remanded H-1B Case: Data Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 16423395 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 13, 2021 
The Petitioner, a software, services, and internet technologies company, seeks to temporarily employ 
the Beneficiary as a "data and applied scientist" 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary qualifies to perform the duties of the proffered position. On appeal, the 
Petitioner asserts that the Director erred.1 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.2 We review the questions in this matter de novo.3 Upon de nova 
review, we will remand the matter for further action. 
Although the Director did not raise the specialty-occupation issue, we affirm her apparent 
determination that the preponderance of the evidence satisfies both the "specialty occupation" 
definition at 8 C.F.R. § 214.2(h)(4)(ii) and also the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) as the 
specific duties 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 to the beneficiary-qualification issue upon which the petition was denied, we conclude that the 
preponderance of the evidence establishes that the Beneficiary is qualified to perform the services of 
1 The Petitioner's Form I-290B, Notice of Appeal or Motion, was received on October 1, 2020. On the Form I-290B , the 
Petitioner indicated they would submit a brief and/or additional evidence to the AAO within 30 calendar days of filing the 
appeal; however , AAO has not received any additional documents. Our decision will be based on the record of proceeding 
as it currently stands. 
2 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
the proffered specialty-occupation position. Specifically, the Beneficiary holds a U.S. master's degree 
in information, which satisfies the Petitioner's requirements. The record therefore satisfies the 
beneficiary-qualification criterion at 8 C.F.R. § 214.2(h)(4)(iii)(C)(1) and the Director's decision is 
hereby withdrawn. 
The record of proceeding, therefore, establishes that the proffered position is a specialty occupation 
and that the Beneficiary is qualified to perform the duties of the position. The petition cannot yet be 
approved, however, as we see one remaining issue that the Director may wish to clarify before taking 
final action on this petition. Specifically, we observe the Petitioner's statement in their May 2020 
support letter (Support Letter) indicating the Beneficiary could be reassigned. Specifically, the 
Support Letter states: 
[The Petitioner] may need the beneficiary to work on other or additional project 
assignments of equivalent professional challenge requiring the same core duties of this 
specialty occupation and requiring the same educational attainment in order to meet the 
needs of the company and its customers. Thus, the probable reassignments should be 
deemed part of the present job description included in this petition. 
(Emphasis added.) 
This statement raises questions about the labor certification application (LCA) and should be explored 
to ensure that the Petitioner has complied with the LCA requirements and the definition of the 
"particular worker's job functions" under "place of employment" at 20 C.F.R. § 655.715(1)(ii) before 
approval of the petition may be considered. Specifically, this statement does not clearly indicate 
whether the Beneficiary's probable reassignments would include changing the area of employment on 
a more permanent or long-term basis. The Director may wish to clarify this issue before approving 
the petition. 
A petitioner submits the LCA to the Department of Labor (DOL) 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. Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. 
§ 1182(n)(1). See Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification 
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)(1)(A) of the Act, an employer 
must attest that it will pay a holder of an H-1B visa the higher of the prevailing wage in the "area of 
employment" or the amount paid to other employees with similar experience and qualifications who 
are performing the same services. See 20 C.F.R. § 655.731(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 
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Vojtisek-Lom &Adm 'r Wage &Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, 
at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
The Director may wish to consider the implications of this "reassignment" statement and if the LCA 
corresponds with and supports the H-1B petition, as required. As the Petitioner was not previously 
accorded the opportunity to clarify this statement in the record discussed above, we will remand the 
record for further review. 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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