dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28, 2016 
FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting firm, seeks to temporarily employ the 
Beneficiary as a "programmer analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated (1) that the proffered position qualifies as a specialty occupation 
position; and (2) that it would have a valid employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence in the 
record is sufficient to show that the petition should be approved. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) 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. 
(b)(6)
Matter of B- Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship andlmmigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. The Proffered Position 
In the H-lB petition, the Petitioner stated that the Beneficiary would work as a programmer analyst 
at its location in Illinois. In a letter submitted with the initial filing, the Petitioner 
provided the following descr~ption of the duties of the proffered position: 
• Identify client needs and requirements by establishing personal rapport with 
potential and actual clients and with other persons in a position to understand the 
service requirements; 
• Programs computers by encoding project requirements in computer language; enter 
coded information into the computer. 
• Confirm program operation by conducting tests; modify program sequence and/or 
codes. 
• Provide reference for use of prime and personal computers by writing and 
maintaining user documentation; maintain help desk. 
• Maintains computer systems and programming guidelines by writing and updating 
policies and procedures. 
2 
Matter of B- Inc. 
• Develops _and maintains applications and databases by evaluating client needs; 
analyzing requirements; developing software systems. 
The Petitioner stated that the position requires a bachelor's degree in computer science, engineering 
or a related field, as well as relevant industry experience." 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
1. First Criterion 
We tum first to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. 2 To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses. 3 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Programmers" 4 
corresponding to the Standard Occupational Classification code 15-1131.5 
1 
We observe that the Director's decision was based, in part, on findings that the Petitioner did not demonstrate that it has 
work for the Beneficiary to perform at its own location. To provide analysis of the specialty occupation issue, we will 
assume, arguendo, that the Petitioner has work available for the Beneficiary to perform. 
The Petitioner submitted documentation to support the H-1 B 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. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 Comparing the duties the Petitioner attributes to the proffered position to the duties the Handbook attributes to 
computer systems analysts (See http://www.bls.gov/ooh/computer-and-information-technology/computer-systems­
analysts.htm#tab-2), it appears that the proffered position should have been classified as a computer systems analyst 
position, as described in O*NET at SOC 15-1121, rather than as a computer programmer position. If the proffered 
position were found to have been misclassified, then the visa petition would be deniable as not supported by a 
corresponding LCA. See 8 C.F.R. § 214.2(h)(4)(i)(B)(1) and 20 C.F.R. § 655.705(b). However, we shall assume, 
arguendo, that the proffered position is a computer programmer position, to reach the Petitioner's assertions about the 
educational requirements of such positions. 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
3 
Matter of B- Inc. 
The Handbook states the following about the educational requirements of computer programmer 
positions: "Most computer programmers have a bachelor's degree; however, some employers hire 
workers who have an associate's degree. Most programmers get a degree in computer science or a 
related subject." U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 
2016-17 ed., "Computer Programmer," http://www.bls.gov/ooh/computer-and-information­
technology/computer-programmers.htm#tab-4 (last visited June 27, 2016). 
The Handbook makes clear that positions located with the "Computer Programmers" occupational 
category do not require a minimum of a bachelor's degree in a specific specialty or its equivalent for 
entry for two reasons. First, it indicates that although some candidates who assume entry-level 
positions within the occupational category have a bachelor's degree, they do not necessarily have a 
degree in a specific specialty. Second, it indicates that entry into some computer programmer 
positions is possible with an associate.'s degree. 
Further, the Petitioner classified the proffered positiOn at a Level I wage (the lowest of four 
assignable wage levels) which, as noted, indicates that the Beneficiary to have only a basic 
understanding of the occupation. In that the Petitioner has indicated that the proffered position is 
among the least complex of positions located within the "Computer Programmers" occupational 
category, and the Handbook indicates that some positions within the occupational category require 
only an associate's degree, the Handbook does not support the Petitioner's position that the proffered 
position qualifies as a specialty occupation position by virtue of normally requiring a minimum of a 
bachelor's degree in a specific specialty or its equivalent for entry. Moreover, the Petitioner has not 
provided documentation from another probative source to substantiate its assertion regarding the 
minimum requirement for entry into this particular position. 
In addition, we find that, to the extent that they are described in the record of proceedings, the 
numerous duties that the Petitioner ascribes to the proffered position indicate a need for a range of 
technical knowledge in the computer/IT field, but do not establish any particular level of formal, 
postsecondary education leading to a bachelor's or higher degree in a specific specialty as minimally 
necessary to attain such knowledge. Even assuming that the duties described by the Petitioner are 
the duties that the Beneficiary would actually perform if the visa petition were approved, they do not. 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ lflcdatacenter.com/download!NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
4 
(b)(6)
Matter of B- Inc. 
support the assertion that the proffered position qualifies as a specialty occupation position by virtue 
of requiring a minimum of a bachelor's degree in a specific specialty or its equivalent. 
The record does not establish that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criteiion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. In addition, there are no submissions 
from the industry's professional association indicating that it has made a degree a minimum entry 
requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only 
degreed individuals." 
