Good news — this case cleared the first bar
The AAO withdrew the Director's denial and remanded the case due to a new federal court decision (ITServe Alliance) that required USCIS to rescind its prior employer-employee relationship guidance. The AAO also flagged a potential LCA wage-level mismatch for the Director to address on remand.
An IT solutions provider petitioned to employ a beneficiary as a software applications engineer under the H-1B program. The Vermont Service Center denied the petition on grounds that the petitioner failed to show specialty occupation work was available, that the position itself qualified as a specialty occupation, and that a valid employer-employee relationship would be maintained. While the appeal was pending, a federal district court decision (ITServe Alliance) caused USCIS to rescind its prior guidance on employer-employee relationships, necessitating remand for reconsideration under the regulatory standard. Separately, the AAO identified a potential LCA compliance issue: the end-client's letter required eight years of experience for the role, which would indicate a wage level higher than the Level II designated on the LCA (corresponding to $93,309 per year). The Director was instructed to address all issues anew on remand.
What failed: The LCA designated only a Level II wage ($93,309/year) for a position where the end-client's own documentation required eight years of experience, which under DOL's five-step process would require a significantly higher wage level designation. This LCA correspondence issue was flagged as a problem the petitioner will need to resolve. The original denial also found the petitioner failed to demonstrate specialty occupation status and an adequate employer-employee relationship.
Takeaway: H-1B petitioners placing workers at third-party client sites must ensure the LCA wage level accurately reflects all experience requirements imposed by the end client, as USCIS will compare the two independently. Additionally, employers should monitor changes in USCIS policy guidance (such as those triggered by court decisions) that may affect pending petitions.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating H-1B criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The LCA designated only a Level II wage ($93,309/year) for a position where the end-client's own documentation required eight years of experience, which under DOL's five-step process would require a significantly higher wage level designation
- This LCA correspondence issue was flagged as a problem the petitioner will need to resolve
- The original denial also found the petitioner failed to demonstrate specialty occupation status and an adequate employer-employee relationship.
Letter from the identified Primary Vendor stating the LCAT for the Software Applications Engineer/Senior Applications Engineer (JAVA Developer) requires a Bachelor of Science Degree and eight years of experience, which the AAO used to identify a potential LCA wage-level discrepancy.
The Director's denial was based on policy guidance that was subsequently rescinded following the ITServe Alliance v. Cissna court decision, requiring the matter to be reconsidered under the existing regulatory definition at 8 C.F.R. § 214.2(h)(4)(ii).
The Director did not address whether the LCA's wage level corresponded with the proffered position, given that the end-client required eight years of experience warranting a higher wage level than Level II.
Completed
I-129 filed
Software applications engineer / JAVA developer
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2020-07-21
AAO decision — Remanded
The AAO withdrew the Director's denial and remanded the case due to a new federal court decision (ITServe Alliance) that required USCIS to rescind its prior employer-employee relationship guidance. The AAO also flagged a potential LCA wage-level mismatch for the Director to address on remand.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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