remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 17, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services firm, seeks to temporarily employ the Beneficiary as 
a "scrum master" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
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 Director of the Nebraska Service Center denied the petition , concluding that the Petitioner did not 
establish, as required, that the submitted labor condition application (LCA) corresponds with the 
H-lB petition. More specifically, the Director found that the Petitioner's classification of the proffered 
position at a Level I wage was incorrect. 
On appeal, the Petitioner contends that the Director denied the petition in error and that it should be 
approved. Upon de nova review, we will withdraw the Director's decision. While we agree with the 
Director that the LCA does not appear to correspond with and support the H-lB petition , we do so on 
differing grounds. In addition , we observe additional deficiencies that would also appear to preclude 
approval of this petition, and the Director may wish to explore them on remand as well. The matter 
will therefore be remanded for further proceedings consistent with the analysis below and for the entry 
of a new decision . 
I. ANALYSIS 
A. Labor Condition Application 
As noted, while we agree with the Director that the LCA does not appear to correspond to and support 
the H-lB petition, we do so on differing grounds. 1 Specifically , we disagree with the Director's wage-
1 While the Department of Labor (DOL) is the agency that certifies LCA applications before they are submitted to U.S. 
Citizenship and Imm.igration Services (USCIS) , DOL regulations note that the Department of Homeland Security (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
Matter of A-LLC 
level analysis and withdraw that portion of her decision. In order to assess whether the wage level 
specified on the LCA accurately reflects the proffered position, the Director should not have compared 
the Petitioner-indicated duties directly to DOL's generic definition of a Level I wage. 2 Instead, the 
Director should have applied DOL's guidance, which provides a five-step process for determining the 
appropriate wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). That said, 
because we agree that the LCA does not appear to correspond with and support the H-1 B petition, we 
find that remand is warranted so the Director can once again explore the LCA issue, but within the 
proper framework. 
But even ifwe were to set the LCA issue aside entirely, we would still observe additional deficiencies 
that appear, at least currently, to also independently preclude approval of this petition. The Director 
may also wish to explore those issues. 
B. Specialty Occupation 
For example, we question whether the Petitioner had secured definite, non-speculative employment 
for the Beneficiary prior to the filing of this petition. The Petitioner, which is located in New Jersey, 
claims that the Beneficiary will work at the end-client's location in Minnesota pursuant to contracts 
executed between the Petitioner and the vendor, and between the vendor and the end-client. The path 
of contractual succession therefore appears to be as follows: 
Petitioner ➔ Vendor ➔ End-Client 
However, the record does not contain evidence of any contracts executed between any of these actors. 
The record does not contain a copy of the contract executed between the Petitioner and the vendor. 
Nor is there a contract executed between the vendor and the end-client. Nor are there copies of any of 
the types of documents typically executed pursuant to these contracts, such as statements of work, 
work orders, purchase orders, etc. between the vendor and the end-client. In other words, there is little 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in pertinent part 
( emphasis added): 
For H-IB visas ... DHS accepts the employer's petition (DHS Form T-129) with the DOL-certified LCA 
attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a 
fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1 B visa classification. 
2 DOL's 2009 guidance describes Level I as follows: 
Level I ( entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, 
exercise of judgment. The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that 
the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I 
wage should be considered. 
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Matter of A-LLC 
evidence of any obligation on the part of the end-client to actually provide the position the Petitioner 
has described in this petition, and the remaining evidence of record does not appear sufficient to fill 
that gap. If we cannot determine whether the proffered position as described will actually exist, then 
we cannot ascertain its actual, substantive nature so as to determine whether it is a specialty 
occupation. 3 The Director may wish to explore this matter farther. 
C. Employer-Employee Relationship 
The Director may also wish to consider whether the Petitioner has demonstrated that it qualifies as a 
United States employer. Specifically, the record as presently constituted does not appear sufficient 
for a foll analysis of what the Beneficiary will do, where the Beneficiary will work, as well as how 
these factors will impact the Petitioner's ability to control and direct the Beneficiary's day-to-day 
work. Thus, it appears that the Petitioner has not corroborated who has or will exercise control over 
the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. Again, the 
Director may wish to explore this matter farther. 
II. CONCLUSION 
As the Director did not address the above in her decision, we will remand the record for farther review 
of these issues. The Director may request any additional evidence she considers pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and for the entry of a new decision. 
Cite as Matter of A- LLC, ID# 1562506 (AAO Sept. 17, 2019) 
3 Cf Galaxy Sofiware Solutions, Inc. v. USC1S, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
( describing a petitioner's "fail[ ure] to provide all of the contracts governing the relationships between the corporate entities 
in the chain" as a "material gap"). 
3