dismissed H-1B Case: Law

(b)(6)
DATE: FEB 2 6 2015 
IN RE: Petitioner: 
Be neficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department. of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l (a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center. In the supporting documents, the petitioner describes itself as a law firm that was 
established in In order to continuously employ the beneficiary, the petitioner seeks to classify 
her as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 11 0 1(a)(15)(H)(i)(b). 1 
The director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the director stated that the petitioner failed to submit 
a valid Labor Condition Application (LCA) that was certified by the U.S. Department of Labor 
(DOL) prior to submitting the Form I-129. The director also noted that the petitioner had not 
established the availability of specialty occupation work at the time the petition was filed. The 
director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I- 129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision.2 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed. 
II. STANDARD OF PROOF 
As a preliminary matter, it is noted that in the exercise of our administrative review in this matter, 
as in all matters that come within our purview, we follow the preponderance of the evidence 
standard as specified in the con trolling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 
375-376 (AAO 2010), unless the law specifically provides that a different standard applies. 
The "preponderance of the evidence " standard does not relieve the petitioner from satisfying the 
basic evidentiary requirements set by regulation. The standard of proof should not be confused with 
the burden of proof. Specifically, the petitioner bears the burden of establishing eligibility for the 
benefit sought. A petitioner must establish that it is eligible for the requested benefit at the time of 
filing the petition. 8 C.F.R. § 10 3.2(b)( 1). In visa petition proceedings, the burden of proving 
1 Initially, the petitioner designated the proffered position on the Form 1-129 as a "Law Clerk" position. 
Thereafter, in response to the RFE, the petitioner designated the position as a "Legal Support Worker (Law 
Clerk)." No explanation for the petitioner's variance in the job title was provided. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). As will be discussed, that 
burden has not been met. 
III. LABOR CONDITION AP PLICATION AND H-1B VISA PETITION PROCESS 
A. Law 
In pertinent part, the Act defines an H-1B nonimmigrant worker as: 
[A]n alien ... who is coming 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)(l5)(H)(i)(b) of the Act (emphasis added). 3 
In tum, section 212(n)(l)(A) of the Act, 8 U.S.C. § 118 2(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. 73 1(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'l, Inc., No. 07-97, 2009 WL 23 71236, 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. The employer must also comply with DOL's notice 
requirements. 5 20 C.F.R. § 655. 734. 
3 In accordance with section 15 1 7 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. 
l 07-296, 116 Stat. 2 I 35, any reference to the Attorney General in a provision of the Act describing functions 
which were transferred from the Attorney General or other Department of Justice official to 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. 
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 1(a)(2)(ii). 
5 The employer must provide notice that it intends to hire an H-IB nonimmigrant worker by either providing 
notice of the LCA to the bargaining representative, or where there is no bargaining representative, providing 
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To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between 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-1B petition 
may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b)(2). If an 
employer does not submit the LCA to USCIS in support of an H-1B petition, the process is 
incomplete and the LCA is not certified to the Secretary of Homeland Security. See section 
10l(a)(15)(H)(i)(b) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b); see also 
56 Fed. Reg. 37,175, 37,177 (1991); 57 Fed. Reg. 1316, 1318 (1992) (discussing filing sequence). 
Upon receiving DOL's certification, the employer then submits the certified LCA 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 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-lB visa petition. 20 C.F.R. § 655. 705(b); see generally 8 C.F.R. 
§ 214.2(h)( 4)(i)(B). 
We further note that the general requirements for filing immigration applications and petitions are 
set forth at 8 C.F.R. § 103. 2(a)(l) in pertinent part as follows: 
Every benefit request or other document submitted to DHS must be executed and 
filed in accordance with the form instructions . . . and such instructions are 
incorporated into the regulations requiring its submission. 
Further discussion of the filing requirements for benefit requests is found at 8 C.F.R. § 103.2(b)( l) : 
Demonstrating eligibility. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication. Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and 
other USCIS instructions. Any evidence submitted in connection with a benefit 
request is incorporated into and considered part of the request. 
The instructions for the Form 1-129 state that the petitioner must submit all required initial evidence 
along with all of the supporting documentation with the petition at the time of filing. The 
instructions also specify that an H-lB petitioner must submit evidence that an LCA has been 
notice of the filing of the LCA by posting notice of the LCA in at least two conspicuous locations in the 
employer's place(s) of business in the area of intended employment or electronically. The notice must 
contain specific information about the nonimmigrant worker(s) sought and the process for submitting 
allegations of misrepresentation or non-compliance related to the LCA. The notice must include the 
statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or 
failure to comply with the terms of the labor condition application may be filed with any office of the Wage 
and Hour Division of the United States Department of Labor." 20 C.F.R. § 655. 734. 
