dismissed H-1B Case: Management

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 25334870 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Date : MAY 08, 2023 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 10l(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 petition, concluding that the record did not 
establish that the job offered qualifies as a specialty occupation under section 10l(a)(l5)(H)(i)(b) of 
the Act. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will dismiss the appeal 
I. LABOR CONDITION APPLICATION 
Before addressing the basis upon which this petition was denied-the Director's determination that 
the proffered position is not a specialty occupation-we will first discuss an issue we have identified 
on appeal that precludes the petition's approval. As we will discuss, the Petitioner has not established 
that they submitted a labor condition application (LCA) that corresponds to the H-lB petition it 
purports to support. 
The Petitioner is offering the Beneficiary the position of general manager. The petition included an 
LCA certified for a position located within the "General and Operations Managers" occupational 
category corresponding to the Standard Occupational Classification (SOC) Occupational Information 
Network (O*NET) code 11-1021.00. 
A certified LCA memorializes the attestations a petitioner makes regarding the employment of the 
noncitizen in H-1B status. 1 Whilst the U.S. Department of Labor (DOL) is responsible for certifying 
that the Petitioner has made the required LCA attestations, users evaluates whether the submitted 
LCA corresponds with the Petitioner's H-1B petition. 20 C.F.R. § 655.705(b) ("DHS determines 
whether the petition is supported by an LCA which corresponds with the petition .... "); Matter of 
Simeio Solutions, 26 r&N Dec. 542, 546 n.6 (AAO 2015). See also ITServe Alliance, Inc. v. DHS, 
590 F. Supp. 3d 27, 40 (D.D.C. 2022) (noting 20 C.F.R. § 655.705 requires USCrS "to check that the 
[H-1B] petition matches the LCA"); see also United States v. Narang, No. 19-4850, 2021 WL 
3484683, at *1 (4th Cir. Aug. 9, 202l)(per curiam)("[USCrS] adjudicators look for whether [the] 
employment [listed in the H-1 B petition] will conform to the wage and location specifications in the 
LCA"). 
Most importantly here, the Petitioner attested in the LCA that they would protect workers from wage 
abuse by paying a required wage no lower than the higher of the actual or prevailing wage at Level r 
for the occupational classification in the area of intended employment to employees with similar 
duties, experience, and qualifications. The DOL guidance provides a five-step process for determining 
the appropriate wage level out of the four distinct DOL wage levels (I to IV) based on the duties and 
requirements for the employer's proffered position to the general duties and requirements for most 
similar occupations as provided by O*NET. The correct wage level is determined by evaluating 
whether the wage indicated on the H-1B petition corresponds with the wage level on the LCA using 
DOL's guidance at U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination 
Policy Guidance (rev. Nov. 2009), available at 
https://www.flcdatacenter.com/download/npwhc _guidance _revised_ 11_ 2009 .pdf DOL' s guidance 
requires selecting the correct O*NET occupational classification and then comparing the experience, 
education, special skills and other requirements, and supervisory duties described in the O*NET entry 
to those required by the employer for the proffered position. 2 A point is assigned for each instance of 
the petitioner's requirements exceeding the experience, education, special skills and other 
requirements contained in the O*NET standard. The number of points corresponds to the assigned 
wage level. Accumulation of more than four points defaults to the Level IV wage level. 
The Petitioner here improperly designated the proffered position as a Level I wage. The Petitioner 
selected wage Level I on the LCA, but the record of proceeding reflects that the petition requires "a 
master's degree in business administration" as a minimum educational requirement for entry into the 
proffered position. Appendix D of the DOL guidance lists a minimum education requirement of a 
bachelor's degree for the General & Operations Manager category based on categorization in 
Education and Training Category Code four. Education and Training Category Code four provides 
minimum prerequisites not in excess of a bachelor's or higher degree with work experience. Code 
four groupings are typically managerial in nature and require experience in a related non-managerial 
position. So, the Petitioner's enhanced educational requirement requires the addition of a point per 
the DOL's guidance. 
1 See 20 C.F.R. § 655.734(d)(l)-(6). 
2 A wage level is relevant in the context of H-1 B petition adjudication because we must evaluate whether an LCA 
corresponds to the H-lB petition with which it is submitted. A wage level is not dispositive to a determination of whether 
a proffered position is a specialty occupation under section 214(i)(l) of the Act. A position with an entry-level, or Level 
I wage is not per se disqualified from being considered a specialty occupation. 
