remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
InRe : 9475101 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 9, 2020 
The Petitioner, a consumer goods and retail company, seeks to temporarily employ the Beneficiary as 
a support associate under the H-lB nonirnrnigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b) . 
The Director of the California Service Center denied the petition , concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation under any of the criterion found 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the Petitioner asserts that the Director erred in denying 
the petition . Upon de nova review, we will withdraw the decision of the Director. 1 The matter will 
be remanded for further review and entry of a new decision. 
I. ANALYSIS 
As noted above, the Director concluded the proffered position is not a specialty occupation under any 
of the criterion found at 8 C.F.R. § 214.2(h)(4)(iii)(A). However, the record of proceeding, as it relates 
to whether the certified Department of Labor (DOL) ETA Form 9035 & 9035E , Labor Condition 
Application for Nonirnrnigrant Workers (LCA), is accurate is not sufficiently developed for us to 
determine whether the proffered position is a specialty occupation. 
The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C . 
§ 1182(n)(l ). See Labor Condition Applications and Requirements for Employers Using 
Nonirnrnigrants 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]."). According to section 212(n)(l)(A) of the Act, an employer 
must attest that it will pay a holder of an H-lB 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 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
are performing the same services. See 20 C.F.R. § 655.73l(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 
Vojtisek-Lom &Adm 'r Wage &Hour Div. v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL2371236, 
at 8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009).2 
The Petitioner designated the SOC code 15-2031 on the LCA, corresponding to the occupational title 
"Operations Research Analysts." However, the Petitioner has not established, by a preponderance of 
the evidence, that the proffered position's duties actually correspond with those of positions located 
within SOC code 15-2031. According to the Occupational Information Network (O*NET) job 
description, an Operations Research Analyst is primarily focused on using mathematical and 
quantitative modeling to inform and drive business operations. The Petitioner included duties that 
appear atypical to the SOC code on the LCA and which, on the whole, do not encompass the duties of 
an Operations Research Analyst. 
The DOL's guidance explains that a job's SOC code is identified by selecting the O*NET job 
description "that most closely matches the employer's request" from a list of similar occupations. 3 
Here, it appears as though the proffered position's duties could properly be classified under several 
other occupational categories that more closely align with the position's duties, including Computer 
Systems Engineers/ Architects ( within SOC code 15-1199. 02), Database Architects ( within SOC code 
15-1199.06), or Sales Engineers (within SOC code 41-9031), among others. These occupations more 
closely align with the Petitioner's description of the proffered position, which focuses on scaling 
Petitioner's cloud-based product(s) to meet customer needs and development of software tools and 
knowledge-content customer articles, technical videos and custom scripts to support and enhance customer 
services. 
Thus, the record, on the whole, indicates the Petitioner likely chose the incorrect SOC code on the 
LCA. 
The Petitioner's apparent selection of an incorrect SOC code on the LCA necessarily precludes 
evaluation of whether the proffered position meets the definition of a specialty occupation because 
USCIS evaluates the statutory and regulatory definitions of a specialty occupation within the context 
of the broader occupation. Reliance on the incorrect occupational code on the LCA could result in an 
erroneous outcome, or one that does not properly assess the actual nature of the occupation in which 
the Beneficiary would engage. Thus, it would not be a valuable use of USCIS resources to analyze 
the position requirements under an incorrect SOC code. 
2 While DOL ceitifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
attestations and content corresponds with and supports the H-1 B petition. See 20 C.F.R. § 655.705(b) ("OHS detennines 
whether the petition is supported by an LCA which corresponds with the petition .... "). See also Matter of Simeio 
Solutions, 26 I&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 purpmi to supplant DO L'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-IB petition. 
3 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/pdt!NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. 
2 
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. Under the first 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), degree requirements to enter an occupation are not the 
same for all positions in a particular field of endeavor. For example, the degree requirements for 
positions located in the Sales Engineers occupation (usually a bachelor's degree in engineering) would 
generally be different from those of Computer Systems Analyst (an associate's degree in a related 
field is a common requirement). 4 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. 5 
II. CONCLUSION 
We therefore are withdrawing the Director's decision and remanding the matter for farther review of 
the record and issuance of a new decision. Specifically, the Director should first make a determination 
on whether the LCA was certified for the appropriate occupational category, and therefore corresponds 
to and supports this H-1B petition. If the Director determines it is necessary, she may request any 
additional evidence considered pertinent to the new determination. 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. 
4 See the relevant entry for each occupational title found at https://www.bls.gov/ooh/. 
5 See the relevant entry for each occupational title found at https://www.onetonline.org/. 
3