dismissed H-1B Case: Computer Science

U.S. Citizenshipand Immigration 
Services 
In Re: 9632171 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
The Petitioner seeks to continue the Beneficiary's temporary employment as a "computer user program 
analyst/support" under the H-1B non immigrant classification for specialty occupations. Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)( b). The H-1B 
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 Nebraska Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position qualifies as a specialty occupation and subsequently affirmed 
their decision. The Petitioner filed an appeal, which we dismissed concluding that the Petitioner had 
not satisfied the statutory and regulatory criteria demonstrating that the proffered position qualifies as 
a specialty occupation. We subsequently dismissed a motion to reopen and a motion to reconsider. 
The matter is now before us on a second motion to reconsider. 
On motion to reconsider the Petitioner asserts that it has satisfied all four of the regulatory at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and cites three non-precedent AAO decisions in support of this assertion.
I. MOTION REQUIREMENTS
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form 1-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(1). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for
reconsideration and (2) be supported by any pertinent precedent decisions to establish that the decision
was based on an incorrect application of law or Service policy; and when filed, also (3) establish that
the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R.
§ 103.5(a)(3).
II. ANALYSIS 
The Petitioner does not offer any new facts but instead filed a motion to reconsider. However, the 
Petitioner has not substantiated its claim that our initial analysis of and conclusion regarding the 
proposed position conflicts with the regulatory and statutory requirements or Service policy. First, the 
Petitioner refers to three of our non-precedent decisions concerning unrelated occupations where we 
determined that the specific positions described in those matters qualified as specialty occupations. 
These decisions were not published as precedent and therefore do not bind U.S. Citizenship and 
Immigration Services' (USCIS) officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent 
decisions apply existing law and policy to the specific facts of the individual case and may be 
distinguishable based on the evidence in the record of proceeding, the issues considered, and applicable 
law and policy. The Petitioner, here, has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decisions. While 8 C.F.R. § 103.3(c) provides that 
our precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
The Petitioner next reiterates its previous arguments regarding the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Briefly, the Petitioner contends that it has used the same title for this position 
for more than ten years1 and that it chose the standard occupation classification (SOC) code on the 
labor condition application (LCA) 2 which was closest to its job description. We do not rely on job 
titles to determine the content of a position, rather we review and analyze the duties the Petitioner 
contends the Beneficiary will perform. In this matter, the duties of the proposed position do not 
include sufficient information to conclude that they comprise the duties of a specialty occupation or 
that the position was properly designated on the LCA. 3 We provided our analysis and reasons for 
1 The Petitioner again refers to several HlB petitions that were approved over a period of years for the same proffered 
position and argues that so many approval "decisions cannot simply be ruled erroneous." As we observed in our previous 
decision, we are not required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See Matter of Church Scientology lnt'I, 19 l&N Dec. 593, 597 
(Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Offurther note, USCIS 
recently rescinded the USCIS Policy Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to Prior 
Determinations of Eligibi I ity in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 2017), 
https://www.uscis.gov/sites/defau It/ti I es/USC I S/Laws/Memoranda/2017 /2017-10-23R esci ssion-of-Deferen ce-
P M 6020151. pdf. USCIS clarified that "an adjudicator's fact-finding authority ... should not be constrained by any prior 
petition approval, but instead should be based on the merits of each case." It was also emphasized that "the burden of 
proof remains on the petitioner, even where an extension of nonimmigrant status is sought." As discussed, the Petitioner 
has not established that the proffered position qualifies as a specialty occupation and has not sustained its burden to 
establish eligibility for the immigration benefit sought. 
2 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar duties, experience and qualifications who are performing the same services. See Section 
212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
3 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-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]."). While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations 
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reaching our conclusions in our previous decisions. The Petitioner does not provide any cogent 
reasons we should reconsider our prior decisions. It does not offer persuasive evidence demonstrating 
how our previous decisions were based on an incorrect application of law or Service policy. Rather, 
the Petitioner disagrees with our conclusions without citing statutory or regulatory authority, case law, 
precedent decisions, or policy demonstrating how our conclusions were in error. 
