remanded H-1B

remanded H-1B Case: Software Development

📅 Date unknown 👤 Company 📂 Software Development

Decision Summary

The Director initially denied the petition for failing to establish an employer-employee relationship. The appeal was remanded because a recent federal court decision (Itserve Alliance, Inc. v. Cissna) prompted USCIS to rescind its policy guidance on the employer-employee relationship. The case was sent back to the Director for reconsideration under the new policy.

Criteria Discussed

Employer-Employee Relationship Specialty Occupation

View Full Decision Text

U.S. Citizenship 
and Immigration 
Services 
In Re: 9433837 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "SQL server developer" 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 California 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Services (USCIS) rescinded previously issued policy guidance and directed its officers to apply the 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 . 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 .

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