dismissed H-1B Case: Landscape Architecture

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-H-D-G-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 3, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company that provides landscape architect services, seeks to temporarily employ 
the Beneficiary under the H-1 B 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 Vermont Service Center denied the Form I-129, Petition for Nonimmigrant 
Worker, concluding that the Petitioner did not establish that the proffered position is a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner states that the Director's decision 
was understandable given that the Petitioner failed to provide critical information about the position. 
The Petitioner submits additional evidence and requests that a new decision be rendered. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
Matter of W-H-D-G-
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Cmp. v. Cherto.ff; 
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, 387-88 (5th Cir. 2000). 
. II. ANALYSIS 
A. Specialty Occupation 
The Petitioner has submitted inconsistent and contradictory evidence regarding nature of the 
proffered position that precludes it from establishing that the proffered position is a specialty 
occupation. More specifically, initially the Petitioner claimed that the Beneficiary would serve as a 
"drafter." For example, the Petitioner provided the following job titles for the position: 
Document Job Title Provided by the Petitioner 
Form 1-129 architectural and civil drafter 
labor condition application (LCA) landscape architectural drafter 
letter of support landscape architecture and civil drafter 
Furthermore, on the LCA 1 the Petitioner designated the proffered position under the occupational 
category "Architectural and Civil Drafters" which corresponds to the Standard Occupational 
1 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services 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 ewerience and qualifications who 
are performing the same services. See Matter ofSimeio Solutions, LLC. 26 I&N Dec. 542, 545-46 (AAO 20 15). 
2 
.
Matter of W-H-D-G-
Classification (SOC) code 17-3011.2 In an accompanymg letter, the Petitioner provided the 
following job description: 
[The Beneficiary] is being offered temporary employment in the pos1t10n of 
Landscape Architectural and Civil Drafter at [the Petitioner's business.] He will be 
responsible to prepare detailed drawings of landscape design and urban planning. In 
addition, he will also be involved in a wide range of projects including commercial, 
large-scale residential and healthcare projects. As a drafter , [the Beneficiary] also 
will have the ability to work with professional architects and landscape architects and 
provide his planning I design expertise towards projects. The urban planning design 
knowledge and computer expertise provided by [the Beneficiary] would be a valuable 
complement to our existing team. 
The Petitioner did not specify a ?egree requirement for the proffered position. 
In response to the Director's request for evidence (RFE), the Petitioner stated that it currently 
employs seven landscape architects, and that because of its work load it needed to hire an individual 
with unique and excellent drafting skills. According to the Petitioner , the proffered position is for 
someone who will "take the concepts created by [the company's] Landscape Architects and transfer 
them to actual computer drawings." The Petitioner indicated that the Beneficiary "may advance to a 
Landscape Architecturi:tl position at some future time." According to the Petitioner, an applicant for 
the pro tiered position must possess a minimum of a bachelor's degree in landscape architecture. 3 
On appeal, however , the Petitioner appears to be claiming for the first time that that the proffered 
position is for a landscape architect. The Petitioner asserts that all the landscape architects that it 
currently employs are required to have a baccalaureate degree or higher, and provides their resumes. 
It asserts that "the complexity of our profession has increased tremendously [in] the past few years," 
which in turn has "created the need for a minimum of a Baccalaureate ... to properly prepare and 
draft our technical plan with the rapidly developing computer based technical software." The 
Petitioner claims that the degree requirement is common to the industry, and submits job 
advertisements from the on behalf of other firms seeking 
to hire landscape architects. However, the Petitioner does not address why it designated the 
2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The " Prevailing Wage Determiriation Policy Guidance " issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results . U.S. Dep't of Labor, Emp 't & Training Admin., Prevailing 
Wage De~ermination Policy Guidance, Nonagric. Immigration Programs (rev . Nov . 2009), available at 
http ://flcdatacenter.com /down load/N PWHC _Guidance_ Revised _I 1_2009 .pdf A prevai I ing wage determ in at ion starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education , and skill 
requirements of the Petitioner ' s job opportunity. !d. 
3 The Beneficiary holds a master 's degree in urban and regional planning . 
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Matter of W-H-D-G-
proffered position under the occupational category of "Architectural and Civil Drafters" on the LCA 
and previously described the duties of the position as a drafter. 
