dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 7564849 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 14, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "program manager" under the H-1B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence.1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de novo.2 Upon de 
nova review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, the record does not include 
consistent, probative evidence establishing the nature of the position such that we can conclude that 
the submitted labor condition application (LCA)3 supports the petition. 
A. Minimum Requirements 
The Petitioner in response to the Director's request for evidence (RFE), provided a detailed description 
of the proposed duties and indicated that the required minimum education, training, and experience is 
a "Bachelor's Degree in [C]omputer [S]cience or Engineering with a minimum 15+ years of relevant 
work experience." The Petitioner, however, designated the proffered position on the LCA as a 
Standard Occupation Classification (SOC) code 15-1199 "Computer Occupations, All Other" 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
3 A petitioner is required to submit an LCA to the Department of Labor 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. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.731(a). 
occupation at a Level 111 wage. The Petitioner identifies the specific sub-category for the proposed 
position as an "Information Technology Project Managers" occupation, SOC code 15-1199.09. 
The Department of Labor's (DOL) Occupational Information Network (O*NET) summary report for 
this occupation indicates it has a Job Zone Four rating and a Specialized Vocational Preparation (SVP) 
rating of 7 < 8. A Job Zone Four occupation with an SVP rating of 7 < 8 that requires more than four 
years of experience requires a three-level increase in wage. In this case the requirement of 15+ years 
of experience would require, at the minimum, a Level IV wage. Thus, the Petitioner's minimum 
education, experience, and training requirements to perform the position conflicts with the wage level 
designated on the certified LCA. For this reason alone, the petition cannot be approved as the certified 
LCA does not support the position described within the petition.4 
B. Nature of the Position 
On appeal, the Petitioner contends that its detailed description of the proposed duties encompasses the 
duties of a "Software Developer, Applications" SOC code 15-1132 and that the proffered position also 
"includes almost all the duties of [a] Computer and Information Systems Manager," SOC code 11-3021. 
The Petitioner asserts that as the job duties are an integration of the duties of two specialty occupations, 
the job responsibilities are complex and unique.5 However, as noted above the Petitioner designated the 
position as an "Information Technology Project Managers" occupation under the "Computer 
Occupations, All Other" occupation, SOC code 15-1199. The Petitioner does not distinguish the duties 
of the occupation designated on the LCA and the duties of a "Computer and Information Systems 
Managers" occupation. The Petitioner does not explain its choice in choosing the occupation with the 
significantly lower wage for the certified LCA. For this additional reason, the record does not include 
sufficient information and evidence to conclude that the certified LCA supports the position described in 
the petition. 
4 We note here that 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 
ofan 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-IB 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. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Adm in. Rev. Bd. July 30, 2009). 
5 While the integration of two occupations may or may not result in complex or unique duties, if a proffered position is a 
combination of two different, but related occupations, the Petitioner must choose the higher paying occupation's SOC code 
for the certified LCA. 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://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. Notably, the relevant prevailing 
wage for even a Level II "Computer and Systems Information Managers" occupation, requiring significantly less 
experience than 15 years (two and up to three years of experience) requires a significantly higher wage. See FLC Data 
Center Online Wage Library for "Computer and Information Systems Managers" at 
https://flcdatacenter .com/OesQu ickResu lts.aspx?code=11-3021&area~year=19&source=1. 
2 
Moreover, the Petitioner's organizational chart creates further ambiguity in the record regarding the actual 
proposed position. The Petitioner's organizational chart for its software engineering division depicts the 
Beneficiary's proposed position as a "Program Manager" requiring a bachelor in computer science with 
20 years of experience. A "Project Manager" position which requires a bachelor's in computer science 
and 15 years of experience reports to the Beneficiary's position. Thus it appears that the program 
manager position on a higher tier within the Petitioner's organization would have a higher level of 
responsibility than the project manager. Although we do not consider the title of a position as the critical 
factor when analyzing a position's duties, the Petitioner's claim that the proposed position includes the 
duties of a "Computer and Information Systems Managers" occupation and the proposed position's 
placement on the organizational chart demonstrates that the proffered position is more likely a "Computer 
and Information Systems Managers" occupation, and is not the occupation designated on the certified 
LCA. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, 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-1 B visas ... DHS accepts the employer's petition (DHS 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. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1B petition filed on behalf of the Beneficiary. As the Petitioner believes that the Beneficiary will 
perform duties similar to that of a "Computer and Information Systems Managers" position, and the 
position has managerial duties over three different departments within the software engineering division, 
not just a project, we conclude that the Petitioner did not submit a certified LCA that supports the petition.6 
The wage disparity between the "Information Technology Project Managers" and the "Computer and 
Information Systems Managers" occupational categmies generally, and more specific to this case, the 
significance of the Petitioner's choice of the lower paying occupational category raises additional 
concerns regarding the overall credibility of the petition. 
The ambiguity in the record regarding the nature of the position and the inclusion of duties of a "Computer 
and Information Systems Manager" occupation leads us to conclude that the proffered position falls 
within this occupation. Accordingly we cannot conclude that the submitted LCA has been certified for 
the proper occupational classification. 
6 Notably, the relevant prevailing wage for a Level III '·Computer Occupations, All Other" position ($96,325 per year) is 
significantly lower than the relevant prevailing wage for a Level III "Computer and Infcnmation Systems Managers" 
position ($142,106 per year). See FLC Data Center Online Wage Library for "Comput~pations, All Other" SOC 
code 15-1199 at https://flcdatacenter. com/OesQuickResu lts.aspx?code=15-1199&area=L_____lSt.year=19&source=1 and 
"Computer and Information Systems Managers" SOC code 11-3021 at 
https://flcdatacenter.com/OesQuickResults.aspx?code=11-3021&area~year=19&source=1. 
3 
11. CONCLUSION 
The Petitioner has not established that the wage level or the occupational classification on the certified 
LCA supports the position described in the petition. As this issue is dispositive of the appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding the position's 
qualification as a specialty occupation. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); 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). 
ORDER: The appeal is dismissed. 
4