dismissed H-1B Case: Law

(b)(6)
DATE: FEB 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and lmrnigTation Services 
Administrative Appeals Oflice (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 10l (a)(I5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110 1 (a)(1 5)(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 a/sQJLC.F.R. § 1 03.5. Do not file a motion directly with the AAO. 
/.-----
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dministrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
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 01(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 (1 ) 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; and (2) the petitioner had not established that the 
proffered position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. 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 controlling precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 
375-376 (AAO 201 0), 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. § 103.2(b)( l) . In visa petition proceedings, the burden of proving 
1 Initially, the petitioner designated the proffered position on the Form 1-1 29 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 variance in the petitioner's job title was provided. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 38 1 F.3d 14 3, 14 5 (3d Cir. 2004). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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 APPLICATION AND H-1B VISA PETITION PROCESS 
A. Legal Framework 
In pertinent part, the Act defines an H -1 B 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)(15)(H)(i)(b) of the Act (emphasis added).3 
In turn, section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), requires an employer to 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 experience 
and qualifications who are performing the same services.4 See 20 C.F.R. § 655.731(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 2371236, at *8 (Dep't 
of Labor Admin. Rev. Bd. July 30, 2009). 
Implemented through the LCA certification process, section 212(n)(1) 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 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 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. § 655.731(a)(2)(ii). 
5 The employer must provide notice that it intends to hire an H- 1 B nonimmigrant worker by either providing 
notice of the LCA to the bargaining representative, or where there is no bargaining representative, providing 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
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)(1); 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 
101(a)( l 5)(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 regula tions and 
other USCIS instructions. 
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-1B petitioner must submit evidence that an LCA has been 
certified by DOL when submitting the Form 1-129. Notably, the instructions continue by specifying 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
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-1B petition on October 16, 2013. The petitioner 
indicated on the Form I-129 that it intended to employ the beneficiary from November 1, 2013 to 
November 1, 2016. With the petition, the petitioner submitted an LCA , valid 
from September 1, 2010 to September 1, 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 Form I-129. 
Thus, the petitioner was put on notice that additional evidence was required and given a reasonable 
opportunity to provide it for the record before the visa petition was adjudicated. 
In response to the director's RFE, the petitioner submitted a new LCA that 
was certified on February 21, 2014 - over four months after the H-1B petition was filed. The new 
LCA was valid from February 15, 2014 to February 15, 201 7. 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. 
In a letter submitted with the RFE response, the petitioner stated the following: 
In response to your request for an LCA that is certified prior to the filing of Form 
I-129, we are requesting that newly certified LCA which predates amended form 
I -129 be accepted as an amended petition pursuant to 8 C.F .R. 214.2(h)(2)(E). 
The petitioner shall file an amended or new petition, with fee, with the Service 
Center where the original petition was filed to reflect any material changes in the 
terms and conditions of employment or training or the alien's eligibility as specified 
in the original approved petition. An amended or new H-l C, H-lB, H-2A, or H-2B 
petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-1 B petition, this requirement includes a new labor 
condition application. 
8 C.F.R. $ 214.2(h)( 2)(E) 
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NON-PRECEDENT DECISION 
In the alternative, Petitioner would like to point out that the fact that the case load of 
the firm has been so heavy. Petitioner and beneficiary have been especially involved 
in high pressure and stressful international oil and gas litigation with frequent 
deadlines. In the course of trying to meet the deadline of 1111/2013, Petitioner 
inadvertently omitted to file an approved LeA prior to submitting the original Form 
I-129. Petitioner's position is that the requirement that the LeA be certified prior to 
the filing of Form I -12 9 is not a jurisdictional requirement and can therefore be 
waived depending upon equitable circumstances .... 
In the appeal brief, the petitioner recognizes that it erred but claims that the "mistake was mere 
inadvertence and not willful." The petitioner requests that the omission be overlooked because it 
was busy and had other competing deadlines. Thus, the petitioner acknowledges that it did establish 
eligibility for the requested benefit by providing required evidence in accordance with the 
applicable statutory and regulatory provisions. 
users regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 e.F .R. 103 .2(b )( 1 ). 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. 
eomm'r 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USers requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. eomm'r 1998). 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. 
