remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 09, 2024 In Re: 28744402 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner 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 abody of highly specialized knowledge; and (b) the attainment of abachelor'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 H-lB petition, concluding the record did not 
establish the Beneficiary would perform services in a specialty occupation for the requested period of 
intended employment. On appeal, the Petitioner submits a brief and additional evidence, asserting the 
Director erred in the facts and misapplied policy. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LEGAL FRAMEWORK 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the theoretical and practical application of a body of highly specialized 
knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. The regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the statutory definition, while the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered position must also meet one of 
four criteria to qualify as a specialty occupation. 
The statute and regulations must be read together to ensure the proffered position meets the definition 
of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statue as a whole is preferred); see 
also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); Matter 
of W-F-, 21 l&N Dec. 503 (BIA 1996). Considering the statute and the regulations separately could 
lead to scenarios where a petitioner satisfies a regulatory factor but not the definition of specialty 
occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). A 
job title or broad occupational category alone does not determine whether a particular job is a specialty 
occupation under the regulations and statute. The nature of a petitioner's business operations along 
with the specific duties of the proffered job are also considered. We must evaluate the employment 
of the individual and determine whether the position qualifies as a specialty occupation. See id. 
The H-1B petition process involves several steps and forms filed with the Department of Labor (DOL) 
and United States Citizenship and Immigration Services (USCIS). A petitioner seeking to file an 
H-1B petition must submit a certified labor condition application (LCA). Section 212(n)(1) of the 
Act; 8 U.S.C. § 1182(n)(1). A DOL certified LCA memorializes the attestations a petitioner makes 
regarding the employment of the noncitizen in H-1B status. See 20 C.F.R. § 655.734(d)(1)-(6). While 
DOL is responsible for certifying that a petitioner has made the required LCA attestations, USCIS 
evaluates whether the submitted LCA corresponds with the H-1B petition. 20 C.F.R. § 655.705(b). 
II. PROCEDURAL HISTORY 
In September 2020, the Petitioner filed its initial H-1B petition I I on behalf of the 
Beneficiary, which listed two work site locations, the Beneficiary's home inl INew Jersey 
and the end-client's address inl lVirigina. The Petitioner then filed the instant H-1B petition 
on May 12, 2022, to amend and extend the Beneficiary's H-1B status. The LCA corresponding to the 
petition contained two work site locations - the Beneficiary's home i~ land the new end­
client's I !address inl I, New Jersey. According to the Petitioner, the Beneficiary 
remained its employee, while the end-client and the end-client's work site changed. The Petitioner 
requested tlo emplor the Beneficiary from March 29, 2022 to March 28, 2025 for placement with the 
end-client, . 
In October 2022, the Director issued a request for evidence (RFE) regarding the Beneficiary's 
qualifications. The Petitioner responded to the RFE in March 2023, with explanations and evidence 
supporting the Beneficiary's qualifications for specialty occupation work as a software engineer. In 
March 2023, the Director denied the petition, explaining that USCIS contactedlland verified 
that the Beneficiary stopped working onl Iproject in July 2022 due tot===:] budgetary 
constraints. The Director concluded that because the Beneficiary no longer provided services to
I I and was no longer employed or anticipated atl Ilocation, the Petitioner did not have 
sufficient specialty occupation work for the Beneficiary to perform during the entire validity period 
requested. As such, the Director determined the Petitioner had not demonstrated it had a bona fide job 
offer for the Beneficiary for the entirety of the requested validity periods. Additionally, the Director 
concluded the Petitioner misrepresented that the I I project would continue until the end date 
requested on the petition. 
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111. ANALYSIS 
On appeal, the Petitioner emphasizes that it filed the petition, natl Ithat the Beneficiary works 
on multiple clients' projects, and that he sometimes works for more than one project at the same time. 
