dismissed H-1B Case: Music Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 9662069 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 25, 2020 
The Petitioner, a small music production company, seeks to employ the Beneficiary temporarily as a 
"public relations associate" under the H-18 non immigrant classification for specialty occupations.1 The 
H-18 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the position requirements were sufficient to qualify 
for the H-18 program, and that the Petitioner did not meet any of the standards at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. The Director 
denied the petition based on multiple independent grounds: (1) the requirements to enter the position 
did not satisfy the broader H-18 requirements, and (2) it did not establish that the offered position 
qualifies as a specialty occupation under any of the four regulatory criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l)-(4). Each of these grounds would stand as an independent basis for a denial. 
Therefore, the appellant here, must demonstrate that both of these stated grounds for the denial was 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
incorrect. However, the Petitioner only addresses item 2 listed above without even making a reference 
to item 1. Therefore, the Petitioner has abandoned its eligibility claims under item 1, 4, 5 
As a result, even if the Petitioner overcame the issues it addresses within the appeal brief (eligibility 
under the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)), it still would not demonstrate that the petition 
should be approved. When an appellant fails to properly challenge one of the independent grounds 
upon which the Director based their overall determination, the filing party has abandoned any 
challenge of that ground, and it follows that the Director's adverse determination will be affirmed. It 
is unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal. 6 
Consequently, we will briefly evaluate the correctness of the Director's conclusion on the Petitioner's 
stated position prerequisites to determine whether the petition should remain denied. 
Within the denial, the Director stated the Petitioner presented minimum entry requirements for the 
position that were generic fields of study. On that point, the Petitioner stated the position required a 
bachelor's degree in public relations or a related field with a concentration in the music industry. We 
note other overarching eligibility issues as it relates to the Petitioner's position requirements: a 
significant change in the position's responsibilities. The Petitioner initially stated the position was 
comprised of several duties that required the candidate's fluency in a foreign language. The Director's 
request for additional evidence (RFE) noted that this foreign language requirement resulted in the 
wage level designation on the labor condition application (LCA) being incorrect, which would result 
in the Petitioner paying the Beneficiary a lower wage than U.S. workers performing similar work, and 
that the petition could not be approved. 
In response, the Petitioner removed almost all of the elements from the position's duties that related 
to fluency in Japanese. We consider this to be a material change to the position, especially considering 
the Petitioner's intent was to "become better known among music fans and performers in Japan, among 
the Japanese community in~ t· and his other stated purpose for the position, "Expanding my 
activities in Japan and with l·s Japanese community is a major focus and objective of my 
current activities." 
Within the RFE response, the Petitioner simply stated he was eliminating any reference to the use of 
the Japanese language from the job description to avoid any misunderstanding. Although the 
Petitioner may omit any element from a job description, that act does not persuade us that the actual 
4 See Matter of Zhang, 27 l&N Dec. 569 n.2 {BIA 2019) (finding that an issue not appealed is deemed as abandoned); 
Matter of Valdez, 27 l&N Dec. 496, 496 n.1 (BIA 2018); Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012); Matter 
of J-Y-C-, 24 l&N Dec. 260,261 n.1 {BIA 2007); Matter of Cervantes, 22 l&N Dec. 560, 561 n.1 {BIA 1999) Matter of 
Edwards, 20 l&N Dec. 191, 196-97 n.4 (BIA 1990). See also Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th 
Cir. 2005). 
5 The Director also briefly mentioned other reasons why the petition could not be approved in the denial decision. 
6 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible); Matter of M-A-S-, 24 l&N Dec. 762, 767 
n.2 (BIA 2009) (generally finding that a waived ground of ineligibility may form the sole basis for a dismissed appeal). 
See also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 {11th Cir. 2014); United States v. Cooper, No. 17-11548, 
2019 WL 2414405, at *3 (11th Cir. June 10, 2019); McCray v. Fed. Home Loan Mortg. Corp., 839 F.3d 354, 361-62 (4th 
Cir. 2016); In re Under Seal, 749 F.3d 276, 293 (4th Cir. 2014) (finding "an appellant must convince us that every stated 
ground for the judgment against him is incorrect."); United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). 
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performance in that position will no longer include that absent factor. This is especially the case here 
where the absent factor was clearly presented as a major focus and objective of the Petitioner's current 
and future activities. 
To allow such incongruencies to pass unchallenged would serve to undermine the concept that the 
burden rests with a petitioner to provide credible and consistent material that preponderantly supports 
its eligibility. 7 A petitioner must establish eligibility at the time it files the nonimmigrant visa 
petition.8 U.S. Citizenship and Immigration Services (USCIS) may not approve a visa petition at a 
future date after a petitioner or a beneficiary becomes eligible under a new set of facts.9 A petitioner 
may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to USCIS requirements.10 If a petitioner is notified of a 
deficiency in its claims or its evidence, new claims or new material that greatly differs from that 
previous presented without a satisfactory explanation, will not carry sufficient evidentiary weight if 
the preponderant reasoning behind the change was to remedy a shortcoming.11 This aspect, by itself, 
precludes this petition's approval. 
Additionally, we determine that the petition cannot be approved for a separate reason: The Petitioner 
has not demonstrated that its position requirements and the Beneficiary's degree are aligned. The 
Director briefly noted this shortcoming but did not fully explain her reasoning, so we will offer a more 
detailed explanation of this issue here. The Petitioner required a bachelor's degree in public relations 
or a related field with a concentration in the music industry while the Beneficiary does not possess any 
public relations degree. Instead, the Petitioner provided the Beneficiary's transcripts reflecting a 
Bachelor of Arts in Music, majoring in the music industry. The Petitioner has not established that the 
degree the Beneficiary attained equates to a bachelor's degree in public relations. 