8 e.F.R. § 103.2(b)(12). 
The petitioner submitted the H -1 B petition on October 16, 2013 without required evidence. In 
response to the RFE, the petitioner attempted to submit an "amended petition"; however, to file an 
amended or new petition, the petitioner must properly submit the submission in accordance with the 
applicable provisions and Form I-129 instructions, along with the required fee(s)- which it did not 
do here. 6 Further, doing so would not "cure" the instant petition. Rather, each petition filing is a 
separate proceeding with a separate record.7 See Hakimuddin v. Dep't of Homeland Sec., No. 4:08-
6 The request to reconsider the original petition as an amended petition was rejected by the director. 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. Here, the petitioner submitted its request in response to the 
director's RFE, rather than properly filing the submission with USCIS and including the required fee(s) in 
accordance with the regulations and Form I-129 instructions. 
Further, on the new Form 1-1 29 and new LCA, the petitioner marked that the basis for the classification 
request was "Continuation of previously approved employment without change with the same employer" 
rather than "Amended petition." Thus, contrary to the petitioner's assertion, the submission does not indicate 
that it is for an amended petition. 
7 Moreover, the petitioner's assertion on appeal that the delay was the fault of USCIS and that the "conduct 
on the part of USCIS unfairly prejudiced the Petitioner's application" 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, 
(b)(6)
NON-PRECEDENTDEC§JON 
Page 7 
cv-1261, 2009 WL 497141, at *6 (S.D. Tex. Feb. 26, 2009); see also Larita-Martinez v. INS 220 
F.3d 1092, 1096 (9th Cir. 2000). 
Moreover, we observe that the new LCA submitted in response to the RFE contains a number of 
deficiencies. For example, an authorized official of the petitioner has not signed and dated the 
Declaration of Employer (section K), as that section requires in order to obtain (1) the petitioner's 
attestation that the statements in the LCA are true and correct, that the petitioner "agree[s] to 
comply with the [LCA] Statements as set forth in the Labor Condition Application - General 
Instructions Form ETA 9035CP and with the U.S. Department of Labor regulations (20 CFR part 
655, Subparts H and I)," and (2) the petitioner's agreement to make the LCA, its supporting 
documentation, and other records available to DOL. 
It is noted that on the first page of the new LCA, the petitioner affirmatively checked the box 
confirming that that it "understood and agreed" to take the listed actions within the specified times 
and circumstances. The listed actions are the following: 
• Print and sign a hardcopy of the electronically filed and certified LCA; 
• Maintain a signed hardcopy of this LCA in my public access files; 
• Submit a signed hardcopy of the LCA to the United States Citizenship and 
Immigration Services (USCIS) in support of the 1-129, on the date of the 
submission of the I-129; 
• Provide a signed hardcopy of this LCA to each H-1 B nonimmigrant who IS 
employed pursuant to the LCA. 
In addition, in the section "Signature Notification and Complaints" (Section N, page 5), the 
following notice is provided: 
The signature and dates signed on this form will not be filled out when electronically 
submitting to the Department of Labor for processing, but MUST be completed 
and each benefit request must be properly completed and filed with all initial evidence required by applicable 
regulations and other USC IS instructions. 8 C.F .R. § I 03 .2(b )(I). 
The petitioner suggests that there were delays by USCIS in the processing of the H-1 B petition. Upon 
review, we note that the 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. We further observe that the petitioner submitted the 
Form 1-1 29 petition on October 16 , 201 3, obtained a new LCA approximately four months later (on February 
21 , 20 14), and waited approximately two months to respond to the director's RFE. 
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. § 13 61 . 
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when submitted non-electronically. If the application is submitted electronically, 
any resulting certification MUST be signed immediately upon receipt from the 
Department of Labor before it can be submitted to US CIS for processing. 
DOL and DHS regulations require that the beneficiary's employer or a representative of the 
employer submit a copy of the signed, certified Form ETA 9035/ETA 9035E to USCIS in support 
of the Form I-129 petition. 