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certified by DOL when submitting the Form I-129. Notably, the instructions continue by specifying 
that a petition requesting an extension must be filed with evidence that DOL has certified an LCA 
for the specialty occupation which is valid for the period of time requested. 
B. Analysis 
In the instant case, the petitioner submitted the H-lB petition on August 12, 2013. The petitioner 
indicated on the Form I-129 that it intended to employ the beneficiary from September 2, 2013 to 
September 3, 2016. With the petition, the petitioner submitted an LCA 
valid from September 1, 2010 to September 2, 2013. Thus, the LCA was not valid for the requested 
dates of employment. 
The director issued an RFE, stating, inter alia, the following: 
The validity dates on the Form ETA 9035(E) Labor Condition Application (LCA) 
from the Department of Labor that you submitted have expired. Submit evidence of 
an approved LCA for the beneficiary's specialty occupation, valid for the period of 
intended employment. Eligibility must be established as of the date of filing the 
Petition for a Nonimmigrant Worker (Form I-129); therefore, the LCA must be 
certified prior to the filing of the Fmm I-129. 
In response to the director's RFE, the petitioner submitted a new LCA that 
was certified on February 21, 2014- approximately six months after the H-1B petition was filed. 
The new LCA was valid from February 15, 2014 to February 15, 2017. The petitioner did not 
provide (1) an LCA certified by DOL prior to the H-1B filing and (2) that was valid for the 
employment dates requested in the petition. 6 
In a letter submitted with the RFE response, the petitioner stated the following: 
[D]ue to the processing period exacerbated by Congressional dispute with the 
Executive, which resulted in the government shutdown, the Certified LCA that was 
current at the time the petition was submitted has lapsed. By the time we received 
your request for additional evidence, the previously filed LCA had lapsed due to 
circumstances beyond our control. 
As noted above, the petitioner submitted the H -1 B petition on August 12, 2013. We take 
administrative notice that the federal government partially shut down from October 1, 2013 to 
October 16, 2013. The H-lB petition was, therefore, submitted fifty days prior to the shutdown. 
6 In cases where evidence related to filing eligibility is provided in response to a request for evidence, 
8 C.F.R. § 103.2(b) (l2) states, in pertinent part, the following: 
Effect where evidence submitted in response to a request does not establish eligibility at the 
time of filing. A benefit request shall be denied where evidence submitted in response to a 
request for evidence does not establish filing eligibility at the time the benefit request was 
filed. 
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We are not persuaded by the petitioner's assertion that it was unable to comply with the statutory 
and regulatory provisions regarding labor condition applications prior to the partial shutdown, or 
that the partial shutdown was directly or indirectly responsible for the petitioner's failure to submit 
the required evidence with the H-1B petition. 7 The record lacks probative evidence substantiating 
the petitioner's assertions. Thus, the director properly denied the petition and the appeal must be 
dismissed. 
IV. REQUIRED WAGE 
Beyond the director's decision, we note that the petitioner stated on the Form I-129 (page 5) and on 
the H-1B Data Collection and Filing Fee Exemption Supplement (page 17) that the beneficiary 
would be paid $22,360 per year for full-time employment. The petitioner signed these documents 
on June 21, 2013. In response to the RFE, the petitioner resubmitted these documents with a 
signature date of March 18, 2014. 8 In this second submission, the petitioner again indicated (on 
pages 5 and 17) that the beneficiary would be paid $22,360 per year for full-time employment. 
In the response to the RFE, the petitioner also submitted a new LCA indicating that the proffered 
position falls under the occupational category "L egal Support Workers, All Other" at a Level I 
(entry) wage level. The petitioner claimed on this LCA that the prevailing wage for the offered 
position was $26,416 per year. Thus, the beneficiary would be paid $4,056 per year less than the 
prevailing wage as stated by the petitioner. The petitioner claimed that the source of information 
for the prevailing wage was the Office of Foreign Labor Certification (OFLC) Online Data Center 
database. 
