dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WLY 27, 2023 In Re: 27694453 
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-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 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish the Beneficiary has education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States bachelor's or higher degree required for 
the specialty occupation and has recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 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 Christo 's, Inc., 26 I&N Dec. 537, 537 n .2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
Before addressing the basis upon which this petition was denied-the Director's determination that 
the Beneficiary did not have the qualifications to perform services in a specialty occupation-we will 
first discuss an issue we have identified on appeal that precludes the petition 's approval. As we will 
discuss, the Petitioner has not established that it submitted a labor condition application (LCA) that 
corresponds to the H-lB petition it purports to support. 
The Petitioner is offering the Beneficiary the position of principal program manager and submitted an 
LCA certified for a position located with the "Information Technology Project Managers" 
occupational category corresponding to the Standard Occupational Classification (SOC) Occupational 
Information Network (O*NET) code 15-1199.09. 1 
A 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)(])-(6). Whilst the U.S. Department of Labor 
(DOL) is responsible for certifying that the Petitioner has made the required LCA attestations, USCIS 
evaluates whether the submitted LCA corresponds with the Petitioner's H-lB petition. 20 C.F.R. § 
655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with 
the petition .... "); Matter ofSimeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). See also ITServe 
Alliance, Inc. v. DHS, 590 F. Supp. 3d 27, 40 (D.D.C. 2022) (noting 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"). 
The petition contains a wage lower than the required wage specified in the LCA. The Petitioner 
attested in the LCA that it would protect workers from wage abuse by paying a required wage no lower 
than the higher of the actual or prevailing wage for the occupational classification in the area of 
intended employment to employees with similar duties, experience, and qualifications. See 20 C.F.R. 
§ 655.731. The LCA reflects a prevailing wage rate of $95,555 in the area of intended employment 
and a wage range of $104,900 to $194,700 for the Beneficiary. But the Petitioner states in the Form 
I-129 that it will pay the Beneficiary wages of $103,439.96 per year. 
As the LCA in the record was certified with a required wage higher than the wage the Petitioner 
included in the Form I-129, it does not correspond to and support the petition. An H-lB petition 
cannot be approved without a corresponding LCA. See section 212(n)(l) of the Act, 8 U.S.C. § 
1182(n)(l); 20 C.F.R. § 655.731(a). So the petition is unapprovable as filed, irrespective of whether 
the Petitioner can demonstrate that the Beneficiary is qualified to perform the duties of a specialty 
occupation under section 214(i)(l) of the Act and the regulations at 8 C.F.R. § 214.2(h)(4)(ii). 
The dispositive nature of this deficiency does not require us to evaluate the matter before us any 
further. However, for the reasons below, the petition would not have been approved even if the 
Petitioner had submitted a corresponding LCA with the Form I-129 because the Beneficiary is not 
qualified to perform the duties of a specialty occupation under section 214(i)(2) of the Act and the 
regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C). 
II. BENEFICIARY QUALIFICATIONS 
Long-standing legal standards require that the Director first determine whether the proffered position 
qualifies for classification as a specialty occupation and then move to determine whether the 
Beneficiary was qualified for the position at the time the nonimmigrant petition was filed. Cf Matter 
of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). The Director has concluded that 
1 Subsequent to the filing of the petition, the DOL's Bureau of Labor Statistics (BLS) advised that the "Information 
Technology Project Managers" entry at 15-1199.09 was no longer in use and to use the "Information Technology Project 
Managers" entry at 15-1299.09. 
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the proffered position here is a specialty occupation, and we see no error in that determination. But 
upon review of the record in its totality, we conclude the Petitioner has not established that the 
Beneficiary is qualified to perform the duties of a specialty occupation under section 214(i)(2) of the 
Act and the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C). The record does not contain material, 
relevant, or probative evidence of the Beneficiary's qualifications to perform the duties of a specialty 
occupation. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess a license if it is required for the occupation, have 
earned a bachelor's or higher degree in a specific specialty related to the job duties, or have earned the 
equivalent of a bachelor's or higher degree in a specific specialty related to the job duties based on 
having experiences in the specialty equivalent to the completion of the degree and recognition of 
expertise in the specialty through progressively responsible positions relating to the specialty. 
