remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 16, 2023 In Re: 28859835 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonirnrnigrant 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 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 California Service Center denied the petition, concluding that the Petitioner's 
proffered employment was not a specialty occupation because it did not establish an employer­
employee relationship with the Beneficiary. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision 
inltserveAlliance , Inc. v. Cissna, 443 F. Supp. 3d 14 (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and Immigration Services (USCIS) rescinded previously issued policy guidance and directed its 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 policy guidance summarized above, 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. As the Director considers the matter anew, 
they can elect to examine the record to determine whether the Beneficiary will be employed in a 
specialty occupation under 8 C .F.R. § 214.2(h)(4)(i)(A) and section 101(a)(l5)(H)(i)(b) of the Act 
after the intended dates of employment listed on the Form 1-129 and Department of Labor certified 
labor condition application (LCA) have passed. And, under the same circumstances, the Director can 
consider whether consular processing of the petition and the admission of the Beneficiary would be 
possible. 
We withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. We express no opinion as to the ultimate resolution of this matter 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. 
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