remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 3, 2025 In Re: 35750855 
Appeal of California Service Center Decision 
Form 1-129, Petition for 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 file a petition with U.S. 
Citizenship and Immigration Services (USCIS) 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding that the Petitioner did not establish that the Beneficiary is qualified to perform 
the duties of the offered position. The matter is now before us on appeal. The Petitioner bears the 
burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the Act; 
Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de 
novo. Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we 
will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
Although we conduct de nova review on appeal, a threshold matter must be resolved before we may 
address the merits of the Director's decision and the Petitioner's appeal. Specifically, a beneficiary's 
credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. We are required to follow long-standing legal standards and determine first, whether the 
offered position qualifies for classification as a specialty occupation, and second, whether the 
Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf 
Matter ofMichael 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].") . 
We note within the Director's decision they indicated the position did not qualify as a specialty 
occupation. The Director stated: 
When users makes a decision for eligibility as an H-1 B nonimmigrant, it first 
determines whether the position is a specialty occupation. If users determines that 
the position is not a specialty occupation, it need not determine whether the beneficiary 
is qualified for the position. As discussed above, you have not shown that the proffered 
position is a specialty occupation. However, as a separate and independent eligibility 
issue, you have not shown that the beneficiary is qualified to perform the duties of the 
proffered position. 
Even though the decision reflects the Director presented analysis relating to whether the position 
qualifies as a specialty occupation, and that they made a determination that it did not, the decision 
notice does not contain any such analysis. Because the specialty occupation issue must be resolved 
before the Beneficiary's qualifications, we will remand the matter for the Director to make that 
determination, especially focusing on the position prerequisites as it appears those may have been the 
shortcoming the Director alluded to in the denial. This is not to say that the Director cannot make two 
independent determinations in the same notice; one on the specialty occupation issue and one on the 
Beneficiary's qualifications. But that is not the case here and users must resolve the specialty 
occupation issue first. 
Accordingly, we will withdraw the Director's decision and remand the matter to consider the specialty 
occupation issues and enter a new decision. The Director may request any additional evidence 
considered pertinent to the new determination and any other issue. As such, we express no opinion 
regarding the ultimate resolution of this case on remand. 
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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