remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7906393 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2020 
The Petitioner, an information technology services provider, seeks to employ the Beneficiary 
temporarily 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 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. Upon review of the record, however, it does not 
appear that the Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application 
for Nonimmigrant Workers (LCA), corresponds to and supports this H-lB petition .2 We therefore are 
withdrawing the Director's decision and remanding the matter for further review of the record and 
issuance of a new decision . 
Certain entities filing H-lB petitions must pay additional fees as designated within the American 
Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Based on the regulation at 
8 C.F.R . § 214.2(h)(19)(iii)(A)-(E), the following organizations types are exempt from paying the 
ACWIA fee: 
• An institution of higher education as defined in section l0l(a) of the Higher Education Act 
of 1965; 
• An affiliated or related nonprofit entity that is connected or associated with an institution of 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 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 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 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-certifi ed LCA "corresponds with" the 
content of the H-lB petition . 
higher education; 
• A nonprofit or government research organization; 
• A primary or secondary educational institution; or 
• A nonprofit entity engaged in an established curriculum-related clinical training program for 
students. 
Only those employers who are exempt from filing the ACWIA fees may select the SOC code this 
Petitioner designated on the LCA; 15-1035 for Software Developers, Applications, R&D. Foreign 
workers classified under that SOC code should spend the majority of their time performing research 
and development activities relating to their work as Software Developers, Applications for entities that 
qualify for the ACWIA fee exemptions. 
The Director should determine whether the Petitioner has demonstrated that it meets the requirements 
to use the ACWIA-related SOC code. On the Form I-129, the Petitioner checked "No" when 
responding to the questions relating to whether it qualified for the fee exemption under ACWIA. 
Additionally, within its correspondence, the Petitioner described itself in a manner consistent with a 
for-profit entity. The Director should therefore decide if the Petitioner is one of the entities exempt 
from the ACWIA fee within the regulation at 8 C.F.R. § 214.2(h)(l9)(iii)(A)-(E), and as a result 
whether its selection of the 15-1035 SOC code on the LCA was correct. 
The Director may also wish to review the duties the Petitioner presented in the record to ascertain 
whether those functions correlate with the selected SOC code ( e.g., the Beneficiary would spend the 
majority of his time performing research and development activities relating to his work). 
Accordingly, the matter will be remanded to the Director. The Director may request any additional 
evidence considered pertinent to the new determination and any other issue. 
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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