remanded H-1B Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 9731206 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 26, 2020 
The Petitioner, a scientific laboratory, seeks to employ the Beneficiary temporarily as an "instrument 
interface engineer" under the H-lB nonimmigrant classification for specialty occupations.1 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of 
the evidence. 2 We review the questions in this matter de nova. 3 
Upon de nova review, we will remand the matter for the Director to issue a new decision. As noted, 
the Director concluded that the proffered position is not a specialty occupation. However, the record 
appears to support a determination that the position satisfies the fourth regulatory criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4), as presented. But this presentation is like an illusionist's trick; once it is 
analyzed and the methods are exposed, it loses luster and the wonder of the audience. In this case, the 
illusion is that the position is an entry-level job, and what is exposed in the record appears to preclude 
the petition's approval. 
There are seemingly issues with the Department of Labor (DOL) ET A Form 9035 & 9035E, Labor 
Condition Application for Nonimmigrant Workers (LCA). Based on our review, the record of 
proceeding is not sufficiently developed to allow us to determine whether: (1) the proffered position 
is actually located within the occupational category for which the LCA was certified, or (2) the 
prevailing wage rate designated on the LCA was correctly calculated based on the Petitioner's actual 
position requirements. 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Without knowing the answer to those questions, we cannot issue an ultimate eligibility determination. 
In other words, even if we 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)(1) of the Act and the 
intent to protect the wages and working conditions of U.S. workers. Therefore, regardless of our 
specialty occupation decision, we would still remand the matter for the Director to make a 
determination on the LCA issues. 
I. LCA 
We begin addressing the Petitioner's contention that USCIS' sole responsibility relates to a specialty 
occupation determination and that we exercise no authority as it relates to the propriety of the standard 
occupational classification (SOC) code it specified on the LCA or the attendant prevailing wage level. 
A. U.S. Citizenship and Immigration Services Authority 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers."4 It also serves to protect H-1B 
workers from wage abuses. A petitioner submits the LCA to 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. 5 
Before filing a petition for H-1B classification, the regulation requires petitioners to obtain 
certification from DOL that the organization has filed an LCA in the occupational specialty in which 
its foreign national personnel will be employed.6 Furthermore, the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state that it will comply with the terms of the 
LCA. 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-1B 
petition.7 Furthermore, on the H Classification Supplement to Form 1-129, by simply filing this 
petition, the Petitioner also agreed to and committed to abide by "the terms of the [LCA]) for the 
4 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB 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]."). 
5 Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). See also 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 Vojtisek-Lom & Adm'r Wage & Hour 
Div. v. Clean Air Tech. lnt'I, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
6 8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
7 See 20 C.F.R. § 655.705(b) (clearly stating, "In [accepting an employer's petition with the DOL-certified LCA attached], 
the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the 
non immigrant meet the statutory requirements for H-1B visa classification."). See also Matter of Simeio Solutions, 26 l&N 
Dec. 542, 546 n.6 (AAO 2015). 
2 
duration of the beneficiary's authorized period of stay for H-1B employment." Meeting that 
requirement, USCIS inherits the responsibility to ensure that an employer accurately represented the 
terms of the LCA, which partly include ascertaining and listing the correct SOC code as well as 
calculating a prevailing wage level based on the employer's actual position requirements. An 
employer "reaffirms its acceptance of all of the attestation obligations by submitting the LCA to 
[USCIS] in support of the Petition for Nonimmigrant Worker, Form 1-129, for an H-1B 
nonimmigrant."8 
When comparing the 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-1B petition. 
The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed 
Dec. 20, 2000). The plain language of the regulation clearly states: "In [accepting an employer's 
petition with the DOL-certified LCA attached], the DHS determines whether the petition is supported 
by an LCA which corresponds with the petition, whether the occupation named in the labor condition 
application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1B visa classification."9, 10 Here, the plain language of the regulation is 
dispositive: USCIS is authorized to determine the corollary nature of the proffered position's elements 
as represented in an LCA when compared with those same elements as represented on the Form 1-129, 
as well as the Petitioner's actual position requirements. 
The Act further prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the [DOL] 
Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide 
the certification .... " 11 USCIS precedent also states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1B visa petition.12 
8 20 C.F.R. § 655.705(c)(1). 
9 USCIS may consider DOL regulations when adjudicating H-1B petitions. See lnt'I Internship Programs v. Napolitano, 
853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. lnt'I Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 
2013). 
10 "In construing a statute or regulation, we begin by inspecting its language for plain meaning." Sullivan v. McDonald, 
815 F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give 
full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Gloverv. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. United States v. Pressley, 359 F.3d 347, 349 (4th Cir. 
2004). 
