dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7029867 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 23, 2020 
The Petitioner , an Internet -based real estate database company, seeks to temporarily employ the 
Beneficiary as a "software developer" under the H-IB nonimmigrant classification for specialty 
occupations . 1 The H-IB 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 California Service Center denied the petition, concluding that the record did not 
establish that: (1) the proffered position qualified as a specialty occupation ; (2) the Beneficiary was 
qualified to perform this position's duties; and (3) the wage level was correct that the Petitioner 
designated on the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E , Labor Condition 
Application for Nonimmigrant Workers (LCA). Upon de nova review , we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
We begin noting that it appears the totality of the evidence sufficiently demonstrates that the position 
qualifies as a specialty occupation . The Petitioner's position description , when reviewed within the 
broader context of its operations , depicts a position that includes duties sufficiently complex that a 
qualifying degree would be required to perform them . As a result , the Petitioner has demonstrated the 
nature of the position 's duties is so specialized and complex that the knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent. 8 C.F.R . § 214 .2(h)(4)(iii)(A)(4). The Petitioner has also established that 
the position satisfies the statutory definition of a specialty occupation found within section 2 l 4(i)(l) 
of the Act. 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H )(i)(b), 8 U.S.C. § l 10l(a) (l5)(H)(i)(b). 
II. BENEFICIARY QUALIFICATIONS 
A. Legal Framework 
The statutory and regulatory framework that we must apply in our consideration of the evidence of the 
Beneficiary's qualification to serve in a specialty occupation follows below. Section 214(i)(l)(B) 
mandates that a specialty occupation requires "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." 2 
Furthermore, section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for 
classification as an H-1 B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C)(i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(]) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college or 
university; 
B. Analysis 
The Petitioner required this position's candidate to possess a bachelor's degree in computer science or 
a related field, three "years of hands on professional software development experience," and an 
unspecified amount of"[ e ]xperience developing and Deploying Web Applications." We disagree with 
the Director's assessment relating to the Beneficiary's foreign degree. The Petitioner provided an 
evaluation of her foreign degree, her diploma, and her transcripts. The Director determined that the 
Beneficiary's degree, which was determined to be equivalent to a four-year bachelor's degree in 
computer engineering from a U.S. institution of higher education, was not equivalent to a United States 
2 We generally acknowledge that the core essence of this provision is the knowledge one attains in a specialty area, rather 
than a title various institutions might assign to a particular degree. 
2 
bachelor's degree required by the specialty occupation (i.e., a bachelor's degree in computer science 
or a related field). A review of the Beneficiary's transcripts reveals that during the final three years 
of her degree program, 90 percent of the coursework topics were closely related to the proffered 
position's duties. As a result, we conclude that the Beneficiary's degree equivalent is sufficiently 
related to the Petitioner's degree requirement. 
Nevertheless, the Director did not discuss the Petitioner's experience requirement to assess whether 
the organization had demonstrated that the Beneficiary possessed that prerequisite. After reviewing 
the record, we conclude that the Petitioner has not submitted sufficient material that establishes the 
Beneficiary had a sufficient amount of experience that met the organization's requirements on the date 
the petitioning company filed the petition (i.e., three years of hands on professional software 
development experience, and an unspecified amount of experience developing and deploying web 
applications). 
Not only must the Petitioner demonstrate that the Beneficiary possesses the occupational 
classification's prerequisites, but also its own requirements for the proffered position. The Petitioner 
has not explained why we should disregard its self-imposed qualifications for a candidate to be 
prepared to occupy the position at hand. Additionally, the Petitioner submitted the Beneficiary's pay 
statements reflecting her position as a software developer, but it has not demonstrated that when it 
initially hired her for this same position, she met the organization's prerequisites. A petitioner must 
establish eligibility at the time it files the nonimmigrant visa petition. 3 
Therefore, while we do not agree with the Director's stated reasoning behind her adverse 
determination regarding the Beneficiary's qualifications, we do come to the same ultimate conclusion. 
