dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6983301 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 4, 2020 
The Petitioner, an information technology services firm, seeks to extend the Beneficiary's temporary 
employment as a "business intelligence architect" under the H-lB nonimmigrant classification for 
specialty occupations. t The H-lB 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 Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner asserts that the Director erred in denying the petition. Upon de 
nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires : 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(J) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b) . 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 2 
We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. 3 
II. ANALYSIS 
Within the proceedings before the Director, the Petitioner provided the skills required to perform in 
the position, the position's responsibilities, stated it required a bachelor's degree, and referred to 
information from the Occupational Information Network (O*NET) that reflected a bachelor's degree 
requirement. The Petitioner also initially submitted a letter from its client where the Beneficiary would 
perform the work. The client stated the position required at least a bachelor's degree or an "equivalent 
in a relevant technology field." Absent from this presentation was a specific specialty concentration 
associated with the bachelor's degree requirement. 
Responding to the Director's request for evidence (RFE), the petitioner referred to two subordinate 
occupations that are each categorized under the Computer Occupations, All Other Standard 
Occupational Classificational (SOC) code, 15-1199. It again stated the O*NET requirements for those 
subordinate occupations without further information about the proffered position's education 
requirements other than stating, "[b ]oth [ subordinate occupations] require at a minimum a bachelor's 
degree." Within its RFE cover letter, the Petitioner discussed its wage level designation on the U.S. 
Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA). Specifically, the Petitioner indicated that it "required on [sic] a 
Bachelor's degree with only an Oracle certification." 
Within the appeal, not only did the Petitioner continue to fail to identify a specific specialty for the 
bachelor's degree, but it also changed the SOC code under which it felt the offered position should be 
categorized on the LCA. In other words, the Petitioner initially stated the position fell under the 
Computer Occupations, All Other, but on appeal changed that code to the Computer Systems Analysts 
occupational title. 
For the reasons discussed below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, we conclude that the Petitioner 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 See Royal Siam COip. v. Chertof(, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384. 387 (5th Cir. 2000). 
2 
(1) failed to specifically identify a specialty associated with its bachelor's degree requirement; (2) has 
not offered an LCA that corresponds with and supports the petition; and (3) has made material changes 
to the petition and inconsistent statements in support of it after the filing date. Individually, each of 
these shortcomings preclude a favorable determination for this petition. 
A. Definition of a Specialty Occupation 
The basic hombook rule for H-1 B eligibility is that for entry into an occupation, a candidate must 
possess a body of highly specialized knowledge attained through a bachelor's or higher degree in the 
specific specialty. The process of demonstrating that a proffered position is sufficient to meet the 
requirements under the H-lB program includes more than satisfying one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The regulation also requires a petitioner to demonstrate that a petition "involves 
a specialty occupation as defined in section 214(i)(l) of the Act." 4 That statutory definition states: 
[T]he term 'specialty occupation' means an occupation that requires ... [a] theoretical 
and practical application of a body of highly specialized knowledge, and ... attainment 
of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum for entry into the occupation in the United States. 
To recap the position's degree requirements, the Petitioner stated it required a bachelor's degree and 
referred to information from the O*NET that reflected a bachelor's degree requirement, and the client 
indicated it required at least a bachelor's degree or an "equivalent in a relevant technology field." We 
will first address the Petitioner's statements, then its reference to the O*NET. 
A simple bachelor's degree requirement does not satisfy the statutory and regulatory definition of a 
"specialty occupation" within the H-1 B program. The requirement is not just any bachelor's or higher 
degree, but a bachelor's degree (or the equivalent) in a specific specialty that directly relates to the 
position's duties. 5 Therefore, based upon the Petitioner's own stated minimum requirements, we 
cannot find that the proffered position qualifies as a specialty occupation. As the Petitioner has not 
demonstrated that the proffered position meets the statutory and regulatory definition of a specialty 
occupation, it necessarily has not established the availability of specialty occupation work. The issue 
here is not whether there is work available in general, but rather whether there is specialty occupation 
work available which meets the statutory and regulatory definition. 
