dismissed H-1B Case: Architecture And Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 9459010 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 26, 2020 
The Petitioner, an architectural and design studio, seeks to employ the Beneficiary temporarily as a 
"junior designer" under the H-18 nonimmigrant classification for specialty occupations.1 The H-18 
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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the Petitioner selected the correct occupational code 
on the labor condition application. The Director further determined that the Petitioner didn't 
demonstrate that the proffered position qualified as a specialty occupation. The matter is now before 
us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
The purpose of the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition 
Application for Nonimmigrant Workers (LCA) wage requirement is "to protect U.S. workers' wages 
and eliminate any economic incentive or advantage in hiring temporary foreign workers."4 It also 
serves to protect H-18 workers from wage abuses. A petitioner submits the LCA to DOL to 
demonstrate that it will pay an H-18 worker the higher of either the prevailing wage for the 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
occupational classification in the area of employment, or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications.5 
Before filing a petition for H-1B classification, the regulation requires petitioners to obtain 
certification from DOL that the organization has filed an LCA in the occupational specialty in which 
its foreign national personnel will be employed.6 Furthermore, the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state that it will comply with the terms of the 
LCA. While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's attestations and content corresponds with and supports the H-1B petition.7 An 
employer "reaffirms its acceptance of all of the attestation obligations by submitting the LCA to 
[USCIS] in support of the Petition for Nonimmigrant Worker, Form 1-129, for an H-1B 
nonimmigrant."8 
When comparing the standard occupational classification (SOC) code or the wage level indicated on 
the LCA to the claims associated with the petition, USCIS does not purport to supplant DOL's 
responsibility with respect to wage determinations. There may be some overlap in considerations, but 
USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
LCA "corresponds with" the content of the H-1B petition. 
The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed 
Dec. 20, 2000). The plain language of the regulation clearly states: "In [accepting an employer's 
petition with the DOL-certified LCA attached], the DHS determines whether the petition is supported 
by an LCA which corresponds with the petition, whether the occupation named in the labor condition 
application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1B visa classification."9, 10 Here, the plain language of the regulation is 
dispositive: USCIS is authorized to determine the corollary nature of the proffered position's elements 
as represented in an LCA when compared with those same elements as represented on the Form 1-129, 
as well as the Petitioner's actual position requirements. 
5 Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). See also Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 
(4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour 
Div. v. Clean Air Tech. lnt'I, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(1). 
7 See 20 C.F.R. § 655.705(b) (clearly stating, "In [accepting an employer's petition with the DOL-certified LCA attached], 
the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the 
non immigrant meet the statutory requirements for H-1B visa classification."). See also Matter of Simeio Solutions, 26 l&N 
Dec. 542, 546 n.6 (AAO 2015). 
8 20 C.F.R. § 655.705(c)(1). 
9 USCIS may consider DOL regulations when adjudicating H-1B petitions. See lnt'I Internship Programs v. Napolitano, 
853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. lnt'I Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013). 
10 "In construing a statute or regulation, we begin by inspecting its language for plain meaning." Sullivan v. McDonald, 
815 F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give 
full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Gloverv. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. United States v. Pressley, 359 F.3d 347, 349 (4th Cir. 
2004). 
2 
The Act further prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the [DOL] 
Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide 
the certification .... " 11 USCIS precedent also states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1B visa petition.12 
It is unclear how USCIS is to carry out its responsibilities to determine whether the LCA corresponds 
with and supports the H-1B petition without performing such a review. To illustrate, when DOL 
certifies an LCA, it does not perform any meritorious review of an employer's claims to ensure the 
information is true.13 When filing an H-1B petition accompanied by an LCA, a petitioner subjects 
itself to two authorities as it relates to the LCA: (1) to DOL through the certification process, or 
through a prevailing wage determination, and (2) to USCIS by way of our authority to ensure that the 
LCA corresponds with and supports the petition. As specified within the Act, by simply submitting 
the LCA to DOL without also obtaining a prevailing wage determination, a petitioner has only received 
DOL 's certification that the form is complete and does not contain obvious inaccuracies.14 In other 
words it did not receive an evaluative determination from DOL on whether the LCA's content and the 
specifics were appropriate and accurate. 
In order to determine whether the "attestations and content" (e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form 1-129-as well as other indicators of the actual position requirements-we 
follow DOL's guidance, which provides a five-step process for determining the appropriate SOC code 
and wage level.15 The appropriate wage level is determined only after selecting the most relevant 
occupational category. The DOL guidance states that "[t]he [Occupational Information Network 
(O*NET)] description that corresponds to the employer's job offer shall be used to identify the 
appropriate occupational classification" for determining the prevailing wage for the LCA. 
