dismissed H-1B Case: Wholesale

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 4, 2024 In Re: 33361044 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
file a petition with U.S. Citizenship and Immigration Services (USCIS) to temporarily employ a 
qualified nonimmigrant 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 petition, concluding that the record did not 
establish that the Petitioner submitted a certified labor condition application (LCA) for the 
occupational classification in which the Beneficiary will be employed. The matter is now before us 
on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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)(l) of the Act but adds a 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. Lastly, 8 C.F.R. 
§ 214.2(h)( 4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national who "will 
perform services in a specialty occupation . . . " ( emphasis added). 
Accordingly, to determine whether a 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). 
In addition, before filing a petition for H-1 B classification, the regulations require a petitioner to obtain 
certification from the U.S. Department of Labor (DOL) that the organization has filed an LCA in the 
occupational specialty in which the beneficiary will be employed. 8 C.F.R. § 214.2(h)(4)(i)(B)(]). 
Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state that it 
will comply with the terms of the LCA. 
The purpose of DOL's LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." See Labor Condition 
Applications and Requirements for Employers Using Nonimmigrants on H-JB 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). See also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 231 (2d Cir. 
2020) (quoting 20 C.F.R. § 655.0(a)(l) and finding that a primary goal of U.S. nonimmigrant work 
visa programs like the H-1 B Program is to ensure that "the employment of the foreign worker in the 
job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. 
workers."). The LCA also serves to protect H-1B workers from wage abuses. A petitioner submits 
the LCA to DOL to demonstrate that it will pay an H-1B 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, 8 U.S.C. § l 182(n)(l); 20 C.F.R. § 655.73 l(a). 
While DOL certifies the LCA, USCIS "determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation . . . , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-1B visa classification." 20 C.F.R. § 655.705(b); see also Matter of Simeio 
Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015); see also ITServe Alliance, Inc. v. DHS, 590 F. 
Supp. 3d 27, 40 (D.D.C. 2022) (noting 20 C.F.R. § 655.705 requires USCIS "to check that the [H-1B] 
petition matches the LCA"). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
LCA corresponds to the petition and has not sufficiently established the services in a specialty 
occupation that the Beneficiary would perform during the requested period of employment. This 
precludes a determination of whether the proffered position qualifies as a specialty occupation under 
2 
sections 10l(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. 
§ 2 l 4.2(h)( 4)(ii) and (iii)(A). 1 
The Petitioner is an importer and wholesaler of manual and electric bicycles, radio-controlled vehicles, 
skateboards, and scooters. The Petitioner intends to employ the Beneficiary in the position of 
"advertising editor." The Petitioner states that the proffered position involves the following duties: 
• Produce advertisements that persuade consumers to purchase the products. (50%) 
• Conduct research to study consumers' preferences, wants, needs, and desires, in order 
to help the company to improve on the products and services that are appealing to the 
consumers. (40%) 
• Identify potential improvements and recommend them to the marketing/sales team; 
support change initiatives. (10%) 
On the LCA submitted in support of the petition, the Petitioner designated the position to be in 
occupational category of"Editors," assigned SOC code 27-3041.00 in the O*NET. 2 According to the 
O*NET' s description, positions located within the editor occupation primarily "[p]]Ian, coordinate, 
revise, or edit written material" and may "review proposals and drafts for possible publication." 
The Director denied the petition, concluding that the duties of the proffered position do not align with 
the editor occupation and that the Petitioner therefore did not submit a certified LCA for the 
occupational classification in which the Beneficiary will be employed. The Director concluded that 
the duties of the proffered position-producing advertisements and conducting research on consumer 
preferences-more closely align with an occupation in the advertising field, such as "Advertising and 
Promotions Managers," (SOC Code 11-2011). 
On appeal, the Petitioner asserts that because this is an extension petition, the Director should have 
given deference to the prior approval determination. The Petitioner also presents new evidence on 
appeal: an advisory opinion letter from a professor and a letter from the Petitioner regarding the job 
duties. 