The Petitioner's reference to what a DOL resource-the O*NET for the Computer Occupations, All 
Other category-specifies for a broad occupational field encompassing numerous different related 
positions falls short of constituting what this job actually requires. The Petitioner must demonstrate 
what qualifications the position in the petition mandates instead of what a generalized occupational 
field might require. Additionally, the categories the Petitioner initially specified within the O*NET 
are associated with a "Job Zone Four" rating, which groups those categories among occupations for 
4 8 C.F.R. § 214.2(h)(4)(i)(B)(2); see also 8 C.F.R. § 214.2(h)(l)(ii)(B)(l). 
5 See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). See also Royal Siam Co1p., 484 F.3d at 147. Parzenn 
Partners. LLCv. Baran, No. 19-cv-11515-ADB, 2019 WL 6130678, at *4 (D. Mass. Nov. 19, 2019) (finding that "[c]ourts 
have regularly interpreted Criteria One in conjunction with other statutory and regulatory language to mean 
that specialty occupations must require at least a bachelor's degree in a specific specialty" ( citations omitted). 
3 
which "most ... require a four-year bachelor's degree, but some do not." It is therefore not clear from 
O*NET that a bachelor's degree is even required. 
Further, as indicated above a requirement for a bachelor's degree alone is not sufficient. Instead, we 
have consistently interpreted the term "degree" to mean not just any baccalaureate or higher degree, 
but one in a specific specialty that is directly related to the proposed position. 6 O*NET does not 
indicate that when a four-year bachelor's degree is required, that it must be in a specific specialty 
directly related to the occupation, or the equivalent. For both of the above reasons, this information 
does not establish the proffered position as a specialty occupation. 
Finally, the end-client's acceptance of a bachelor's degree or an equivalent in a relevant technology field 
also lacks enough specificity of what the client might consider as sufficiently acceptable. Absent were 
any guidelines on how related a degree in a technology field must be, or what factors they would 
consider to make a determination of whether another degree field was sufficiently related or not. The 
record must demonstrate that any relevant technology field is sufficiently related to the duties and 
responsibilities of the particular position proffered in this petition. As the record does not demonstrate 
that the client's concept of "a relevant technology field" is sufficiently related to this position's 
responsibilities, the Petitioner has not satisfied its burden of proof in this matter. 
Considered collectively, the above elements do not demonstrate that the proffered position requires 
more than a general bachelor's degree. As explained above, the statutory and regulatory definition of 
a specialty occupation requires a degree in a specific specialty that is directly related to the proposed 
position. 
As a result, it is unnecessary to address the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-( 4). 
Even if the Petitioner were to demonstrate that it satisfied one of the listed criteria, this would not result 
in this petition's approval, as it still has not shown that the proffered position satisfies the statutory or 
regulatory definition of a "specialty occupation." 7 The statutory definition constitutes the primary 
requirement for a position to qualify as a specialty occupation. This results in a multi-part analysis to 
determine whether a particular position qualifies under this program. 
B. LCA Issues 
Even if the above issue did not preclude this petition's approval, we would still conclude that the 
petition cannot be approved based on issues related to the LCA. First, we discuss the background 
relating to LCAs, then we explain why the statements associated with this petition do not demonstrate 
eligibility. 
6 See Royal Siam Cmp., 484 F.3d at 147; Defensor, 201 F.3d at 387. 
7 See section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
4 
1. LCA's Purpose 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." 8 It also serves to protect H-1B 
workers from wage abuses. 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 paid by the employer to other employees with similar duties, 
experience, and qualifications 9 
Before filing a petition for H-1B classification, the regulation requires pet1t10ners to obtain 
certification from DOL that the organization has filed an LCA in the occupational specialty in which 
its foreign national personnel will be employed. 10 While DOL certifies the LCA, U.S. Citizenship and 
Immigration Services (USCIS) determines whether the LCA's attestations and content corresponds 
with and supports the H-1 B petition. 11 An employer "reaffirms its acceptance of all of the attestation 
obligations by submitting the LCA to [USCIS] in support of the Petition for Nonimmigrant Worker, 
Form I-129, for an H-1B nonimmigrant." 12 
When comparing the SOC code or the wage level indicated on the LCA to the claims associated with 
the petition, USCIS does not purport to supplant DOL's responsibility with respect to wage 
determinations. There may be some overlap in considerations, but USCIS' responsibility at its stage 
of adjudication is to ensure that the content of the DOL-certified LCA "corresponds with" the content 
of the H-1B petition. 