The Petitioner argues, "[t]he [Director's] decision is premised on the principle that [the Petitioner] 
must provide USCIS with contracts to evidence the existence of all projects the Beneficiary will work 
on during the requested validity." The Petitioner further contends the Director erred by applying 
guidance contained in two rescinded memoranda.1 The Petitioner states it "did not know when the 
contract would end when the H1B pttition was filed," and therefore, it did not misrepresent that the 
Beneficiary would work for 1 Accordingly, the Petitioner concludes there "is no factual basis 
for" and "no evidence" to support a finding of misrepresentation. In support of its appellate claims, 
the Petitioner provides a May 2023 affidavit from its immigration specialist,! ~ declaringl 
that when the Petitioner filed the amended petition in May 2022, it did not know that the 1 
project "would be ceasing work with [the Beneficiary] shortly afterwards." 
To the extent the Director applied the guidance set forth in the rescinded memoranda, we agree that 
such application was erroneous. Nevertheless, a petitioner must still establish that a beneficiary will 
work in a specialty occupation position. Accordingly, we remand the matter to the Director to 
determine whether the record contained evidence sufficient to establish the Beneficiary would work 
in a specialty occupation for the requested employment period. 
In making this determination, the Director may wish to examine whether the Petitioner sufficiently 
articulated the duties of the proffered position as they relate to the projects upon which the Beneficiary 
will work. O~, the Petitioner explains, '"[t]he approved job duties for the proffered position 
applied to thel___Jproject and in fact, these duties are applicable to other projects assigned to [the 
Beneficiary]. ... " The Petitioner gave the Beneficiary work "on multiple projects that had similar job 
duties, including a project tori lthat Beneficiary began working on before thel Iproject 
ended." Such assertions suggest the Petitioner may have provided general and broad job duties that 
could apply to a variety of situations. Therefore, we remand the matter for consideration of whether 
the Petitioner established the Beneficiary would perform services in a specialty occupation for the 
requested period of employment. 
As the Petitioner notes on appeal, issuing an RFE or a Notice of Intent to Deny (NOID) is appropriate 
if the documentation insufficiently demonstrates a petitioner has specialty occupation work for a 
beneficiary for the requested period. In this case, the Director issued an RFE, but they did not reference 
the insufficiency of specialty occupation work as a reason for the RFE. The Director issued the RFE 
in October 2022 and the Petitioner responded to the RFE in March 2023. By the RFE response date, 
the Petitioner would have been aware that thel Iproject had ended in July 2022, but the 
Petitioner did not inform the Director of this change. In fact, in its RFE response, the Petitioner 
continued to assert that thel Iproject was ongoing, as evidenced by a February 2023 letter stating 
1 The U.S. District Court for the District of Columbia issued a decision in ltserve Alliance, Inc. v. Cissna, 442 F.Supp.3d 
14, 2020 WL 1150186 (D.D.C. 2020). Subsequently, 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. 
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that the Beneficiary continues to work on thel lproject.2 As such, we cannot conclude that there 
"is no factual basis for" and "no evidence" to support a finding of misrepresentation. Therefore, we 
remand the matter to the Director to reexamine the misrepresentation finding based upon the 
Petitioner's RFE response, bearing in mind that amisrepresentation must be willful and material. Here 
we draw a distinction between the Petitioner's knowledge at the time of filing and its knowledge at 
time of responding to the RFE. In addition, a remand of the matter will grant the Director an 
opportunity to review the May 2023 affidavit regarding the Petitioner's knowledge at the time of filing 
the petition. 
We remand the matter to the Director to determine whether: (1) the Petitioner has sufficient specialty 
occupation work for the Beneficiary for the entirety of the requested employment period; (2) whether 
the documentation about the proffered position and its duties is sufficiently detailed; and (3) whether 
the Petitioner misrepresented the Beneficiary's work in response to the RFE. The Director may request 
any additional evidence considered pertinent to the new determination and any other issue. We express 
no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 The letter specifically states, "[f]rom July 2013 to May 12, 2022 and continuinr until thle present day [February 9, 2023], 
[the Beneficiary] has worked as a Software Engineer/Analyst for our end-client on theirl !project." 
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