The Petitioner submitted several job vacancy announcements placed by other companies for our 
consideration under this prong. Some of those vacancy announcements were placed by companies 
that do not conduct business in the Petitioner's industry.6 As such, those announcements are not 
6 A financial services company, a "global water technology provider," and for instance, placed some of those 
5 
Matter of B- Inc. 
directly relevant to this prong, which only pertains to positions located within the Petitioner's 
industry. 
Most vacancy announcements require prior experience, and some require a considerable amount of 
very specific programming experience. By designating the proffered position a wage Level I 
position, however, the Petitioner has indicated that it is an entry-level position. As such, those 
vacancy announcements that require experience in programming do not appear to be parallel to the 
proffered position. 
Some vacancy announcements require a bachelor's degree, but do not require a bachelor's degree in 
any specific specialty, or the equivalent. Other vacancy announcements state that a bachelor's 
degree is "preferred" for the positions they announce. However, a preference is not necessarily a 
minimum recruiting and hiring requirement. Thus, even if the advertised positions had been shown 
to be positions parallel to the proffered position and located within the Petitioner's industry, those 
vacancy announcements would not demonstrate that the proffered position requires a minimum of a 
bachelor's degree in a specific specialty or its equivalent by virtue of similarity to them. 7 
One vacancy announcement indicates that an otherwise undifferentiated bachelor's degree in 
business would be a sufficient educational qualification for the position it announces. However, a 
degree with a generalized title, such as business administration, without further specification, is not a 
degree in a specific specialty. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. at 558. This 
vacancy announcement therefore does not support the assertion that the proffered position, by virtue 
of any similarity to the advertised position, requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent. 
Finally, even if all of the vacancy announcements involved parallel positions at similar organizations 
conducting businesses within the industry, and specified a requirement for a minimum of a 
bachelor's degree in a specific specialty or its equivalent, we would still find that the Petitioner had 
not demonstrated what statistically valid inferences, if any, could be drawn from so few 
announcements with regard to the common educational requirements for entry into parallel positions 
in similar organizations. 8 
announcements. 
7 A claim that a bachelor's degree is a sufficient minimum requirement for entry into the proffered position is inadequate 
to establish that the proposed position qualifies as a specialty occupation. 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. There must be a close correlation between the required specialized studies and the position; thus, the mere 
requirement of a degree, without further specification, does not establish the position as a specialty occupation. Cf 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for 
the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justifY a finding that a particular position qualifies for 
classification as a specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
8 USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Matter of B- Inc. 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
A review ofthe record of proceedings finds that the Petitioner has not credibly demonstrated that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that only a person with at least a bachelor's degree in a specific specialty, or 
its equivalent, can perform it. For example, the evidence of record does not establish why a few 
related courses or industry experience alone, or even an associate's degree, would provide 
insufficient preparation for the proffered position. While a few related courses may be beneficial, or 
even required, in performing certain duties attributed to the proffered position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The description of the duties does not specifically identify any tasks that are so complex or 
unique that only a specifically degreed individual could perform them. Even assuming that the duty 
description the Petitioner provided is accurate, the record lacks sufficiently detailed information to 
distinguish the proffered position as more complex or unique from other positions that people 
without at least a bachelor's degree in a specific specialty, or its equivalent, can perform. 
The LCA submitted by the Petitioner in support of the instant petition provides an additional 
indication that the proffered position is not particularly complex or unique relative to other positions 
within the "Computer Programmers" occupational category. As noted above, the Petitioner attested 
on the submitted LCA that the wage level for the proffered position is a Level I (entry-level) 
wage. Such a wage level is for a position which only requires a basic understanding of the 
occupation; the performance of routine tasks that require limited, if any, exercise of judgment, under 
close supervision and with work closely monitored and reviewed for accuracy; and the receipt of 
specific instructions on required tasks and expected results. While the Petitioner's assertions 
regarding the sophisticated and intense nature of the projects upon which the Beneficiary would 
work are acknowledged, the Level I wage-level designation undermines them.9 
Chawathe, 25 I&N Dec. 369, 376 (AAO 20 I 0). As just discussed, the Petitioner has not established the relevance of the 
job advertisements submitted to the position proffered in this case. 
9 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
7 
Matter of B- Inc. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupational category such that it refutes the Handbook's information to the 
effect that there is a spectrum of degrees acceptable for such positions, including degrees not in a 
specific specialty, and degrees that are less than a bachelor's degree. In other words., the record 
lacks sufficiently detailed information to distinguish the proffered position as unique from or more 
complex than positions that can be performed by persons without at least a bachelor's degree in a 
specific specialty, or its equivalent. As the Petitioner did not demonstrate how the proffered position 
is so complex or unique relative to other positions within the same occupational category that do not 
require at least a baccalaureate degree in a specific specialty or its equivalent for entry into the 
occupation in the United States, it cannot be concluded that the Petitioner has satisfied the second 
alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner . has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
In response to the Director's request for evidence, the Petitioner provided copies of H -1 B approvals 
issued to other employees. However, copies of those individuals' educational credentials were not 
submitted for our consideration. 
