remanded H-1B Case: Commercial Banking

U.S. Citizenship 
and Immigration 
Services 
In Re: 21179714 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 28, 2022 
The Petitioner, a commercial banking company, seeks to temporarily employ the Beneficiary as an 
"assistant vice president" under the H-lB nonimmigrant classification for specialty occupations. 
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 Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. 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. 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 Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we conclude that a remand is warranted in this 
case. 
I. ANALYSIS 
The Petitioner seeks to employ the Beneficiary in-house as a "senior vice president" and designates 
the proffered position on the labor condition application (LCA)1 as being located within the "Risk 
Management Specialists" occupational category, corresponding to the standard occupation 
classification (SOC) code 13-1199.02 at a level 11 wage. Specifically, the Director concluded that the 
record contained insufficient evidence to establish that the position qualifies as a specialty occupation 
under at least one of the four regulatory criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
1 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 duties, experience and qualifications who are performing the same services. See Section 
212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
On appeal, the Petitioner presents additional evidence and maintains that the proffered position is a 
specialty occupation. The new evidence submitted on appeal includes an evaluation of the position, 
the Beneficiary's work samples, and a more detailed description of the proffered position's duties. 
The Petitioner asserts this new evidence, when considered together with the previously submitted 
documents, demonstrates that the proffered position is a specialty occupation. 
In most cases, our decision will be limited to the evidence in the record at the time of the unfavorable 
decision, as the appellate regulations have never explicitly allowed for the submission of evidence 
with regular appeals. Accordingly, when new evidence is submitted with an appeal, we will apply 
both Matter of Soriano, 19 l&N Dec. 764 (BIA 1988), and Matter of Obaigbena, 19 l&N Dec. 533 
(BIA 1988), to determine whether we will consider that evidence as we adjudicate the appeal. In 
applying the framework of those cases to the matter at hand, we note that the request for evidence 
(RFE) provided notice to the Petitioner that an evidentiary deficiency prevented the Director from 
determining whether the proffered position was a specialty occupation. 
While the Petitioner had a reasonable opportunity to respond to the evidentiary deficiency through the 
RFE process and, in fact, did provide an RFE response which addressed the question of whether the 
proffered position is specialty occupation, we conclude this new evidence on appeal appears to be 
directly relevant to the Petitioner's claim that the position is a specialty occupation under 8 C.F.R. § 
214.2(h)(4)(iii){A){2) and (4). With regard to this additional evidence submitted, while we note that 
it provides more details on how the proffered position is a specialty occupation, we do question 
whether the Petitioner was in possession of and/or capable of submitting these documents within its 
RFE response. The AAO is not required to consider this additional evidence submitted on appeal, and 
we conclude that the Director is the more appropriate party to consider its impact on the Petitioner's 
eligibility for the benefit sought. Therefore, we will remand the matter so that the Director can 
consider it in the first instance. 
11. CONCLUSION 
Accordingly, the matter will be remanded to the Director to (1) consider the consider the new evidence 
and determine whether the Petitioner established that the proffered position is more likely than not a 
specialty occupation and (2) to make a determination as to whether the statutory and regulatory 
requirements for classifying the Beneficiary as a H-1B nonimmigrant have been met. The Director 
may request any additional evidence considered pertinent to the new determination and any other 
issue. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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