remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 6254848 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "software engineer" 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 California Service Center Director denied the petition , concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in denying the petition. Upon 
de nova review' we will withdraw the Director's decision and remand the petition for further review of 
the record and a new decision. 
On the labor condition application (LCA) submitted in support of the H-lB petition , the Petitioner 
designated the proffered position under the occupational category "Software Developers , 
Applications ," corresponding to the Standard Occupational Classification code 15-1132 . The 
Director, however, analyzed the proffered position as a "Computer Systems Analysts" occupation and 
determined that the record did not establish that the position qualifies as a specialty occupation. It 
appears the Director did not base her decision on the documentation contained in this record of 
proceedings . 
Upon review, we conclude that the Director did not offer an adequate analysis of the evidence 
submitted so that the Petitioner was afforded a fair opportunity to contest the decision and to allow us 
an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i) ; see also Matter of 
M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for denying 
a motion to allow the respondent a meaningful opportunity to challenge the detennination on appeal). 
Accordingly, we will withdraw the Director's decision and remand the matter for the Director to 
further review the record and to issue a decision based on the complete record . 
Notwithstanding the Director's lack of a complete analysis on why they considered the proposed 
position a "Computer Systems Analysts" occupation and not the occupation designated on the LCA, 
we observe that the Petitioner provided similar but different versions of the proposed duties . The 
1 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
different iterations are insufficient to establish the actual role to which the Beneficiary will be assigned. 
The record also does not include sufficient, consistent evidence of the project to which the Beneficiary 
will be assigned. Although the Petitioner provides an opinion regarding the nature of the proposed 
position, the opinion is based on the Petitioner's first version of duties and responsibilities. The 
Petitioner's later descriptions both add and delete responsibilities of the proffered position. It is not 
clear how the opinion writer's analysis of the position would change because of these additions and 
deletions. 
Moreover, the record includes an April 3, 2013 subcontracting agreement between the Petitioner and 
a claimed end-client which includes representations by the claimed end-client that raise significant 
concerns regarding the legal obligation of this entity to provide work for the Beneficiary to perform. 
We also question the relevance of a letter from the claimed end-client which is dated March 27, 2017, 
a year prior to the filing of the instant petition. Although the record on appeal includes an updated 
letter, neither letter is sufficient to establish the nature of the proposed work or the type of project to 
which the Beneficiary would be assigned. Notably, the letters do not establish the legal obligation for 
the claimed end-client to use the Petitioner's resources. For H-lB approval, the Petitioner must 
demonstrate a legitimate need for an employee exists and substantiate that it has H-1 B caliber work 
for the Beneficiary for the period of employment requested in the petition. U.S. Citizenship and 
Immigration Services regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.F.R. 103.2(b )(1 ). A visa petition may not 
be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 
1978). 
The record does not include sufficient evidence to establish the substantive nature of the proposed 
position and to establish that the petition was filed for definitive non-speculative employment. Thus 
the matter will be remanded to the Director to farther review the record and to issue a decision based 
on this record of proceedings. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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