11 Section 212(n)(l)(G)(ii) of the Act. 
12 Simeio Solutions, 26 l&N Dec. at 546 n.6. 
3 
It is unclear how USCIS is to carry out its responsibilities to determine whether the LCA corresponds 
with and supports the H-1B petition without performing such a review. Otherwise, the LCA is 
consigned to be of little consequence, and to merely serve as a formality that an employer must submit 
with the H-1B petition. The Petitioner has not shown that it provided DOL with the complete 
information we discuss below, which appear to be deficiencies within its "mathematical calculation." 
As a result, the Petitioner has not demonstrated that it placed DOL in a position to make a sufficiently 
informed decision when it certified the LCA. This scenario illustrates the impetus for USCIS' 
authority to determine whether the LCA corresponds with and supports the H-1B petition. 
Moreover, when DOL certifies an LCA, it does not perform any meritorious review of an employer's 
claims to ensure the information is true.13 When filing an H-1B petition accompanied by an LCA, a 
petitioner subjects itself to two authorities as it relates to the LCA: (1) to DOL through the certification 
process, or through a prevailing wage determination, and (2) to USCIS by way of our authority to 
ensure that the LCA corresponds with and supports the petition. As specified within the Act, by simply 
submitting the LCA to DOL without also obtaining a prevailing wage determination, a petitioner has 
only received DOL 's certification that the form is complete and does not contain obvious 
inaccuracies.14 In other words it did not receive an evaluative determination from DOL on whether 
the LCA's content and the specifics were appropriate and accurate. 
In order to determine whether the "attestations and content" (e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form 1-129-as well as other indicators of the actual position requirements-we 
follow DOL's guidance, which provides a five-step process for determining the appropriate SOC code 
and wage level.15 The appropriate wage level is determined only after selecting the most relevant 
occupational category. The DOL guidance states that "[t]he [Occupational Information Network 
(O*NET)] description that corresponds to the employer's job offer shall be used to identify the 
appropriate occupational classification" for determining the prevailing wage for the LCA. 
The DOL guidance contains the same publicly available procedure an employer, or their 
representative, should follow to not only find the correct SOC code (i.e., utilizing the O*NET), but 
also to calculate the appropriate wage level. We note this is the same process the DOL utilizes to issue 
a Prevailing Wage Determination (PWD). Absent a PWD from the DOL, we will not automatically 
accept the presumption that the Petitioner provided DOL with the full spectrum of information relating 
to the proffered position's requirements when it filed the LCA, which could affect the appropriate 
wage level for the position in this petition.16 
13 DO L's Office of Inspector General, 06-03-007-03-321, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs 1 (2003). 
14 Id. 
15 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. 
16 A petitioner may file Form ETA-9141, Application for Prevailing Wage Determination with DOL. USCIS will accept 
PWDs as sufficient, provided the Petitioner establishes that it fully disclosed to DOL all of the proffered position's relevant 
requirements relating to the five-step process for determining an appropriate wage level, as outlined in the DOL guidance. 
4 
Stated more simply, DOL clearly explains the proper methodology, and based on USCIS' authority to 
determine whether an LCA corresponds with and supports an H-1B petition, the agency evaluates both 
the appropriateness of the SOC code as well as the wage level. Therefore, while we agree with the 
Petitioner that LCA issues such as the correct SOC code or prevailing wage are not directly related to 
a specialty occupation analysis, we cannot ignore that the propriety of an LCA has a broader impact 
on whether the petition is approvable. The Petitioner surely does not imply, for instance, that USCIS 
should ignore the issue in a petition with an SOC code for the Lawyers occupational classification at 
a Level I wage rate when the employer's requirements (e.g., experience, supervision, required 
extensive travel, etc.) mandate a Level IV wage. 
The above requirements are in furtherance of the recent USCIS guidance that stated "the petitioner 
must meet all statutory and regulatory requirements" and if an agency officer "finds that a petitioner 
has not established, by a preponderance of the evidence, statutory or regulatory eligibility for the 
classification, the officer should articulate that basis in denying the H-1B petition."17 Despite the 
Petitioner's claims to the contrary, multiple statutory and regulatory provisions (section 212(n)(1) of 
the Act; 8 C.F.R. § 214.2(h)(4)(i)(B)(1) and (2); and 20 C.F.R. § 655.705(b) and (c)(l)) and agency 
precedent (Simeio Solutions, 26 l&N Dec. at 546 n.6) mandate that the Petitioner establish that it will 
comply with the terms of the LCA and demonstrate that the LCA corresponds with and supports the 
petition. 
B. Petitioner's Position Requirements 
When it filed the petition, the Petitioner provided the position's description and stated that it required 
a bachelor's degree in computer science or a closely related field. The Petitioner further stated this 
was an entry-level position and that it did not require any additional training or work experience 
beyond the stated bachelor's degree. For the sake of brevity, we will not quote the position's 
responsibilities; however, we note that we have closely reviewed and considered the duties. 
