remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 4216109 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 27, 2020 
The Petitioner , an information technology services company, seeks to employ the Beneficiary 
temporarily as a "systems analyst" 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-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 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 detennine 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. 1 Without knowing the answer to that question, we cannot detennine 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 make a determination 
1 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. 2 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 
15-1121, corresponding to the occupational title Computer Systems Analysts"; the SOC code the 
Petitioner designated on the LCA. 
The Petitioner, which is located in New Jersey, states that the Beneficiary will perform his duties in 
Oklahoma for I I ( end-client) pursuant to contracts executed between the Petitioner and 
I !(vendor), and between the vendor and the end-client. The contractual path of succession 
therefore appears to flow from the Petitioner, to the vendor, which will ultimately provide personnel 
to the end-client. When it filed the petition, the Petitioner provided a letter from the end-client that 
contained the position's description with 14 bullet points. In its response to the Director's request for 
evidence (RFE), the Petitioner expanded on those duties; however, it did not provide expanded duties 
from the end-client-the entity where the Beneficiary will actually perform the work. 3 
DOL requires the U.S. employer to select the SOC code with the higher of the prevailing wage in the 
"area of employment" or the amount paid to other employees with similar experience and 
qualifications who are performing the same services. Stated plainly, the employer must compare the 
proffered position's stated duties with the overall information found in Occupational Information 
Network's (O*NET) and select the occupation that most closely matches the employer's 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. 
It does not appear that the Petitioner followed the DOL guidance when it selected the O*NET 
occupation for the LCA. The majority of the proffered position's duties-as specified by the 
end-client-appear laden towards those found in O*NET) entry for the Search Marketing Strategists 
SOC code 15-1199.10. 4 
Therefore, the Petitioner's use of the Computer Systems Analysts SOC code at a Level II wage does 
not appear to have been correct, and the Director should first determine whether this LCA corresponds 
with and supports the petition. 5 
2 See 20 C.F.R. § 655.705(b); Simeio Solutions, 26 I&N Dec. at 546 n.6. 
3 We note that within the end-client's letter, it did not offer the order of importance and/or frequency of occurrence ( e.g., 
regularly, periodically, or at irregular intervals) with which the Beneficiary will perform the functions and tasks. Thus, 
the record does not specify which tasks are major functions of the proffered position. Additionally, the more detailed 
duties and percentages of time the Beneficiary would spend on each duty the Petitioner provided in the RFE response are 
less probative to our analysis than the end-client's statements, as we consider the duties and education requirements of the 
end-client in these situations. Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). 
4 For additional information. see O*NET OnLine, available at https://www.onetonline.org/link/summary/15-1199. l O (last 
visited Feb. 6, 2020). 
5 We note that the compensation for Search Marketing Strategists for the same location and timeframe is significantly 
higher than the wage the Petitioner indicated it would pay to the Beneficiary. Compare the wages for Computer Systems 
Analysts with those for Search Marketing Strategists, respectively on the Foreign Labor Certification Data Center, Online 
Wage Library - FLC Wage Search Wizard at https://flcdatacenter.com/OesQuickResults.aspx?code= 15-
1121 &areaoyear= 18&source= 1 and https://flcdatacenter.com/OesQuickResults.aspx?code= 15-
1199&area year= 18&source= 1 (last visited Feb. 26, 2020). 
2 
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. 
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