III. LCA 
The Director also questioned the propriety of the Level I wage rate designated on the LCA. 
A. Legal Framework 
The purpose of DO L's LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers. "4 It also serves to protect H-1 B 
workers from wage abuses. A petitioner submits the LCA to the DOL to demonstrate that it will 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 duties, 
experience, and qualifications. 5 While DOL certifies the LCA, U.S. Citizenship and Immigration 
3 8 C.F.R. § 103.2(b)(l), (12). 
4 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB 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 [DOL]."). 
5 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
3 
Services (USCIS) determines whether the LCA's attestations and content corresponds with and 
supports the H-lB petition. 6 An employer "reaffirms its acceptance of all of the attestation obligations 
by submitting the LCA to [USCIS] in support of the Petition for Nonimmigrant Worker, Form I-129, 
for an H-1 B nonimmigrant." 7 
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-1 B petition. 
The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed 
Dec. 20, 2000). The plain language of the regulation clearly states: "In [accepting an employer's 
petition with the DOL-certified LCA attached], the DHS determines whether the petition is supported 
by an LCA which corresponds with the petition, whether the occupation named in the labor condition 
application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1 B visa classification. "8• 9 Here, the plain language of the regulation is 
dispositive: USCIS is authorized to determine the corollary nature of the proffered position's elements 
as represented in an LCA when compared with those same elements as represented on the Form I-129, 
as well as the Petitioner's actual position requirements. Furthermore, the Act prescribes DOL's 
limited role in reviewing LCAs stating that "[u]nless the [DOL] Secretary finds that the application is 
incomplete or obviously inaccurate, the Secretary shall provide the certification . " 10 USCIS 
precedent also states: 
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-1 B visa petition. 11 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom &Adm 'r Wage &Hour Div. v. Clea/! 
Air Tech. Jnt'l. Inc., No. 07-97. 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
6 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supp01ted by an LCA which corresponds with the 
petition .... "). See also Matter ofSimeio Solutions, 26 I&N Dec. 542,546 n.6 (AAO 2015). 
7 20 C.F.R. § 655.705. 
8 USCTS may consider DOL regulations when adjudicating H-1 B petitions. See Int "l Internship Programs v. Napolitano, 
853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'! Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013). 
9 "In construing a statute or regulation. we begin by inspecting its language for plain meaning." Sullivan v. McDonald. 
815 F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give 
full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Glover v. West. 185 F.3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbo/! Fuel Co. v. USX Co1p., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. UJ1ited States v. Pressley, 359 F.3d 347,349 (4th Cir. 
2004) 
10 Section 212(n)(l)(G)(ii) of the Act. 
11 Simeio Solutions, 26 I&N Dec. at 546 n.6. 
4 
It is unclear how USCIS is to carry out its responsibilities to determine whether the LCA corresponds 
with and supports the H-lB petition without performing such a review. To illustrate, when DOL 
certifies an LCA, it does not perform any meritorious review of an employer's claims to ensure the 
information is true. 12 In summary, when filing an LCA and an H-lB petition, a petitioner subjects 
itself to two authorities as it relates to the LCA: (1) to DOL through the certification process, or 
through a prevailing wage determination, and (2) to USCIS by way of our authority to ensure that the 
LCA corresponds with and supports the petition. As specified within the Act, by simply submitting 
the LCA to DOL without also obtaining a prevailing wage determination, the Petitioner has only 
received DOL's certification that the form is complete and does not contain obvious inaccuracies. 13 
In other words it did not receive an evaluative determination from DOL on whether the LCA's content 
and the specifics were appropriate and accurate. 