Responding to the Director's request for evidence, the Petitioner provided additional information 
relating to the education it felt was required to perform in the position. The Petitioner also provided 
an opinion letter froml I a professor atl I Institute of Technology. On 
appeal, the Petitioner provides a new letter froml las well as more analysis of the position's 
duties. 
We begin our analysis considering the proffered position's duties. A significant amount of the duties 
appear to relate to the responsibilities found in O*NET's report for the Computer Systems Analysts 
SOC code. But, for approximately 30 percent of the position's time, the depth and complexity the 
Petitioner would have the candidate performing that work either far exceeds the tasks, knowledge, 
skills, and work activities necessary for entry-level Computer Systems Analysts, or those functions 
would seemingly fall under the Software Developers, Applications occupational classification. 
The O*NET offers the following definition for Computer Systems Analysts: "Analyze science, 
17 USCIS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda 3 (June 17, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda. 
5 
engineering, business, and other data processing problems to implement and improve computer 
systems. Analyze user requirements, procedures, and problems to automate or improve existing 
systems and review computer system capabilities, workflow, and scheduling limitations. May analyze 
or recommend commercially available software." It is apparent that the main purpose of this 
occupation is to improve an organization's computer-related tools to make the company more 
efficient. But a significant portion of the position's responsibilities divert from that purpose, which 
may require an increase in the prevailing wage rate or the use of a different SOC code. 
Within the initial filing, although the Petitioner included several duties that are properly characterized 
under the Computer Systems Analysts SOC code, some of those relative functions appear to surpass 
what an entry-level worker would be expected to perform. For instance, when describing the position 
and the duties in his appellate letter.I !discussed the position's knowledge requirements of 
advanced programming languages. He stated, "the person filling this job needs to extensively 
understand the LIMS BASIC programming language which is used to program the LIMS system used 
extensively in this position .... " The Petitioner explained that LIMS (Laboratory Information 
Management System) is a software that allows a company to effectively manage samples and 
associated data allowing a laboratory to automate its work . 
.___ __ __.!further stated: 
[T]he beneficiary has extensive coursework in industrial instrumentation, which is 
necessary for him to be able to support LI MS interface with the approximately 3000 
different instruments used by the customer base. Individually, LI MS expertise and 
instrumentation expertise are uncommon, and it is quite rare for a job candidate to 
possess both areas of expertise. 
The DOL guidance provides direction to "[c]onsider how the employer's requirements compare to the 
O*NET Tasks, Work Activities, Knowledge, and Job Zone Examples. Consider whether the 
employer's requirements indicate the need for skills beyond those of an entry-level worker." The 
LI MS programming language is unique to the Petitioner's field and LI MS expertise and 
instrumentation expertise are "uncommon" and "quite rare." The Director should consider whether 
these requirements exceed the information found in the O*NET report for Computer Systems 
Analysts. If so, it appears that each requirement individually would necessitate an increase in the wage 
rate. 
Moreover, the Petitioner's statements within the appeal brief also raise questions relating to the 
propriety of the wage level on the LCA. For instance, it states "the nature of the work required for the 
Instrument Interface Engineer to perform is more specialized and complex than that required by a 
standard computer systems analyst in the industry (which itself would still require[] at least a 
bachelor's degree in computer science or a related field)." 
Additionally, the Petitioner discusses the Beneficiary's attainment of a master's degree in computer 
and systems engineering, then states "[h]is specialty occupation's level of knowledge in Computer 
Science and Engineering is absolutely required to perform the duties of this position .... " The 
Petitioner's statement that the Beneficiary's knowledge conferred through his master's degree is a 
requirement for the position appears to support our inclination that the position far surpasses that of 
6 
an entry-level worker. The Petitioner verifies its intimations and our inclination that the offered 
position is more complex than an entry level (Level I) job within the Computer Systems Analysts 
occupation when it states: 
Without the knowledge obtained through completion of his master's coursework, [the 
Beneficiary] would not possess the necessary body of knowledge needed to effectively 
perform the professional duties of this position. 
The Petitioner followed that statement with a comparison of the position proffered in this petition with 
a reference to the Handbook's discussion of some positions requiring a master's degree due to the 
technical complexities associated with the job, which appears to substantiate the position that it has 
devised a position that exceeds an entry-level complexity. If the employer required knowledge 
attained through a master's degree program rather than a bachelor's program, this would mandate a 
one increment increase in the wage rate on the LCA. 
Within the appeal brief, the Petitioner goes into great detail about how wage levels are calculated and 
reiterates that its Level I designation on the LCA was correct. We observe that prevailing wage rates 
are comprised of three tiers (the lowest paid one-third, the middle third, and the highest paid one-third). 
