dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 16151167 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 12, 2022 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
"publisher relations manager" under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal. 
On appeal, the Petitioner asserts that the Director erred by denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. 
II. PREVAILING WAGE 
Before addressing the specialty-occupation issue upon which the Director denied the petition, we will 
first address a more foundational issue we have observed on appeal that also mandates denial of the 
petition. 
A. Legal Framework 
The Petitioner is required to submit a certified labor condition application (LCA) to USCIS to 
demonstrate that it will 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. 
The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. 
§ 1182(n)(1). See Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 
(proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections 
in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with 
[the filing of an LCA] with [the U.S. Department of Labor (DOL)]."). According to section 
212(n)(1)(A) of the Act, an employer must attest that it will pay a holder of an H-1B visa the higher 
of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
experience and qualifications who are performing the same services. See 20 C.F.R. § 655.731(a); 
Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 
722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'!, 
Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
B. Analysis 
The petition cannot be approved because the record of proceedings lacks probative evidence 
demonstrating that the Petitioner will offer a wage equal to or greater than that required by law. As 
noted, the Petitioner must offer a wage that is at least "the actual wage level paid by the employer 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." Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(1)(A). On the LCA 
submitted in support of the H-1B petition, the Petitioner designated the proffered position under the 
occupational category "Computer Occupations, All Other" corresponding to the standard occupational 
classification code (SOC) 15-1199 from the Occupational Information Network (O*NET), at a wage 
level 11 rate. Here, the prevailing wage for the proffered position is $45.35 per hour.1 The Petitioner 
attested on the Form 1-129, Petition for Nonimmigrant Worker (H-1B), however, that it would only 
pay the Beneficiary $45.00 per hour.2 As the Petitioner has not offered a wage that is equal to or 
greater than the prevailing wage, the petition cannot be approved for this reason alone. 
Even if we were to set this foundational deficiency aside and overlook the prevailing wage, we would 
sti II be unable to analyze the position under the supplemental specialty-occupation criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4), because the Petitioner has not demonstrated the substantive 
nature of the work to be performed by the Beneficiary. 
1 The Petitioner provided an LCA certified on March 22, 2019 for a position located in,__ _____ __, California. 
The wages for SOC 15-1199, at the time of the LCA's certification can be found on the Foreign Labor Certification Data 
Center Online Wage Library: https://flcdatacenter.com/OesQuickResults.aspx?code=15-
1199&area~year=19&source=1. 
2 The Petitioner also attested on the petition they would provide a "standard package of corporate benefits," but the 
Petitioner has not provided any information to demonstrate if these benefits would include bonuses, advances, royalties, 
or similar compensation that could be credited toward satisfaction of the required wage obligation if their payment is 
assured (i.e., not conditional or contingent on some event). 20 C.F.R. § 655.731(c)(2)(v). The Petitioner is required to 
pay the H-18 employer to pay the required wage "cash in hand, free and clear, when due." 20 C.F.R. § 655.73l(c)(2). 
2 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(1) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8.C.F.R. § 103.2(b)(1). 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i){l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We constrne the term '·degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam 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"). 
3 
B. Analysis 
The Petitioner claims that the Beneficiary will work as a "public relations manager," and as mentioned, 
it submitted a LCA certified for a position located within the "Computer Occupations, Al I Other" 
occupational category, corresponding to the Standard Occupational Classification code 15-1199. The 
Petitioner stated in its support letter that the proffered position requires a bachelor's degree.4 The 
Petitioner initially provided a list of duties with their support letter. While we will not list each duty 
here, we have reviewed and considered each one. 
The petition's varying statements regarding the educational requirements for the position raise 
significant questions as to the substantive nature of this position. They also cast doubt as to whether 
a bachelor's degree in a specific specialty, or the equivalent, is in fact required. In their support letter, 
the Petitioner asserted that an individual with a bachelor's degree can perform the duties, but it did not 
state whether the position requires at least a bachelor's or its equivalent in a specific specialty. In the 
Petitioner's response to the request for further evidence (RFE) and on appeal, another set of 
educational requirements for the position was provided. Specifically, Counsel asserted the proffered 
position requires at least a bachelor's degree in business administration'. information science, or a 
related field, based on the letter provided by,___ _____ ____.ofl I University. In his 
letter.I I stated his opinions are based of the Petitioner's support letter, which does not 
indicate the position requires a degree in a specific specialty. We question where I I 
obtained this information. 
