remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8657070 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software developer" under the H-IB 
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-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 would have 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U.S. Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance and 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 . USCIS Policy 
Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020) , 
http ://www . uscis . gov /legal-resources /policy-memoranda . 
We note here that the descriptions of the proposed duties at the end-client facility appear to include 
more than one occupation . Accordingly, we question whether the duties as described correspond to 
and support the labor condition application (LCA) 1 submitted with the petition. Further examination 
of this issue may be warranted. Additionally, as recognized by the court in Defensor v. Meissner, 
201 F.3d 384, 387-88 (5th Cir. 2000) , where the work is to be performed for entities other than the 
petitioner , evidence of the client companies' job requirements is critical. 2 The court held that the 
1 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-lB 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. Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
2 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship , "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
former Immigration and Naturalization Service had reasonably interpreted the statute and regulations 
as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty 
occupation on the basis of the requirements imposed by the entities using the beneficiary's services. 
Id. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. Here 
we note that the Petitioner did not provide this detailed evidence, including evidence of the end-client's 
job requirements. This issue should also be explored when analyzing whether the proposed position 
is a specialty occupation. 
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. 
evidence in the adjudication of other eligibility criteria." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3. 
2