remanded H-1B Case: Business Intelligence

U.S. Citizenship 
and Immigration 
Services 
In Re: 17933145 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 4, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "consultant" 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 Texas Service Center Director denied the petition, concluding that the record did not establish 
that the Beneficiary is qualified to perform services in the specialty occupation . On appeal, the 
Petitioner asserts that the Director erred by denying the petition. The matter is now before us on 
appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 2 The Administrative Appeals Office reviews the questions in this 
matter de novo3 but a threshold matter must be resolved before we may address the merits of the 
Director's decision and the Petitioner's appeal. Accordingly, the matter will be remanded to the 
Director for further review of the record and a new decision. 
I. ANALYSIS 
The Petitioner initially provided a broad overview of the proffered position. On the labor condition 
application (LCA)4 submitted in support of the H-lB petition, the Petitioner designated the proffered 
position under the occupational category "Statisticians" corresponding to the Occupational 
Information Network's (O*NET) standard occupational classification (SOC) code 15-2041. The 
Petitioner asserted that the proffered position required "completion of a bachelor's degree in Industrial 
1 See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b) , 8 U.S.C. § l 10l(a)(15)(H)(i)(b). 
2 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. Section 2 I 2(n)( I) 
of the Act; 20 C.F.R. § 655.73l(a) . 
Engineering, Operations Research, Management Information Systems, or a related quantitative, 
analytical field ( or its equivalent)." 
Upon review of the nature of the Petitioner's business, a "business intelligence solutions and 
consulting services company, and the Petitioner's letter submitted in response to the Director's request 
for evidence (RFE) describing the position and skills required, the position appears to correspond more 
closely to that of an "Operations Research Analysts" occupation SOC code 15-2031. 5 The issue is 
that the Petitioner provides such a broad outline for the proposed position that the description could 
encompass the duties of either a "Statistician" or an "Operations Research Analysts" occupation or 
even other data analytics occupations. We understand there may be overlap between various 
occupations, 6 however, the information in the record is not sufficiently detailed so that we may 
ascertain the substantive nature of the proposed position and whether the LCA corresponds to the 
petition. 
Notably, the relevant prevailing wage for an "Operations Research Analysts" occupation at the wage 
level on the certified LCA ($71,510 per year) 7 is higher than the relevant prevailing wage for a 
"Statisticians" position ($68,515 per year) at the same wage level. Such a wage disparity highlights 
the difference between the "Operations Research Analysts" and "Statisticians" occupational categories 
generally, and more specific to this case, the significance of the Petitioner's choice of the lower paying 
occupational category. Although these two occupations may include overlapping duties, in general, 
if the duties of a proffered position involve more than one occupational category the Department of 
Labor's "Prevailing Wage Determination Policy Guidance" states that the employer "should default 
directly to the relevant O*NET-SOC code for the highest paying occupation. "8 Again, without a 
See O*NET Summary Report for "Operations Research Analysts," SOC code 15-2031 at 
https://www.onetonline.org/link/summary/l 5-2031.00 (last visited Aug. 4, 2021 ). 
6 We reviewed Exhibit 2 of the Petitioner's RFE response and note that the supplementary tasks and time allocation differ 
from the Petitioner's letter describing the position, creating further questions in the record regarding the nature of the 
proposed position. We also note that the Petitioner on the Exhibit 2 document provided examples of tasks that could fall 
within the O*NET's outline of tasks for the "Statisticians" occupation; however, these same tasks also fall within the 
parameters of the tasks outlined in O*NET for the "Operations Research Analysts" occupation. See O*NET's Summary 
Rep01is for "Statisticians" at https://www.onetonline.org/link/summary/15-2041.00 and for "Operations Research 
Analysts" at https://www.onetonline.org/link/summary/15-2031.00 (last visited Aug. 4, 2021). 
7 See FLC Data Center Online Wage Library for "Operation Research Analysts," SOC code 15-2031 at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-2031 &area~&year=20&source= 1. 
x We observe that if a position is a combination of two different, but related occupations, the higher paying SOC code must 
be on the LCA. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.flcdatacenter.com/pdt!NPWHC_Guidance_Revised_l 1_2009.pdf. To permit otherwise may result in a 
petitioner paying a wage lower than that required by section 212(n)(l )(A) of the Act, 8 U.S.C. § l 182(n)(l )(A), by allowing 
that petitioner to submit an LCA for a different occupation and at a lower prevailing wage than the one being petitioned 
for. The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l). See 
Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Ce1tification 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) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). According to section 212(n)(l )(A) of the Act, an employer must attest that it will pay a holder of an H-1 B 
visa the higher of the prevailing wage in the "area of employment" or the amount paid to other employees with similar 
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meaningful, consistent description of the proposed duties within the context of the Petitioner's 
business operations we cannot determine whether the Petitioner properly categorized the proposed 
position on the LCA. 
Further, upon review of the totality of the record, the Petitioner's minimum requirement to perform 
the position does not require a degree in mathematics or economics, degrees that are typical for 
statisticians. 9 Although the Petitioner may provide evidence that its particular position does not 
require the typical statistician's degree, it has not adequately explained why its statistician's position 
requires a degree in industrial engineering, operations research, or management information systems. 
We note here that there is a difference between an individual who has coursework in one of these 
fields and who may be prepared to perform the duties of this position and a position that actually 
requires a degree in one of these fields in order to perform it. 
Although the record includes an opinion regarding the complexity of the position, the opinion appears 
to skew the position duties toward that of an "Operations Research Analysts" occupation. 10 
Accordingly, it is not clear that the opinion-writer is aware that the Petitioner has designated the 
position as a "Statisticians" occupation on the certified LCA. The opinion-writer also refers to several 
of the Beneficiary's courses that would prepare him to perform the proffered position, again however, 
the test to establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifies as a specialty occupation. In this matter, as we 
cannot determine the substantive nature of the position, we cannot properly evaluate what degree is 
required in order to perform the duties of the position. 
Accordingly, an analysis of the Beneficiary's qualifications in this matter is premature. A 
beneficiary's credentials to perform a particular job are relevant only when the job is first found to be 
a specialty occupation. Absent a determination that a baccalaureate or higher degree in a specific 
specialty or its equivalent is required to perform the duties of the particular position proffered here, it 
cannot be determined that the Beneficiary possesses the degree the position requires in order to 
perform it. 
As the record does not establish the substantive nature of the proffered position, the matter must be 
remanded to provide the Petitioner the opportunity to establish the position is a specialty occupation. 
experience and qualifications who are performing the same services. See 20 C.F.R. ~ 655.73 l(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. Int-Z, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of 
Labor Admin. Rev. Bd. July 30, 2009). 
9 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Statisticians, 
https:/ /www.bls.gov/ooh/math/mathematicians-and-statisticians.htm#tab-4 (last visited Aug. 4, 2021 ). 
1° For example, the opinion-writer refers to organizations needing to conduct operations research to solve problems and 
realize key objectives, among other things, which appear to correspond to the duties of an "Operations Research Analysts." 
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II. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the deficiencies in the record 
discussed above, we will remand the record for further review of these issues. The Director may 
request any additional evidence considered pertinent to the new determination. 
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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