The supplementing regulations at 8 C.F.R. § 214.2(h)(4)(iii)(C) restate the statute and require meeting 
one of four criteria to qualify to perform services in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from 
an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher 
degree required by the specialty occupation from an accredited college or university; 
(3) Hold an unrestricted state license, registration or certificate which authorizes him or her to 
fully practice the specialty occupation and be immediately engaged in that specialty in the state 
of intended employment; or 
(4) have education, specialized training, and/or progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the specialty 
occupation, and have recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D) provides five methods by which a petitioner can satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4): 
(1) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The result of recognized college-level equivalency examinations or special credit programs 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
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(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training and/or 
work experiences in areas related to the specialty and that the noncitizen has achieved 
recognition of expertise in the specialty occupation as a result of such training and experience. 
B. Unqualified Beneficiary 
The Beneficiary earned a bachelor of arts degree in international business with a concentration in 
modem languages from the University~---------~ Scotland, United Kingdom. The 
Petitioner concedes at appeal that the Beneficiary is not qualified to perform the proffered specialty 
occupation's duties under 8 C.F.R. § 214.2(h)(4)(iii)(C)(l)-(3). The Beneficiary does not hold a 
United States bachelor's or higher degree required by the specialty occupation from an accredited 
college or university. They likewise do not hold a foreign degree determined to be equivalent to a 
United States bachelor's or higher degree required for the specialty occupation from an accredited 
college or university. The Petitioner also did not demonstrate that the Beneficiary holds an unrestricted 
State license, registration, or certification which authorizes them to fully practice the specialty 
occupation and be immediately engaged in that specialty in the state of intended employment. 
When the occupation does not require a license and the Beneficiary does not have the required U.S. 
degree or its foreign degree equivalent in the field required for entry to the specialty occupation, our 
analysis revolves around whether the Petitioner established that the Beneficiary possesses the 
education, specialized training and/or progressively responsible experience in the specialty equivalent 
to the completion of the required U.S. degree or its foreign degree equivalent and has progressively 
responsible experience in job position in the specialty constituting a recognition of expertise as 
required by 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). 
The Director based their decision on the insufficiency of the evaluations of the Beneficiary's education 
and work experience the Petitioner provided. As we have stated before, we may exercise our discretion 
and consider evaluations of a beneficiary's foreign education as advisory. Matter ofSea, Inc., 19 I&N 
Dec. 817, 820 (Comm'r 1988). Most relevantly, the record of proceeding contains: 
• A credential evaluation report submitted with the initial petition from .________ ____. 
evaluatorJ Iconcluding that the Beneficiary's bachelor of arts degree from 
Scotland, United Kingdom is equivalent to a U.S. bachelor's degree in international business 
with a concentration in modem languages; 
• An expert opinion and evaluation of beneficiary qualifications submitted with the RFE 
response from dean and professor of management,! I 
Business,! IUniversity, concluding that the Beneficiary's bachelor of arts 
degree from Scotland, United Kingdom, is equivalent to a U.S. bachelor of arts degree with 
concentrations in international business and modem languages; 
• An evaluation submitted with the appeal by.__ _____ ___. professor of computer science, 
I !University, concluding that the combination of the Beneficiary's bachelor of arts 
degree from Scotland, United Kingdom and work experience is equivalent to a U.S. bachelor's 
degree in computer information systems; and 
• A letter from the Beneficiary's former employers. 
4 
The evaluations submitted by the Petitioner are also accompanied by either the writer's curriculum 
vitae; a self-authored statement of "expertise," letter( s) from their employing institutions attesting to 
their authorization to grant college-level credit or training and/or work experience in the specialty at 
an accredited college or university which has a program for granting such credit based on an 
individual's training/work experience, and/or documentation either from an internal policy document 
or printed from publicly available internet sources describing the institution's policy for granting 
academic credit. 
The sole expert opinion submitted by the Petitioner concluding the Beneficiary had the education in a 
specific specialty required to perform the duties of their proffered specialty occupation was authored 
byl Iprofessor of computer science,! IUniversity. 2 We may exercise our 
discretion and consider opinion statements like the evaluations submitted by the Petitioner as advisory. 
Sea, 19 I&N Dec. 817 at 820. But opinion statements like evaluations hold less weight where there is 
cause to question or doubt the opinion, or if the opinion is not in accord with other information in the 
record as is the case here. The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(I) requires that an 
evaluation to document eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) be issued by an official who 
has authority to grant college-level credit for training and/or experience in the specialty at an 
accredited college or university which has a program for granting such credit. 