The DOL guidance contains the same publicly available procedure an employer, or their 
representative, should follow to not only find the correct SOC code (i.e., utilizing the O*NET), but 
also to calculate the appropriate wage level. We note this is the same process the DOL utilizes to issue 
a Prevailing Wage Determination (PWD). Absent a PWD from the DOL, we will not automatically 
accept the presumption that the Petitioner provided DOL with the full spectrum of information relating 
11 Section 212(n)(1)(G)(ii) of the Act. 
12 Simeio Solutions, 26 l&N Dec. at 546 n.6. 
13 DOL's Office of Inspector General, 06-03-007-03-321, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs 1 (2003). 
14 Id. 
15 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. 
3 
to the proffered position's requirements when it filed the LCA, which could affect the appropriate 
wage level for the position in this petition.16 
Stated more simply, DOL clearly explains the proper methodology, and based on USCIS' authority to 
determine whether an LCA corresponds with and supports an H-lB petition, the agency evaluates both 
the appropriateness of the SOC code as well as the wage level. 
II. ANALYSIS 
The Petitioner initially provided the position's description, and structured those duties under 15 bullet 
points in response to the Director's request for evidence. For the sake of brevity, we will not quote 
the duties; however, we note that we have closely reviewed and considered them. 
Upon review of the record, we have determined that the Petitioner has not demonstrated eligibility 
under the H-lB program. Specifically, we observe at least two issues that preclude this petition's 
approval: (1) the Petitioner did not utilize the correct SOC code on the LCA, which prevents USCIS 
from providing a purposeful analysis of whether the position qualifies as a specialty occupation; and 
(2) the use of this incorrect SOC code could result in the Petitioner paying the Beneficiary a lower 
than required wage. Based on these issues, we conclude that the Petitioner has not established that the 
LCA corresponds with and supports the petition. 
Without an LCA that properly corresponds with and supports the petition, we cannot make a 
determination on the specialty-occupation question based on the current record. Specifically, we 
cannot provide an accurate specialty-occupation analysis for the proffered position under the SOC 
code 17-1011 corresponding to the occupational title "Architects, Except Landscape and Naval" 
(Architects) if the duties the Petitioner provided more closely relate to a different SOC code. 
We offer several examples. First, the statutory and regulatory definitions of a specialty occupation 
focus on the broader occupation as a whole, and the use of an incorrect occupational code may result 
in an erroneous decision, or one that does not properly assess the actual nature of the occupation in 
which a beneficiary would engage. Second, the education requirements we consider under the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) may differ markedly from one occupational 
classification to the next. Likewise, under 8 C.F.R. § 214.2(h)(4)(iii){A)(2), a degree requirement 
considered common to the industry for one occupation may also be distinct in comparison to others. 
It would not be a valuable use of USCIS resources to analyze the position requirements under an 
incorrect SOC code. These two factors alone, that hinder USCIS' ability to provide a salient analysis, 
preclude this petition's approval. 
The third concern relates to paying a foreign national the required wage, such that employing them 
does not adversely impact U.S. workers' wages or working conditions.17 Two elements comprise 
16 A petitioner may file Form ETA-9141, Application for Prevailing Wage Determination with DOL. USCIS will accept 
PWDs as sufficient, provided the Petitioner establishes that it fully disclosed to DOL all of the proffered position's relevant 
requirements relating to the five-step process for determining an appropriate wage level, as outlined in the DOL guidance. 
17 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
4 
paying the correct wage. The first factor relates to a petitioner designating the correct SOC code, 
while the second pertains to selecting an appropriate prevailing wage level. Relating to the first factor, 
an employer must review its job requirements "and determine the appropriate occupational 
classification," and if an "employer's job opportunity has worker requirements described in a 
combination of O*NET occupations," it should select "the higher paying occupation."18 Turning to 
the second factor, the DOL guidance provides a five-step process for determining the appropriate wage 
level. An employer compares its position requirements to these five steps evaluating: (1) the correct 
SOC code; (2) the required experience; (3) the required education; (4) special skills or other 
requirements; and (5) required supervisory duties. If an employer's position requirements exceed 
those described in O*NET for an occupational title, it may necessitate an increase in the wage level. 
The O*NET provides the following definition for Architects: "Plan and design structures, such as 
private residences, office buildings, theaters, factories, and other structural property." The O*NET 
provides the following definition for the Interior Designers occupation under the 27-1025 SOC code: 
"Plan, design, and furnish interiors of residential, commercial, or industrial buildings. Formulate 
design which is practical, aesthetic, and conducive to intended purposes, such as raising productivity, 
selling merchandise, or improving life style. May specialize in a particular field, style, or phase of 
interior design." 
While the proffered position's duties incorporated functions associated with the Architects 
occupational category, the vast majority of the duties more properly align with the Interior Designers 
occupation. Lacking from the record is any indication of which duties are more prominent than others, 
meaning the record does not reflect which tasks are major functions of the proffered position. This is 
an additional missing factor that, if present, might aid in discerning the nature of the position, and 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge attained through at least a baccalaureate degree in a specific discipline.19 We 
are therefore left unable to determine how much the Architecture-related duties comprise of the 
position. Such a shortcoming does not meet the Petitioner's burden of proof in these proceedings. 