The DOL regulation at 20 C.F. R. § 655.705(c) states, in pertinent part, the following: 
(1) The employer shall submit a completed labor condition application (LCA) on Form 
ETA 9035E or Form ETA 9035 in the manner prescribed in § 655.720. By 
completing and submitting the LCA, and by signing the LCA, the employer makes 
certain representations and agrees to several attestations regarding its 
responsibilities, including the wages, working conditions, and benefits to be provided 
to the H-1 B nonimmigrants (8 U.S.C. 1182(n)(l)); these attestations are specifically 
identified and incorporated by reference in the LCA, as well as being set forth in full 
on Form ETA 9035CP ... . The employer reaffirms its acceptance of all of the 
attestation obligations by submitting the LCA to the U.S. Citizenship and 
Immigration Services (formerly the Immigration and Naturalization Service or INS) 
in support of the Petition for Nonimmigrant Worker, Form I-129, for an H-lB 
nonimmigrant. See 8 CFR 214.2(h)(4)(iii)(B)(2), which specifies the employer will 
comply with the terms of the LCA for the duration of the H-lB nonimmigrant's 
authorized period of stay. 
* * * 
(3) The employer then may submit a copy of the certified, signed LCA to DHS with a 
completed petition (Form 1-129) requesting H-lB classification. 
Furthermore, the regulation at 20 C.F.R. § 655.730(c), in pertinent part, states the following: 
(2) Undertaking of the Employer. In submitting the LCA, and by affixing the signature 
of the employer or its authorized agent or representative on Form ETA 9035E or 
Form ETA 9035, the employer (or its authorized agent or representative on behalf of 
the employer) attests the statements in the LCA are true and promises to comply with 
the labor condition statements (attestations) specifically identified in Forms ETA 
9035E and ETA 9035, as well as set forth in full in the Form ETA 9035CP. 
(3) Signed Originals, Public Access, and Use of Cert?fied LCAs .... For H-lB visas 
only, the employer must submit a copy of the signed, certified Form ETA 9035 or 
ETA 9035E to the U.S. Citizenship and Immigration Services (USCIS, formerly 
INS) in support of the Form I-129 petition, thereby reaffirming the employer's 
acceptance of all of the attestation obligations in accordance with 8 CFR 
214.2(h)( 4)(iii)(B)(2). 
(b)(6)
NON-PRECEDENTDEC§ION 
Page 9 
As noted in the DOL regulations cited above, 8 C.F.R. § 214.2(h)(4)(iii)(B)(2), states that the 
petitioner will provide " [a] statement that it will comply with the terms of the labor condition 
application for the duration of the alien's authorized period of stay." 
The regulation at 8 C.F.R. § 103.2(a)(2), concerning the requirement of a signature on applications 
and petitions of which the LCA is a part according to 8 C.F .R. § 103 .2(b )( 1 ), states the following: 
An applicant or petitioner must sign his or her benefit request. However, a parent or 
legal guardian may sign for a person who is less than 14 years old. A legal guardian 
may sign for a mentally incompetent person. By signing the benefit request, the 
applicant or petitioner, or parent or guardian certifies under penalty of perjury that 
the benefit request, and all evidence submitted with it, either at the time of filing or 
thereafter, is true and correct. .. . 
Based on DOL and DHS filing requirements, the LCA that is filed with USCIS in support of an 
H-1B petition must be certified by DOL, signed by the beneficiary's employer, and submitted to 
USCIS on the date the Form I-129 is filed. Here, the petitioner submitted a copy of a certified, but 
unsigned, Form ETA 9035/9035E after the petition was filed that is not valid for the entire period 
requested in the petition. Thus, the petitioner did not comply with the regulatory requirements for 
H-1B visa classification as set forth at 8 C.F.R. § 103.2(a)(2), 8 C.F.R. § 214.2(h)(4)(iii)(B)(2), 
8 C.F.R. § 655.730(c)(2) and (3). Accordingly, 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 October 11, 2013. In response to the RFE, the petitioner resubmitted these documents with a 
signature date of May 14, 2014. 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 submitted a new LCA indicating that the proffered 
position falls under the occupational category "Legal 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. The petitioner claimed that the source of information for the 
prevailing wage was the Office of Foreign Labor Certification (OFLC) Online Data Center database. 
