remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9608705 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 27, 2020 
The Petitioner, an information technology organization, seeks to extend the Beneficiary's temporary 
employment as a "business analyst" 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 Vermont 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 appears the Petitioner devised a position combining two standard occupation classification (SOC) 
codes for both 13-1111 (Management Analysts) and 15-1132 (Software Developers, Applications). 
The Occupational Information Network (O*NET) provides the following definition for the 
Management Analysts occupational category: "Conduct organizational studies and evaluations, 
design systems and procedures, conduct work simplification and measurement studies, and prepare 
operations and procedures manuals to assist management in operating more efficiently and effectively. 
Includes program analysts and management consultants." It is clear this occupation relates primarily 
to making organizations more efficient through streamlining processes and procedures. 
However, a significant component of the offered position incorporates a heavy reliance on solving 
problems through the use and manipulation of information technology solutions such as completing 
software test activities, performing software quality assurance, and utilizing and manipulating 
software programs normally reserved for the Software Developers, Applications occupation. As 
further examples of what appear to be Software Developers, Applications duties, the Beneficiary 
would perform the following: implementing the HP ALM tool, writing automation scripts using 
VB.NET (Visual Basic .NET; an object-oriented computer programming language), performing 
database testing in different RDBMS (relational database management systems), and performing 
complex CRUD (in computer programming, Create, Read, Update, and Delete are the four basic 
functions of any data storage device that retains data after power to that device is shut off). 
The Director should decide whether the SOC code the Petitioner utilized on the LCA was the higher 
paying occupation in the relevant location and timeframe. Additionally, the Director may wish to 
review the content from the end-client to determine if they sufficiently expressed whether it required 
at least a bachelor's degree in the specialty, or an equivalent in the proffered position in accordance 
with Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). We further observe that a large 
portion of the initially provided duties also appear on job advertisement websites in existence well 
before the petition filing date, meaning this may be an indication that the duties the Petitioner provided 
did not actually represent the functions the Beneficiary would perform for the end-client. 7 
Finally, we were unable to verify that the Petitioner is an organization that is in an active and good 
standing status with the state in which it operates as listed on the Form 1-129. The information 
available reflects the Petitioner's status may have been revoked or administratively suspended. The 
Director may wish to have the Petitioner provide proof that, within the location listed on the petition, 
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.,-a§'-6_55_.7_0_5._(b_,_). ____ _, 
7 For example, see Business Analyst 2 job, Lensa (Aug. 17, 2020), https:I 
,___ _____________ __.lamong several other examples. ,.__ _______ __, 
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its ability to conduct business was uninterrupted and consistent from the date it filed the petition 
through the present date. 
Accordingly, the matter will be remanded to the Director to consider the above issues 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. 
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