dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 10, 2024 In Re: 31013749 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB 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 nonimmigrant 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 petition concluding they could not determine 
that the ETA Form 9035, Labor Condition Application for Nonimmigrant Workers (LCA) the 
Petitioner submitted corresponded to the petition. The matter is now before us on appeal pursuant to 
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 of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. THE PROCEEDINGS BELOW 
The Petitioner is offering the Beneficiary the position of accountant. The petition included an LCA 
certified for a position located within the "Accountant" occupational category corresponding to the 
Petitioner's self-categorization within the Standard Occupational Classification (SOC) Occupational 
Information Network (O*NET) code 13-2011.00. The Petitioner attested that it would protect workers 
from wage abuse by paying a required wage no lower than the higher of the actual or prevailing wage 
at Level I for the occupational classification in the area of intended employment to employees with 
similar duties, experience, and qualifications. But according to the Petitioner, the proffered job 
required the incumbent to be "bilingual in Chinese (Mandarin) and English." 
The Director issued a request for evidence (RFE) advising the Petitioner that the requirement for a 
bilingualist in Chinese (Mandarin) and English to fill the proffered position was a special skill beyond 
what is generally required for the occupation. Bilingualism is not listed as an ordinary requirement 
for entry into the accountant occupation in the U.S. Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook). See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Accountants and Auditors (Apr. 17, 2024), https://www.bls.gov/ooh/business­
and-financial/accountants-and-auditors.htm. So, the Director correctly noted a concern with the 
Petitioner's attestation relating to the selection of a Level I wage on the accompanying LCA such that 
it may not correspond to the proffered job. The Director's RFE did not question nor did the Director 
request evidence to establish the proffered position's status as a specialty occupation. 
The Petitioner did not contest the Director's concerns and conclusion in its RFE response. The 
Petitioner instead, in an apparent misunderstanding of the eligibility concerns the Director's RFE 
raised and how to correctly address them, submitted a new Form I-129, Petition for a Nonimmigrant 
Worker with applicable supplements listing a new place of work in a different metropolitan statistical 
area outside of a commutable distance from the work location listed in the Form I-129 and LCA. 1 
And the Petitioner submitted a new uncertified LCA filed after the date the petition was filed for the 
work location contained in the underlying petition. 2 Additionally the Petitioner sought to materially 
change the terms and conditions of the petition from part-time employment to full-time employment. 
The Director's denial noted the incongruence between the work locations listed on the certified LCA, 
the uncertified LCA, and the new petition form the Petitioner submitted in its RFE response. On 
appeal, the Petitioner does not address the issues the Director raised in their decision related to the 
correspondence of the petition to any certified LCA in the record. Instead, the Petitioner asserts the 
underlying unapproved petition "has been merged" with the amended H-lB petition it filed with the 
California Service Center (IOE 84 660 41672) on September 26, 2023. The Petitioner's appeal cites 
to the USCIS Adjudicator's Field Manual and Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 
(AAO 2015) to describe the "amended petition procedure" and contend that we should "ignore the 
original case ... and pay attention to the amended case ... " because the underlying petition here is "no 
longer valid." We do not agree for the following reasons and dismiss the Petitioner's appeal. 
II. NON-CORRESPONDING LABOR CONDITION APPLICATION 
On appeal, the Petitioner contends that its amendment petition cured the legal insufficiencies 
pervading the underlying petition. The Petitioner is incorrect. The terms and conditions of a petition 
related to job location, wage level, and part-time or full-time status are material to the legal sufficiency 
of an H-1 B petition. The Petitioner's attempt to change, revise, or otherwise update these matters after 
the filing of the petition to address deficiencies is not permitted. See Matter oflzummi, 22 I&N Dec. 
169 (Comm. 1998) (A petitioner may not make materials correction to a petition to make a deficient 
petition conform to legal requirements). Moreover, the regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) 
provides the filing of amended petitions to reflect material changes to terms and conditions as specified 
1 The Petitioner's response also indicated it had "updated VIBE." The web-based Validation Instrument for Business 
Enterprises (VIBE) is a United States Citizenship and Immigration Services (USCIS) program that is not accessible to 
petitioners. So, it is not possible for the Petitioner to have "updated VIBE." VIBE uses commercially available data from 
Dun and Bradstreet (D&B), an independent information provider. We conclude the Petitioner meant it updated its profile 
with D&B to address concerns with information present in the VIBE program. 
