dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to employ the Beneficiary 
temporarily as a "network engineer" under the H-lB nonimmigrant classification for specialty 
occupations . See 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 California Service Center denied the petition, concluding that 1) the petition was 
filed more than six months prior to the date of actual need for the beneficiary's services, 2) the work 
location was not within the area of intended employment listed on the labor condition application 
(LCA), and 3) the record did not establish that the proffered position qualifies as a specialty occupation 
or that the beneficiary will perform services in a specialty occupation for the requested period of 
intended employment. 
Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
The Petitioner indicated in the initial filing that the Beneficiary would be working for an end-client in 
I I Florida and submitted an LCA for the position of network engineer, corresponding to the 
standard occupational classification (SOC) code for computer network architects at a Level III wage 
for that location. In response to the request for evidence, the Petitioner informed the Director that 
circumstances had changed and now the Beneficiary would be working for a different end-client in 
I I California . The Director denied the petition, in part, because the record did not include a 
Matter of V-S-, Inc. 
certified LCA for the new location in California. Although the Director discussed this issue in detail 
in her denial, the Petitioner did not address it on appeal. 
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." 1 It also serves to protect H-1 B 
workers from wage abuses. A petitioner must 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 
(emphasis added). See section 212(n)(l)(A)(i) of the Act and 20 C.F.R. § 655.73 l(a) (2014); 
see also Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Michal Vojtisek-Lom 
&Adm 'r Wage &Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-097, 2009 WL2371236, at *8 (Dep't 
of Labor Admin. Rev. Bd. July 30, 2009) While the Department of Labor (DOL) certifies the LCA, 
we determine whether the LCA's content corresponds with the H-1B petition. 20 C.F.R. § 655.705(b). 
See also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). 
In this matter, the Level III prevailing wage for the ]irovided SOC code in I I Florida at the time 
of filing was $71,427, but $124,550 forl _Califomia. 2 According to the Petitioner, the 
Beneficiary's salary is $78,000, which is $46,550 below the prevailing wage for the area of 
employment. In other words, the record does not contain an LCA for the actual area of employment 
or reflect the correct prevailing wage as required by the above statute and regulations. 
For these reasons, the submitted LCA does not correspond with the petition. Further, as this precludes 
approval of the petition, we will not address the additional issues in the record. 
II. CONCLUSION 
The appeal will be dismissed for the above reason. 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. In this matter, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-S-, Inc., ID# 5776726 (AAO Sept. 20, 2019) 
1 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B 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, 2~00) (to~e codified at 20 C.F.R. pts. 655-56). 
2 See https://flcdatacenter.com/OesQuickResults.aspx?area code= 15-l 143&year= l 8&source= 1 (last accessed 
Sept.19,2019). 
2