dismissed H-1B Case: Construction Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 14, 2023 In Re: 28710907 
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 the record did not establish 
that the petition was filed with a corresponding labor condition application. The matter is now before 
us on appeal. 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 Christa 's, Inc. , 26 I&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 construction project estimator. The petition 
included a certified LCA for a position located within the "Construction Managers" occupational 
category corresponding to the Petitioner's self-categorization within the Standard Occupational 
Classification (SOC) Occupational Information Network (O*NET) code 11-9021.00. 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 requires a minimum of a master's degree or its equivalent in 
construction engineering or a related field. 
The Director issued a request for evidence (RFE) advising the Petitioner that they noted concerns 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. 
In its RFE response, the Petitioner submitted a brief supported by an ET A Form 9141, Application for 
Prevailing Wage, endorsed with a wage determined by the Department of Labor (DOL) National 
Prevailing Wage Center (NPC) in connection with a different proffered job. 1 The Petitioner, in an 
apparent misunderstanding of the eligibility concerns the Director's RFE raised, asserted at length that 
the Petitioner's proffered job was a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(l) 
of the Act, 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). The Petitioner 
discussed in detail the "doctrine of agency deference" as explained in Chevron USA v. Natural 
Resources Defense Council, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997) and its 
progeny. The Director noted the specialty occupation nature of the Petitioner's proffered job and 
denied the petition because the Petitioner assertions and accompanying documents did not establish 
that the certified LCA accompanying the H-lB petition corresponded to its proffered position. The 
Petitioner's appeal largely renews the contentions it made in its RFE response. 
II. SPECIALTY OCCUPATION 
A stated above, a substantial portion of the Petitioner's appeal discussed the "doctrine of agency 
deference" under Chevron and Auer in the context of the Petitioner's assertion that the Petitioner's 
proffered job is a specialty occupation. But the Petitioner's lengthy discussion of agency deference in 
this context is misplaced. The Director determined that the Petitioner's proffered position of 
construction project estimator is a specialty occupation in accordance with the statute and applicable 
regulations and we see no error in that conclusion. The evidence in the record established that the 
Petitioner's proffered construction project estimator position qualifies for classification as a specialty 
occupation as the term is defined at section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) as it 
requires the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of a bachelor's or higher degree in the specific specialty or its equivalent. Specifically, the 
record contained the Petitioner's proffered job's description which reflected the proffered job duties 
were sufficiently complex or unique such that they necessitated performance only by an individual 
with a bachelor's degree in a specific specialty, or the equivalent, and it therefore also satisfies 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). So we concur with the Director's conclusion that the Petitioner's proffered 
position is a specialty occupation. And the record reflected that the Beneficiary possessed a U.S. 
master's degree in a field related to construction engineering, so they are qualified to perform the 
duties of this specialty occupation. Although the Director made no specific conclusions in their 
decision, we also conclude that the Petitioner's evidence supports its contention that the occupational 
classification listed in the LCA corresponds to the proffered job. But the LCA is nevertheless 
discordant with the petition and we must dismiss the appeal for the below reasons. 
III. NON-CORRESPONDING LABOR CONDITION APPLICATION 
The H-lB petition process involves several steps and forms filed with the Department of Labor (DOL) 
and United States Citizenship and Immigration Services (USCIS). A petitioner seeking to file an 
1 Whilst the ET A Form 9141 the Petitioner submitted is for a job corresponding to the same SOC code as the job contained 
in the petition, it reflects a different job title, educational and experiential requirements, and job description. Accordingly 
it is inapplicable to the matter before us and we will disregard it. 
2 
H-lB petition must submit a certified LCA. Section 212(n)(l) of the Act; 8 U.S.C. § 1182(n)(l). A 
DOL certified LCA memorializes the attestations a petitioner makes regarding the employment of the 
noncitizen in H-lB status. See 20 C.F.R. § 655.734(d)(l)-(6). One of the attestations a petitioner 
makes relates to the protection ofU.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. § 655.731(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-lB petition. 20 C.F.R. § 655.705(b). USCIS may consider DOL regulations 
when adjudicating H-lB 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-lB] petition matches the LCA"); see also United 
States v. Narang, No. 19-4850, 2021 WL 3484683, at *1 (4th Cir. Aug. 9, 2021)(per curiam)("[USCIS] 
adjudicators look for whether [the] employment [listed in the H-1 B petition] will conform to the wage 
and location specifications in the LCA"). 
When examining the wage level indicated on the LCA, USCIS 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 LCA, USCIS 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.C. 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 LCA "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. 
3 
Most importantly here, the Petitioner attested in the LCA that they 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-1B petition corresponds with the wage level on the LCA 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. 2 A point is assigned for each instance of 
the petitioner's requirements exceeding the experience, education, special skills and other 
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. 3 
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 "a 
master's degree in construction engineering" as a minimum educational requirement for entry into the 
proffered position. Appendix D of the DOL guidance lists a minimum education requirement of a 
bachelor's degree for the construction manager category based on categorization in Education and 
Training Category Code four. Education and Training Category Code four provides minimum 
prerequisites not in excess of 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 enhanced educational requirement. The Level I wage 
obligation is $31,887 less than the Level II wage obligation, representing an underpayment by 26%. 
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 
212(n)(l) of the Act; 20 C.F.R. § 655.731(a). So the petition is unapprovable as filed despite the fact 
the proffered job is a specialty occupation under section 2 l 4(i)(l) of the Act and the regulations at 8 
C.F.R. § 214.2(h)(4)(ii). 
2 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-1 B 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. 
3 The Petitioner contends that their assignment of a Level I wage for their proffered position is "commensurate with 
industry standards." The DOL guidance does not make any accommodations for "industry standards" when determining 
the appropriate wage level for a proffered job. If the Petitioner considered the OES wage data inaccurate, the regulations 
permitted them to use a private or alternate wage survey to justify the applicable prevailing wage for their proffered job. 
See 20 C.F.R. § 655.731(a)(2)((ii)(A) and 20 C.F.R. § 655.40. 
4 
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. § 655.73 l(a). So the appeal must 
be and is hereby dismissed. 
ORDER: The appeal is dismissed. 
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