validity period. The matter is now before us on 
appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility 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 further address the following issues. Although the 
Director requested material from the end-client pertaining to the position requirements, the Petitioner 
failed to submit it at that time. Now , on appeal the Petitioner offers this type of material. First, the 
Director may wish to determine whether the Petitioner's explanation for not providing this evidence 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 USCIS Policy Memorandum PM-602-0114 , Rescission of Policy Memoranda at 2 (June I 7, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda . 
3 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
from the end-client is sufficient, or if she should apply Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 
1988). The relevant portion of that decision governs whether previously requested material should be 
considered and factored into any new decision. 
If the Director were to accept and consider the contents of the end-client letter, we observe that the 
end-client used the same duties that were contained in one of the vendor's letters offered in response 
to the Director's request for evidence. We note that as a general concept, when a petitioner has provided 
material from different entities, but the language and structure contained within is notably similar, the 
trier of fact may treat those similarities as a basis for questioning a petitioner's claims. 5 When 
correspondence contain such similarities, it is reasonable to infer that the petitioner who submitted the 
strikingly similar documents may be the actual source from where the similarities derive. 6 The Director 
may wish to question whether the duties originated with the end-client, which is generally required in this 
scenario. 7 
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 farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
5 See Matter of R-K-K-, 26 T&N Dec. 658. 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1. 8 (1st Cir. 
2011 ). 
6 See Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 2007). 
7 See Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000). 
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