dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7650241 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, a company engaged in information technology services, seeks to employ the 
Beneficiary as a "software engineer/ECM Filenet admin" under the H-lB 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 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 petition, concluding that the labor condition 
application (LCA) does not correspond to the petition. The Petitioner must establish eligibility by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon 
de novo review, we will summarily dismiss the appeal. 
I. SUMMARY DISMISSAL 
In the denial decision the Director noted that the Petitioner submitted a certified LCA that did not 
correspond with the petition. On the LCA submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Software Developers , Application, 
R & D" corresponding to the Standard Occupational Classification code 15-1035. 1 The LCA was 
certified for a Level III prevailing wage. 2 The Director noted that the Petitioner utilized the prevailing 
1 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate 
that it will pay the Beneficiary 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 experience and qualifications who 
are perfom1ing the same services. Section 212(n)(1) of the Act; 20 C.F.R. § 655.73 l(a). 
2 The "Prevai ling Wage Determination Policy Guidance " issued by the Department of Labor (DOL) describes a Level III 
( experienced) wage rate as generally appropriate for positions for experienced employees who have a sound 
understanding of the occupation and have attained , either through education or experience , special skills of knowledge . 
U.S. Dep't of Labor , Emp't & Training Admin ., Prevailing Wage Determination Policy Guidance , Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download / 
NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf A prevailing wage determination starts with an entry level wage (Level I) 
and progresses to a higher wage level (up to Level IV) after considering the experience, education , and skill requirements 
of the Petitioner 's job opportunity . Id. 
wage survey for "ACWIA- Education" entities rather than the "All Industries." Since the Petitioner 
is not an ACWIA- Education entity, the prevailing wage listed on the LCA did not correspond with 
the Petitioner. The Director also noted that in response to the request for evidence (RFE), the 
Petitioner raised the Beneficiary's salary to farther align with the correct prevailing wage. But the 
Director noted that even with the salary increase, the Petitioner is paying a salary that was $18,000 
below the correct prevailing wage. 
On the Form I-290B, Part 2, the petitioner checked Box A, indicating that it was filing an appeal. In 
a brief submitted with the appeal, the Petitioner acknowledges that "while filing the LCA, we made 
an error." The Petitioner farther states that when it submitted the LCA, it selected "ACWIA Higher 
Ed" instead of "All Industries," in error because it is "not an institution or higher research organization 
or affiliated non-profit entity." Further, the Petitioner claims that it was "completely unintentional 
and we realized it only after receiving your notice," and "we sincerely apologize on this." The 
Petitioner submits a new LCA certified after the instant petition was filed. The new LCA was certified 
under a different occupational category, this time under "Software Developers, Applications" 
corresponding to the Standard Occupational Classification code 15-1132. The new LCA is also 
certified under a Level II prevailing wage rate rather than the Level III rate as indicated in the first 
LCA. 
Upon review, we find that the petitioner did not identify specifically how the director made any erroneous 
conclusion oflaw or statement of fact in denying the petition. The regulation at 8 C.F.R. § 103.3(a)(l)(v) 
states, in pertinent part: "An officer to whom an appeal is taken shall summarily dismiss any appeal when 
the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for 
the appeal." Therefore, the appeal will be summarily dismissed in accordance with 8 C.F.R. 
§ 103.3(a)(l)(v). 
II. THE LCA AND H-lB VISA PETITION PROCESS 
Furthermore, we note that the director did not err in denying the petition. 
In pertinent part, the Act defines an H-lB nonirnrnigrant worker as: 
[ A ]n alien ... who is corning temporarily to the United States to perform services ... 
in a specialty occupation described in section 214(i)(l) ... who meets the requirements 
for the occupation specified in section 214(i)(2) ... and with respect to whom the 
Secretary of Labor determines and certifies to the [Secretary of Homeland Security] 
that the intending employer has filed with the Secretary [ of Labor] an application under 
section 212(n)(l) .... 