2 As this LCA indicating full time employment at the work location specified in the underlying petition is uncertified we 
do not need to address it further. An uncertified petition can never correspond to an H-IB petition. An LCA must be filed 
and certified prior to the filing of an H-lB petition. See 8 C.F.R. § 214.2(h)(2)(H)( 4)(B). 
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in the original approved petition ( emphasis added). The underlying petition the Petitioner filed was 
never approved. It was, in fact, denied and is the subject of this appeal. 
Furthermore, the Petitioner's amendment may have been improperly filed on another basis. The 
Petitioner appears to have violated the prohibition against filing multiple cap-subject H-1B petitions 
for the same beneficiary in the same fiscal year contained in the regulation at 8 C.F.R. 
§ 214.2(h)(2)(i)(G) when the petition it styles as an "amendment" was received by the USCIS 
California Service Center. The regulation permits the filing of a subsequent H-1 B petition on behalf 
of the same noncitizen in the same fiscal year only when the earlier H-1 B petition was denied on a 
basis other than fraud or misrepresentation and furthermore only when the H-1 B numerical limitation 
has not been reached or if the petition is otherwise exempt from the numerical limitation. On 
September 26, 2023, the Petitioner's earlier filed petition was still pending, and the fiscal year 2024 
H-1B cap had been exhausted. See "USCIS Reaches Fiscal Year 2024 H-1B Cap," 
https ://www.uscis.gov/newsroom/ alerts/uscis-reaches- fiscal-year-2024-h- lb-cap. So, the approval of 
the Petitioner's amendment petition IOE 84 660 41672 may be grossly erroneous and subject to 
revocation on notice pursuant to 8 C.F.R. § 214.2(h)(l l)(iii)(5). 
And the Petitioner's response to the RFE did not address the concerns the Director raised in the RFE 
but instead submitted forms and documents identical to the amendment it may have improperly filed 
with the USCIS California Service Center on September 26, 2023. The Petitioner's manner of 
response to the Director's RFE and subsequent probably improper filing of an amendment with the 
USCIS California Service Center reflected a tacit acknowledgment of the incurable nature of the 
deficiencies raised by the Director in their RFE and ultimately the denial decision. 
The H-1B petition process involves several steps and forms filed with DOL and USCIS. A petitioner 
seeking to file an H-1B petition must submit a certified LCA. A DOL certified LCA memorializes 
the attestations a petitioner makes regarding the employment of the noncitizen in H-1B status. See 20 
C.F.R. § 655.734(d)(l)-(6). One of the attestations a petitioner makes relates to the protection of U.S. 
workers in the matter of their wages and preventing wage abuse. See 20 C.F.R. § 655.731. A petitioner 
submits the LCA to DOL to demonstrate that it will pay an 
H-1 B worker the higher of either the prevailing wage for the occupational classification in the area of 
employment or the actual wage the employer pays other employees with similar duties, experience, 
and qualifications. 20 C.F.R. § 655.73l(a). Whilst DOL is responsible for certifying that a petitioner 
has made the required LCA attestations, USCIS evaluates whether the submitted LCA corresponds 
with a petitioner's H-1B petition. 20 C.F.R. § 655.705(b). USCIS may consider DOL regulations 
when adjudicating H-1B petitions. See Int'! Internship Programs v. Napolitano, 853 F.Supp. 2d 86, 
98 (D.D.C. 2012), aff'd sub nom Int'! Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013). See also ITServe Alliance, Inc. v. DHS, 590 F. Supp. 3d 27, 40 (D.D.C. 2022), ajf'd sub nom 
ITServe Alliance, Inc. v. DHS, 71 F. 4th 1028 (D.C. Cir. 2023) (noting that 20 C.F.R. 
§ 655.705 requires USCIS "to check that the [H-1B] petition matches the LCA"); see also United 
States v. Narang, No. 19-4850, 2021 WL 3484683, at *1 (4th Cir. Aug. 9, 202l)(per curiam)("[USCIS] 
adjudicators look for whether [the] employment [listed in the H-1B petition] will conform to the wage 
and location specifications in the LCA"). 