We reviewed the opinion letter the Petitioner offered from.__ ______ ____. an associate 
professor atl I University. In his letterJ I listed several knowledge-sets and skills 
learned in a public relations bachelor's degree program that he posits are necessary to perform the 
duties of the proffered position. An account of those knowledge-sets consisted of: media research 
and writing, public relations and promotional strategy, rhetoric and social influence, organizational 
communication, relationship marketing and marketing methodologies, business and technical writing, 
and public opinion and socialization. However, what is lacking from I l's letter is any 
analysis of the specific courses the Beneficiary completed when attaining her Bachelor of Arts in 
Music, that also discussed how that coursework provided her with the necessary knowledge and skills 
to perform in the position. 
7 See section 291 of the Act; Matter of Soo Hoo, 11 l&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not 
established eligibility by a preponderance of the evidence because the submitted evidence was not credible); see also 
Chawathe, 25 l&N Dec. at 376 (discussing the necessity that evidence be relevant, probative, and credible). 
8 8 C.F.R. § 103.2(b)(1), (12). 
9 Matter of Michelin Tire Corp., 17 l&N Dec. 248,249 (Reg'I Comm'r 1978). 
10 See Matter of lzummi, 22 l&N Dec. 169, 175 (Assoc. Comm'r 1998). 
11 Cf. Baldwin Dairy, Inc. v. United States, 122 F. Supp. 3d 809, 816 (W.D. Wis. 2015) (concluding we were justified in 
questioning a petitioner's motives and whether the company simply amended submitted evidence for the sole purpose of 
establishing eligibility). 
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Considering the Beneficiary does not possess the Petitioner's required degree (a bachelor's in public 
relations), this is a significant shortcoming that undermines the Petitioner's eligibility claims. In other 
words, the record does not demonstrate that the Beneficiary's education aligns with the Petitioner's 
stated position requirements. Therefore, we agree with the Director that the Petitioner's stated position 
prerequisites were inadequate. 
We observe two other aspects relating to the position's requirements that would preclude its approval. 
We note that within the LCA the Petitioner filed with the petition, it designated the position at a Level 
I prevailing wage rate. We follow U.S. Department of Labor's (DOL) guidance, which provides a 
five-step process for determining the appropriate wage level for LCAs.12, 13 USCIS may consider 
DOL regulations when adjudicating H-lB petitions.14 
Step four of the DOL guidance focuses on "Special Skills and Other Requirements." The DOL 
guidance at step 4 provides the following instructions, "In situations where the employer's 
requirements are not listed in the O*NET [Occupational Information Network] Tasks, Work 
Activities, Knowledge, and Job Zone Examples for the selected occupation, then the requirements 
should be evaluated to determine if they represent special skills." If the skills required for the job are 
generally encompassed by the O*NET position description, no wage level point should be added to 
the prevailing wage rate. The guidance continues stating, "However, if it is determined that the 
requirements are indicators of skills that are beyond those of an entry level worker, consider whether 
a point should be entered on the worksheet in the Wage Level Column." 
A review of the tasks, work activities, knowledge, and job zone examples in the O*NET report for 
Pub I ic Relations Specialists does not reveal any music-related aspects.15 As a result, the Petitioner 
has not demonstrated that its Level I wage rate was correct on the LCA. The Petitioner committed to 
pay the Beneficiary equal to the lowest wage rate at $18.59 per hour, while its "concentration in the 
Music Industry" requirement would mandate a pay increase to $27.38 per hour. 
We observe additional position requirements that would require an even higher hourly wage, likely at 
the Level 111 wage rate. The Director raised the foreign language requirements relating to the 
position's duties in the RFE and how those would require an increase in not only the prevailing wage 
rate listed on the LCA, but also the Beneficiary's pay. Even though the petitioning organization 
attempted to amend the duties to remove any foreign language abilities, we have described above how 
12 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. 
13 While DOL certifies the LCA, USCIS determines whether the LCA's attestations and content corresponds with and 
supports the H-1B petition. See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA 
which corresponds with the petition .... "). See also Matter of Simeio Solutions, 26 l&N Dec. 542, 546 n.6 (AAO 2015). 
When comparing the standard occupation classification (SOC) code or the wage level indicated on the LCA to the claims 
associated with the petition, USCIS does not purport to supplant DOL 's responsibility with respect to wage determinations. 
There may be some overlap in considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the 
content of the DOL-certified LCA "corresponds with" the content of the H-1B petition. 
14 See lnt'I Internship Programs v. Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. lnt'I Internship 
Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013). 
15 Summary Report for: 27-3031.00 - Public Relations Specialists, O*NET Online (Aug. 7, 2020), 
https://www.onetonline.org/link/summary/27-3031.00. 
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it stated that those functions were a major focus and objective of the Petitioner's current activities. As 
a result, it appears more likely than not that the Petitioner removed the foreign language requirements 
with the intent of still having her perform those functions. 
We are not persuaded by the Petitioner's comments that the position will no longer require the 
candidate to possess foreign language capabilities. As the Director noted within the RFE, this would 
also require a higher prevailing wage rate than the Petitioner designated on the LCA. Ultimately, the 
Petitioner has not demonstrated that the LCA corresponds with and supports the H-1B petition in 
accordance with Simeio Solutions, 26 l&N Dec. at 546 n.6 and 20 C.F.R. § 655.705(b). 
11. CONCLUSION 
We decline to reach and hereby reserve the Petitioner's appellate arguments regarding the four criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A).16 The appeal will be dismissed for the above stated reasons. In visa 
petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit 
sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
16 See Bagamasbad, 429 U.S. at 25; see also L-A-C-, 26 l&N Dec. at 526 n.7. 
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