2 
And the Petitioner's experience requirement exceeds the usual requirement contained in Appendix D 
and in Education and Training Category Code four. The Petitioner states that they require three years 
of experience for the general manager position. The "General and Operations Managers" category is 
contained in JobZone 4 of O*NET. A Job Zone is a group of occupations that are similar in how much 
education people need to do the work, how much related experience people need to do the work, and 
how much on-the-job training people need to do the work. The DOL guidance reflects that experience 
not in excess of two years is normal for jobs contained in JobZone 4. So the Petitioner's enhanced 
experience requirement requires the addition of a point per the DOL's guidance. 
The job for which the LCA was certified consequently warrants, at minimum, a two-level increase in 
the wage from the default Level I to Level III due to the Petitioner's enhanced educational and 
experiential requirements. The Level I wage obligation is $67,121 less than the Level III wage 
obligation, representing an underpayment by 51 %. 
As the LCA in the record was certified with a Level I wage, it is not in correspondence with the 
proffered position. An H-1B petition cannot be approved without a corresponding LCA. See section 
212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). So the petition is unapprovable as filed, irrespective of 
whether the Petitioner can demonstrate that the proffered job is a specialty occupation under section 
214(i)(l) of the Act and the regulations at 8 C.F.R. § 214.2(h)(4)(ii). 
The dispositive nature of this deficiency does not require us to evaluate the matter before us any 
further. However, for the reasons below, the petition would not have been approved even if the 
Petitioner had submitted a corresponding LCA with the Form I-129 because the proffered job is not a 
specialty occupation under section 214(i)(l) of the Act and the regulations at 8 C.F .R. § 214.2(h)( 4)(ii). 
II. SPECIAL TY OCCUPATION 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
proffered position qualifies as a specialty occupation. The record does not sufficiently establish the 
substantive nature of the proffered position, which precludes us from determining that the proffered 
position qualifies as a specialty occupation under sections 10l(a)(15)(H)(i)(b), 214(i)(l) of the Act, 8 
C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
A. Legal Framework 
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) the 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) adds a non-exhaustive list of fields endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for 
entry into the particular position; 
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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. 
The statute and regulations must be read together to make sure the proffered position meets the 
definition of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 
(holding that construction of language which takes into account the design of the statue as a whole is 
preferred); see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 
(1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations 
separately could lead to scenarios where a petitioner satisfies a regulatory factor but not the definition 
of specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 (5th 
Cir. 2000). The regulatory criteria read together with the statute gives effect to the statutory intent. 
See Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 
Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
So we construe the term "degree" in 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 
supporting the statutory definition of specialty occupation. 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 position"). USCIS' application of this 
standard has resulted in the orderly approval of H-1B petitions for engineers, certified public 
accountants, information technology professionals, and other occupations commensurate with what 
Congress intended when it created the H-1B category. 
And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of a petitioner's business operations 
along with the specific duties of the proffered job are also considered. We must evaluate the 
employment of the individual and determine whether the position qualifies as a specialty occupation. 
See Defensor, 201 F.3d 384. So a petitioner's self-imposed requirements are not as critical as whether 
the nature of the position the petitioner offers requires the application of a theoretical and practical 
body of knowledge gained after earning the required baccalaureate or higher degree in the specific 
specialty required to accomplish the duties of the job. 
B. Analysis 
We are unable to ascertain the position's substantive nature due to the vague and inconsistent 
description of the Petitioner's proffered position and its job duties. And if we cannot ascertain the 
position's actual, substantive nature, then we cannot determine whether it satisfies at least one of the 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). We therefore agree 
with the Director that the Petitioner has not established that the position is a specialty occupation. 
4 
The Petitioner, founded in 2014, is a 10-person limited liability company in the business of purchasing 
and recycling scrap metal. It seeks to employ the Beneficiary as a general manager at its recycling 
facility. 
The proffered job duties the Petitioner submitted with the pet1t10n were overbroad and lacked 
sufficient detail to evaluate the nature of the proffered job. The nature of the vague duties obscured 
whether the proffered job was a specialty occupation. The Director requested additional evidence 
because the Petitioner's duties were generalized and did not provide sufficient information to assess 
what the actual occupation is. In response to the request for evidence (RFE), the Petitioner provided 
significantly different job duties that remained vague and inconclusive as to whether the Petitioner's 
proffered position is a specialty occupation. 
An RFE is an opportunity for a petitioner to clarify their eligibility for the benefit they seek. 8 C.F.R. 
§ 103.2(b )(8). But it is not an invitation to redesignate or otherwise materially change the job the 
proffered job. A petitioner must demonstrate eligibility on the date of filing. 8 C.F.R. § 103.2(b)(l). 
