remanded H-1B Case: Not Specified

U.S. Citizenship 
and Immigration 
Services 
In Re : 20633045 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 3, 2022 
The Petitioner seeks to employ the Beneficiary 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. 
§ 110l(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 Nebraska Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that : ( 1) the record did not establish that the petition was supported by a U.S. Department 
of Labor (DOL) Labor Condition Application for Nonimmigrant Workers Form ETA-9035 & 9035E, 
(LCA) which corresponded with the proffered position described in the petition, and (2) that the 
Petitioner did not provide an LCA that was certified for the specialty occupation as required by the 
regulation at 8 C.F.R. § 214.2(h)(4)(i). The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act ; Matter ofChawathe , 25 l&N Dec. 369, 375 (AAO 2010) . We review the questions in this matter 
de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we conclude that a remand is warranted in this case . 
I. LAW 
Before filing a pet1t10n for H-lB classification , the regulation requires petlt10ners to obtain 
certification from DOL that the organization has filed an LCA in the occupational specialty in which 
its foreign national personnel will be employed . 8 C.F.R. § 214.2(h)(4)(i)(B)(l) . The purpose of 
DOL 's LCA wage requirement is "to protect U.S . workers' wages and eliminate any economic 
incentive or advantage in hiring temporary foreign workers." See Labor Condition Applications and 
Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations and as 
Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 
655-56) . See also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 231 (2d Cir . 2020) (quoting 
20 C.F.R. § 655.0(a)(l) and finding that a primary goal of U.S. non-immigrant foreign worker 
programs like the H-lB Program is to ensure that "the employment of the foreign worker in the job 
opportunity will not adversely affect the wages or working conditions of similarly employed U.S. 
workers."). 
The LCA also serves to protect H-1B workers from wage abuses. A petitioner submits the LCA to 
DOL to demonstrate that it will pay an H-1B worker the higher of either the prevailing wage for the 
occupational classification in the area of employment, or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). See also 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'l, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 
2009). 
Furthermore, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state 
that it will comply with the terms of the LCA. While DOL certifies the LCA, U.S. Citizenship and 
Immigration Services (USCIS) "determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation ... , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-1B visa classification." 20 C.F.R. § 655.705(b). See also Matter of Simeio 
Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). 
USCIS may consider DOL regulations when adjudicating H-1B petitions. See Int'l Internship 
Programs v. Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'l Internship 
Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013); ITServeAll., Inc. v. Dep'tofHomeland Sec., 
No. 1:20-CV-03855 (TNM), 2022 WL 493081, at *10 (D.D.C. Feb. 17, 2022)(citing Simeio Solutions, 
26 I&N Dec. at 546 n.6 and 20 C.F.R. § 655.705(b)); United States v. Narang, No. 19-4850, 2021 WL 
3484683, at * 1 ( 4th Cir. Aug. 9, 2021) ( finding that USCIS adjudicators evaluate whether the 
employment proposed in an H-1B petition will conform to the wage and location specifications in the 
LCA); Parzenn Partners, LLC v. Baran, No. 19-CV-11515-ADB, 2020 WL 5803143, at *8-9 (D. 
Mass. Sept. 29, 2020) (finding that USCIS operates within its authority when it either considers or 
evaluates DOL's wage level regulation when determining if an LCA corresponds with and supports 
an H-1B petition). 
In a similar vein, USCIS possesses the authority to evaluate whether the proffered position's duties 
are in accordance with the occupational classification on the LCA, and if not, to determine under which 
occupational titles the responsibilities correspond. See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 
1167-68 (N.D. Cal. 2013) (in which the court agreed with USCIS that a large portion of the 
beneficiary's duties were most similar to those found within the Bookkeeping, Accounting, and 
Auditing Clerks occupation, rather than within the Accountants Standard Occupational 
Classificational (SOC) code.) Effectively, this reiterates the USCIS' ability to determine whether the 
LCA corresponds with and supports the petition. 
