remanded H-1B Case: Advertising And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 9091822 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 16, 2020 
The Petitioner , an advertising and marketing firm, seeks to employ the Beneficiary temporarily as an 
"experience designer" 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 California 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 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 determines 
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 
It is unclear from the record whether the Petitioner established that the proffered position's duties 
actually correspond with those of positions located within SOC code 2 7-1024, corresponding to the 
occupational title "Graphic Designers"; the SOC code the Petitioner designated on the LCA. Despite 
the Petitioner's claims to the contrary within its response to the Director's request for evidence, it 
included duties that appear atypical to the SOC code on the LCA. Specifically, we observe that within 
the initial filing, the Petitioner stated the Beneficiary would be responsible for creating and managing 
the user experience on client websites and applications. The Occupational Information Network 
(O*NET) report for Graphic Designers provides the following definition for that occupational 
classification: "Design or create graphics to meet specific commercial or promotional needs, such as 
packaging, displays, or logos. May use a variety of mediums to achieve artistic or decorative effects." 
A review of this position's duties appears to properly classify it under thelS-1199.03 SOC code 
relating to Web Administrators, or possibly 15-1134.00 for Web Developers. Although Graphic 
Designers may research new software or design concepts, they do not engage in the types of user 
experience responsibilities found under the Web Administrators occupation. While these occupational 
categories may have some elements in common, they are distinct and separate occupational categories. 
On the issue of whether we can provide a relevant analysis of a position as a specialty occupation, a 
petitioner's selection of the incorrect SOC code on the LCA may preclude such an evaluation. The 
initial issue concerns the statutory and regulatory definitions of a specialty occupation and how these 
focus on the broader occupation as a whole, and the use of an incorrect occupational code may result 
in an erroneous outcome, or one that does not properly assess the actual nature of the occupation in 
which the Beneficiary would engage. 
A subordinate concern relates to the education requirements we consider under the regulatory criteria 
and how these may differ markedly from one occupational classification to the next. It would not be 
a valuable use ofUSCIS resources to analyze the position requirements under an incorrect SOC code. 
For instance, under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), degree requirements to enter 
an occupation are not the same for all positions in a particular field of endeavor. As an example, 
degree requirements for positions located in the Software Developers, Applications occupation 
(usually a bachelor's degree, typically in computer science, software engineering) would generally be 
different from those in the Web Developers category ( an associate' s degree in web design or a related 
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 T&N Dec. at 546 n.6; 20 C.F.R. § 655.705(6). 
2 
field is the most common requirement). 7 Likewise, when considering 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the industry for one occupation 
may also be distinct in comparison to others. 
Additionally, both of the alternative occupational classifications we listed above demand a higher 
paying wage than the SOC code designated on the LCA. When the duties of the proffered position 
involve more than one occupational category, the DOL guidance provides for selecting the most 
relevant O*NET code classification. The "Prevailing Wage Determination Policy Guidance" by DOL 
states the following: 
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 [determiner] 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 [determiner] shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 8 
Thus, if the Petitioner believed its position was described as a combination of occupations, then 
according to DOL guidance, the Petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The prevailing wage for "Graphic Designers" is lower than the prevailing 
wage for "Web Administrators." 9 The Director should consider whether the organization selected the 
highest paying SOC code associated with the position's duties. 10 
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. 
7 See the relative entry for each occupational title found at https://www.bls.gov/ooh/. 
8 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://www.foreignlaborcert. 
doleta.gov/pdtJNPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
9 For examples, see the Online Wage Librmy - FLC Wage Search Wizard, Foreign Labor Certification Data Center (July 
15, 2020)~ Web Administrators at https://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-
1199&area9....____J5[year= l 9&source= 1, and for ~phic Designers at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=27- l 024&area=L_J&year= l 9&source= 1. 
10 DOL guidance. 
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