Assuming, arguendo, that the petitioner properly selected the occupational category and wage level 
for the LCA as claimed in the RFE response, we note that a search of the OFLC Online Data Center 
database indicates that the prevailing wage for the occupational category of "L egal Support Workers, 
All Other " for Mississippi) was $3 6,878 per year at the time the 
7 Moreover, the petitioner's assertion on appeal that "the delay was exclusively the fault of USCIS" and that 
USCIS was required to promptly reject the submission is without merit. As discussed, the petitioner must 
establish that it is eligible for the requested benefit at the time of filing the benefit request, and each benefit 
request must be properly completed and filed with all initial evidence required by applicable regulations and 
other USCIS instructions. 8 C.F.R. § 103.2(b)( l). In the instant case, the H-lB petition was adjudicated 
within normal processing times. Although the petitioner could have requested expedited processing by 
submitting a Form 1-907 (Request for Premium Processing Service) along with the required fee, it did not do 
so in this case. A review of the record and the adverse decision indicates that the director properly applied 
the statute and regulations to the petitioner's case. The petitioner's attempt to shift its evidentiary burden in 
this proceeding from itself to USCIS is without merit and contrary to section 291 of the Act, 
8 u.s.c. § 1361. 
8 The petitioner improperly requested USCIS amend the petition. The regulations at 8 C.F.R. 
§ 21 4.2(h)(2)(i)(E) requires that a petitioner file an amended or new petition, with the required fee(s), to 
reflect any material changes. 
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petition was submitted (not $26,416 per year as claimed by the petitioner).9 Thus, the offered salary 
to the beneficiary was $14,518 per year less than the prevailing wage. 
Under the H-1 B program, a petitioner must offer a 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,. 
The petitioner was required to provide, at the time of filing the H-1 B petition, a valid LCA certified 
for the requested dates of employment and for the correct wage level in order for it to be found to 
correspond to the petition. To permit otherwise would result in a petitioner paying a wage lower 
than that required by section 212(n)( l) (A) of the Act.10 Here, the petitioner has not established that 
it would pay an adequate salary for the beneficiary's work, as required under the Act, if the petition 
were granted. Thus, for this reason also, the petition cannot be approved. 
V. SPECIALTY OCCUPATION 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
9 For more information regarding the wages for "Legal Support Workers, All Other" - SOC (ONET/OES 
Code) 23-2099, see http://www .flcdatacenter.com/OesQuickResults.aspx?code=23-2099& 
year=14&source=1 (last visited February 25, 2015). 
10 By attempting to submit a preexisting LCA to USCIS, it appears that the petitioner sought to impede 
efforts to verify the wages and working conditions offered to the beneficiary. Full compliance with ·the LCA 
and H- 1 B 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. 
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endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214. 2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(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 pos1t10ns 
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. 
As a threshold issue, it is noted thar 8 C.F .R. § 214.2(h)( 4 )(iii)( A) must logically be read together 
with section 214(i)( l) of the Act and 8 C.F.R. § 214. 2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F .R. 
§ 214. 2(h)( 4 )(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 20 I 
F.3d 384 , 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214. 2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)( l) of the Act and the regulation at 8 C.F.R. 
§ 214. 2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered position. See 
Royal Siam Corp. v. Chertoff, 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 
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position"). Applying this standard, USCIS regularly approves H- lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H- lB visa category. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214. 2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H- lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation .. . or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
Upon review of the record, we note that there are discrepancies in the record with regard to the 
petitioner's claims about the occupational classification and level of responsibility inherent in the 
proffered position. Notably, these material conflicts undermine the assertion that the proffered 
position qualifies as a specialty occupation under the pertinent statutory and regulatory provisions. 
