dismissed H-1B Case: Business Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10324489 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 20, 2020 
The Petitioner, an educational support services company, seeks to employ the Beneficiary temporarily 
as a "business development specialist" 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish 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 nova. 3 Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. In her decision, 
the Director discussed the Petitioner's failure to meet both 1) the statutory definition of a specialty 
occupation at section 214(i)(l) of the Act on the basis of the Petitioner's own requirements and 2) any 
of the four regulatory criteria at 8 C. F. R. § 214.2(h)( 4)(i i i)(A)(l)-( 4). Upon consideration of the entire 
record, including the evidence submitted and arguments made on appeal, we adopt and affirm the 
Director's determination with the comments below. 4 
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 Matter of P. Singh, Attorney, 26 l&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[l]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer , then the tribunal is free simply to adopt those findings " provid ed the tribunal's order reflects individualized 
attention to the case). 
In this matter, the Petitioner fails to address the Director's conclusion that the proffered position does 
not meet the statutory definition of a specialty occupation on appeal. It has, therefore, abandoned its 
claims on this issue. Sepulveda v. US.Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011WL 4711885 at* 1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found 
the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). As a result, 
even if the Petitioner overcame the issues it addresses within the appeal brief, it still would not 
demonstrate that the petition should be approved. When an appellant fails to properly challenge one 
of the independent grounds upon which the Director based her overall determination, the filing party 
has abandoned any challenge of that ground, and it follows that the Director's adverse determination 
will be affirmed. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); United 
States v. Cooper, No. 17-11548, 2019 WL 2414405, at *3 (11th Cir. June 10, 2019); McCray v. Fed. 
Home Loan Mortg. Corp., 839 F.3d 354, 361-62 (4th Cir. 2016); In re Under Seal, 749 F.3d 276,293 
(4th Cir. 2014) (finding "an appellant must convince us that every stated ground for the judgment 
against him is incorrect."); United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). It is, therefore, 
unnecessary to analyze the remaining independent grounds when another is dispositive of the appeal. 
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); 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). 
In addition, while not addressed in the Director's decision, we also conclude that the Petitioner has 
not established that the submitted labor condition application (LCA) corresponds with the petition. 
While the Department of Labor (DOL) is the agency that certifies LCA applications before they are 
submitted to U.S. Citizenship and Immigration Services, DOL regulations note that the Department of 
Homeland Security (OHS) (i.e., its immigration benefits branch, USCIS) is the department responsible 
for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. See 20 C.F.R. § 655.705(b), which states, in pertinent part (emphasis added): 
For H-1B visas ... OHS accepts the employer's petition (OHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the OHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1B visa classification. 
In its initial filing, the Petitioner stated "the minimum educational requirement of this position is a 
Master's degree in Business Administration, Marketing or a related field from an accredited university 
in the United States or its foreign equivalent" and that "bilingual skills in English and Chinese are 
preferred." In its response to the Director's request for evidence (RFE), the Petitioner adds that 
(verbatim) "this position requires the candidate to work efficiently with both Chinese and English, 
because the position also needs to communicate and corporate with Chinse clients and external 
mentors." 
The submitted LCA, however, relied on a Level I prevailing wage and does not accurately reflect the 
2 
Petitioner's stated requirements.5 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_ Revised_11_2009.pdf. A prevailing wage 
determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience, education, and skill requirements of the Petitioner's job opportunity. Id. The Petitioner 
is, therefore, paying a wage lower than that required by section 212(n)(1)(A) of the Act, 8 U.S.C. 
§ 1182(n)(1)(A). 6 
As a result, even if it were determined that the proffered position qualifies as a specialty occupation, 
the petition would still not be approvable because the Petitioner has not submitted an LCA with a wage 
level that properly reflects the minimum requirements of the proffered position.7 
11. 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 the petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden here, and the 
petition will remain denied. 
ORDER: The appeal is dismissed. 
5 The Petitioner also relies on the Beneficiary's courses during his master's degree program to establish that the Beneficiary 
is qualified to perform the duties of the proffered position. 
6 The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB 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]."). According to section 212(n)(l){A) of the Act, an employer must attest that it will pay a holder of an H-lB visa 
the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. See 20 C.F.R. § 655.731{a); 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., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
7 While not a basis for this decision, we also question whether the Petitioner, who lists a total of five employees on Form 
1-129, Petition for a Nonimmigrant Worker, has sufficient funds to meet its LCA obligations. 
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