The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed 
Dec. 20, 2000). The plain language of the regulation clearly states: "In [accepting an employer's 
petition with the DOL-certified LCA attached], the DHS determines whether the petition is supported 
by an LCA which corresponds with the petition, whether the occupation named in the labor condition 
application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the 
8 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 Pennanent 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 ]."). 
9 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). See also Venkatraman v. REI S:vs., 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., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
10 8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
11 See 20 C.F.R. § 655.705(b) (clearly stating, "In [accepting an employer's petition with the DOL-certified LCA attached], 
the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification."). See also Matter of Simeio Solutions, 26 T&N 
Dec. 542,546 n.6 (AAO 2015). 
12 20 C.F.R. § 655.705. 
5 
statutory requirements for H-1B visa classification." 13· 14 Here, the plain language of the regulation is 
dispositive: USCIS is authorized to determine the corollary nature of the proffered position's elements 
as represented in an LCA when compared with those same elements as represented on the Form 1-129, 
as well as the Petitioner's actual position requirements. 
The Act further prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the [DOL] 
Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide 
the certification .... " 15 USCIS precedent also states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition. 16 
It is unclear how USCIS is to carry out its responsibilities to determine whether the LCA corresponds 
with and supports the H-1B petition without performing such a review. To illustrate, when DOL 
certifies an LCA, it does not perform any meritorious review of an employer's claims to ensure the 
information is true. 17 In summary, when filing an LCA and an H-1B petition, a petitioner subjects 
itself to two authorities as it relates to the LCA: (1) to DOL through the certification process, or 
through a prevailing wage determination, and (2) to USCIS by way of our authority to ensure that the 
LCA corresponds with and supports the petition. As specified within the Act, by simply submitting 
the LCA to DOL without also obtaining a prevailing wage determination, a petitioner has only received 
DOL's certification that the form is complete and does not contain obvious inaccuracies. 18 In other 
words it did not receive an evaluative determination from DOL on whether the LCA's content and the 
specifics were appropriate and accurate. 
In order to determine whether the "attestations and content" ( e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form 1-129-as well as other indicators of the actual position requirements-we 
follow DOL's guidance, which provides a five-step process for determining the appropriate SOC code 
13 USCIS may consider DOL regulations when adjudicating H-IB 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). 
14 "In construing a statute or regulation. we begin by inspecting its language for plain meaning." Sullivan v. McDonald, 
815 F.3d 786. 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give 
foll effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Glover v. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbon Fuel Co. v. USX Co1p., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. United States v. Pressley, 359 F.3d 347,349 (4th Cir. 
2004) 
15 Section 212(n)(l)(G)(ii) of the Act. 
16 Simeio Solutions, 26 l&N Dec. at 546 n.6. 
17 DOL' s Office oflnspector General, 06-03-007-03-32 l, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs 1 (2003). 
18 Id. 
6 
and wage level. 19 The appropriate wage level is determined only after selecting the most relevant 
occupational category. The DOL guidance states that "[t]he O*NET description that corresponds to 
the employer's job offer shall be used to identify the appropriate occupational classification" for 
determining the prevailing wage for the LCA. 
The DOL guidance contains the same publicly available procedure an employer, or their 
representative, should follow to not only find the correct SOC code (i.e., utilizing the O*NET), but 
also to calculate the appropriate wage level. Stated more simply, DOL clearly explains the proper 
methodology, and based on USCIS' authority to determine whether an LCA corresponds with and 
supports an H-1 B petition, the agency evaluates both the appropriateness of the SOC code as well as 
the wage level. 
2. LCA: Does it Correspond with and Support the Petition 
The Petitioner changed its claims relating to which occupational category was correct for the LCA. It 
initially claimed the Computer Occupations, All Other category and listed this SOC code on the LCA. 