Thus, the H-1B petition indicates that the beneficiary would be paid $4,056 per year less than the 
prevailing wage (as stated by the petitioner). 
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 "Legal Support Workers, 
All Other" for Mississippi) was $36,878 per year at the time the 
(b)(6)
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Page 10 
petition was submitted (not $26,416 per year as claimed by the petitioner).8 Thus, the offered salary 
to the beneficiary would be $14,518 per year less than the prevailing wage. 
Under the H-1B 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-1B 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.9 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 -1 B 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 
8 For more information regarding the wages for "Legal Support Workers, All Other" - SOC (ONET/OES 
Code) 23-2099, see http://www .tlcdatacenter.com/OesQuickResults .aspx?code=23-2099<'i & 
year=1 4&source=l (last visited February 25, 2015). 
9 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-IB visa petition 
approval. 
(b)(6)
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NON-PRECEDENT DECISION 
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 that .8 C.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)( l) of the Act and 8 C.P.R. § 2l4.2(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.P.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.P.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.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.P.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-IB 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 1-129, 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 at a Level I ( entry).10 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 
10 
The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage 
levels. A Level I wage rate is described by DOL as follows: 
Leve·J I (entry) wage rates are assigned to job offers for beginning level employees who have only 
a basic understanding of the occupation. These employees perform routine tasks that require 
limited, if any, exercise of judgment. The tasks provide experience and familiarization with the 
employer's methods, practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close supervision and receive 
specific instructions on required tasks and results expected. Their work is closely monitored and 
reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, 
or an internship are indicators that a Level I wage should be considered. 
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. 
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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. 
In addition, the petitioner submitted a business plan. In describing its business, the petitioner 
indicated that the two partners of the firm, "are assisted by two attorneys who are associates (Legal 
Support Workers-Law Clerks)." The petitioner further stated that it "will continue to service its 
current clientele using current personnel of two lawyers, three intake assistants and one receptionist 
secretary" and that the "addition of two law clerks will be exclusively devoted to rapid development 
of its niche area of Oil and Gas supervision and preparation of documents and other materials 
needed in other areas of practice." Under "Personnel Plan," the petitioner states "[t]wo law clerks 
working full-time as Associate Attorneys shall be hired by [the petitioner], upon approval by 
[USCIS]." 
On appeal, the petitioner asserted that "[the] specialty occupation work of a law clerk is the same as 
that of an attorney." The petitioner claimed that the "research and work done by a trained attorney 
is completely different than a paralegal or legal assistant." The petitioner further asserted that the 
"duties of a law clerk are similar to duties done by judicial clerks." The petitioner emphasized that 
the beneficiary has a law degree from and is licensed to practice as an attorney 
in the state of Florida. 
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 
em ploye r's job offer is for an engineer-pilot, [the determ iner] 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 "Legal 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 "Lawyers" SOC (O*NET/OES) 
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-
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Code 23-1011 at a Level I was $56,326 per year.12 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 "Lawyers." 
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. 
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 [US CIS] should treat cases where H -1 B visa was current at the time [extension of stay 
request] was received, but lapsed due to processing delay." 
users 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. § 103.3(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, 
2099& &year= 14&source= 1 (last visited February 25, 20 15 ). 
12 
For more information regarding the prevailing wage for "Lawyers" SOC (ONET/OES) Code 23-101 1, see 
http://www .flcdatacenter.com/OesQuickResu lts.aspx?code=23-l 01 1 & year= 14 &source= I (last 
visited February 25, 201 5). 
(b)(6)
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whether novel or not, have not and cannot be adequately addressed in writing. Consequently, we 
deny the request for oral argument. 
VII. EQUITABLE TOLLING 
The petltwner 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 DHS 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, 2003). 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), ajj'd, 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, ajj'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (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 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. at 128. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
13 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
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.