Even if we were to accept the educational requirements opined b~ I doing so would require 
that we find the Petitioner had materially changed the requirements of the petition. The Petitioner 
must establish that the position offered to the Beneficiary when the petition was filed merits 
classification for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 
Comm'r 1978). A petitioner may not make material changes to a petition in an effmi to make a 
deficient petition conform to USCIS requirements. See Matter of lzummi, 22 l&N Dec. 169, 176 
(Assoc. Comm'r 1998). Moreover, the position's educational requirements would not be consistent 
throughout the record, and that inconsistency would raise yet more questions as to the actual 
substantive nature of the position. 
Moreover, even if we accepted I l's asse1iions, we would find both the Petitioner's 
acceptance of a general degree without a specific specialty as well as his requirement for a business 
administration problematic. A petitioner must demonstrate that the proffered position requires a 
precise and specific course of study that relates directly and closely to the position in question. Since 
there must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf. Matter of Michael Hertz 
Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). In addition to demonstrating that a job requires the 
theoretical and practical application of a body of specialized knowledge as required by section 
214(i)(1) of the Act, a petitioner must also establish that the position requires the attainment of a 
4 The Petitioner submitted documentation in support of the H-1B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
bachelor's or higher degree in a specialized field of study or its equivalent. As noted earlier, we 
interpret 8 C.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty that is directly 
related to the proposed position. We have consistently stated that, although a general-purpose 
bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a conclusion that a particular 
position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. In 
sum, the Petitioner's degree requirements would lack a specific specialty, which would raise doubt if 
the proffered position is truly a specialty occupation. 
Moreover, the Petitioner's description of the proffered position creates ambiguity in the record 
regarding the nature of the position and raises questions as to whether the position actually falls within 
the occupational category designated on the LCA. As mentioned, the Petitioner designated the 
proffered position on the LCA under the occupational category "Computer Occupations, All Other" 
corresponding to the SOC 15-1199 from the Occupational Information Network (O*NET), at a Level 
11 wage rate. In his opinion letter, I I specifies the position is more consistent with the 
occupational category subset SOC 15-1199.09, "Information Technology Project Managers." 
According to O*NET's description, individuals holding positions located within the "Information 
Technology Project Managers" occupation "[p]lan, initiate, and manage information technology (IT) 
projects" and "[s]erve as liaison between business and technical aspects of project." 5 
However, the Petitioner's marketing and sales duties appear atypical for positions located within the 
"Information Technology Project Managers" occupation. For example, the Petitioner's job description 
would require the Beneficiary to "[d]evelop a marketing plan, which includes ... [o]ptimization of 
website and project and high ROT marketing campaigns"; "[p]rovide advisory, which requires strategic 
and tactical oversight of marketing plan, pivot strategy"; and "[e]stablish go-to-market strategies 
through testing, experimentation, and optimizations and help define the key partnership business 
models that are relevant to the client pmifolios." The position's marketing strategy and planning 
duties appear among those listed for SOC code 11-2021, "Marketing Managers," who "[i]dentify, 
develop, or evaluate marketing strategy, based on knowledge of establishment objectives, market 
characteristics, and cost and markup factors," and "[f]ormulate, direct, or coordinate marketing 
activities or policies to promote products or services, working with advertising or promotion 
managers." 6 Also the Beneficiary would be required to "[i]dentify and implement sales strategies at 
relevant cunent and prospective publisher partners"; "[n]egotiate contracts according to company's 
revenue, gross profit, and other business objectives"; "[m]anage all inbound sales inquiries from 
clients, qualify leads and successfully close new partners for company"; and "[p ]repare and participate 
in sales shows and conferences." The position's sales strategy and negotiation duties appear among 
the tasks listed for SOC code 11-2022, "Sales Managers," who are required to "[p]lan, direct, or 
coordinate the actual distribution or movement of a product or service to the customer"; "[d]irect, 
coordinate, and review activities in sales and service accounting and record-keeping, and in receiving 
5 We reviewed the O*NET Summary Report for "Inf01mation Technology Project Managers" at the time of filing. O*NET 
OnLine Archives, "Summary Report for: 15-1199.09 - Information Technology Project Managers," 
https://www.onetonline.org/Archive_ ON ET-SOC _2010 _Taxonomy_ 09 _2020/1 ink/summary/15-1199.09 (last visited Jan. 
