remanded H-1B Case: Advertising And Communications

U.S. Citizenship 
and Immigration 
Services 
In Re: 9050116 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 23, 2020 
The Petitioner, an advertising and communications organization, seeks to employ the Beneficiary 
temporarily as an "associate director" under the H-lB nonimmigrant classification for specialty 
occupations. 1 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility by a preponderance of the evidence. 2 We review the questions in this matter 
de nova. 3 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review. As noted, the Director concluded that 
the proffered position is not a specialty occupation. However, the record of proceeding is not 
sufficiently developed to allow us to determine whether the proffered position is actually located 
within the occupational category for which the Department of Labor (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) was certified. 4, 5 
1 See Immigration and Nationality Act (the Act) section lOl(a)(l 5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 While Department of Labor (DOL) certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's attestations and content corresponds with and supports the H-lB petition . See 20 C.F.R. § 655.705(b) 
("DHS detennines whether the petition is supported by an LCA which corresponds with the petition . . . . "). See also 
Matter of Simeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). When comparing the standard occupation 
classification (SOC) code or the wage level indicated on the LCA to the claims associated with the petition, USCIS does 
not purport to supplant DOL's responsibility with respect to wage determinations . There may be some overlap in 
considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified 
LCA "corresponds with" the content of the H-lB petition. 
5 Before filing a petition for H-1 B classification , the regulation requires petitioners to obtain certification from DOL that 
the organization has filed an LCA in the occupational specialty in which its foreign national personnel will be employed . 
Without knowing the answer to that question, we cannot determine the actual, substantive nature of 
the position. This means that we cannot make a determination on the specialty-occupation question 
based on the current record. We therefore are withdrawing the Director's decision and remanding the 
matter for further review of the record and issuance of a new decision. Specifically, the Director 
should first determine whether (1) the Petitioner obtained a certification from DOL that it filed an 
LCA in the occupational specialty in which the Beneficiary would be employed; and (2) the LCA was 
certified for the appropriate occupational category, and therefore corresponds to and supports this 
H-lB petition. 6 
After reviewing the initial set of duties the Petitioner provided, we question whether it has 
demonstrated the substantive nature of the proffered position for multiple reasons. The Director may 
wish to evaluate those factors to make a determination on this matter. First, the majority of the initially 
provided duties appear to relate to television advertising strategies and are atypical to the Economists 
occupational classification the Petitioner designated on the LCA. 
Second, the majority of the duties the Petitioner initially offered were copied from other resources. Of 
those 12 duties, 6 were copied from a job advertisement and resume building website, which existed 
before the Petitioner filed the petition. 7 We further note that the Petitioner provided four duties that 
are identical to those found within the Occupational Information Network (O*NET) entry for the 
Economists occupational classification. Those four duties appear to be the only ones associated with 
the Economists occupation. 
We further question whether the position prerequisites the Petitioner stated in the record reflect its 
actual position requirements. Some announcements on the job advertisement and resume building 
website we mentioned above have expired. Notably, we observe that website contains an expired job 
advertisement bearing the same job title and virtually identical duties to the ones presented with!° this I 
~'s initial filing. 8 The organization associated with that job advertisement is listed as 
L___J According to the Petitioner's own website,I I appears to be one of this petitioner's 
dedicated divisions. 9 While that relationship is not an adverse aspect, we note that for this job 
advertisement, I I required a bachelor's degree in addition to "7+ years of media 
8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
6 See 8 C.F.R. § 214.2(h)(4)(i)(B)(l); Simeio Solutions, 26 I&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
7 As it relates to resume website, utilizing the following search 
https://www.google.com/search?q=%22provide+proactive+communication+with+client+regarding+media+recommenda 
tions%22&source=lnt&tbs=cdr%3Al %2Ccd min%3Al %2Fl %2F2000%2Ccd max%3A3%2Fl %2F2019&tbm= - -
results in the following content as it existed under resume number 62 titled Associate Media Director on Jan. 25, 2018, 
https://www.velvetjobs.com/resume/media-director-resume-sample. Additionally using the following search 
https://www.google.com/search?q=%22fortity+relationships+with+clients%2C+Media+Partners+and+intemal+departm 
ents%22&source=lnt&tbs=cdr%3 A I %2Ccd min%3 A I %2F 1 %2F2000%2Ccd max%3 A3%2F 1 %2F20 l 9&tbm= results 
- -
in the following content under resume number 71 titled Manager, Connected Television as it existed on Jan. 5, 2018, 
https://www.velvetjobs.com/resume/television-resume-sample. 
8 An exception is the website job advertisement contains one dut the Petitioner did not include in the initial filin . See 
the first ·ob advertisement at the followin URL: 
9 
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experience." However, the Petitioner did not express any experiential prerequisites for the position in 
this petition. 
Initially, we question why these nearly identical pos1t10ns within the Petitioner's organizational 
structure would contain such divergent prerequisites. Moreover, if these are in fact the same positions, 
we question why the Petitioner designated the position in the petition at a Level II wage rate when a 
requirement of a bachelor's degree and more than seven years of experience would likely mandate a 
Level IV wage rate designation. The Director may also wish to have the petitioning organization 
address these issues. 
Accordingly, the matter will be remanded to the Director to consider the LCA issue and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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