dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 8793171 
Appeal Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 21, 2020 
The Petitioner, a technology consulting firm, seeks to employ the Beneficiary temporarily as a 
"software developer" under the H-lB nonimmigrant classification for specialty occupations .1 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 Vermont Service Center Director denied the petition, concluding that the Petitioner did not 
establish, as required, that the submitted labor condition application (LCA) corresponds with the H­
lB petition. More specifically, the Director found that the Petitioner's classification of the proffered 
position as a Level I wage was incorrect. The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 We review the 
questions in this matter de novo. 3 Upon de novo review, we will dismiss the appeal. 
I. LEGAL AND PROCEDURAL FRAMEWORK 
The H-lB petition process involves several steps and forms filed with the Department of Labor (DOL) 
and the Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services 
(USCIS). The purpose of the 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-lB workers from wage abuses. A petitioner submits the LCA to 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 . Section 212(n)(l) of the Act; 20 C.F.R. § 655 .731(a) . While DOL 
certifies the LCA, USCIS determines whether the LCA's content corresponds with the H-lB 
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). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
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) . 
pet1t10n. See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA 
which corresponds with the petition, .... "). When assessing the wage level indicated on the LCA, 
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-lB petition. 
To assess whether the wage indicated on the H-1 B petition corresponds with the wage level listed on 
the LCA, USCIS applies DOL's guidance, which provides a five-step process for determining the 
appropriate wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). The wage level 
begins at a Level I and may increase up to a Level IV based on a comparison of the duties and 
requirements for the employer's proffered position to the general duties and requirements for the most 
similar occupation as provided by the Occupational Information Network (O*NET). Generally, we 
must first identify whether the O*NET occupation selected by the petitioner is correct and then 
compare 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. 5 
Before we do so, a few more general observations are in order about the relevance of wage levels in 
the context ofH-lB adjudications. A position's wage level designation certainly is relevant, but is not 
a substitute for a determination of whether a proffered position meets the requirements of section 
214(i)(l) of the Act. We assess each case on its merits. For instance, in certain occupations (e.g., 
doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage­
designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level 
position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or 
its equivalent. Wage levels are relevant, and we will assess them to ensure the LCA "corresponds 
with" the H-lB petition. But wage is only one factor and does not by itself define or change the 
character of the occupation. That is, a position's wage level designation may be a relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) 
of the Act. 
II. ANALYSIS 
The sole issue in this matter is whether the Petitioner properly selected a Level I ( entry-level) wage 
on the LCA for the proffered position of software developer. In its LCA, the Petitioner selected the 
Level I wage as consonant with the job requirements, necessary experience, education, special 
skills/ other requirements, and supervisory duties of the proffered position. 6 The Petitioner maintains 
throughout this proceeding that the minimum requirement for entry into the position is a "Master's 
Degree, or the foreign equivalent, in Computer Engineering, Computer Science or related technical 
5 This approximately summarizes DOL's five step process. First, we detennine the correct O*NET occupation, while the 
next four steps consist of comparing the attributes (such as experience and education) of that O*NET occupation to those 
indicated by the Petitioner. 
6 The Petitioner did not request a prevailing wage determination from the National Prevailing Wage Center (NPWC) prior 
to filing the LCA with DOL. USCIS will generally accept NPWC's prevailing wage determination and grant the employer 
a ·'safe harbor" to rely on both the wage level and the occupational classification, so long as the employer fully and 
accurately described the proffered position to the NPWC. 
2 
field." The Director determined the Level I wage was inappropriate as the Petitioner's mm1mum 
education requirement for the proffered position is greater than what is generally required for the 
occupational category selected in the LCA, "Software Developers, Applications," corresponding to 
the Standard Occupational Classification (SOC) code 15-1132. 
Based on our review of the record, the Petitioner has not established that the Level I wage rate 
designated on the LCA sufficiently represents the correct wage level based on DOL's five-step process 
contained within the DOL guidance evaluating various aspects of the position, including the amount 
of education the Petitioner requires to qualify for the proffered position. 7 As we will explain, the 
correct wage rate appears to be at the Level II rate. 
Step one of the DOL guidance involves a comparison between the Petitioner-indicated job attributes 
and those associated with the appropriate O*NET occupation. We agree that based on the evidence 
in the record, the duties of the proffered position are consonant with the typical duties for software 
developer occupations. 
To resolve this appeal, we can focus directly on step three ofDOL's aforementioned five-step process 
for wage level determinations. The third step involves a comparison of the Petitioner's education 
requirements to that listed in Appendix D of the DOL guidance. Appendix D of the DOL guidance 
provides a list of professional occupations with their corresponding usual education level, but the 
instant occupation is not listed therein. 8 Where an occupation is not included in Appendix D, the DOL 
guidance instructs employers to "use the education level for what 'most of these occupations' require 
or 'these occupations usually require' described in the O*NET Job Zone for that occupation." Id. The 
O*NET entry for "Software Developers, Applications" provides that most of these occupations require 
a four-year bachelor's degree, while some do not. This reveals that the Petitioner's requirement of a 
master's degree is more than what "most occupations require" in O*NET for this occupation, which 
necessitates an increase in the prevailing wage rate by one level, resulting in a yearly pay disparity in 
the Beneficiary's proposed compensation of at least $20,072 in this petition. 9 Therefore, the 
Petitioner's designation of the proffered position at a Level I wage was not correct and the petition is 
not approvable. 
III. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
7 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC _Guidance_ 
Revised_ 11 _ 2009 .pdf 
8 Prevailing Wage Determination Policy Guidance. supra. 
9 See the Online Wage Libra1y - FLC Wage Search Wizard, Foreign Labor Certification Data Center (Sep. 18, 2020), 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= l 5-l l 32&area~&year= l 9&source= 1. 
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