I lemployerJ !University I I, is an accredited university without a program 
to grant college-level credit for work experience. The letter froml I 
executive dean, industrial enterprise and dean of engineering attests to the existence of a program to 
~edit to studeny for srcific industry related experience and training. But the printouts □ 
L__J submits from website dated July 7, 2014 contradict those letters. Thes pri touts 
describe two methods by which a matriculatedc=]student can seek college-level credit. may 
~ college-level credit for professional training or for "life-learning"/"prior learning credit." 3 
L___J "life-learning" or "prior learning credit" appears to contemplate a scenario where an 
individual's non-traditional experiences can be evaluated for the "lessons" that the experiences 
provided.~lists "marriage certificates, newspaper clippings, photographs, letters from individuals 
involved in the experience, etc." as documentation to support "life-learning" or "prior-learning." 
Neither method provides an avenue for the evaluation of work experience as required by regulation. 
So,~does not appear to have a program to grant college-level credit for work experience. And 
~does not have a program for granting credit based on work experience it follows thatn 
~ot an official with authority to grant credit based on work experience. So I~---~-~ 
evaluation does not satisfy the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(l) to establish the 
Beneficiary's qualifications under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). 
1 1 
Moreover, each evaluation submitted by the Petitioner suffers from the same infirmity undercutting 
its reliability. Both the credential evaluations and the education/experience evaluation conclude that 
the Beneficiary's Scottish bachelor of arts degree is the single source equivalent of a corresponding 
2 The other evaluations submitted by the Petitioner evaluated the Beneficiary's credentials only and concluded that the 
Beneficiary had earned education in a field which did not give them the theoretical and practical knowledge in a specialty 
required to perform the duties of the Petitioner's proffered specialty occupation. 
3 The Petitioner does not argue. nor does the record contain applicable evidence such as documentation of seat hours, 
syllabus or table of contents. verification of completion, etc. that the Beneficiary has any training which could be awarded 
credit underc=Jpolicy. 
5 
U.S. bachelor's degree. A United States baccalaureate degree is generally found to require four years 
of education. See Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977). And the Educational 
Database for Global Education (EDGE), maintained by the American Association of Collegiate 
Registrars and Admissions Officers (AACRAO), reflects that baccalaureate degrees earned from 
institutions of higher education in Scotland, United Kingdom, are comparable to three years of 
university study in the United States and not a single source U.S. baccalaureate degree in a 
corresponding field or discipline. So the conclusion of each evaluation the Petitioner submitted was 
not persuasive when each individual credential and education/experience evaluation concluded that 
the Beneficiary had earned the single source equivalent of a U.S. bachelors degree based on their 
bachelor of arts degree earned from an institution of higher education in Scotland, United Kingdom. 
And there is insufficient evidence in the record to satisfy 8 C.F.R. § 214.2(h)( 4)(iii)(D)(2), (3), or (4). 
So we will tum to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) which grants USCIS the authority to make our 
own determination on the Beneficiary's qualifications. Specifically, we can evaluate that an individual 
has earned the equivalent of the degree required by the specialty occupation through a combination of 
education, specialized training and/or work experiences in areas related to the specialty and that the 
noncitizen has achieved recognition of expertise in the specialty occupation as a result of such training 
and experience. We may determine equivalency by accepting three years of specialized training and 
or work experience demonstrated by the individual for each year of college level training the 
noncitizen lacks. Additionally, the noncitizen must demonstrate recognition of expertise by one of the 
following: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The record is not sufficient to satisfy 8 C.F.R. § 214.2(h)(4))(iii)(D)(5) either. The record of 
proceedings provides insufficient work-experience evidence for us to reasonably conclude that the 
Petitioner has satisfied any one of the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v). 4 So 
we cannot conclude that the evidence of the Beneficiary's work experience qualifies for recognition 
of any years of college-level credit by correct application of the H-lB beneficiary-qualification 
regulations' "three-for-one" standard. Based upon the findings articulated above, we conclude that 
the totality of the evidence regarding the Beneficiary's foreign education and work experience does 
not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). 
4 Though acknowledged, the letters regarding the Beneficiary's work experience lack the detail necessary to meet these 
requirements. 
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III. CONCLUSION 
We conclude that the totality of the evidence regarding the Beneficiary's foreign education and work 
experience does not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (h)(4)(iii)(D). And this 
petition is not approvable because it was filed without a corresponding LCA. It is the Petitioner's 
burden to provide competent and credible evidence by a preponderance of the evidence. The Petitioner 
has not met its burden for the reasons set forth above. The appeal must be dismissed. 
ORDER: The appeal is dismissed. 
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