dismissed H-1B Case: Construction Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 2, 2024 In Re: 30908210 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB 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 Nebraska Service Center denied the petition, concluding the record did not 
establish, as required, that the submitted certified labor condition application (LCA) corresponds with 
the H-lB petition. More specifically, the Director determined that, based upon the Petitioner's own 
education requirement, its classification of the proffered position as a Level 1 wage was incorrect. 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 l&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. 
The H-lB petition process involves several steps and forms filed with the Department of Labor (DOL) 
and U.S. Citizenship and Immigration Services (USCIS). A Petitioner seeking to file an 
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, in part, that it will 
pay an H-lB 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). While DOL is responsible for certifying that 
a petitioner has made the required LCA attestations, USCIS evaluates whether the submitted LCA 
corresponds with the H-lB petition. 20 C.F.R. § 655.705(b). 1 
As explained by the Director, USCIS applies 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 a Level I and may increase up to a 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, we must 
determine whether the O*NET occupation selected 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. The Director determined the Level I 
wage was inappropriate as the Petitioner indicated the proffered position requires a master's degree, 
which is beyond what is generally required for the occupation. 
Based upon step three of DOL's aforementioned five step process for wage level determinations, we 
agree with the Director. The third step involves a comparison of the Petitioner's education requirement 
to that listed in Appendix D of the DOL guidance. 2 The Petitioner's stated minimum education 
requirement is a master's degree in construction management. Because the education requirement 
contained in the Appendix, as well as in O*NET and the Occupational Outlook Handbook, indicates 
that the usual education level for construction managers is a bachelor's degree, the Petitioner's 
master's degree requirement warrants a one level increase in the wage. Thus, the Petitioner improperly 
designated the proffered position as a Level I wage. 3 Moreover, the Beneficiary's stated salary of 
$65,000 per year is significantly below the Level II prevailing wage for "Construction Managers" in 
I I Florida of $90,688 per year when the LCA was filed in June 2023. 4 
On appeal, the Petitioner addresses the actual wage (as opposed to the prevailing wage), asserts that 
the wage level assigned to the proffered position was appropriate, and references DOL's generic 
definition of a Level I wage. 5 However, as explained by the Director, a petitioner must offer a 
1 USCIS may consider DOL regulations when adjudicating H-lB petitions. See Int'l 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), aff'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 USCTS "to check that the [H-1 B] petition 
matches the LCA"); see also United States v. Narang, No. 19-4850, 2021 WL 3484683, at *l (4th Cir. Aug. 9, 202l)(per 
curiam)("[USCIS] adjudicators look for whether [the] employment [listed in the H-lB petition] will conform to the wage 
and location specifications in the LCA"). 
2 Appendix D of the DOL guidance provides a list of professional occupations with their corresponding usual education 
level. 
3 The Petitioner did not request a prevailing wage determination from the National Prevailing Wage Center (NPWC) prior 
to filing the LCA with DOL. USCIS will generally accept NPWC's prevailing wage determination and grant the employer 
a "safe harbor" to rely on both the wage level and the occupational classification, so long as the employer fully and 
accurately described the proffered position to the NPWC. 
4 See the "All Industries" database for 7/2022 - 6/2023 for Construction Managers at the Foreign Labor Ce11ification Data 
Center, https://www.flcdatacenter.com/OesQuickResults.aspx?code= 11-9021 &area= &year=23&source=11) 
5 DOL's 2009 guidance describes Level I as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of 
2 
beneficiary wages that are at least the actual wage level paid by the petitioner to all other individuals 
with similar experience and qualifications for the specific employment in question, or the prevailing 
wage level for the occupational classification in the area of employment, whichever is greater, based 
on the best information available as of the time of filing the application. See section 212(n)(l)(A) of 
the Act, 8 U.S.C. § 1182(n)(l)(A); 20 C.F.R. § 655.731(a); Simeio Solutions, LLC, 26 I&N Dec. at 
545-546. 
While the Petitioner does not agree with the Director's conclusion regarding the selection of the Level 
I wage, it also provides a new certified LCA that specifies a Level II wage and an increase in the salary 
to $96.000. But it was certified approximately five months after the Petitioner filed the H-lB and in 
response to the petition's denial, and we cannot consider it here. See 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 
20 C.F.R. § 655.705(b). Moreover, the changes in the Beneficiary's salary are a material change in 
the terms and conditions of employment. The Petitioner must establish that the position offered to the 
Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
For the above state reasons, the certified LCA submitted with the H-lB petition does not correspond 
to the proffered position, and the petition is not approvable as filed. See section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a); 20 C.F.R. § 655.705(b). So, the appeal must be and is hereby dismissed. 
ORDER: The appeal is dismissed. 
judgment. The tasks provide experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results expected. Their work is closely 
monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered. 
3