In this matter the Petitioner provided a broad description of a technology occupation. From our review 
of the duties of the proposed position we stated that it appeared that the Beneficiary would be expected 
to perform duties of a higher paying occupation, than the occupation designated on the certified LCA. 
As we emphasized, in general, if the duties of a proffered position involve duties of more than one 
occupational category (i.e., "Computer Programmer" and "Software Developer, Applications" and 
Computer User Support Specialists"), the DOL's "Prevailing Wage Determination Policy Guidance" 
states that the employer "should default directly to the relevant O*NET-SOC occupational code for 
the highest paying occupation. "4 
Because the duties were not sufficiently developed and some duties appeared to correspond more 
closely to the duties of higher-paying occupations as set out in O*N ET, 5 we concluded that the 
Petitioner had not established the substantive nature of its particular position. 6 The Petitioner does 
not address this deficiency on motion but simply reiterates that it believes it selected the correct SOC 
code on the certified LCA. We acknowledged the Petitioner's belief in our last decision but again 
pointed out that O*NET placed this occupation in a Job Zone Three category. A Job Zone Three 
occupation requires training in vocational schools, related on-the-job experience, or an associate's 
degree.7 It does not indicate that a minimum degree for an entry-level position is a bachelor's degree, 
let alone a bachelor's degree in a specific specialty. Thus, the selected occupation on the LCA, coupled 
with the Petitioner's designation of its position as requiring only a wage Level I wage, placed the 
proffered position at the low end of the minimum requirements necessary to perform the position; that 
is, an associate's degree, training in vocational schools, or on-the-job experience. A petitioner must 
distinguish its proffered position from others within the same occupation through the proper wage 
level designation to indicate factors such as the relative complexity of the job duties, the level of 
judgment, the amount and level of supervision, and the level of understanding required to perform the 
note that the Department of Homeland Security (DHS) (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). The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that "the 
petition is supported by an LCA which corresponds with the petition .... " 
4 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. 
5 We provided examples of the duties that corresponded more closely to other higher-paying occupations and the Petitioner 
does not offer explanations or clarifications on why these duties are not the duties of these higher-paying occupations. 
Rather in its first motion it reiterated that it had selected the correct occupational category on the LCA failing to address 
what appeared to be duties of the higher-paying occupations. 
6 Again, as explained in our initial decision, the duties were not sufficiently detailed and appeared to include duties of 
higher-paying occupations, thus, we could not ascertain the services the Petitioner really expected the Beneficiary to 
perform. 
7 See 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. 
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job duties. 8 Otherwise, a petitioner defeats the purpose of the LCA which is the critical mechanism 
for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l).9 
Here, the Petitioner's designation of this position as a Level I, entry-level position undermines its 
claim that the position is particularly specialized and complex, or unique compared to other positions 
within the same occupation, for which neither O*NET nor the Handbook indicates a normal 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. The Petitioner 
cannot have it both ways, that is if it has chosen the correct SOC code for its particular position, it has 
not appropriately accounted for any specialization and complexity, or uniqueness in its designation of 
the wage level required. Given that the LCA submitted in support of the petition is for a Level I, entry 
level wage that is not in accord with the claimed higher-level job duties, it must therefore be concluded 
that the LCA does not correspond to the petition. In other words, the petition may not be approved 
based on the record of proceeding as currently constituted because the Petitioner has not provided an 
LCA that corresponds to the Level 111 or IV position offered to the Beneficiary. Alternatively, if the 
Petitioner claims that the LCA was certified for both the proper occupation and the proper wage level, 
the initial conclusion that the proffered position is not a specialty occupation is correct. 
The Petitioner has not substantiated a claim that our initial analysis of and conclusions regarding the 
proposed position conflict with the regulatory and statutory requirements or Service policy. The 
record on this second motion does not provide a sufficient basis to reconsider the prior decision. 
ORDER: The motion to reconsider is dismissed. 
8 Id. 
9 A petitioner is only free to pay a wage that is equal to or higher than this minimum required wage described in section 
212(n){l){A) of the Act. 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, supra. 
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