More specifically, with the initial Form I-129, the petitioner submitted an LCA for the occupational 
category of "Law Clerks" - SOC (ONET/OES) code 23-2092. In response to the RFE, the petitioner 
submitted a new LCA for the occupational category of "Legal Support Worker" - SOC 
(ONET/OES) code 23-2099. The petitioner stated in a letter submitted in response to the RFE that 
the educational requirements for the duties of the position are a bachelor's degree and a juris 
doctorate in law. The petitioner reported that the beneficiary supervises staff members and 
delegates responsibilities to supervisory staff based upon their skill levels. The petitioner submitted 
a copy of the O*NET Online Summary Report for the occupational category "Lawyers" and 
claimed that it was relevant in this matter. On appeal, the petitioner asserted that "[ the] specialty 
occupation work of a law clerk is the same as that of an attorney. " 
With respect to the LCA, DOL provides specific guidance for selecting the most relevant 
Occupational Information Network (O*NET) classification code. The "Prevailing Wage 
Determination Policy Guidance" states the following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate occupational 
classification. The O*NET description that corresponds to the employer's job offer 
shall be used to identify the appropriate occupational classification . . . . If the 
employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, [the determiner] should default directly to the relevant O*NET­
SOC occupational code for the highest paying occupation. For example, if the 
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employer's job offer is for an engineer-pilot, [the determiner] shall use the education, 
skill and experience levels for the higher paying occupation when making the wage 
level determination. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
At the time of filing this petition, the prevailing wage for the occupational category "L egal Support 
Workers, All Other" - SOC (ONET/OES Code) 23- 2099, at a Level I (entry) was $36,878 per 
year.11 Further, the prevailing wage for the occupational category "L awyers" SOC (O*NET/OES) 
Code 23 -1011 at a Level I was $56,326 per year. 1 Thus, if the petitioner believed that the proffered 
position was a combination of occupations (" [the] work of a law clerk is the same as that of an 
attorney"), then according to the DOL guidance the petitioner should have chosen the relevant 
occupational category for the highest paying occupation, in this case "L awyers." 
When responding to a request for evidence (or when submitting an appeal), 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. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification for the benefit sought. 
Matter of Michelin Tire Corp., 17 I&N at 249. 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. 
Here, the petitioner has provided inconsistent information regarding the occupational category for 
the proffered position and, consequently, the nature of the position. The petitioner's failure to 
establish the substantive nature of the work to be performed by the beneficiary precludes a finding 
that the proffered position is a specialty occupation under 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 entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
or uniqueness of the proffered position, which is the focus of 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. Thus, the petitioner has not established that the proffered position satisfies 
any of the applicable provisions. For this reason also, the petition cannot be approved. 
11 
For more information regarding the prevailing wage for "Legal Support Workers, All Other" - SOC 
(ONET/OES Code) 23-2099, see http://www .flcdatacenter.com/OesQuickResults.aspx?code=23-
2099& tyear= 14&source=1 (last visited February 25, 20 15). 
12 
For more information regarding the prevailing wage for "Lawyers" SOC (ONET/OES) Code 23-1011, see 
http://www.flcdatacenter.com/OesQuickResults.aspx?code=23-l 011 & year=14&source=l (last 
visited February 25, 2015). 
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VI. ORAL ARGUMENT REQUEST 
On appeal, the petitioner requested an oral argument stating that "[ t]he facts of this case involve 
questions of law and fact that cannot be adequately expressed in writing." Specifically, the 
petitioner stated that "an oral argument is necessary to provide a much detailed explanation on the 
issue of how [USCIS] should treat cases where H-1B visa was current at the time [extension of stay 
request] was received, but lapsed due to processing delay." 
USCIS has the sole authority to grant or deny a request for oral argument and will grant argument 
only in cases involving unique factors or issues of law that cannot be adequately addressed in 
writing. See 8 C.F.R. § 10 3. 3(b). Upon review, the written record of proceeding fully represents 
the facts and issues in this matter, and there is no explanation why any facts or issues in this matter, 
whether novel or not, have not and cannot be adequately addressed in writing. Consequently, we 
deny the request for oral argument. 
VII. EQUITAB LE TOLLING 
The petitioner asserts that USCIS should apply "equitable tolling" to stay the requirement of 
8 C.F.R. §2 14.2(h)( 4)(i). However, our jurisdiction is limited to that authority specifically granted 
to it by the Secretary of the United States Department of Homeland Security. See DH S Delegation 
Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2. 1 (2004). Specifically, our 
jurisdiction is limited to those matters described at 8 C.F.R. § 103. 1(f)( 3)(E)(iii) (as in effect on 
February 28, 200 3). Accordingly, we have no authority to adjudicate equitable considerations that 
may be involved in our dismissal of this appeal. 
IX. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 145 (noting that the 
AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683 ; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 118 3 (D.C. Cir. 2003) 
(" When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition must be denied for the above stated reasons, with each considered as an independent 
and alternate basis for the decision.13 In visa petition proceedings, it is the petitioner's burden to 
13 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
(b)(6)
NON-PRECEDENTDEC�ION 
Page 12 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 2 6 I&N Dec. at 128. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding.