remanded H-1B Case: Computing Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 8768234 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 8, 2020 
The Petitioner , a provider of computing products and services, seeks to temporarily employ the 
Beneficiary as an "accounts manager 2 - inside sales renewals" under the H-lB nonimrnigrant 
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 Director of the California Service Center denied the petition, concluding that the record did not 
establish (1) the substantive nature of the proffered position, (2) the proffered position qualifies as a 
specialty occupation , and (3) the Beneficiary is qualified to perform the duties of a specialty 
occupation. On appeal, the Petitioner asserts that the Director erred in denying the petition . 
Upon de nova review, we will withdraw the decision of the Director. 1 The matter will be remanded 
for further review and entry of a new decision . 
I. ANALYSIS 
As noted above, the Director concluded, in part, that the record did not establish the substantive nature 
of the position. Specifically, the Director determined that the Petitioner's job description "does not 
adequately convey the substantive work that the beneficiary will perform. " Upon review of the entire 
record, however, we have determined the submitted evidence, including the Petitioner's April 22, 2019 
letter, sufficiently explains and expands upon the proffered position's duties, such that on the issue of 
the substantive nature of the position, the Petitioner has met its burden. Accordingly, the Director's 
decision as to the substantive nature of the position is withdrawn. 
However, it appears that the Petitioner's description of the proffered position's duties does not 
correspond to the occupational category designated on the labor condition application (LCA). 2 The 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
2 While the Department of Labor certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines 
whether the LCA's content corresponds with 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 , .. .. "). 
Director should, therefore, determine whether (1) the record sufficiently establishes that the petition 
is supported by an LCA that corresponds with the petition and (2) the regulation at 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(I), which requires a certified LCA for the Beneficiary's occupational specialty 
prior to the filing the H-1 B petition, has been met. 3 
The Petitioner described the duties of the proffered position and the percentage of the Beneficiary's 
time spent on each duty, as follows: 
• Validate, configure, and document associated! I software, hardware, and 
service solutions to meet customer and sales objectives [20%]; 
• Assess hardware and software configuration of original array and upgrades added 
later [15%]; 
• Assist in the analysis, design, and development of folly integrated technology 
solutions before creating a renewal contract [ 10%]; 
• Analyze technical customer renewal inquiries with the goal of maintaining or 
upgrading existing customers' products and services [5%]; 
• Provide technical leadership and direction to customers and internal staff for entire 
stack in support of post-sales activities in the assigned market [5%]; 
• Technically assess hardware capabilities, software requirements and systems 
integration [5%]; 
• Provide contract guidance to account executives, channel partners and end-user 
customers with respect td llegacy Storage Products [3%]; 
• Analyze and validate Contract pricing structure [3%]; 
• Ensure competitiveness of company's maintenance contracts in line with similarly 
situated storage solution manufacturers [3%]; 
• Understand I I and competitive technology and business applications 
within the assigned market [5%]; 
• Work with Sales Team to develop and implement specific account penetration 
strategies, produce account specific product and service and sales plans [5%]; 
• Conduct quality solution presentations and develop pricing, negotiate, and close 
deals with clients [5%]; 
• Meet specific sales goals put forth by sales management [5%]; 
• Ensure timely maintenance of contract renewal, and promote awareness of upgrade 
in service level and add-on opportunities to customers [3%]; 
• Ensure timely contract renewal and promote awareness of upgrade and add-on 
opportunities to customer 4 [3%]; 
• Implement and oversee contract renewal initiatives for Enterprise accounts in 
assigned region [2%]; 
3 A petitioner submits the LCA to U.S. Department of Labor to demonstrate that it will pay an H-lB 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. Section 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
4 We note that this job duty is virtually identical to the preceding job duty. 
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• Anticipate technology and/or market trends and provide guidance on their 
application to external customers and feedback of business requirements back into 
I l's engineering and marketing organizations [2%]; and 
• Update Salesforce CRM with renewal sales activities on a daily basis [l %]. 
On the LCA, the Petitioner designated the proffered position under the occupational category for sales 
representatives, wholesale and manufacturing, technical and scientific products, corresponding to the 
Standard Occupational Classification (SOC) code 41-4011. 5 The Petitioner selected a Level I wage as 
corresponding to the job requirements, necessary experience, education, special skills, and other 
requirements of the proffered position. When comparing the duties of the proffered position to those 
provided in the Occupational Information Network (O*NET), it does not appear that the Petitioner 
selected the appropriate SOC code for the proffered position. The DOL's "Prevailing Wage 
Determination Policy Guidance" provides clear guidance for selecting the most relevant O*NET 
occupational code classification, as follows: 
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 NPWHC 
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 
NPWHC shall use the education, skill and experience levels for the higher paying 
occupation when making the wage level determination. 
According to O*NET, sales representatives, wholesale and manufacturing, technical and scientific 
products generally: 
Sell goods for wholesalers or manufacturers where technical or scientific knowledge is 
required in such areas as biology, engineering, chemistry, and electronics, normally 
obtained from at least 2 years of post-secondary education. 6 
O*NET provides a list of 34 tasks related to the occupation for a sales representatives, wholesale and 
manufacturing, technical and scientific products. While we acknowledge that some of these tasks may 
relate to the duties of the proffered position, it appears that the O*NET entry for sales engineers (SOC 
code 41-9031) is more closely aligned with the position. 7 According to O*NET, sales engineers 
generally: 
Sell business goods or services, the selling of which requires a technical background 
equivalent to a baccalaureate degree in engineering. 
