dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 10021419 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 20, 2020 
The Petitioner, a software company involved in developing telecommunications mobile applications, 
seeks to temporarily employ the Beneficiary as an "editor" under the H-1B 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-1B 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. On appeal, the Petitioner claims the 
Director erred and submits additional evidence in support of its petition.1 
The Petitioner bears the burden of proof to demonstrate el igibi I ity 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 Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the petition. 
I. 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)(l) ... "(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 
1 The Petitioner submitted documentation to support 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. 
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. 2 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). 
11. PROFFERED POSITION 
The Petitioner provided the following job duties for the position: 
I Draft, edit, proofread, and publish [the Petitioner's] marketing contents on official 
website, www.talkyou.me, Google Play, Apple Store, and other various mobile 
application forums to support [the Petitioner's] marketing strategy, branding, and 
positioning. (50%) 
I Write impactful copy for ads, marketing emails, or other applicable promotional 
means, eg: brochure and pamphlets for exhibitions or electronics shows, etc. (20%) 
2 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)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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"). 
2 
I Collaborate with UX/U I and graphic designers for proper display of the multimedia 
contents and provide simple HTML and XML editing for the website updates and 
adjustment. (20%) 
I Participate in marketing campaign development and strategy formation to ensure 
the direction of [the Petitioner] and the parent company's market target audience 
and brand image. (10%) 
According to the Petitioner, the position requires either a bachelor's degree in journalism or marketing. 
Ill. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the proffered position, which precludes a determination of whether the 
proffered position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of 
the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). Specifically, the record 
(1) contains inconsistencies that undermine the Petitioner's claims regarding the proffered position; 
(2) does not describe the position's duties with sufficient detail; (3) therefore, does not establish that 
the job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 
For example, the record does not establish that the labor condition application (LCA) corresponds to 
the proffered position. 3 On the LCA submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "Editors" corresponding to the 
standard occupation classification (SOC) code 27-3041 at a Level I wage. 4 However, the record 
suggests that there are several other SOC codes that also correspond with the duties as described by 
the Petitioner. 
When the proffered position encompasses multiple SOC codes, DOL provides guidance for selecting 
the most relevant O*NET occupational code classification on the LCA. 5 The "Prevailing Wage 
Determination Policy Guidance" states the following (emphasis added): 
3 While U.S. Department of Labor (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 petition. See 20 C.F.R. § 655.705(b). 
4 A petitioner submits the LCA to DOL 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.731{a). 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. The 
"Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage levels. U.S. Dep't 
of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC_Guidance_ Revised_11_2009.pdf. 
5 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. 
3 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the NPWHC should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the NPWHC shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
In accordance with the DOL guidance, we first reviewed the requirements of the position. As noted 
above, the Petitioner indicates that the offered position involves editing, proofreading, and publishing 
of content. The position also requires "drafting ... marketing content" and "writ[ing] impactful copy 
for ads, marketing emails, or other application promotional means." The Petitioner further claims that 
the "job duties inherently require advanced and unique literacy and professional writing ability to 
create the optimal marketing contents aiming at different group of target audiences." The Petitioner 
also stated "the editor needs to create short and powerful marketing language so that it can be 
implemented into the graphical or video content." 
Next, in order to determine whether the SOC code identified corresponds to the duties of the proffered 
position, we reviewed information about this occupation found in DOL's Occupational Outlook 
Handbook (Handbook) and Occupational Information Network (O*NET) summary reports. Both the 
Handbook and O*NET indicate that editors generally plan, coordinate, review, and revise content of 
material for publication. However, the Handbook and O*NET report that editors generally focus more 
on reviewing, revising, and managing publication of written materials produced by others. 6 
On the other hand, the Petitioner's position encompasses creating marketing content and writing ads 
and promotional materials for various platforms and its duties appear more commensurate with the 
6 The Handbook states, for example, that editors typically "[r]ead content and correct spelling, punctuation, and 
grammatical errors," "[r]ewrite text to make it easier for readers to understand," "[v]erify facts cited in material for 
publication," "[e]valuate submissions from writers to decide what to publish," "[w]ork with writers to help their ideas and 
stories succeed," "[d]evelop story and content ideas according to the publication's style and editorial policy," "[a]llocate 
space for the text, photos, and illustrations that make up a story or content," and "[a]pprove final versions submitted by 
staff." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Editors, 
available at https://www.bls.gov/ooh/media-and-communication/editors.htm (last visited Nov. 19, 2020). O*NET 
similarly states that editors "[r]ead, evaluate and edit manuscripts or other materials submitted for publication and confer 
with authors regarding changes in content, style or organization, or publication," "[p]repare, rewrite and edit copy to 
improve readability, or supervise others who do this work," "[o]versee publication production, including artwork, layout, 
computer typesetting, and printing, ensuring adherence to deadlines and budget requirements," and "[c]onfer with 
management and editorial staff members regarding placement and emphasis of developing news stories." Summary Report 
for: 27-3041 Editors, O*NET Online Archives, https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/27-3041.00 (last visited Nov. 19, 2020). Additionally, O*NET indicates 
that editors may also "[w]rite text, such as stories, articles, editorials, or newsletters." Id. 
