remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 3750893 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, a company that provides information technology and staff augmenting services, seeks to 
extend the Beneficiary's temporary employment as a "business analyst" under the H-lB nonimmigrant 
classification for specialty occupations. 1 The H-IB 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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner submits additional evidence and asserts that the Director erred 
in denying the petition. 
As noted, the Director concluded that the proffered position is not a specialty occupation. However, 
the record of proceedings 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) 
ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) was 
certified. 2 Without knowing the answer to that question, we cannot determine the actual, substantive 
nature of the position. This means that we cannot make a detennination 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 make a determination 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
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-lB 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-lB petition. 
on whether the LCA was certified for the appropriate occupational category, and therefore corresponds 
to and supports this H-1 B petition. 
As presently constituted, the record does not appear sufficient to establish that the LCA corresponds 
with and supports the petition. 3 It is unclear from the record whether the Petitioner established that 
the proffered position's duties actually correspond with those of positions located within SOC code 
13-1111, corresponding to the occupational title "Management Analysts"; the SOC code the Petitioner 
designated on the LCA. 
Here, the Petitioner will deploy the Beneficiary to the~-----------~ ( end-client) 
through an agreement with I kvendor). The Petitioner provided a letter from the 
end-client containing the proffered position's duties and its education requirements to perform in the 
pos1t10n. As recognized in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), it is 
appropriate to require a petitioner to demonstrate that an end-client-or the entity where a beneficiary 
will actually perform the work-requires at least a bachelor's degree in a specific specialty, or an 
equivalent. The Petitioner included discussion within the appeal brief supporting the position that we 
should look to the end-client duties in accordance with Defensor. 
While the proffered position's duties incorporated functions associated with the Management Analysts 
occupational category, approximately half of the duties appear to relate to either the Information 
Technology Project Managers category (15-1199.09), or the Web Developers category (15-1134). If 
the Petitioner incorporated duties belonging under the Web Developers occupational classification 
that are atypical for the Management Analysts category, this would require an increase in the 
prevailing wage rate by one level. 
Alternatively, the Information Technology Project Managers classification demands a higher paying 
wage than that of Management Analysts, which could mean that the Petitioner may not have selected 
the highest paying SOC code as instructed by DOL. 4 U.S. employers must compare the proffered 
position's duties with the overall information found in the Occupational Information Network 
(O*NET) and select the occupation that most closely matches the duties. If the employer's duties 
include requirements described in a combination of O*NET occupations, the DOL guidance instructs 
employers to default to the relevant SOC code for the highest paying occupation. 
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 
3 See 20 C.F.R. ~ 655.705(6); Simeio Solutions, 26 T&N Dec. at 546 n.6. 
4 DOL, 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 
2 
a valuable use ofUSCIS resources to analyze the position requirements under an incorrect SOC code. 
For example, under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), degree requirements to enter 
an occupation are not the same for all positions in a particular field of endeavor. So, 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). 5 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. 
As presently constituted, it does not appear that the record establishes that the LCA corresponds with 
and supports the petition. We note the Petitioner has not established that-based on the proffered 
position's duties-it selected the SOC code with the highest paying wage. The Director should 
evaluate whether the Beneficiary's compensation at $90,720 is commensurate with the appropriate 
prevailing wage rate, under the highest paying SOC code that most closely matches the proffered 
position's duties. 6 
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. 
5 See the relative entry for each occupational title found at https://www.bls.gov/ooh/. 
6 We note that according to the end-client's letter, the Beneficiary has already been working at their location performing 
work in the proffered position. The Beneficiary's pay stubs reflect the wage the Petitioner has been compensating him for 
performing this same work. 
3