Moreover, we are not required to approve petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int '1, 19 I&N Dec. 593, 597 (Comm'r 1988). If any of the previous nonimmigrant petitions were 
approved based on the same unsupported assertions that are contained in the current record, they 
would constitute material and gross error on the part of the Director. It would be "absurd to suggest 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
8 
Matter of B- Inc. 
that [USCIS] or any agency must treat acknowledged errors as binding precedent." Sussex Eng 'g, 
Ltd v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). A prior approval does not compel the 
approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 
26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval also does not preclude USCIS from 
denying an extension of an original visa petition based on a reassessment of eligibility for the benefit 
sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). Furthermore, our 
authority over the service centers is comparable to the relationship between a court of appeals and a 
district court. Even if a service center director had approved nonimmigrant petitions on behalf of a 
beneficiary, we would not be bound to follow the contradictory decision of a service center. See La. 
Philharmof!ic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999).10 
The record indicates that the Petitioner was established in 1996 and has 75 employees in the United 
States. However, the Petitioner did not submit sufficient evidence pertinent to the number of 
computer programmers that work for it now or have worked for it in the recent past, and evidence 
pertinent to their educational qualifications. The Petitioner has not demonstrated that it normally 
requires a minimum of a bachelor's degree in a specific specialty or its equivalent for the proffered 
position and has not, therefore, satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific 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. 
In the instant case, relative specialization and complexity have not been sufficiently developed by 
the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and 
findings with regard to the implication of the Petitioner's designation of the proffered position in the 
LCA as a Level I (the lowest of four assignable levels) wage. That is, the Level I wage designation 
is indicative of a low, entry-level position relative to others within the occupational category, and 
hence one not likely distinguishable by 'relatively specialized and complex duties. Upon review of 
the totality of the record, and even assuming that the duties that the Petitioner described are the 
duties the Beneficiary would actually perform, the Petitioner has not established that the nature of 
those duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For this additional reason, the Petitioner has not demonstrated in the record that its 
10 The approved permanent labor certification applications are similarly unpersuasive. Moreover, we note (I) that many 
of these permanent labor certification applications involved software developers, as position that is not located within the 
same occupational category as the proffered position; and (2) that an analysis of whether a given position is a "specialty 
occupation" is not undertaken as part of the adjudication of a permanent labor certification application. 
9 
Matter of B- Inc. 
proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied any one ofthe criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it has 
not demonstrated that the proffered position qualifies as a specialty occupation. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
The remaining issue raised by the Director is whether the Petitioner has demonstrated that it would 
have an employer-employee relationship with the Beneficiary such that the Petitioner could meet the 
definition of a United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
However, as the Petitioner has not established the proffered position as a specialty occupation the 
petition cannot be approved, and we need not and will not address the matter further at this time. 
III. CORRESPONDING LABOR CONDITION APPLICATION 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 11 
Specifically, the record does not currently demonstrate that the LCA submitted by the Petitioner 
corresponds to and supports the H-1B petition. 
General requirements for filing immigration applications and petitions are set forth at 8 C.F .R. 
§ 103.2(a)(l) in pertinent part as follows: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions ... and such instructions 
are incorporated into the regulations requiring its submission." 
The regulations require that before filing a Form 1-129 petition on behalf of an H-1B worker, a 
petitioner obtain a certified LCA from the DOL in the occupational specialty in which the H-1B 
worker will be employed. See 8 C.F.R. §§ 214.2(h)(4)(i)(B), 214.2(h)(4)(iii)(B)(J). The instructions 
that accompany the Form 1-129 also specify that an H-lB petition must be filed with evidence that 
an LCA has been certified by DOL. 
Moreover, while DOL is the agency that certifies LCA applications before they are submitted to 
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 petJtion. The regulations 
state, in pertinent part: 
11 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
10 
Matter of B- Inc. 
For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresphnds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H -1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
The regulation at 20 C.F.R. § 655.705(b) therefore requires that USCIS ensure that an LCA actually 
supports the H -1 B petition filed on behalf of the Beneficiary. 
Here, the Petitioner has not submitted an LCA that corresponds to the claimed duties of the proposed 
position. Specifically, it has not submitted an LCA certified for a position that corresponds to the 
level of work and responsibilities that the petitioner ascribes to the proposed position and to the 
wage-level corresponding to such a claimed level of work and responsibilities in accordance with the 
requirements of the pertinent LCA regulations .. 
The statements of record regarding the claimed level of complexity, independent judgment, and 
understanding required for the proposed position are materially inconsistent with the certification of 
the LCA for a Level I entry-level position. For example, the Petitioner has repeatedly referenced the 
sophisticated and complex nature of the projects upon which the Beneficiary would work, and refers 
to her extensive training. The record contains no explanation for this inconsistency regarding the 
proffered position's wage level. Thus, even if it were determined that the Petitioner had overcome 
the director's ground for denying this petition (which it has not), the petition could still not be 
approved because the Petitioner did not submit an LCA certified for the proper wage classification. 
IV. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of B- Inc., II)# 17313 (AAO June 28, 2016) 
11