remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 12772466 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 8, 2020 
The Petitioner, a software development provider, 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 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 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rescinded previously issued policy guidance and directed its officers to apply the existing regulatory 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. USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 2 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
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 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 work the Beneficiary would perform during the intended period of 
employment. In particular, the Petitioner stated that the Beneficiary would work as a "programmer 
analyst" at an end-client location in Illinois. As recognized in Defensor v. Meissner, 201 F.3d 384, 
387 (5th Cir. 2000), it is necessary for the end-client to provide sufficient information regarding the 
proposed job duties to be performed at its location(s) in order to properly ascertain the minimum 
educational requirements necessary to perform those duties. In other words, as the employees in that 
case would provide services to the end-client and not to the petitioning staffing company, the job duties 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
and alleged requirements to perform the duties that the Petitioner provided were irrelevant to a 
specialty occupation determination. See id. In the instant matter, the record of proceedings is devoid 
of information from the end-client regarding the nature of the Beneficiary's proposed position and the 
duties associated therewith. While the record contains job descriptions from the Petitioner and the 
vendor, there is no evidence in the record from the end-client to corroborate the claimed duties and 
scope of the Beneficiary's assignment. 
Furthermore, the Petitioner has not provided information from the end-client outlining the company's 
educational requirements. The record, therefore, also lacks documentation or information about the 
end-client's educational requirements for the position and whether such educational requirements 
would match the Petitioner's requirements and qualify for a specialty occupation and meet the wage 
level specified on the labor condition application. Consistent with Defensor, where the work is to be 
performed for entities other than the Petitioner, evidence of the client companies' job requirements is 
critical. However, the record of proceedings does not contain such evidence. 
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. 
2