However, within the appeal the Petitioner now states that the Computer Systems Analysts occupation 
was the correct code for the LCA. This raises several issues, one of which is whether the LCA 
corresponds with and supports the petition. 
We cannot determine whether a petition meets the requirements of the H-lB program without an LCA 
that properly corresponds with and supports the petition. That is the situation we have in this case. 
Specifically, we cannot provide an accurate specialty-occupation analysis for the proffered position 
under the SOC code listed on the LCA (15-1199 corresponding to the occupational title Computer 
Occupations, All Other) if the Petitioner now claims that the position more closely relates to a different 
SOC code. Additionally, the use of an incorrect SOC code on the LCA may result in an employer 
paying a lower than required wage. 
We offer several examples. First, the statutory and regulatory definitions of a specialty occupation 
focus on the broader occupation as a whole, and the use of an incorrect occupational code may result 
in an erroneous decision, or one that does not properly assess the actual nature of the occupation in 
which a beneficiary would engage. 
Second, the education requirements we consider under the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l) may differ markedly from one occupational classification to the next. It 
appears the Petitioner changed from the initially claimed Computer Occupations, All Other category 
to the Computer Systems Analysts occupation within the appeal to allow it to better position its 
arguments under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). We make this observation as 
DOL's Occupational Outlook Handbook does not contain detailed information for the Computer 
Occupations, All Other category but does reflect the degree requirements for the Computer Systems 
Analysts SOC code, and the Petitioner concentrates heavily on this aspect within their appeal. 
19 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _ Guidance_ Revised_ 11 _ 2009 .pdf. 
7 
Likewise, under 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the 
industry for one occupation may also be distinct in comparison to others. It would not be a valuable 
use of USCIS resources to analyze the position requirements under an incorrect SOC code. These two 
factors alone, that hinder USCIS' ability to provide a salient analysis, preclude this petition's approval. 
The third concern relates to paying a foreign national the required wage, such that employing them 
does not adversely impact U.S. workers' wages or working conditions. 20 Two elements comprise 
paying the correct wage. The first factor relates to a petitioner designating the correct SOC code, 
while the second pertains to selecting an appropriate prevailing wage level. Relating to the first factor, 
an employer must review its job requirements "and determine the appropriate occupational 
classification," and if an "employer's job opportunity has worker requirements described m a 
combination of O*NET occupations," it should select "the higher paying occupation." 21 
Turning to the second factor, the DOL guidance provides a five-step process for determining the 
appropriate wage level. An employer compares its position requirements to these five steps 
evaluating: (1) the correct SOC code; (2) the required experience; (3) the required education; 
( 4) special skills or other requirements; and ( 5) required supervisory duties. If an employer's position 
requirements exceed those described in O*NET for an occupational title, it may necessitate an increase 
in the wage level. Therefore, changing from the Computer Occupations, All Other category to the 
Computer Systems Analysts occupation could have an adverse effect on USCIS' ability to properly 
perform this analysis. 
Additionally, when the Petitioner deviated from the Computer Occupations, All Other SOC code it 
listed on the certified LCA, without offering another certified LCA under the Computer Systems 
Analysts occupational title, it made a material change to the petition after the filing date. A petitioner 
may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to USCIS requirements. 22 As the Petitioner has presented two 
distinct SOC codes, which has an effect on eligibility, it must correct this incongruent information in 
the record. Such a correction must be demonstrated through the submission of relevant, independent, 
and objective evidence that illustrates which information is true. 23 
Based on the foregoing, we conclude that the Petitioner has not demonstrated, by a preponderance of 
the evidence, that its SOC code designation on the LCA was the code that best represented the O*NET 
job description that corresponded to the employer's job offer. Therefore, it has not demonstrated that 
the LCA corresponds with and supports the petition. 
III. 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 a petitioner's burden to establish 
20 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B 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). 
21 See the DOL guidance. 
22 See Matter of lzummi, 22 l&N Dec. 169. 175 (Assoc. Comm'r 1998). 
23 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
8 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
9