remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10108970 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 03, 2020 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary under the H-lB nonimmigrant classification for specialty occupations. 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). 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 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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. 
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. 
Additionally, regardless of whether the Petitioner would have an employer-employee relationship with 
the Beneficiary and whether sufficient work would be available , the Director should determine 
whether the Beneficiary is qualified to perform services in a specialty occupation. Specifically, the 
record does not contain an evaluation of the Beneficiary's foreign degree or sufficient evidence to 
establish that his foreign degree is equivalent to a U.S. bachelor's degree in a specific specialty. 
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. 
2