remanded H-1B Case: Software Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 8745889 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 10, 2020 
The Petitioner, a company engaged in software services, seeks to temporarily employ the Beneficiary 
under the H-lB nonirnmigrant 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 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, and did not establish that the 
Beneficiary is qualified for the proffered position . We conclude that a remand is warranted in this 
case because the Director's decision is insufficient for review . Specifically, the Director is required 
to follow long-standing legal standards and determine first, whether the proffered position qualifies 
for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimrnigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 
19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue 
after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation].") . 
Further, 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Subsequently, U.S. Citizenship and Immigration Services (USCIS) rescinded previously issued policy 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 farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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