Section 101(a)(15)(H)(i)(b) of the Act. 3 
3 In accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. 107-
296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions which 
were transferred from the Attorney General or other U.S. Department of Justice official to U.S. Department of 
Homeland Security (DHS) by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See 
6 U.S.C. § 557 (2003) (codifying HSA, tit. XV,§ 1517); 6 U.S.C. § 542 note; 8 U.S.C. § 1551 note. 
2 
In tum, section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), requires an employer to 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 paid by the employer to other employees with similar experience 
and qualifications who are performing the same services. 4 See 20 C.F.R. § 655.73l(a); Venkatraman 
v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); 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 Admin. 
Rev. Bd. July 30, 2009). 
Implemented through the LCA certification process, section 212(n)(l) is intended to protect U.S. 
workers' wages by eliminating economic incentives or advantages in hiring temporary foreign 
workers. See, e.g., 65 Fed. Reg. 80,110, 80,110-111, 80,202 (2000). The LCA currently requires 
petitioners to describe, inter alia, the number of workers sought, the pertinent visa classification for 
such workers, their job title and occupational classification, the prevailing wage, the actual rate of pay, 
and the place(s) of employment. 
To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between the Department of Labor (DOL) and the U.S. Department of 
Homeland Security (DHS), a prospective employer must file an LCA and receive certification from 
DOL before an H-lB petition may be submitted to U.S. Citizenship and Immigration Services 
(USCIS). 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b)(2). 5 A change in the occupational 
classification and prevailing wage of a proffered position requiring a corresponding LCA be certified 
to DHS with respect to that beneficiary may affect eligibility for H-lB status and is, therefore, a 
material change. 6 8 C.F.R. § 214.2(h)(2)(i)(E) and (1 l)(i)(A). 
The regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is filed. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 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 of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Here, on appeal, the Petitioner attempted to change the occupational category and prevailing wage for 
4 The prevailing wage may be determined based on the arithmetic mean of the wages of workers similarly 
employed in the area of intended employment. 20 C.F.R. § 655.73 l(a)(2)(ii). 
5 Upon receiving DO L's certification, the prospective employer then submits the certified LeA to USCIS with 
an H-lB petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(l). DOL 
reviews LCAs "for completeness and obvious inaccuracies," and will certify the LeA absent a determination 
that the application is incomplete or obviously inaccurate. Section 212(n)( 1 )(G)(ii) of the Act. In contrast, 
users must determine whether the attestations and content of an LeA correspond to and support the H-IB 
visa petition, including the specific place of employment. 20 e.F.R. § 655.705(b); see generally 8 e.F.R. § 
2 l 4.2(h)( 4)(i)(B). 
6 A change in the terms and conditions of employment of a beneficiary which may affect eligibility under section 
10l(a)(15)(H) of the Act is a material change. See 8 e.F.R. § 214.2(h)(2)(i)(E); see also id.§ 214.2(h)(ll)(i)(A) 
(requiring that a petitioner file an amended petition to notify users of any material changes affecting eligibility 
of continued employment). 
3 
the proffered position. Such changes in the terms and conditions of the Beneficiary's employment 
may affect eligibility under section 10l(a)(l5)(H) of the Act. The Petitioner was required file a new 
H-lB petition with the appropriate fee(s), along with a corresponding LCA certified by DOL, with 
both documents indicating the relevant change. 8 C.F.R. § 214.2(h)(2)(i)(E), (h)(l l)(i)(A). Full 
compliance with the LCA and H-lB petition process, including adhering to the proper sequence of 
submissions to DOL and USCIS, is critical to the U.S. worker protection scheme established in the 
Act and necessary for H-lB visa petition approval. 
III. CONCLUSION 
In response to the RFE and in the appeal, the Petitioner states that the original LCA submitted with 
the H-lB petition contained inaccurate information. 7 In visa petition proceedings, it is the petitioner's 
burden to establish 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 summarily dismissed. 
7 An inaccurate statement anywhere on the Form I-129 or in the evidence submitted in connection with the 
petition mandates its denial. See 8 C.F.R. § 214.2(h)(10)(ii); see also 8 C.F.R. § 103.2(b)(l). 
4