remanded H-1B Case: Staffing

U.S. Citizenship 
and Immigration 
Services 
In Re : 10106711 
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 23, 2020 
The Petitioner , a specialty staffing firm, seeks to employ the Beneficiary temporarily under the H-lB 
nonirnmigrant classification for specialty occupations .1 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 Form 1-129, Petition for a Nonimmigrant 
Worker, 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 Citizenship and Immigration Services (USCIS) rescinded previously issued policy 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 . 2 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 3 
We review the questions in this matter de novo.4 While we conduct de nova review on appeal, we 
conclude that a remand is warranted in this case in part based on the new USCIS policy guidance. 
Within her new decision, the Director may wish to further address whether the duties the Petitioner 
provided are more likely than not the functions the Beneficiary would perform for the end-client. 
Further, the Director may elect to determine what effect the end-client 's claimed position requirements 
have on the proffered position . For instance, it initially indicated that it required a degree and three 
years of experience stressing that the combination of the education and the experience were an 
important prerequisite for the position and for the successful performance of the job duties . However, 
1 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). 
2 USCIS Policy Memorandum PM-602-0114 , Rescission of Policy Memoranda at 2 (June I 7, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda . 
3 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
within the response to the Director's request for evidence, the client omitted that experiential 
requirement. This could be considered as an inconsistency within the evidence. 
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. 
2