remanded H-1B Case: Marketing And Advertising

U.S. Citizenship 
and Immigration 
Services 
In Re: 9434207 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 24, 2020 
The Petitioner, a marketing and advertising organization, seeks to employ the Beneficiary temporarily 
as a "analyst, digital analytics" 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonirnmigrant 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 
Upon de nova review , we conclude that the preponderance of the evidence satisfies the "specialty 
occupation" definition at 8 C.F.R. § 214.2(h)(4)(ii) and also the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4) for a particular position whose specific duties are so specialized and complex 
that their performance requires knowledge usually associated with attainment of a baccalaureate or 
higher degree in a specific specialty. The Petitioner sufficiently developed the position's duties that it 
demonstrated a nexus between an established course of study leading to a specialty degree, and how 
such a curriculum is necessary to perform the proffered position's specialized and highly complex 
duties . Therefore, the record satisfies the fourth criterion of the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), and we withdraw the Director's decision. 
However, the record appears to support a determination that the prevailing wage rate designated on 
the Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA) was not correctly calculated based on the Petitioner's position 
1 See Immigration and Nationality Act (the Act) section 101 (a)(l 5)(H)(i)(b ), 8 U.S.C. § 11 0l(a)(l 5)(H)(i)(b ). 
2 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369,375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
requirements. 4 Without knowing the answer to that question, we cannot issue an ultimate eligibility 
determination because a position that satisfies the statutory and regulatory requirements of a specialty 
occupation, but is one in which the organization would not pay the appropriate wage cannot be 
approved as it violates section 212(n)(l) of the Act and the intent to protect the wages and working 
conditions of U.S. workers. 
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 
on whether the Petitioner included the correct wage rate on the LCA, and that it therefore corresponds 
to and supports this H-lB petition. The Petitioner indicated the Beneficiary would present the results 
of mathematical modeling and data analysis to management or other end users, specify manipulative 
or computational methods to be applied to models, and study and analyze infmmation about alternative 
courses of action to determine which plan will offer the best outcomes. 
Here, the Petitioner obtained an LCA certified under the Standard Occupational Classification (SOC) 
code 15-2031, relating to "Operations Research Analysts" at a Level I prevailing wage rate. While it 
appears the Petitioner selected the most appropriate SOC code, what is unclear from the present record 
is whether it properly designated the prevailing wage at a Level I wage rate. We question whether the 
specific skills required for the job are generally encompassed by the Occupational Information 
Network (O*NET) description for Operations Research Analysts. 5 The Director should take the 
necessary steps to make this determination. 
For instance, we observe three areas the Director may wish to consider. First, the duties in which the 
Beneficiary would "develop custom databases" in order to assist in making business decisions appears 
to exceed the responsibilities of the Operations Research Analysts occupational category in the 
O*NET. While individuals within this occupation rely on and collect information from databases, 
when we compare the employer's requirements to the O*NET Tasks, Work Activities, Knowledge, 
and Job Zone Examples for the selected occupation, developing custom databases appears to be 
beyond that of an entry-level worker. This function may be more in line with the Database 
Administrators occupational code. The Director should consider the DOL guidance and determine 
whether this should have resulted in an increase in the prevailing wage rate. 
Second, the position would include "[ c ]rafting custom interactive dashboards and visualizations on 
Business Intelligence Tools .... " This too appears to exceed the responsibilities of the Operations 
Research Analysts occupational category, and is better aligned under the 15-1199.08 SOC code 
4 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-IB petition. Sec 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 T&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 USC IS' 
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. 
5 See Step 4 of the DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://t1cdatacenter.com/download/NPWHC _ Guidance_ 
Revised_ 11 _ 2009.pdf 
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relating to Business Intelligence Analysts. The Director may wish to consider whether the inclusion 
of this responsibility should have resulted in an increase in the prevailing wage rate. 
Finally, the Petitioner indicated the position would encompass measuring the success of media 
campaigns and providing competitive analysis of their clients' business to recommend business 
strategies for future campaigns. While this function may entail some elements found under the SOC 
code designated on the LCA, the Director should consider whether it includes some responsibilities 
that are atypical or out of the norm for entry level Operations Research Analysts. Some of these 
functions would appear to akin to those found under the 13-1161 SOC code associated with the Market 
Research Analysts and Marketing Specialists occupation. For instance, a similar task within the 
O*NET under that SOC code follows: "Measure the effectiveness of marketing, advertising, and 
communications programs and strategies." 
As the Petitioner was not previously accorded the opportunity to address the above, we will remand 
the record for further review of these issues. 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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