remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17302825 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: WL. 6, 2021 
The Petitioner, an information technology consulting services company, seeks to temporarily employ 
the Beneficiary as a "business analyst" under the H-lB nonimmigrant classification for specialty 
occupations.1 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 California Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position is a specialty occupation. In particular, the Director found the Petitioner's 
job description generalized, and concluded that it did not establish the substantive nature of the 
position. On appeal, the Petitioner argues that the Director did not consider all the evidence and 
submits new evidence. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.2 We review the questions in this matter de novo.3 Upon de nova 
review, we will remand the petition for the Director to consider prior existing evidence ofrecord and 
also new evidence submitted on appeal. 
The matter must be remanded for two separate and independent reasons. First, the Petitioner argues 
that the Director erred by failing to consider all the evidence in the record submitted to establish the 
position qualifies as a specialty occupation. In particular, the Petitioner argues that the Director 
overlooked and did not consider a 63-page position evaluation submitted in support of the petition. 
We agree. 
The Director's decision omits any mention of the position evaluation. Thus, it appears the Director 
did not consider it. Moreover, the Director found, in part, that the substantive nature of the position 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l l0l(a)(l5)(H)(i)(b) . 
2 See Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
was unclear because the position's duties were described in generalized and abstract terms. 4 For this 
reason too, consideration of the 63-page position evaluation is relevant to understanding the 
substantive nature of the position because the evaluation contains multiple pages of definitions and 
descriptions of key terms, which clarify the generalized and abstract terms found in the position's 
description. Accordingly, we find it appropriate to remand the petition so that the Director may 
conduct a first-line review of all the evidence in support of the petition. 
The Director's decision must also be withdrawn, and the matter remanded for entry of a new decision 
because the Director mischaracterized the labor condition application (LCA) submitted in support of 
the petition. The Director's decision states that the LCA 5 was certified for a position located within 
the "Computer Programmers" occupation, corresponding to the standard occupational classification 
(SOC) code 15-1251. However, the record shows that the LCA was certified for a position located 
within the "Management Analysts" occupation ( corresponding to the SOC code 13-1111 ). On appeal, 
the Petitioner submits new evidence including the Beneficiary's work product and work emails. Since 
we are withdrawing the Director's decision and remanding the petition for a foll consideration of all 
the evidence, we suggest the Director folly evaluate this new evidence to determine whether the 
position's duties are more closely aligned with those of a computer programmer or a management 
analyst. 6 
The Director 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. Accordingly, 
the following order shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
4 We note that throughout the record, the Petitioner has consistently described the position's duties and the minimum 
qualifications for the proffered position. which is helpful to our understanding of the substantive nature of the position. 
5 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l). 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 are performing the same services. See 20 C.F.R. § 655.73 l(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 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. 
July 30, 2009). 
6 If the Director reaches the conclusion that the position is more closely aligned with the duties of a computer programmer, 
we point out two relevant matters. First, after the Director's decision was issued, the U.S. Court of Appeals for the Ninth 
Circuit issued a decision in Innova Sols., Inc. v. Baran, 983 F.3d 428 (9th Cir. 2020), which may affect the Director's 
analysis of the specialty-occupation issue. Second, we note that the prevailing wage for a level II computer programmer 
is $72,530 whereas the prevailing wage for a management analyst is $88,920. See, 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=l 5-l l 31 &area=C:J&year=20&source=l and 
https://www.flcdatacenter.com/OesQuickResults.aspx?code=l 3-l l l l &area=L_J&year=20&source=l, respectively 
(last visited May 27, 2021). 
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