remanded H-1B Case: Hospitality Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 10373763 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2020 
The Petitioner, a restaurant and bar, seeks to temporarily employ the Beneficiary under the H-1B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-1B 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 record does not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case. 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 determine whether the labor 
condition application (LCA) submitted with the initial petition corresponds to and supports the H-1B 
petition. 
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."1 It also serves to protect H-1B 
workers from wage abuses. 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)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
The Director must first determine whether the proffered position is actually located within the 
occupational category for which the DOL ETA Form 9035 & 9035E, Labor Condition Application for 
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). 
Nonimmigrant Workers, was certified. 2 On the LCA, the Petitioner designated the proffered position 
under the occupational category for "general and operations managers," corresponding to the Standard 
Occupational Classification (SOC) code 11-1021. 3 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. 
The Director should compare the job descriptions the Petitioner provided to the complete list of "tasks" 
provided for in O*NET.4 The DOL's "Prevailing Wage Determination Policy Guidance" 5 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. 
The Director should then determine the actual requirements of the position as reflected in the record. 
For example, according to the Petitioner's letters submitted on appeal and in response to the Director's 
request for evidence, it "requires[s] that the candidate has in depth knowledge of events management 
and the hospitality industry," and that "extensive experience is required to perform these complex job 
duties." Once the Director establishes the actual minimum requirements of the position, she should 
then determine whether the Petitioner's selection of a Level I wage properly accounted for these 
requirements .. 
2 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. See 20 C.F.R. § 655.705(b) ("DHS 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. 
3 See https://www.onetonline.org/link/summary/11-1021.00 
4 Specifically, the Director may want to view the O*NET entries for "meeting, convention, and event planners," and "food 
service managers," along with any other related occupations. We note, for example, that of the six bullet pointed duties 
provided on appeal, two of them relate to company events- one as providing "internal management for []marquee events" 
and one as being "responsible for coordinating various [e]vents, including weddings, business conventions, conferences, 
family reunions, and golf tournaments, among others". Notably, however, the Petitioner did not submit any evidence that 
it has held these types of events, or their frequency. Instead, it submitted information from its website about weekly trivia 
nights and DJ nights, along with various sporting events on its televisions and a new year's eve celebration. 
5 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/ NPWHC_Guidance_Revised 
_11_2009.pdf. 
2 
For all of the reasons above, the Director should determine whether the record satisfies the regulation 
at 8 C.F.R. § 214.2(h)(4)(i)(B)(1), 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). 
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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