remanded H-1B Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 24154179 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 3, 2022 
The Petitioner seeks to extend the Beneficiary's temporary employment 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding the record did not establish that the offered position qualified as a specialty 
occupation . On appeal, the Petitioner submits additional evidence and asserts that the Director erred 
in denying the petition . 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. Matter of Christo 's Inc., 26 I&N Dec. 
537,537 n.2 (AAO 2015) . As we discuss below, the Department of Labor (DOL) ETA Form 9035 & 
9035E, Labor Condition Application for Nonimmigrant Workers (LCA) that the Petitioner submitted, 
does not correspond with and support the petition . Upon de nova review, we conclude that a remand 
is warranted in this case . 
As noted, the Director concluded that the offered position is not a specialty occupation. However, the 
record appears to support a dete1mination that the prevailing wage rate designated on the LCA was 
not correctly calculated based on the Petitioner's position responsibilities. 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 ofSimeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). 
When comparing the standard occupational 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. USCIS may consider DOL regulations 
when adjudicating H-lB petitions. See Int'l Internship Programs v. Napolitano, 853 F. Supp. 2d 86, 
98 (D.D.C. 2012), aff'd sub nom. Int'l Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013); ITServe All., Inc. v. Dep't of Homeland Sec., 590 F. Supp. 3d 27, 39 (D.D.C. 2022) (citing 
Simeio Solutions, 26 I&N Dec. at 546 n.6 and 20 C.F.R. § 655.705(b)); United States v. Narang, No. 
19-4850, 2021 WL 3484683, at *1 (4th Cir. Aug. 9, 2021), cert. denied, 142 S. Ct. 1360 (2022) 
(finding that USCIS adjudicators evaluate whether the employment proposed in an H-lB petition will 
conform to the wage and location specifications in the LCA). 
Without knowing whether the LCA was correctly completed, we cannot issue an ultimate eligibility 
determination. In other words, even ifwe decided in the Petitioner's favor on the specialty occupation 
issue, the petition would still not be approvable because a position that satisfies the statutory and 
regulatory requirements of a specialty occupation, but is one in which the organization would not pay 
the appropriate wage cannot be approved. Those conditions violate section 212(n)(l) of the Act and 
the intent to protect the wages and working conditions of U.S. workers. 
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 make a determination 
on whether the Petitioner selected the correct SOC code for this position's duties, and if so, whether 
it included the correct wage rate on the LCA, and whether the LCA corresponds with and supports 
this H-lB petition. 
It is unclear from the record whether the Petitioner established that the Level I wage rate designated 
on the LCA sufficiently represents the correct wage level based on DOL's five-step process contained 
within the DOL guidance evaluating various aspects such as any atypical duties across SOC codes or 
other special skills or other requirements the Petitioner requires to perform in the offered position. 
DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/ download/NPWH C _Guidance_ Revised_ 11 _ 2009. pdf The correct wage 
rate appears to be within the Level II or Level III range. 
We explain. Approximately 75 percent of the offered position's responsibilities appears to fall outside 
the typical responsibilities of the "General and Operations Managers" SOC the Petitioner designated 
on the LCA, as follows: 
This Position's Duties Seemingly Correct O*NET SOC Code 
This duty does not appear to relate to the responsibilities 
Analyze and execute digital listed in the Occupational Information Network (O*NET) for 
advertisement campaigns and the selected SOC code and instead appears to align with the 
following task listed for the Market Research Analysts and analyze data for opt1m1zation Marketing Specialists SOC code: "Measure the effectiveness compnsmg 20 percent of the of marketing, advertising, and communications programs position's time. and strategies." 
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Capture consumer trends and 
analyze online shopping behavior 
data comprising 20 percent of the 
position's time. 
Analyze competitor marketing, 
selection, and pncmg strategies 
making up ten percent of the 
position's time. 
Create analytical reports and 
dashboards for business decision 
making comprising five percent of 
the position's time. 
Review, analyze, and evaluate new 
products via online retailers making 
up ten percent of the position's time. 
Analyze and evaluate relationship 
with overseas vendors and develop 
new suppliers for Company to 
negotiate for reliable and quality 
supply of goods comprising five 
percent of the position's work time. 
Evaluate and analyze as well as 
manage product promotions through 
online channels in the U.S., E.U., 
Japan, etc. making up five percent of 
the position's time. 
This appears to be more closely related to the following task 
for the Market Research Analysts and Marketing Specialists 
code: "Forecast and track marketing and sales trends, 
analyzing collected data." 
This also seemingly is closely associated with the following 
task for the Market Research Analysts and Marketing 
Specialists code: "Gather data on competitors and analyze 
their pnces, sales, and method of marketing and 
distribution." 
While General and Operations Managers review reports 
according to the O*NET, this resource does not seem to 
support the idea that they will create analytical reports and 
dashboards. That type of activity appears to fit better within 
the Market Research Analysts and Marketing Specialists or 
the Business Intelligence Analysts SOC codes. 
This appears to align with the following task for the Market 
Research Analysts and Marketing Specialists SOC code: 
"Gather data on competitors and analyze their prices, sales, 
and method of marketing and distribution." 
This duty ostensibly falls under the Supply Chain Managers 
SOC code for the following task: "Negotiate prices and 
terms with suppliers, vendors, or freight forwarders." 
This responsibility does not appear to fall under the selected 
SOC code and instead may more properly align with the 
Advertising and Promotions Managers code. 
We also note on the petition, the Petitioner indicated it has two employees, but in response to the 
Director's request for evidence it indicated the Beneficiary would "[w ]ork with international 
ecommerce team to improve their online campaigns model." Not only does this appear to fall outside 
the selected SOC code and to fit more appropriately within the Advertising and Promotions Managers 
code, but also the Petitioner did not explain what or who comprises its "international ecommerce team" 
when it only has two employees. 
Based on the above, it appears the Petitioner should have at least specified the position at a Level II 
wage rate, if not a Level III, for duties that fall outside of the selected SOC code. Here, the Petitioner 
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proposed to pay the Beneficiary the least possible amount, and at the lowest level at $72,342 annually. 
Alternatively, a Level II wage rate would have resulted in an annual salary of $112,278, and a Level 
III rate would have resulted in $152,194. Because of the small number of personnel the Petitioner 
employs, it appears the Beneficiary might be required to perform several functions outside the selected 
SOC code. The position's final responsibility of "[p]]erform other relevant business analysis duties for 
Company's growth and development" further supports this position that the Beneficiary might perform 
several functions outside of the SOC code the Petitioner selected on the LCA. 1 
As the Petitioner was not previously accorded the opportunity to address the above, we will remand 
the record for further review of these issues. If the Director determines it is necessary, they 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. 
1 Although an individual's responsibilities vary from one employer to the next, we note that the Beneficiary's previous 
employer filed multiple LCAs designating the SOC code as Market Research Analysts and Marketing Specialists. 
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