4 
Handbook's duties listed for "Writers and Authors"7 and O*NET's tasks for "Copy Writers,"8 a 
subcategory under "Writers and Authors."9 For example, the Handbook indicates writers and authors 
"develop content for various types of media, including advertisements," "[c]hoose subjects that 
interests readers," "[c]onduct research to get factual information and authentic detail," "[w]rite 
advertising copy for newspapers, magazines, broadcasts, and the Internet," "[w]ork with editors and 
clients to shape material for publishing," and with editorial help "they may revise or rewrite sections, 
searching for the clearest language and phrasing."10 O*NET similarly indicates copy writers generate 
content focused on marketing products to various audiences. For example, it states they "[w]rite to 
customers in their terms and on their level so that the advertiser's sales message is more readily 
received," "[w]rite advertising copy for use by publication, broadcast, or internet media to promote 
the sale of goods and services," "[e]dit or rewrite existing copy as necessary, and submit copy for 
approval by supervisor," "[d]evelop advertising campaigns for a wide range of clients ... to determine 
the best way to present advertising information," "[w]rite articles, bulletins, sales letters, speeches, 
and other related informative, marketing and promotional material," and "[r]eview advertising trends, 
consumer surveys, and other data regarding marketing of goods and services to determine the best way 
to promote products."11 
Not only do these copy writer duties correlate with the proffered position's writing and drafting duties, 
they also align with the Petitioner's statements regarding its marketing needs. The Petitioner indicated 
in the support letter that the Beneficiary's services are needed "to create and improve [its] marketing 
content on various platforms." The Petitioner stated that the position will "assist the CEO in creating, 
fine-tuning, and publishing all marketing materials to attract more users and maintain our brand image 
and growth in our market reach." In response to the Director's request for evidence (RFE), the 
Petitioner indicated that "the proffered position is required to produce professional marketing writing 
for different media," "for example, usage of suggestive and persuasive tone in [its] official blog" or 
"younger and shorter terminology usage for Facebook ads." Further, the Petitioner stated that the 
position "needs to publish all of the work product on the on line webpage and portals of different on line 
media platforms" which requires the Beneficiary to draft, edit, modify and update the marketing 
7 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Writers and Authors, 
available at https://www.bls.gov/ooh/media-and-communication/writers-and-authors.htm (last visited Nov. 19, 2020). 
8 Summary Report for: 27-3043.04 Copy Writers, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/27-3043.04 (last visited 
Nov. 19, 2020). 
9 When a position is a combination of two different, but related occupations, the higher paying SOC code must be on the 
LCA in order to correspond to and support the petition. See U.S. Dep't of Labor, Emp't & Training Adm in., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.flcdatacenter.com/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
10 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Writers and Authors, 
available at https://www.bls.gov/ooh/media-and-communication/writers-and-authors.htm#tab-2 (last visited Nov. 19, 
2020). 
11 See Summary Report for: 27-3043.04 Copy Writers, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/27-3043.04 (last visited 
Nov. 19, 2020). 