We conclude that the Petitioner has not established it has obtained a certified LCA in the occupational 
specialty in which the Beneficiary will be employed, as required by 8 C.F.R. § 214.2(h)(4)(i)(B)(I), 
or that, if the position is for a combination of occupations, that it has obtained a certified LCA for the 
higher paying of those occupations. Additionally, this lack of clarity precludes our determination of 
whether the proffered position qualifies as a specialty occupation. The burden of proof, even in a 
request for an extension of a petition, rests with the Petitioner, and we are not required to defer to a 
prior approval determination which may have been erroneous. See generally, 2 USCIS Policy Manual 
A.4(B)(l), https://www.uscis.gov/policy-manual. For the reasons discussed below, the Petitioner has 
not met that burden here. 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 See O*NET OnLine Summary Report for "27-3041 - Editors," https://www.onetonline.org/link/summary/27-3041.00. 
3 
First, the Petitioner's job description states that nearly half ( 40%) of the position's responsibilities 
involve conducting research regarding consumer preferences. Within this job duty, the Petitioner 
states that the Beneficiary will design research methodologies, conduct qualitative and quantitative 
data analysis, and compile data related to the product market and consumer demographics. These job 
duties appear to align closely to the occupation of "Market Research Analysts and Marketing 
Specialists," (SOC Code 13-1161 ). 3 These job duties do not appear to relate to the editor occupation, 
and the Petitioner does not claim that they do relate. Instead, the Petitioner altered its job description 
in response to the Director's request for evidence (RFE) by stating that this job duty only reflects 10% 
of the position, rather than 40%. The Petitioner did not explain or address this change to the job 
description, but we agree with the Director that it is a material change in the description of the job 
duties and the responsibilities of the position. As stated by the Director, a petitioner may not make 
material changes to a petition after its filing in an attempt to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). On 
appeal, the Petitioner still does not address this change to the job description, and the Petitioner does 
not address the Director's conclusion that it represents a material change to the job after the filing of 
the petition. 
We also note that, despite the Petitioner's attempt to de-emphasize the market research aspects of the 
position, other evidence in the record demonstrates that these aspects are an important part of the 
proffered position. The Petitioner itself, in describing why the Beneficiary is well-qualified for the 
position, focuses on the marketing aspects of the position. Although the Beneficiary possesses the 
foreign equivalent to a bachelor's degree in English, which aligns with the Petitioner's stated minimum 
educational requirement, the Petitioner also asserts that the Beneficiary is qualified for the position 
based upon her master's degree in educational psychology. The Petitioner states that the Beneficiary's 
coursework in her master's degree program focused on the scientific study of individual and collective 
behavior, research methods, research methodologies, the techniques of designing research topics and 
questions, qualitative research methods, understanding social behaviors through study, and conducting 
surveys. The Petitioner states that this course of study helps the Beneficiary to use scientific research 
techniques to collect information about consumers and use psychological principles to understand and 
analyze consumers' thinking and behavioral patterns. These assertions support the conclusion that the 
position aligns substantially with the market research analysts and marketing specialists occupation, 
rather than the editor occupation. 
Second, the other two job duties do not appear to sufficiently relate to the editor occupation. The job 
duty that involves 50% of the position-producing advertisements that persuade consumers to 
purchase the products-has some overlap with the editor occupation, but we agree with the Director 
that it also aligns with an advertising occupation such as the advertising and promotions managers 
occupation. The Petitioner states that within this job duty the Beneficiary will plan, review, and revise 
content for publication and take into account consumer's thought processes, behaviors, ideology, 
socio-economic status, finances, and level of maturity to create ads. In the final 10% of the position's 
responsibilities, the Petitioner states that the Beneficiary will develop and refine marketing goals, 
promotional activities, and branding in consultation with the marketing team; review and approve 
3 According to O*NET, the market research analysts and marketing specialists occupation involves conducting research 
on consumer opinions and marketing strategies and collecting and analyzing data on customer demographics, preferences, 
needs, and buying habits. See O*NET OnLine Summary Report for "13-1161-Market Research Analysts and Marketing 
Specialists," https: //www.onetonline.org/link/ summary /13-1161. 00. 
4 
advertisement presentations; and make recommendations to improve the layout presentation. 
Similarly, according to O*NET, advertising and promotions managers plan and prepare advertising 
and promotional material to increase sales; inspect layouts and advertising copy; and coordinate with 
marketing team members, graphic artists, and others to develop and implement marketing programs. 
