dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-N-S-, LLC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 13, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a healthcare information company , seeks to employ the Beneficiary temporarily as a 
"software engineer 2" under the H-lB nonirnrnigrant 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 Nebraska Service Center denied the Form 1-129, Petition for a Nonirnmigrant 
Worker, concluding that the record did not establish that the petition is supported by a labor condition 
application (LCA) which corresponds to the proffered position. 20 C.F.R. § 655.705(b). 1 On appeal, 
the Petitioner asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
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." 2 It also serves to protect H-lB 
workers from wage abuses. A petitioner must 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 . 
1 The regulation states, in pertinent part ( emphasis added): 
For R-18 visas . . . DRS accepts the employer 's petition (DRS Form I-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the p etition is support ed by an LCA which correspond s with 
the petitio n, 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 for R-1B visa classification. 
2 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). 
Matter of C-N-S-, LLC. 
Section 212(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 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). 
As explained by the Director in the request for evidence (RFE), we apply 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. 
The Petitioner indicated that the proffered position falls under the standard occupational classification 
(SOC) code of 15-1132 for "software developers, applications" at a Level II wage. As discussed by 
the Director and listed in the submitted O*NET printouts, the proffered position is a job zone 4 with 
a specific vocational preparation range (SVP) of 7 < 8, which is defined as "over two years up to and 
including four years of experience." On appeal, the Petitioner incorrectly claims that a job zone 4 
occupation has an SVP of 4, even though in response to the Director's RFE it relied on the correct 
SVP and corresponding experience on the submitted Appendix C: Worksheet for Use in Determining 
OES Wage Level. 3 
As the Director explained in detail in both the RFE and the decision, step 2 requires a comparison of 
the Petitioner's experience requirement, which is "at least 5 to 7 years," to the experience provided for 
by the corresponding O*NET job zone, which is "over two years up to and including four years of 
experience." Per DOL's guidance, for job zone 4 occupations, if the employer's experience 
requirement is more than that provided for by O*NET, the wage is increased by 3 levels. 4 
In light of the above, the Petitioner has not established that the LCA corresponds with the petition. 
Further, as the above precludes approval of the petition, we will not address additional issues in the 
record. 
3 Although the Petitioner accurately completed the 'job offer requirements" and "O*NET usual requirements" columns on 
the submitted worksheet it incorrectly indicated that a one level increase in the wage would be required. The Petitioner 
did not provide any explanation as to why it relied on the correct SVP in the RFE response, but tried to claim a lower SVP 
on appeal, especially since the documents it submitted clearly show that the occupation is a job zone 4 with an SVP of 
7<8. 
4 The Level II prevailing wage used by the Petitioner for the position is $65,915/year and the correct I eye) IV~revailing 
wage is $87,818/year. See https://flcdatacenter.com/OesQuickResults.aspx?code=15-1132&1,__ __ _,!&year=l 9 
&source=!. (Last accessed Sept. 12, 2019.) 
2 
Matter of C-N-S-, LLC. 
II. CONCLUSION 
The appeal will be dismissed for the above stated 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 ofC-N-S-, LLC., ID# 4995494 (AAO Sept. 13, 2019) 
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