remanded H-1B Case: Workforce Solutions

U.S. Citizenship 
and Immigration 
Services 
In Re: 12035389 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 2, 2020 
The Petitioner, a professional and project-based workforce solutions company, 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)(15)(H)(i)(b), 8 U.S.C. § l 10l(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 Form 1-129, Petition for a Nonimmigrant 
Worker, concluding in part that the Petitioner did not establish an employer-employee relationship 
with the Beneficiary . The Director also concluded that the Petitioner had not demonstrated it would 
have qualifying work available for the Beneficiary. 1 While this appeal was pending, the U.S . District 
Court for the District of Columbia issued a decision in ltserve 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(USCIS) rescinded previously issued policy guidance relating to H-lB petitions filed for workers who 
will be employed at one or more third-party worksites, 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 matter is now before us on appeal. 
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 record contains 
sufficient evidence from the end-client, consistent with Defensor v. Meissner, 201 F. 3d 387-88 (5th 
1 In this matter, even though not all of the Petitioner's arguments on appeal were accurate or persuasive, the Petitioner 
resolved the labor condition application (LCA) concerns by its submission of a second LCA certified before the date of 
the filing of the petition. However, we note that the second LCA is only valid until June 5, 2022. 
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 l&N Dec. 537, 537 n.2 (AAO 2015). 
Cir. 2000). For example, we note that the duties provided in the joint "memorandum of understanding" 
(MOU) submitted in response to the Director's request for evidence are identical to those provided by 
the Petitioner in its initial filing. As a general concept, when a petitioner has provided material from 
different entities, but the language and structure contained within is notably similar, the trier of fact may 
treat those similarities as a basis for questioning a petitioner's claims. See Matter of R-K-K-, 26 I&N 
Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 
2006); Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 
2011 ). Because it appears that the Petitioner, and not the end-client, drafted the job duties portion of the 
MOU, it possesses diminished probative value. In evaluating the evidence, the truth is to be determined 
not by the quantity of evidence alone but by its quality. See Chawathe, 25 I&N Dec. at 376 (quoting 
Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In addition, we note that the Petitioner failed 
to establish that the signatory on the MOU is an authorized official of the end-client. 5 
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. 
5 Simply listing "Authorized Signatory" in place of the individual's title is not sufficient to establish the signatory's 
capacity as an authorized official of the end-client. 
2