Within her decision denying the petition, the Director compared the duties to both O*NET and DOL's 
Occupational Outlook Handbook (Handbook) but discussed how those duties fell under the Interior 
Designers SOC code. We note that the Handbook does not prominently display SOC codes and those 
are almost exclusively utilized as a characterization feature within the O*NET. However, on appeal 
the Petitioner provided a chart comparing the position's duties to the information within the Handbook, 
but did not offer analysis relating to the O*NET. DOL guidance indicates-and DOL administrative 
appeals decisions confirm-when considering and comparing the duties, the public is to evaluate the 
elements within the O*NET and not the Handbook. 20 In fact, the DOL guidance does not refer to the 
18 See the DOL guidance. 
19 See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 1167 (N.D. Cal. 2013) (finding that an employer's ability to demonstrate 
a position qualifies as a specialty occupation is significantly hindered when it does not establish the amount of time a 
beneficiary would spend performing each duty). 
20 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. Furthermore, the Board of Alien 
Labor Certification Appeals has affirmed that information within the Handbook is not suitable for the purpose of 
5 
Handbook at all within its 36 pages. As a result, any similarities between two or more broader occupations 
within the Handbook should not be considered when determining whether the employer identified the 
correct SOC code on the LCA. 
We note a major distinction between position qualifications for Architects and Interior designers: 
licensing requirements. All U.S. states and the District of Columbia require architects to be licensed. 
Licensing requirements typically include completing a degree program in architecture, gaining relevant 
experience through a paid internship, and passing the Architect Registration Examination. 21 Interior 
Designers are not required to obtain any architectural licensing. A review of the Petitioner's job 
requirements do not reveal any architectural licensing requirements. The absence of any such licensing 
requirement weighs heavily against the Petitioner's claims that this position belongs under the SOC code 
for Architects. 
Continuing the focus on the Petitioner's position requirements, even if we found in the petitioning 
organization's favor relating to the SOC code and the specialty occupation-nature of the position, we 
observe other issues that would warrant a remand to the Director, and likely a denial for wage level issues. 
For instance, the Petitioner required a bachelor's degree and a minimum of 1-3 years of design and project 
management experience with leading design organizations. Additionally, the Petitioner required that this 
position's candidate must "have completed at least one major and significant resort hospitality project 
through construction administration with field and project closeout experience." These requirements have 
the potential to exceed the overall experience described in the O*NET for the Architects occupational 
category, which could require an increase in the prevailing wage rate. 
Further, the Petitioner expressed a preference for a master's degree and a minimum of five to seven "years 
of experience in major hospitality and/or entertainment-related design projects." Several Board of Alien 
Labor Certification Appeals (BALCA) decisions generally recognize that an employer's preferences 
are actually its job requirements.22 Following DOL's expressed process as established through 
BALCA decisions, it appears the Petitioner's stated preference for a master's degree and for at least 
five years of very specific work experience exceeded the education and essential experience 
requirement listed in the O*NET Job Zone 4 grouping. Such education and experience requirements 
that exceed those found in the O*NET generally should result in an increase in the wage level by at 
least one increment. 23 These position requirements would mandate that the Petitioner designate the 
position at the Level IV wage rate on the LCA; however, it only identified this position at the Level 11 
rate. As a result, it does not appear that the Petitioner would compensate the Beneficiary at the 
necessary wage in order to comply with section 212(n) of the Act. 
determining whether an employer's job opportunity in a given case fits what is in the Handbook, or for classifying 
occupations in the LCA context. See Janrain, Inc., 2016-PWD-00003 (Nov. 16, 2016). They further explained that the 
Handbook offers general, career-oriented information, often too broad to align fully or consistently with the job code 
information within the O*NET. Id. 
21 Architects, Handbook {Aug. 24, 2020), https://www.bls.gov/ooh/architecture-and-engineering/architects.htm#tab-4. 
22 Cf. Matter of Oracle America, Inc., 2012-PER-02194 {BALCA Sept. 7, 2016) (citing CCG Metamedia, Inc., 2010-PER-
00236 (BALCA Mar. 2, 2011); The Frenchway, Inc., 1995-INA-451 (BALCA Dec. 8, 1997); see also East Tenn. State 
Univ., 2010-PER-00038, slip op. at 11 (BALCA Apr. 18, 2011). 
23 See the DOL guidance. 
6 
Based on the foregoing, we cannot conclude that the LCA's attestations and content corresponds with 
and supports the H-1B petition, and we will dismiss the appeal.24 
111. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
24 As the issues discussed in this decision are dispositive of the Petitioner's eligibility, we will reserve our determination 
on the remaining matter in the Director's denial as to whether the position qualifies as a specialty occupation. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another independent 
issue is dispositive of the appeal); Cortina-Chavez v. Sessions, 894 F.3d 865, 869 (7th Cir. 2018); see also Matter of L-A­
C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise 
ineligible). 
7