And, the Occupational Employment Survey assigns the wage levels within these tiers: 
I Level I is the average of the lowest paid one-third in an occupation, or approximately the 17th 
percentile; 
I Level 11 is approximately the 34th percentile; 
I Level 111 is approximately the 50th percentile, or the overal I average wage for an occupational 
classification; and 
I Level IV is the average of the highest-paid two-thirds, or approximately the 67th percentile.18 
The Petitioner designated the position's wage rate at the level commensurate with the average salary 
for the lowest paid one-third in the Computer Systems Analysts occupation despite the fact that it 
considers the position: 
1. To require extensive understanding of a unique programming language; 
2. To require expertise in instrumentation; and 
3. To be one for which a candidate would require a master's degree to successfully perform the 
duties. 
Compensating a foreign worker within the lowest wage rate range (e.g., the 17th percentile or Level 
I), when it appears their requirements warrant compensation at least among the top 50 percent (e.g., 
Level 111) does not appear to comply with section 212(n)(1) of the Act and the intent to protect the 
wages and working conditions of U.S. workers. 
Our concern over the proper wage level is not where the possible issues end. We also observe that the 
18 See section 212(p)(4) of the Act that requires DOL to make a governmental survey available to employers to determine 
the prevailing wage. The statute requires that such a survey will provide at least four levels of wages commensurate with 
experience, education, and the level of supervision. 
7 
organization included duties that do not appear to properly align with the Computer Systems Analysts 
SOC code designated on the LCA. For example, the Petitioner stated the position is responsible for 
building and maintaining automated interfaces between their scientific instruments and laboratory 
support information technology applications and the system utilized for the normal functioning of the 
lab operations. That appears to describe an Application Programming Interface (API). An API is 
computer "code that allows two software programs to communicate with each other. An API defines 
the correct way for a developer to request services from an operating system ... or other application 
and expose data within different contexts and across multiple channels."19 
The DOL guidance instructs employers to "[c]onsider how the employer's requirements compare to 
the O*NET Tasks, Work Activities, Knowledge, and Job Zone Examples. Consider whether the 
employer's requirements indicate the need for skills beyond those of an entry-level worker." Although 
Computer Systems Analysts as listed in the O*NET might identify and assist in implementing 
interfaces between an organization's various information technology tools, the Director should 
ascertain whether being responsible for building and maintaining automated interfaces exceeds the 
information found in the O*NET report for Computer Systems Analysts, and whether those functions 
might instead fall under the Software Developers, Applications occupational title. If so, the Director 
should determine if the Office of Foreign Labor Certification's (OFLC) Frequently Asked Questions 
and Answers (FAQs) applies to the Petitioner's case. Those FAQs provide: 
Occupations with overlapping skills in such fields as computers, mathematics, or 
business operations will usually not be seen as a combination of occupations as long as 
they do not require two distinct skill sets. However, the NPWC will assign the SOC 
based on the occupation with the higher wage and will issue a wage based on the 
appropriate level without adding an additional point for a combination of occupations. 
So, if the Computer Systems Analysts and the Software Developers, Applications occupations share 
overlapping skillsets, it appears the appropriate action on the LCA would have been to select the SOC 
code with the higher wage. We note that at every wage level (Level I-Level IV), the Software 
Developers, Applications occupation demands a higher wage than the Computer Systems Analysts 
occupational title. 
Finally, we note other issues in the record. First, an inaccurate and material statement on the Form 
1-129 or in the evidence submitted in connection with the petition mandates its denial.20 The Director 
may wish to consider whether the Petitioner's inaccurate description of the position as entry-level and 
requiring only a bachelor's degree was a declaration that might require the petition's denial by 
triggering 8 C.F.R. § 214.2(h)(10)(ii). Second, we observe inconsistent information from both the 
Petitioner andl I Collectively, they described the position as an entry-level one that only 
required a bachelor's degree, then subsequently explained how it was more advanced than a neophyte 
could perform, or one that required knowledge attained through a master's degree. Finally, within the 
appellate brief, the Petitioner repeatedly refers to an opinion letter from a second professor and even 
19 See Application Programming Interface (API), Tech Target (Aug. 14, 2020), 
https://searchapparchitecture.techtarget.com/definition/application-program-interface-API. 
20 See 8 C.F.R. §§ 214.2(h)(10)(ii), 103.2(b)(1). 
8 
provides an extensive quote attributed to that professor. However, no such letter exists within the 
record from that professor. 
11. CONCLUSION 
Accordingly, the matter will be remanded to the Director to consider the above issues and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue. As such, 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 the entry of a 
new decision consistent with the foregoing analysis. 
9