Of the 21 tasks listed for a sales engineer, the following 16 directly relate to the proffered position: 
5 See https://www.onetonline.org/link/summary/41-4011.00 
6 See https://www.onetonline.org/link/summary/41-4011.00. 
7 See https://www.onetonline.org/link/summary/4 l-903 l .OO. 
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1. Collaborate with sales teams to understand customer requirements, to promote 
2. the sale of company products, and to provide sales support; 
3. Sell products requiring extensive technical expertise and support for 
installation and use, such as material handling equipment, numerical-control 
machinery, or computer systems; 
4. Plan and modify product configurations to meet customer needs; 
5. Confer with customers and engineers to assess equipment needs and to 
determine system requirements; 
6. Prepare and deliver technical presentations that explain products or services to 
customers and prospective customers; 
7. Arrange for demonstrations or trial installations of equipment; 
8. Create sales or service contracts for products or services; 
9. Develop, present, or respond to proposals for specific customer requirements, 
including request for proposal responses and industry-specific solutions; 
10. Provide technical and non-technical support and services to clients or other 
staff members regarding the use, operation, and maintenance of equipment; 
11. Recommend improved materials or machinery to customers, documenting 
how such changes will lower costs or increase production; 
12. Develop sales plans to introduce products in new markets; 
13. Provide information needed for the development of custom-made machinery; 
14. Document account activities, generate reports, and keep records of business 
transactions with customers and suppliers; 
15. Keep informed on industry news and trends, products, services, competitors, 
relevant information about legacy, existing, and emerging technologies, and 
the latest product-line developments; 
16. Identify resale opportunities and support them to achieve sales plans; and 
17. Secure and renew orders and arrange delivery. 8 
In addition to the differing general information provided above from O*NET, we note that the Bureau 
of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, (Handbook) also provides 
different information for the two occupations in the "Education" section. 9 The Handbook provides 
the following regarding the education requirements for a sales representative, wholesale and 
manufacturing, technical and scientific products: 
A high school diploma is typically sufficient for many positions, primarily those selling 
nontechnical or scientific products. However, representatives selling scientific and 
technical products usually must have a bachelor's degree. Scientific and technical 
products include pharmaceuticals, medical instruments, and industrial equipment. A 
8 The following O*NET tasks for sales engineers do not relate to the proffered duties: 1. Visit prospective buyers at 
commercial, industrial, or other establishments to show samples or catalogs, and to inform them about product pricing, 
availability, and advantages; 2. Research and identity potential customers for products or services; 3. Diagnose problems 
with installed equipment; 4. Maintain sales forecasting reports; and 5. Write technical documentation for products. 
9 See https://www.bls.gov/ooh/sales/wholesale-and-manufacturing-sales-representatives.htm#tab-4 and 
https://www.bls.gov/ooh/sales/sales-engineers.htm#tab- l. 
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degree in a field related to the product sold, such as chemistry, biology, or engineering, is 
sometimes required. 
Many sales representatives attend seminars in sales techniques or take courses in 
marketing, economics, communication, or even a foreign language to improve their ability 
to make sales. 
(Emphasis added.) In other words, the Handbook does not state that a bachelor's degree in a spec[fic 
specialty is normally the minimum requirement for entry into the particular position. The sales 
engineers' entry states: 
Sales engineers typically need a bachelor's degree in engineering or a related field. 
However, a worker without a degree, but with previous sales experience as well as 
technical experience or training, may become a sales engineer. Workers who have a 
degree in a science, such as chemistry, or in business with little or no previous sales 
experience, also may become sales engineers. 
University engineering programs generally require 4 years of study. They vary in content, 
but all programs include courses in math and the physical sciences. In addition, most 
programs require developing strong computer skills. 
Most engineering programs require students to choose an area of specialization. The most 
common majors are electrical, mechanical, or civil engineering, but some engineering 
departments offer additional majors, such as chemical, biomedical, or computer hardware 
engineering. However, some undergraduate programs offer a general engineering 
curriculum; students then specialize in a particular area either on the job or in graduate 
school. 
In light of the above, the Director should compare the job descriptions the Petitioner provided in its 
initial filing, in response to the request for evidence, and on appeal to the complete list of tasks 
provided for (1) sales representatives, wholesale and manufacturing, technical and scientific; and 
(2) sales engineers in O*NET to determine whether the Petitioner selected the most appropriate SOC 
code. 
The Director should then determine whether the record satisfies the regulation at 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(I), which requires a petitioner to obtain certification from DOL that it has filed an 
LCA "in the occupational specialty in which the alien(s) will be employed" and if the petition is 
supported by an LCA that corresponds to the petition under 20 C.F.R. § 655.705(b). 
If the Director concludes that the Petitioner has satisfied all of the above, she should then determine 
whether the position qualifies as a specialty occupation based upon the information in the record, 
including the April 2019 letter. Only if she concludes that the position qualifies as a specialty 
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occupation should the Director then determine whether the Beneficiary qualifies for the proffered 
position. 10 
II. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the above, we will remand 
the record for farther review of the issue. If the Director determines it is necessary, she 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. 
10 Specifically, the Director is required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the 
petitioner intends to employ him falls within [a specialty occupation]."). 
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