remanded H-1B Case: Data Analytics

U.S. Citizenship 
and Immigration 
Services 
In Re: 13714927 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 04, 2021 
The Petitioner, a data analytics consulting services company, seeks to temporarily employ the 
Beneficiary as an "analytics consultant" 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 Petitioner did not 
establish that the proffered position qualifies as a specialty occupation. The Director also concluded 
that the Petitioner did not sufficiently establish that the Beneficiary qualifies for the position. The 
Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence.1 
We review the questions in this matter de novo.2 Upon de nova review, we will remand the petition. 
Based on our review of the record in its totality, we conclude that the Petitioner has demonstrated by 
a preponderance of the evidence that the proffered position qualifies as a specialty occupation. The 
record establishes that the duties in the context of the Petitioner's operations are so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent, as required by the regulation 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). Specifically, the Petitioner provides a list of existing projects 
supported by contractual agreements with clients, work samples, and trade publications that discuss 
the Petitioner within the global data analytics industry to demonstrate specialization and complexity 
of the proffered position. 
Additionally, we conclude that the Beneficiary is qualified to perform the services of the specialty 
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(2). Specifically, the courses that the Beneficiary has 
taken in the degree program provide highly specialized knowledge required by the position; therefore, 
we conclude that the Beneficiary has a foreign degree determined to be equivalent to a U.S. bachelor's 
degree required by the specialty occupation. 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
While the bases for the Director's denial have been overcome, we have identified an additional issue 
that precludes the approval of the petition. At issue is whether the Petitioner has demonstrated its 
eligibility to pay the $750 American Competitiveness and Workforce Improvement Act (ACWIA) 
fee. 3 Section 214(c)(9)(B) of the Act sets the ACWIA fee at $1,500, but permits a petitioner with "not 
more than 25 full-time equivalent employees who are employed in the United States (determined by 
including any affiliate or subsidiary of such employer)" to pay a lower fee of $750. When the 
Petitioner filed this petition for new employment, it claimed eligibility for and paid the lower ACWIA 
fee of $750. On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner answered that it 
had 25 current employees in the United States, and on the H-1B and H-1B1 Data Collection and Filing 
Fee Exemption Supplement, the Petitioner answered "Yes" to the question "Do you currently employ 
a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or 
subsidiaries of this company/organization?" 
In response to the Director's request for additional evidence, the Petitioner submitted an organizational 
chart with nearly 60 employees. On appeal, the Petitioner submits another organizational chart that 
listed over 75 employees. Although it is not entirely clear to which of the Petitioner's offices these 
employees are assigned or when they were hired, both of the submitted charts included the address for 
the Petitioner's office inl lcA at the bottom. Additionally, we note that on appeal the 
Petitioner provides a trade publication discussing the Petitioner's operations that indicates the 
Petitioner had grown to over 300 employees. Given that the article was published just over one month 
after the Petitioner initially submitted the instant petition in March 2019, it also undermines the 
Petitioner's claims that it had 25 or fewer employees at the time of filing. 
Nevertheless, employees outside the United States would not be counted for ACWIA purposes. Per 
further review of the record, it appears the Petitioner also has offices in India; however, the record 
does not sufficiently establish the number of employees in the United States and India. Thus, 
additional information is needed to determine the number of employees in the United States versus 
abroad and whether the Petitioner should have paid the higher ACWIA fee.4 
As the Petitioner was not adequately provided a prior opportunity to address the above, we wi 11 remand 
the record for further review of the fee issue. The Director may request any additional evidence 
3 ACWIA was enacted in 1998 to, among other things, provide protections in the H-lB process against the displacement 
of U.S. workers. See American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277, 112 Stat. 
2681; see also H-lB Visa Reform Act of 2004, Pub. L. No. 108-447, 118 Stat. 2809 (permanently extending and increasing 
the ACWIA fee). Section 214(c)(9)(A) of the Act generally requires every petitioner, unless specifically exempted, to pay 
the ACWIA fee for each H-lB petition that it files. See also 8 C.F.R. § 214.2(h)(19)(iii)(B). The collected fees are used 
to provide education, training and job placement assistance to U.S. workers in job areas where petitioners traditionally use 
H-1B workers. The programs that are funded by ACWIA are part of the government's efforts to help ensure that U.S. 
workers are trained in new and emerging fields by raising the technical skill levels of these workers, and that growing 
businesses have access to the skilled American workforce they need in order to reduce the need to use the H-lB program. 
Certain filing situations and certain employers are exempt from the ACWIA fee. See generally section 214{c)(9){A) of 
the Act. None of these exemptions apply here. 
4 See 8 C.F.R. § 103.2(a)(1) (the required filing fee(s) must accompany the benefit request and "must be paid when the 
benefit request is filed") and 8 C.F.R. § 103.7(b)(l){i) ("a request for immigration benefits ... must include the required 
fee"). 
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considered pertinent to the new determination. 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 further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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