As the LCA in the record was certified with a Level I wage, it is not in correspondence with the 
proffered position. An H-1B petition cannot be approved without a corresponding LCA. See section 
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212(n)(l) of the Act; 20 e.F.R. § 655.73l(a). So, the petition is unapprovable as filed. When 
examining the wage level indicated on the LeA, users does not purport to supplant DOL's 
responsibility with respect to wage determinations. But to assess whether the wage indicated on the 
H-lB petition corresponds with the wage level listed on the LeA, users will apply DOL's guidance, 
which provides a five-step process for determining the appropriate wage level. U.S. Dep't of Labor, 
Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009). The wage level begins at Level I and may increase to Level IV based on 
a comparison of the duties and requirements for the employer's proffered position to the general duties 
and requirements for the most similar occupation as provided by the Occupational Information 
Network (O*NET). So, an adjudicator must determine whether the O*NET occupation selected by 
the petition is correct and then compare the experience, education, special skills and other 
requirements, and supervisory duties described in the O*NET entry to those required by the employer 
for the proffered position. 
Whilst relevant, a position's wage level is not a substitute for a determination of whether a proffered 
position meets the requirements for section 214(i)(l) of the Act, 8 U.S.e. 1184(i)(l). There is no patent 
inconsistency between an entry-level position and a specialty occupation. For example, in some 
occupations, a "basic understanding" warranting a Level I wage may require years of study, duly 
recognized upon the attainment of a bachelor's degree in a specific specialty. Most professionals start 
their careers in what are deemed entry-level positions. That does not preclude us from identifying a 
specialty occupation. And likewise, at the other end of the spectrum, a Level IV wage would not 
necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position 
does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. Wage levels are relevant, and we will assess them to ensure the LeA "corresponds with" 
the H-1 B petition. But wage is only one factor and does not by itself define or change the character 
of the occupation. 
Most importantly here, the Petitioner attested in the LeA that it would protect workers from wage 
abuse by paying a required wage no lower than the higher of the actual or prevailing wage at Level I 
for the occupational classification in the area of intended employment to employees with similar 
duties, experience, and qualifications. The DOL guidance provides a five-step process for determining 
the appropriate wage level out of the four distinct DOL wage levels (I to IV) based on the duties and 
requirements for the employer's proffered position to the general duties and requirements for most 
similar occupations as provided by O*NET. The correct wage level is determined by evaluating 
whether the wage indicated on the H-lB petition corresponds with the wage level on the LeA using 
DOL's guidance at U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance (rev. Nov. 2009), available at 
https://www.flcdatacenter.com/download/npwhc _guidance _revised_ 11_ 2009 .pdf DOL' s guidance 
requires selecting the correct O*NET occupational classification and then comparing the experience, 
education, special skills and other requirements, and supervisory duties described in the O*NET entry 
to those required by the employer for the proffered position. 3 A point is assigned for each instance of 
the petitioner's requirements exceeding the experience, education, special skills and other 
3 A wage level is relevant in the context of H-1 B petition adjudication because we must evaluate whether an LCA 
corresponds to the H-lB petition with which it is submitted. A wage level is not dispositive to a determination of whether 
a proffered position is a specialty occupation under section 214(i)(l) of the Act. A position with an entry-level, or Level 
I wage is not per se disqualified from being considered a specialty occupation. 
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requirements contained in the O*NET standard. The number of points corresponds to the assigned 
wage level. Accumulation of more than four points defaults to the Level IV wage level. 
The Petitioner here improperly designated the proffered position with a Level I wage. The Petitioner 
selected wage Level I on the LCA, but the record of proceeding reflects that the petition requires the 
incumbent to be "bilingual in Chinese (Mandarin) and English.". Appendix D of the DOL guidance 
lists a minimum education requirement of a bachelor's degree for the accountant category based on 
categorization in Education and Training Category Code four. Education and Training Category Code 
four provides minimum prerequisites not more than a bachelor's or higher degree with work 
experience. Code four groupings are typically managerial in nature and require experience in a related 
non-managerial position. So, the job for which the LCA was certified consequently warrants a one­
level increase in the wage from the default Level I to Level II due to the Petitioner's requirement of 
special bilingual skills. The Level I wage obligation is $8.38 less per hour than the Level II wage 
obligation, representing an underpayment by the Petitioner of approximately 25%. The Petitioner's 
response to the Director's RFE with revised Form I-129 and supplement and an uncertified LCA, as 
described above, does not overcome the core deficiency rendering the underlying petition 
unapprovable as filed. 
IV. CONCLUSION 
The certified LCA in the 
record is not in correspondence with the proffered position. Thus, the petition 
is unapprovable as filed. See section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). The Petitioner's 
effort to make material changes to the serious legal deficiencies endemic to its petition by filing an 
amendment that may have been improperly filed is futile. So, the appeal must be and is hereby 
dismissed. 
ORDER: The appeal is dismissed. 
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