We observe material unexplained differences when we compare and contrast the Petitioner's job duties 
submitted with the petition to those submitted with the RFE response. In the petition, the Petitioner 
vaguely stated that the general manger would oversee overall quality of operations, develop new 
markets and management alignments, adhere to the company's budget and strict labor compliance, 
drive down costs through generating operations, develop and maintain client relationships, correct 
problems, and ensure client satisfaction, and hire, train, and develop a management team composed of 
direct reports. 
But, in the RFE response, the Petitioner significantly departed from this job description. The Petitioner 
attempted to step away from the vague job duties provided in the petition by providing new duties in 
their RFE response. The new duties also provide a percentage breakdown of the individual 
components of the proffered job duties. The Petitioner stated for the first time in the RFE response 
that the general manager would be required to formulate policies, plan the use of materials and human 
resources, examine, analyze, and interpret quarterly records and financial statements, and facilitate 
internal auditing. But these duties were alternatively wholly and in part verbatim extracts from job 
duties contained in O*NET for the general and operations manager category. O*NET duties do not 
have the detailed substance to determine whether a position's duties comprise a specialty occupation. 
And the duties the Petitioner submitted with the RFE response described duties which ventured away 
from the "General and Operations Managers" O*NET category the Petitioner has selected for their 
proffered position. Specifically, the duties require managing plant safety, product quality and 
performing market research comprising a significant 35% of the job duties. These duties are more 
appropriately classified with other job categories, such as occupational health and safety specialists 
(plant safety), 3 validation engineers (product quality), 4 and market research analysts (market research 
and new market identification). 5 
3 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Occupational Health and Safety 
Specialists (Sept. 8, 2022), https://www.bls.gov/ ooh/healthcare/ occupational-health-and-safety-specialists-and­
technicians.htm 
4 O*NET Summary Report for "Validation Engineers," https://www.onetonline.org/link/summary/l 7-2112.02 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Market Research Analysts (Feb. 6, 
2023), https: //www. bls. gov/ ooh/business-and- financial/market-research-analysts .htm 
5 
The Petitioner's new duties presented at RFE, sourced directly from the O*NET entry for "General 
and Operations Managers," are considerably doubtful when evaluated in combination with a line and 
block organizational chart submitted by the Petitioner with the initial petition. The line and block 
organizational chart reflected that employees in the functions of yard operations, logistics and 
purchases/sales were subordinate to the general manager. A portion of the general manager's time 
(15%) was dedicated to the hiring, training, and development of the management team. But there were 
no management level employees subordinate to the general manager according to the line and block 
chart. And the line and block organizational chart tended to reflect that the Petitioner's general 
manager position was more akin to a first line supervisor than a general and operations manager. 
Instead of providing an explanation for how the duties of the proffered position function with the 
Petitioner's business, the new duties raised new unresolved questions about the proffered job's nature 
and function because of how different they were from the duties the Petitioner had initially provided. 
In fact, 50% of the duties the Petitioner provided in the RFE response are contained in job categories 
other than the "General and Operations Manager" category selected by the Petitioner. The job 
category the Petitioner selected here does not bind these diverse job classifications under a single 
classification. So we are unable to determine the substance and nature of the Petitioner's proffered 
job because we are unable to assess, categorize, and comprehend the type and complexity of the work 
described in the proffered job duties. And this is made especially more difficult when the job duties 
provided are vague and inconsistent, as is the case here. This vagueness obscures whether the 
proffered job is a specialty occupation. 
Our doubts about the accuracy of the job duties go directly to the heart of whether the proffered job is 
a specialty occupation. And any evidence rooted in the job duties is considerabl weaker as a result. 
The Petitioner provided a position evaluation with the RFE response from 
professor and chair in the department of business information systems at _____ University. 
The writer based their opinion on the nonspecific job duties provided by the Petitioner. So this opinion 
statement based on the Petitioner's various job descriptions was unreliable. And although the writer 
references that they conducted research in combination with a review of the job description provided 
by the Petitioner, they do not specify what that research is or what authority it constituted in their 
conclusions regarding the Petitioner's proffered position. There is no summary of points of authority 
or citation references to get a full picture of the writer's opinion. We may use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). But an opinion statement is afforded less weight by us where there is cause to question or 
doubt the opinion, or if it is not in accord with other information in the record as is the case here due 
to the divergent job descriptions the Petitioner has provided at different stages of the prior proceedings. 
In summary, we are unable to ascertain the proffered position's substantive nature due to the 
deficiencies outlined above. And since we cannot determine its substantive nature, we cannot 
conclude whether the position qualifies as a specialty occupation under any of the criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
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III. CONCLUSION 
It is the Petitioner's burden to provide competent and credible evidence regarding the nature of its 
proffered position. The Petitioner has not met their burden for the reasons set forth above. This appeal 
must be dismissed. 
ORDER: The appeal is dismissed. 
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