Upon review of the totality of the record, we conclude that the Petitioner has not sufficiently 
established the nature of the proffered job and whether the Beneficiary will be performing the duties 
of a: ( 1) drafter; or (2) landscape architect. 
The SOC codes, prevailing wages, job duties, and degree requirements for the occupations of 
"Architectural and Civil Drafters" and "Landscape Architects'' are different. For example, the yearly 
prevailing wage for a Level I architectural drafter (SOC code 17-3011) in the Petitioner's location 
(Broward County, Florida) was $32,739 during the relevant period. According to the Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook), 4 an associate's degree or technical 
certificate is typically required for the occupation of drafter, and the Handbook does not list any 
licensure requirements. 
In contrast, the yearly prevailing wage for a Level I landscape architect (SOC code 17-1 0 12) in the 
same area during the same period was $45,261. The Handbook indicates that an advanced degree in 
landscape architecture may be needed for entry into the profession, and licensure as a landscape 
architect is mandatory in most states (including in Florida, the location of the proffered position). 
With respect to the Petitioner's most recent indication that the position is actually a landscape 
architect, a petitioner cannot offer a new position to the beneficiary, materially change a position's 
associated job responsibilities, or alter the claimed occupational category of a position for the tirst 
time in response to an RFE or an appeal. The Petitioner must establish that the position offered to 
the Beneficiary when the H-lB petition was tiled merits classification for the benefit sought. Matter 
of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). If significant changes are 
made to the initial request for approval, the Petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. 
Based on the Petitioner's inconsistent claims and evidence, it has not established what exactly the 
proffered position is in this case. Because the Petitioner provided inconsistent information about the 
position, we are unable to discern the substantive nature of the position, whether or not the claimed 
job duties relate to the proffered position, and whether the proffered position in fact qualities as a 
specialty occupation. Consequently, we are precluded from finding that the proffered position 
satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that 
work that determines: (1) the normal minimum educational requirement for the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the protiered position 
and thus appropriate for review for a common degree requirement, under the tirst alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
4 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. 
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Matter of W-H-D-G-
the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 
As the Petitioner has not established what the proffered position is and, consequently, that it satisfies 
any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), the Petitioner also has not established that the 
proffered position qualifies as a specialty occupation. 
B. LCA Does Not Support the H-1 B Petition 
As an additional matter, the Petitioner has not provided an LCA that supports the H-1 B petition. As 
mentioned above, the Petitioner submitted an LCA designating the proffered position under the 
occupational category "Architectural and Civil Drafters," but on appeal it appears to be claiming that 
the position would be as a landscape architect and has submitted additional evidence relating only to 
_ that occupation. 
While DOL is the agency that certifies LCAs before they are submitted to U.S. Citizenship and 
Immigration Services (USCIS), DOL regulations note that the Department of Hon~eland Security 
(i.e., its immigration benefits branch, USCIS) is the department responsible for determining whether 
the content of an LCA filed for a particular Form I-129 actually supports that petition. See 20 C.F.R. 
§ 655. 705(b ). Because the Petitioner indicated after tiling that the H-1 B that the position is for a 
landscape architect, the certified LCA for an architectural and civil drafter cannot be used to support 
the H-1 B petition. The Petitioner has described two occupations, which fall under different 
occupational codes and have different prevailing wages, educational requirements, and job duties.~ 
As such, the Petitioner has not established that it submitted a certified LCA that properly 
corresponds to the occupation and duties of the proffered position, as required under the Act. As the 
LCA does not support the H-1 B petition, the petition may not be approved for this additional reason. 
III. CONCLUSION 
The Petitioner has not demonstrated what the proffered position is and, consequently, that the 
proffered position qualifies as a specialty occupation. Moreover, the Petitioner has not submitted an 
LCA that supports the H-lB petition. Accordingly, the H-1 B petition may not be approved. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fW-H-D-G-, ID# 287126 (AAO Apr. 3, 2017) 
5 
If the Petitioner believed that its proffered position was a combination of occupations, it was required by DOL to select 
the occupational category with the higher prevailing wage for the LCA. 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 _II_ 2009.pdf 
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