In order to determine whether the "attestations and content" ( e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form 1-129, we follow DOL's guidance, which provides a five-step process for 
determining the appropriate SOC code and wage level. 14 
This DOL guidance contains the same publicly available procedure an employer, or their 
representative, should follow to not only find the correct SOC code (i.e., utilizing the Occupational 
Information Network (O*NET)), but also to calculate the appropriate wage level. We note this is the 
same process the DOL utilizes to issue a Prevailing Wage Determination (PWD). Absent a PWD from 
DOL, we will not automatically accept the presumption that the Petitioner provided DOL with the full 
spectrum of information relating to the proffered position's requirements when it filed the LCA, which 
could affect the appropriate wage level for the position in this petition. 15 
B. Analysis 
Again, the Petitioner indicated that it required a bachelor's degree in addition to three "years of hands 
on professional software development experience," and an unspecified amount of "[ e ]xperience 
developing and Deploying Web Applications." Upon review of the record, we observe that the 
Petitioner will not compensate the Beneficiary at a sufficient wage level. We conclude that the 
Petitioner has not established that the LCA corresponds with and supports the petition. 
Considering the Petitioner's combined education and experience requirements, it appears its Level I 
wage rate designation was incorrect. The Petitioner specified a position located within the "Software 
Developers, Applications" occupational category, corresponding to the SOC code 15-1132. 16 The 
12 DOL' s Office oflnspector General, 06-03-007-03-32 l, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs 1 (2003). 
13 Id. 
14 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. 
15 A petitioner may file Form ETA-9141, Application for Prevailing Wage Determination with DOL. USCIS will accept 
PWDs as sufficient. provided the Petitioner establishes that it fully disclosed to DOL all of the proffered position's relevant 
requirements relating to the five-step process for determining an appropriate wage level, as outlined in the DOL guidance. 
16 The Petitioner is required to submit a certified LCA to USCTS to demonstrate that it will pay the Beneficiary the higher 
5 
Petitioner farther indicated the proposed employment would be in I I California, which was 
associated with a prevailing wage of $88,733 per year. The Petitioner stated on the LCA and in the 
petition that it would compensate the Beneficiary with that same amount. 
1. Position Experience Requirements 
DOL's five-step process compares the experience described in the Occupational Information Network 
Job Zone to the Petitioner's requirements. Software Developers, Applications are classified within 
Job Zone 4 with a Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." 17 This SVP rating 
means that the occupation requires "over 2 years up to and including 4 years" of specific vocational 
training. In the SVP context, the "over 2 years up to and including 4 years" consists of the two years 
one focuses on completing coursework for the specialty while obtaining a bachelor's degree, as well 
as "up to and including" two years of work experience. If the Petitioner requires a bachelor's degree 
and more than two years of work experience, a wage level increase is required as follows: 
• If more than two years and up to three years of work experience is required (the low end of the 
experience and SVP range), a one level increase is required. 
• If more than three years and up to four years of work experience is required (the high end of 
the experience and SVP range), a two level increase is required. 
• If more than four years of work experience is required (greater than the experience and SVP 
range) a three level increase is required. 18 
The Petitioner is required to submit a certified 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. 19 Based on the foregoing, it appears the 
Petitioner should have designated the proffered position at least at the Level II rate on the LCA. Doing 
so would have resulted in a higher wage than the $88,733 it was offering the Beneficiary. A Level II 
prevailing wage for the Software Developers, Applications category, for the relevant location and 
timeframe was $110,864. 20 
Therefore, we conclude that the Petitioner has not demonstrated that the LCA corresponds with and 
supports the petition. 
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. Section 
212(n)(l) of the Act; see also Simeio Solutions, LLC, 26 T&N Dec. at 545-546. 
17 Appendix E of the DOL guidance provides that SVP is the amount of time for an individual to achieve average 
perfonnance in a specific job-worker situation. The DOL guidance states: "This training may be acquired in a schooL 
work, military, institutional, or vocational environment. Specific vocational training includes: vocational education, 
apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs." 
18 See the DOL guidance. 
19 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Simeio Solutions, LLC, 26 l&N Dec. at 545-546. 
2° Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search Wizard available at 
http://www.flcdatacenter.com/OESWizardStart.aspx. 
6 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility 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. 
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