12, 2022). 
6 O*NET Summary Report for "Marketing Mangers" at the time of filing. O*NET OnLine Archives, "Summary Report 
for: 11-2021 Marketing Managers," https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/11-2021.00 (last visited Jan. 12, 2022). 
5 
and shipping operations"; "[d]etermine price schedules and discount rates"; "[r]epresent company at 
trade association meetings to promote products"; and "[r]esolve customer complaints regarding sales 
and service." 7 In other words, many of the position's duties are beyond the scope of the description 
of the "Information Technology Project Managers" SOC code and appear more closely aligned to the 
duties of the "Marketing Managers" and "Sales Managers" SOC codes. With these ambiguities in the 
record regarding the duties of the position, we cannot ascertain the substantive nature of the position. 
In addition, if the duties of a proffered position involve aspects of more than one occupational category 
(e.g., "Information Technology Project Managers" and "Marketing Managers"), DOL's "Prevailing 
Wage Determination Policy Guidance" states that the employer "should default directly to the relevant 
O*NET-SOC occupational code for the highest paying occupation." 8 The Petitioner did not do so. A 
Level 11 position located within the "Marketing Manager" (SOC code 11-2021) occupational category 
would necessitate a higher wage of $70.69 per hour rather than the stated prevailing wage of $40.35 
per hour.9 Likewise, a Level 11 position located within the "Sales Managers" (SOC code 11-2022) 
occupational category would mandate a higher wage of $56.58 per hour. 10 This wide wage disparity 
highlights the difference between the "Information Technology Project Managers" and the "Marketing 
Managers" and "Sales Managers" occupational categories generally, and more specific to this case, 
the significance of the Petitioner's choice of the lower-paying occupational category. In sum, since 
the position's broad description lacks specificity because it includes duties that more likely pertain to 
other occupations, we cannot determine the substantive nature of this particular position. Therefore, 
we cannot conclude that the actual duties of the proffered position require a bachelor's degree in a 
specific specialty, or its equivalent, nor determine that the duties actually correspond to the certified 
LCA.11 
Moreover, the Petitioner noted that USCIS has approved another petitioner that had been previously 
filed on behalf of a previous employee. We are not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. 
See Matter of Church Scientology Int'!, 19 I&N Dec. 593,597 (Comm'r 1988); see also Sussex Eng'g, 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow 
7 O*NET Summary Report for "Sales Mangers" at the time of filing. O*NET Online Archives, "Summary Report for: 
11-2022 Sales Managers," https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/11-2022.00 (last visited Jan. 12, 2022). 
8 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,.,._. ------~ 
9 The Petitioner provided an LCA certified on March 22, 2019 for a position located in~------ California. 
The wages for SOC 11-2021, at the time of the LCA's certification can be found on the Foreign Labor Certification Data 
Center Online Wage Library: https://flcdatacenter.com/OesQuickResults.aspx?code=ll-
2021&area~&year=19&source=l. 
10 The wages for SOC 11-2022, at the time of the LCA's certification can be found on the Foreign Labor Certification Data 
Center Online Wage Library: https://flcdatacenter.com/OesQuickResults.aspx?code=ll-
2022&area-c=::::kyear=19&source=l. 
11 While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and Immigration 
Services (USCIS), DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form 
1-129 actually supports that petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. 
§ 655.705(6) requires that USCIS ensure that "the petition is supported by an LCA which conesponds with the 
petition .... " 
6 
a contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 
WL 282785, at *2 (E.D. La. 2000). 
Absent more specific and persuasive evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This would preclude further analysis of whether the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). In addition, the record does not establish that the Petitioner 
satisfied the statutory and regulatory definitions of specialty occupation. 
Ill. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that (1) the Petitioner has offered at least the prevailing wage, and (2) the proffered position qualifies 
for classification as a specialty occupation. Accordingly, the appeal will be dismissed for the above 
stated reasons. In visa petition proceedings, it is the petitioner's burden to establish el igibi I ity for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
7