remanded H-1B Case: Brand Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 9686876 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 26, 2020 
The Petitioner, a brand management and production company, seeks to employ the Beneficiary 
temporarily as a "project coordinator/content creator" under the H-lB nonimmigrant 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the Petitioner did not establish that the Beneficiary would perform services in a 
specialty occupation for the requested period of intended employment. The Director further 
determined 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. 
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). 
While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision 
in ltserve Alliance, Inc. v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (D.D .C. 2020). Subsequently, 
U.S. Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance 
relating to H-lB petitions filed for workers who will be employed at one or more third-party worksites. 
USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda 2 (June 17, 2020), 
http://www.uscis .gov/legal-resources/policy-memoranda. Although we conduct de nova review on 
appeal, we conclude that a remand is warranted in this case in part based on new USCIS policy 
guidance. Additionally, the Director erred within the specialty occupation analysis, particularly under 
the first criterion. Finally , we describe some issues below that the Director should consider within 
any new decision. 
I. FIRST CRITERION 
We begin with the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate or 
higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry 
into the particular position. Within the denial decision, the Director incorrectly concluded that the 
U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) did "not contain 
descriptions for this occupation." However, we note that although the Handbook does not include a 
profile for the occupation by the exact title Market Research Analysts and Marketing Specialists, it 
does contain a profile titled Market Research Analysts. That profile has a link under the "More Info" 
tab to the occupational classification the Petitioner selected on the DOL ET A Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA). As the Director did not make a 
decision on this issue, we are remanding for her to make an initial determination. 
On the issue of the Handbook as a resource describing normal minimum degree requirements, the 
Petitioner submitted an opinion letter froml I an associate professor at I O I 
University. I I stated that the Handbook "is intended to educate the public about 
occupational characteristics and labor trends, therefore it is not intended to establish minimum 
educational entry requirements."! l's reference to occupational characteristics appears 
to refer to the manner in which DOL has indicated that the Handbook is a "publication used by many 
to determine characteristics of occupations. It is often broad in its descriptions and may include many 
[standard occupation classification] SOC codes within one general category." OFLC Frequently 
Asked Questions and Answers, Foreign Labor Certification (Aug. 11, 2020), 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
It further appears that I I briefly touched on the issue of including several SOC codes in 
one Handbook profile. On that topic, the Bureau of Labor Statistics (BLS) publishes projections for 809 
occupations that are included in the SOC system. DOL has consolidated the 568 detailed occupations in 
the SOC system into 325 Handbook profiles. OOH FAQs, Occupational Outlook Handbook (Aug. 11, 
2020), https://www.bls.gov/ooh/about/ooh-faqs.htm. That means the BLS took approximately 43 percent 
of the detailed occupations in the SOC system and combined them with other detailed occupations 
represented in the Handbook. 
Offering one example, the Handbook profile relating to Computer Systems Analysts incorporates at least 
six SOC codes under its discussion of the responsibilities of that particular profile: 
I 15-1121.00 - Computer Systems Analysts; 
I 15-1199.09 - Information Technology Project Managers; 
I 11-3021.00 - Computer and Information Systems Managers; 
I 15-1199.01 - Software Quality Assurance Engineers and Testers; 
I 15-1131.00 - Computer Programmers; and 
I 15-1132.00 - Software Developers, Applications. 
We acknowledge the position some have taken that certain occupational categories in the Handbook 
satisfy the first criterion based on the Handbook's descriptive language (e.g., most, common, usually, 
typically, etc.). We do not necessarily agree with that position in all cases, which appears to be the 
position! I posited in his letter. He seemingly supports the position that the Handbook is 
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a resource that broadly represents as many jobs as possible within a particular area, and generally is not 
suitable for the purpose of determining whether an employer's job opportunity (i.e., "the particular 
position" as mandated under the first criterion) in a given case aligns with the information in the 
Handbook, or for classifying occupations. See also Janrain, Inc., 2016-PWD-00003 (Nov. 16, 2016) 
(expressing a similar position). The Board of Alien Labor Certification Appeals (BALCA) further 
explained that the Handbook offers general, career-oriented information, often too broad to align fully or 
consistently with the job code information within the Occupational Information Network (O*NET). Id. 