5 
materials with HTML or XML programming language.12 Notably, the prevailing wage for "Copy 
Writers" is higher than "Editors."13 
We also observe that the Petitioner indicated that it originally employed the Beneficiary in the position 
of "[p]ublic [r]elations [s]pecialist" during her OPT employment. Notably, in the support letter, the 
Petitioner indicated that its U.S. office is responsible for financial management, product marketing, 
and public relation planning. On appeal, the Petitioner explains the Beneficiary was offered an 
"editor" position three months after starting her former position upon demonstrating sufficient 
competency in that position. It is not clear if the Petitioner will continue to require the Beneficiary to 
perform the duties of a public relations specialist. Reviewing the record in its totality, the record does 
not reflect that anybody else was hired to take over her former duties, and, according to the 
Beneficiary's resume, as a public relations specialist, her duties included marketing and writing duties 
parallel to those of the proffered position. A "Public Relations Specialist" occupation (SOC code 27-
3031) is also a higher-paying occupation than that of an "Editor" occupation.14 Given the lack of 
detail and explanation in the record regarding the proposed duties within the Petitioner's organization, 
we are left to question if the Beneficiary will perform the duties of another higher paying occupational 
classification or if the position is a combination of both occupations.15 
Finally, we observe the described duties also incorporate those of the "Marketing Managers" 
occupational category (SOC code 11-2021).16 Such a correlation is supported by the professional 
~n letter ofl I which was submitted with the Petitioner's response to the RFE. D 
L____j describes the position in question as an "[a]dvertising [m]anager or [m]arketing [e]ditor 
position" in the IT Industry and highlights its duties as involving creating and managing marketing 
12 These web development duties were also cited in the opinion letter provided from.__ ______ _. of 
I I university as evidence of why the Beneficiary's coursework qualified her for the position. In his letter, he 
states that the Petitioner's editor position "requires creation of the company's marketing content for multiple media 
platforms, perform HTML and XML editing, and UX/UI display editing on the website, and participating in content 
marketing campaign development and marketing language materialization." However, the record does not sufficiently 
establish the level of web development duties and skills required for the position, such as whether these are consistent with 
duties of an editor. Notably, the prevailing wage for Level I "Web Developers" is $60,382 for the time period when the 
petition was filed. See FLC Data Center's Online Wage Library at https://www.flcdatacenter.com/OESWizardStart.aspx. 
13 The Petitioner's LCA certifies that the Level I prevailing wage for an editor position is $43,056 per year. Conversely, 
the Level I prevailing wage for a copy writer is $47,736 per year, in the area and for the time period when the petition was 
filed. While the Petitioner's proffered salary is higher than the prevailing wage for a copy writer position, the Petitioner 
still did not comply with the DOL guidance to select the occupation with the highest wage for the position. To determine 
a prevailing wage and for more information, see the Foreign Labor Certification Data Center's Online Wage Library, 
available at https://www.flcdatacenter.com (last visited Nov. 19, 2020). 
14 The Level I "Public Relations Specialist" prevailing wage would be $44,512 year, in the area and for the time period 
when the petition was filed. See FLC Data Center's Online Wage Library, at 
https://www.flcdatacenter.com/OESWizardStart.aspx. See also Summary Report for: 27-3031.00 - Public Relations 
Specialists, O*NET Online Archives, https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/27-3031.00 (last visited Nov. 19, 2020). 
15 It is reasonable to assume that the size of an employer's business has or could have an impact on the claimed duties of 
a particular position. See EG Enters., Inc. v. Dep't of Homeland Sec., 467 F. Supp. 2d 728 (E.D. Mich. 2006). Thus, the 
size of a petitioner may be considered as a component of the nature of the petitioner's business, as the size impacts upon 
the actual duties of a particular position. 
16 See Summary Report for: 11-2021.00 Marketing Managers, O*NET Online Archives, 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/11-2021.00 (last visited 
Nov. 19, 2020). 
6 
content across multiple platforms while strategically incorporating the perspective of a variety of 
stakeholders including potential customers, writers, developers, and third-party agencies. Notably, 
the prevailing wage for "Marketing Managers" is nearly three times higher than that of "Editors."17 
The duties lack sufficient detai I to ascertain the nature of the position and to conclude that the proffered 
position is an "Editors" occupation, the occupation designated on the certified LCA. As described, 
the duties do not appear to be for the corresponding SOC code with the highest prevailing wage. 
Without substantive evidence demonstrating the nature of the position we cannot conclude that the 
petition is supported by an LCA which corresponds with the petition, a necessary element to establish 
eligibility for this visa classification.18 Without a meaningful job description, the record lacks 
sufficiently informative evidence to demonstrate either the application of knowledge needed to 
perform the position or the occupation and wage level required. Moreover, the position is so generally 
described it is insufficient to establish that the described duties require both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the 
occupation. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). 