Overall, only half of the position's responsibilities appear to involve duties that align with the editor 
occupation, and even there this is only in part. The other half of the position's responsibilities appear 
to align either entirely or more closely with a marketing or advertising occupation. 
As noted above, one of the purposes of the LCA is to protect H-1 B workers from wage abuses. A 
petitioner must demonstrate that it will pay 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. 
§ 655.73l(a). The wage rate certified on the LCA is $28.61 per hour, which is the minimum Level I 
wage rate for the occupational category of editor. For the same year, the occupational category of 
advertising and promotions managers had a minimum level I wage rate of $54.44 per year. Because 
the position appears to combine the occupations of editor, market research analysts and specialists, 
and advertising and promotions managers, the Petitioner has not demonstrated that it will pay the 
higher of the prevailing wages, or the actual wages, for the occupational classification in the area of 
employment. 
Ensuring that the employer has selected the SOC code on the LCA that most closely matches the 
proffered position is also important for reasons that affect H-lB statutory and regulatory requirements. 
We review the actual duties the Beneficiary will be expected to perform to ascertain whether those 
duties require at least a bachelor's degree in a specific specialty, or its equivalent, as required for 
classification as a specialty occupation. To accomplish that task, we must understand and analyze the 
actual duties in conjunction with the Petitioner's business operations. But the wrong SOC code can 
direct USCIS to evaluate an inapplicable occupational title or category and impedes our analysis of 
whether a petitioner has satisfied the statute's definition of a specialty occupation. With the apparent 
mismatch between the position's job duties and the SOC code on the LCA, and with the Petitioner's 
attempt to alter its job description without explanation, the Petitioner impedes our ability to determine 
whether and how the position qualifies as a specialty occupation. 
The Petitioner's arguments and evidence presented on appeal do not overcome these deficiencies. The 
letter from the Petitioner submitted on appeal simply restates the job description previously provided. 
The letter does not explain how the position most closely aligns to the editor occupation, and it does 
not establish error in the Director's findings. The advisory opinion letter similarly does not establish 
error in the Director's findings. The letter, from an associate professor atl Istates the 
conclusion that the proffered position aligns with the editor occupation. However, the letter does not 
do so persuasively. For example, the professor makes only a single reference to the fact that the 
Beneficiary "develop surveys to conduct consumer research," despite this aspect of the position being 
40% of the job's responsibilities, as initially described. Additionally, the professor does not 
acknowledge that this duty relates to market research and instead asserts that it relates to the editor 
occupation because it is analogous to the O*NET's description of an editor's responsibility to plan 
"the contents of publications according to the publication's style, editorial policy, and publishing 
requirements," and to confer "with management and editorial staff members regarding placement and 
emphasis of developing news stories." As a matter of discretion, we may use opinion statements 
5 
submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. We are ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id. Here, we conclude 
the opinion letter is of little probative value because it does not accurately address all the aspects of 
the position and states conclusions that appear contrary to the evidence. 
Finally, we are unpersuaded by the Petitioner's claim that the Director erred by not giving deference 
to the prior determination and that USCIS policy requires officers give deference to a prior approval 
when adjudicating an extension unless there was a material error, material change, or new material 
facts. We do not agree with the Petitioner's characterization of the USCIS Policy Manual regarding 
deference to prior determinations. The USCIS Policy Manual states that officers should defer to prior 
determinations of eligibility only where appropriate. See generally, 2 USCIS Policy Manual, supra. 
The USCIS Policy Manual also states that USCIS decides each matter according to the evidence in 
the record on a case-by-case basis and officers are not bound to approve subsequent petitions where 
eligibility has not been demonstrated strictly because of a prior approval (which may have been 
erroneous). See id. The Policy Manual does not, as the Petitioner asserts, require an officer to defer 
to a prior finding of eligibility unless the officer makes a specific finding of material error, material 
change, or new material facts. 
For the reasons stated above, we conclude that it would not be appropriate to defer to the prior 
determination of eligibility here. The Petitioner has not established that it has obtained a certified 
LCA in the occupational specialty in which the Beneficiary will be employed, as required by 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(]), and without sufficient clarity 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 specialty occupation and is a position that also satisfies at least 
one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. See section 291 of the 
Act. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
6