Therefore, BALCA's views on this issue appear to correspond withl l's opinion expressed 
within his letter. 
As a result, while the Handbook may be one resource representing education requirements for broader 
fields as a whole, the Director should evaluate whether the Handbook is ideal for this individualized and 
specific position under the first criterion. 
II. POSITION'S DUTIES 
While DOL certifies the LCA, USCIS determines whether the LCA's attestations and content 
corresponds with and supports the H-1B 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 l&N Dec. 542, 546 n.6 (AAO 2015). When comparing the 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-1B petition.1 Further, 
USCIS may consider DOL regulations when adjudicating H-1B petitions. See lnt'I Internship 
Programs v. Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. lnt'I Internship 
Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013). 
Prior to making a determination on whether the Petitioner has satisfied criterion one and whether the 
position qualifies as a specialty occupation, the Director may wish to address a possible issue that 
would preclude this petition's approval. 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 LCA was certified. Without knowing the answer to that question, it does not 
appear that USCIS can make a determination on the specialty-occupation question based on the current 
record. 
Regarding the issue of whether USCIS could provide 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 
1 Before filing a petition for H-1B 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. 
8 C.F.R. § 214.2(h)(4)(i)(B){l). 
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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 of USCIS resources to analyze 
the position requirements under an incorrect SOC code. 
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 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-1B petition. 2 
While we agree with the Petitioner that its job description before the Director outlined the position's 
responsibilities, we question whether it sufficiently described a qualifying position under the Market 
Research Analysts and Marketing Specialists occupational classification on the LCA. Even though 
the duties the Petitioner offered appear too vague to qualify under the H-1B program, they are not so 
ambiguous that we are left wondering what the Beneficiary's broad responsibilities would be in the 
position. 
Based on the Petitioner's job description and percentage of time the Beneficiary would perform each 
broad responsibility, we estimate that 70 percent of her time will be spent on functions that are atypical 
to the Market Research Analysts and Marketing Specialists occupational classification. In all, it 
appears the duties are divided among six SOC codes. As a result, the Director should consider whether 
the Petitioner selected the correct SOC code on the LCA. 
On remand, the Director should determine whether the division of duties between six SOC codes poses 
a problem for this petition. We follow DOL guidance, which provides a five-step process for 
determining the appropriate SOC code and wage level. 3 The DOL guidance contains the same 
publicly available procedure an employer, or their representative, should follow to not only find the 
correct SOC code (i.e., utilizing the O*NET), but also to calculate the appropriate wage level. 
We note that on appeal the Petitioner offers a chart comparing the proffered position's duties with 
those under the Handbook's profile for Market Research Analysts. DOL guidance indicates-and DOL 
administrative appeals decisions confirm-the public is to evaluate the elements within the O*NET and 
not the Handbook.4 In fact, the DOL guidance does not refer to the Handbook at all within its 36 pages. 
As a result, any similarities between a broadly represented occupational area within the Handbook and a 
particular position in an H-1B petition should not be considered when determining whether the employer 
identified the correct SOC code on the LCA. 
Under DOL's five-step process for wage level determinations, the first step involves identifying the 
proper SOC code. The DOL guidance states that "[i]f the employer's job opportunity has worker 
2 See 8 C.F.R. § 214.2(h)(4)(i)(B)(1); Simeio Solutions, 26 l&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
3 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. 
4 DOL guidance. We reiterate that BALCA has affirmed that information within the Handbook is not suitable for the 
purpose of determining whether an employer's job opportunity in a given case fits what is in the Handbook, or for 
classifying occupations in the LCA context. See Janrain, Inc., 2016-PWD-00003 (Nov. 16, 2016). 
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requirements described in a combination of O*NET occupations, the [decision on which SOC code 
will be used] should default directly to the relevant O*NET-SOC occupational code for the highest 
paying occupation."5 
Considering the O*NET, it defines the SOC code the Petitioner selected as the following: "Research 
market conditions in local, regional, or national areas, or gather information to determine potential 
sales of a product or service, or create a marketing campaign. May gather information on competitors, 
prices, sales, and methods of marketing and distribution." It is apparent that this occupation performs 
research for business purposes that relate to marketing and sales to inform an organization's 
management in their decision-making efforts. 