On appeal, the Petitioner provides additional information that further obscures the nature of the 
position. The Petitioner states that it has al I technology subsidiary, I I and the 
Beneficiary is required to cover editing roles for both the Petitioner's mobile telecommunication and 
I t'sl I technology marketing and publications.19 The Petitioner further asserts 
that the proffered position is inherently more complex because the "proffered position is required to 
possess professional news and marketing content creation ability specifically towards the 
telecommunication andl !technology industry, inherently more complex than an ordinary 
editor position." It further elaborates that in order to "provide general information on I I 
technology, the proffered position needs to have the research and interview capacity to collect the 
information of the underlyi nd Ii nfrastructure in order to create and pub I ish the articles," and 
that the "proffered position also needs to tailor the contents for different third-party media outlets ... 
17 The Level I "Marketing Manager" prevailing wage would be $125,050 year, in the area and for the time period when 
the petition was filed. See FLC Data Center's Online Wage Library, at 
https://www.flcdatacenter.com/OESWizardStart.aspx. 
18 To permit a petitioner to submit an LCA for a different occupation which has a lower prevailing wage than the position 
actually being petitioned for results in a petitioner paying a wage lower than that required by section 212(n)(1)(A) of the 
Act, 8 U.S.C. § 1182(n)(1)(A)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 [DOL]."). While DOL is the agency that certifies LCA applications before they are submitted to USCIS, 
DOL regulations note that the Department of Homeland Security {OHS) (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(b) requires that USCIS ensure 
that "the petition is supported by an LCA which corresponds with the petition .... " 
19 While the Petitioner submitted an article as 
9 
sample of the Be~eficiary's work in response to the RFE which introduced 
I I and benefits of porting to a I~_ ----~Jplatform the Petitioqer did not adequately explain its 
relationship tol land the Beneficiary's duties in relation to._l ___ ____.J 
7 
to attract its reader base and improve [the Petitioner's] brand awareness." In a letter submitted with 
the appeal, the Petitioner further asserts that the Beneficiary's duties require "extensive knowledge in 
the I I industry." 
We further note that these additional requirements may increase the wage level. Specifically, if the duties 
of the proffered position involve additional industry-specific skills and the position is "inherently more 
complex than an ordinary editor position" as claimed by the Petitioner, the record should reflect skills and 
requirements that increase the complexity of the position and the wage level in accord with the claimed 
higher-level job duties. Given that the LCA submitted in support of the petition is for a Level I, entry 
level wage that is not in accord with the claimed higher-level job duties and other special skills required, 
it further undermines the Petitioner's claims regarding the position. In other words, even if the SOC code 
identified on the certified LCA was correct, the petition may also not be approved based on the record of 
proceedings as currently constituted because the Petitioner has not provided an LCA that corresponds to 
the position offered to the Beneficiary. 20 Alternatively, if the Petitioner were to now claim that the LCA 
was certified for the proper wage level, it would raise credibility issues with regard to its claims about the 
complexity of the proffered position. 
The Petitioner also admits on appeal that the evidence it submitted concerning its degree requirements 
for other positions in its organization "does not constitute a 'history' of recruitment" for the proffered 
position. The Petitioner asserts that we should accept evidence of its hiring practices for other related 
positions as evidence of its normal recruitment practices for the position in question. However, under 
8 C.F.R. § 214.2(h)(4)(iii)(A)(3), it is an employer's hiring practices for the specific position indicated 
that must be established. To find otherwise and allow hiring practices for related positions within an 
organization to meet the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) could lead to a wide disparity 
in what constitutes a specialty occupation. For example, arguably an engineering technician position 
would be related to an engineer position, however, the level of specialized engineering knowledge 
required between the positions would likely vary greatly. 
Upon review of the totality of the record, the record contains inconsistencies that undermine the 
Petitioner's claims and does not establish the substantive nature of the proffered position such that we 
can conclude that the Petitioner has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 21 The 
record also does not demonstrate that performing the duties described would require the theoretical 
and practical application of highly specialized knowledge and attainment of at least a bachelor's degree 
in a specific specialty or its equivalent. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) 
(defining the term "specialty occupation). Additionally, the Petitioner did not submit an LCA that 
corresponds to the petition as required by 20 C.F.R. § 655.705(b). 
20 We also observe that in her former role as a public relations specialist for the Petitioner, the Beneficiary's resume 
indicates her duties included writing and promoting content in English and Mandarin. As discussed, the record does not 
establish whether anybody else took over her former duties or if the Beneficiary's responsibilities would still include those 
of her former position. As such, another wage level increase would also likely be required per the DOL guidance if foreign 
language skills is a requirement for the position. 
21 The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 {BIA 1988). 
8 
ORDER: The appeal is dismissed. 
9