remanded H-1B Case: Hardware And Software Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9507532 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2020 
The Petitioner, a hardware and software manufacturer, seeks to employ the Beneficiary temporarily 
under the H-18 nonimmigrant classification for specialty occupations.1 The H-18 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 matter is now before us on appeal. 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 novo.3 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review. As noted, the Director concluded that 
the proffered position is not a specialty occupation. However, the record of proceeding is not 
sufficiently developed to allow us to determine whether the proffered position is actually located 
within the occupational category for which the Department of Labor (DOL) ET A Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) was certified. 4· 5 
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 Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 While Department of Labor (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. See 20 C.F.R. § 655.705(b) 
("OHS determines whether the petition is supported by an LCA which corresponds with the petition . . .. "). See also 
Matter of Simeio Solutions, 26 l&N Dec. 542, 546 n.6 (AAO 2015). When comparing the standard occupation 
classification (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 . 
5 Before filing a petition for H-lB 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. 
8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
Without knowing the answer to that question, we cannot determine the actual, substantive nature of 
the position. This means that we cannot make a determination on the specialty-occupation question 
based on the current record. We therefore are withdrawing the Director's decision and remanding the 
matter for further review of the record and issuance of a new decision. Specifically, the Director 
should first determine whether (1) the Petitioner obtained a certification from DOL that it filed an 
LCA in the occupational specialty in which the Beneficiary would be employed; and (2) the LCA was 
certified for the appropriate occupational category, and therefore corresponds to and supports this 
H-lB petition.6 
It is unclear from the record whether the Petitioner designated the correct SOC code on the LCA; 
15-1199.01, relating to the occupational title "Software Quality Assurance Engineers and Testers." 
The Petitioner included duties that appear atypical to the SOC code on the LCA. Specifically, we 
observe the duties appear properly classified under these additional occupational classifications: 
I 15-1132 - Software Developers, Applications; 
I 17-2071- Electrical Engineers; 
I 15-1152.00 - Computer Network Support Specialists; and 
I 41-4011.00 - Sales Representatives, Wholesale and Manufacturing, Technical and Scientific 
Products. 
On the issue of whether we can provide relevant analysis of a position as a specialty occupation, a 
petitioner's selection of the incorrect SOC code on the LCA may preclude such an evaluation. The 
initial issue concerns the statutory and regulatory definitions of a specialty occupation and how these 
focus on the broader occupation as a whole, and the use of an incorrect occupational code may result 
in an erroneous outcome, or one that does not properly assess the actual nature of the occupation in 
which the Beneficiary would engage. 
A subordinate concern relates to the education requirements we consider under the regulatory criteria 
and how these may differ markedly from one occupational classification to the next. It would not be 
a valuable use of USCIS resources to analyze the position requirements under an incorrect SOC code. 
For instance, under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), degree requirements to enter 
an occupation are not the same for all positions in a particular field of endeavor. As an example, 
degree requirements for positions located in the Software Developers, Applications occupation 
(usually a bachelor's degree, typically in computer science, software engineering) would generally be 
different from those in the Web Developers category (an associate's degree in web design or a related 
field is the most common requirement). 7 Likewise, when considering 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the industry for one occupation 
may also be distinct in comparison to others. 
Additionally, several of these occupational classifications demand a higher paying wage than the SOC 
code designated on the LCA. The Director may also wish to consider whether the Level 11 wage rate 
designated on the LCA sufficiently represents the correct wage level based on DOL 's five-step process 
6 See 8 C.F.R. § 214.2(h)(4)(i)(B)(1); Simeio Solutions, 26 l&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
7 See the relative entry for each occupational title found at https://www.bls.gov/ooh/. 
2 
contained within the DOL guidance evaluating not only the atypical duties across the various SOC 
codes. 8 The correct wage rate appears to be within the Level 111 or Level IV range. 
Accordingly, the matter will be remanded to the Director to consider the LCA issue 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. 
8 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC_Guidance_ 
Revised_11_2009.pdf. 
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