remanded H-1B Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 8419191 
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. 3, 2020 
The Petitioner, a marketing consulting services provider, seeks to temporarily employ the Beneficiary 
as a "marketing analyst" under the H-IB nonimmigrant classification for specialty occupations . See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. 
§ l 10l(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 California Service Center denied the petition , 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. 1 We review the questions in this matter de nova. 2 
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 determine 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 . 3 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, 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 While Department of Labor (DOL) ce1tifies 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-certified 
LCA "corresponds with" the content of the H-lB petition. 
the Director should first make a determination on whether the LCA was certified for the appropriate 
occupational category, and therefore corresponds to and supports this H-lB petition. 
As presently constituted, the record does not appear sufficient to establish that the LCA corresponds 
with and supports the petition. 4 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 
13-1161, corresponding to the occupational title "Market Research Analysts and Marketing 
Specialists"; the SOC code the Petitioner designated on the LCA. 
The Petitioner included duties that appear atypical to the SOC code on the LCA. Specifically, we 
observe the majority of the duties appear properly classified under the Search Marketing Strategists 
occupational classification (SOC code 15-1199 .10). On the issue of whether we can provide relevant 
analysis of a position as a specialty occupation, a petitioner's selection of the incorrect SOC code on 
the LCA may preclude such an evaluation. The initial issue concerns the statutory and regulatory 
definitions of a specialty occupation and how these focus on the broader occupation as a whole, and 
the use of an incorrect occupational code may result in an erroneous outcome, or one that does not 
properly assess the actual nature of the occupation in which the Beneficiary would engage. 
A subordinate concern relates to the education requirements we consider under the regulatory criteria 
and how these may differ markedly from one occupational classification to the next. It would not be 
a valuable use ofUSCIS resources to analyze the position requirements under an incorrect SOC code. 
For example, under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), degree requirements to enter 
an occupation are not the same for all positions in a particular field of endeavor. As an example, 
degree requirements for positions located in the Software Developers, Applications occupation 
(usually a bachelor's degree, typically in computer science, software engineering) would generally be 
different from those in the Web Developers category ( an associate' s degree in web design or a related 
field is the most common requirement). 5 Likewise, when considering 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the industry for one occupation 
may also be distinct in comparison to others. Additionally, the Search Marketing Strategists 
occupational classification we discuss above demands a higher paying wage than the SOC code 
designated on the LCA. 6 
Accordingly, the matter will be remanded to the Director to consider the LCA issue and to 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. 
4 See 20 C.F.R. ~ 655.705(6); Simeio Solutions, 26 T&N Dec. at 546 n.6. 
5 See the relative entry for each occupational title found at https://www.bls.gov/ooh/. 
6 For examples, see the appropriate location and timeframe on the Online Wage Libra1y - FLC Wage Search Wizard, 
Foreign Labor Certification Data Center https://flcdatacenter.com/OESWizardStart.aspx. 
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