But, the Petitioner incorporated duties into the offered position that are atypical to this SOC code. 
Although the O*NET report for the Market Research Analysts and Marketing Specialists occupation 
reflects that these personnel measure customer satisfaction, it does not indicate that candidates will 
"[d]evelop and foster business relationships to capitalize on opportunities," "[c]reate content for 
pitches and presentations to brand partners and clients," and other relationship building aspects that 
the Petitioner indicated the Beneficiary would. Those functions appear atypical for the selected 
occupational code and seemingly are more aligned with the 11-2011 SOC code associated with the 
Advertising and Promotions Managers occupational title. 
We observe other duties that are atypical to the Market Research Analysts and Marketing Specialists 
occupation. Namely creating and implementing all digital and social media marketing 
communications to ensure company growth and high return on investment, which appears to be a 
mixture of the 11-2021 SOC code for Marketing Managers and the Advertising and Promotions 
Managers occupational title. Next, those working within the selected SOC code on the LCA do not 
plan, coordinate, and direct the production department's marketing and communications media 
activities. Those functions appear to better align with the Marketing Managers occupational title. 
Additionally, the code the Petitioner identified does not coordinate commercial production shoots or 
ensure all production department operations run according to established guidelines, plans, and 
schedules, they do not organize personnel and location for production shoots, nor do they serve as 
audio operator as needed, particularly during podcast recordings. Those responsibilities better align 
with the 27-2012.01 SOC code for the Producers occupational title. Finally, creating and delivering 
visual graphics for digital media appears to align with the 27-1024 SOC code for Graphic Designers. 
In the end, it appears the majority of the Beneficiary's work time will be devoted to duties that properly 
align with the Marketing Managers SOC code for approximately 30 percent of her time. This is not 
the SOC code the Petitioner selected on the LCA. Then, about 25 percent of her duties would fall 
under the Database Administrators occupational title. Third in line at approximately 16 percent is the 
SOC code the Petitioner designated on the LCA, Market Research Analysts and Marketing Specialists. 
The rest of the position's time is split between the remaining SOC codes. 
5 See also section 212(n){l){A) of the Act; 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & 
n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm'r Wage & Hour 
Div. v. Clean Air Tech. lnt'I, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Adm in. Rev. Bd. July 30, 2009). 
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Based on this information, it appears that the Petitioner did not select the best SOC code for which the 
Beneficiary would spend the majority of her work time. More importantly, the DOL guidance instructs 
employers to review its job requirements "and determine the appropriate occupational classification," 
and if an "employer's job opportunity has worker requirements described in a combination of O*NET 
occupations," it should select "the higher paying occupation."6 It appears that the Petitioner should 
have selected the Marketing Managers SOC code as that occupation is both predominant within the 
position's responsibilities and it demands the highest prevailing wage rate throughout all four wage 
levels. 
Additionally, the Director should evaluate if the Level I prevailing wage rate the Petitioner selected 
for the LCA was correct. We note duties that fall outside of an SOC code's normal responsibilities 
usually require an increase in this rate attendant with an escalation in the wages employers pay foreign 
workers. Step four of the DOL guidance focuses on "Special Skills and Other Requirements" and 
provides the following instructions, "In situations where the employer's requirements are not listed in 
the O*NET Tasks, Work Activities, Knowledge, and Job Zone Examples for the selected occupation, 
then the requirements should be evaluated to determine if they represent special skills." If the skills 
required for the job are generally encompassed by the O*NET position description, no wage level 
point should be added to the prevailing wage rate. The guidance continues stating, "However, if it is 
determined that the requirements are indicators of skills that are beyond those of an entry level worker, 
consider whether a point should be [added to the employers prevailing wage rate calculations]." 
It appears that the duties spread across numerous unrelated SOC codes may warrant an increase in the 
prevailing wage. The Director should consider the record and the Petitioner's claims to determine 
whether the employer's requirements mandated a higher prevailing wage rate than the organization 
I isted on the LCA. 
111. CONCLUSION 
Accordingly, the matter will be remanded to the Director to consider the above issues 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. 
6 See the DOL guidance. 
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