"In construing a statute or regulation, we begin by inspecting its language for plain meaning." Sullivan 
v. McDonald, 815 F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 
(Fed.Cir.2000)). "[W]e attempt to give full effect to all words contained within that statute or 
regulation, thereby rendering superfluous as little of the statutory or regulatory language as possible." 
Sullivan, 815 F.3d at 790 (quoting Glover v. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). The most 
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basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by 
examining the literal and plain language. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 
(4th Cir. 1996). The inquiry ends with the plain language as well, unless the language is ambiguous. 
United States v. Pressley, 359 F.3d 347, 349 (4th Cir. 2004). 
Here, the plain language of the regulation is dispositive: USCIS is authorized to determine the 
corollary nature of the proffered position's elements as represented in an LCA when compared with 
those same elements as represented on the Form I-129, as well as the Petitioner's actual position 
requirements. And to clarify, USCIS does not purport to exercise any authority over the LCA. Instead, 
we are ensuring that the claims made on the LCA sufficiently align to those made within the H-lB 
petition. 
Furthermore, the Act prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the 
[DOL] Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall 
provide the certification .... " Section 212(n)(l)(G)(ii) of the Act. USCIS precedent also states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition. 
Simeio Solutions, 26 I&N Dec. at 546 n.6. It is unclear how USCIS is to carry out its responsibilities 
to determine whether the LCA corresponds with and supports the H-lB petition without performing 
such a review. To illustrate, by simply submitting the LCA to DOL without also obtaining a prevailing 
wage determination, a petitioner has only received DOL's certification that the form is complete and 
does not contain obvious inaccuracies. Id. 1 In fact, DOL "is not generally permitted to investigate 
the veracity of the employer's attestations on the LCA prior to certification." Aleutian Cap. Partners, 
LLC, 975 F.3d at 225-26 (quoting Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 193 
(3d Cir. 2010)). 
Further, when DOL certifies an LCA, it does not perform any meritorious review of an employer's 
claims to ensure the information is true. DOL's Office of Inspector General, 06-21-001-03-321, 
Overview of Vulnerabilities and Challenges in Foreign Labor Certification Programs 11 (2020) 
(describing the DOL Employment and Training Administration's role as "simply rubber-stamping 
during the application certification process"). In other words, employers do not receive an evaluative 
determination from DOL on whether the LCA's content and the specifics were appropriate and 
accurate. 
In order to determine whether the "attestations and content" ( e.g., the SOC code and the wage level) 
as represented on the LCA corresponds with the information pertaining to the proffered position as 
represented on the Form I-129, we follow DOL's guidance, which provides a five-step process for 
determining the appropriate SOC code and wage level. See U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
1 Employers my obtain a prevailing wage determination by taking the additional step of submitting Form ETA-9141 
(Application for Prevailing Wage Determination) to DOL's National Prevailing Wage Center. 
3 
Nov. 2009) (DOL guidance), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ 
Guidance_ Revised_ 11 _ 2009. pdf. 
An employer "reaffirms its acceptance of all of the attestation obligations by submitting the LCA to 
[USCIS] in support of the Petition for Nonimmigrant Worker, Form I-129, for an H-lB 
nonimmigrant." 20 C.F.R. § 655.705(c)(l). When comparing the 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. 
Additionally, it is important for USCIS to ensure the employer has selected the SOC code on the LCA 
that most closely matches the proffered position for reasons that affect H-1 B statutory and regulatory 
requirements. First, the wrong SOC code can direct USCIS to evaluate an inapplicable occupational 
title or occupation. It is the occupation itself that we evaluate to decide if it requires a "theoretical and 
practical application of a body of highly specialized knowledge," and "attainment of a bachelor's or 
higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation 
in the United States." Section 214(i)(l) of the Act. Therefore, an incorrect SOC code could mean we 
would not be able to properly evaluate whether a petitioner has satisfied the statute's definition of a 
specialty occupation. 
Second, we also cannot provide a proper analysis under two H-lB regulatory requirements. Those 
requirements fall under the regulations at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(]) and (2). 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(]) requires a petitioner to demonstrate that a baccalaureate or higher degree-or 
its equivalent-is normally the minimum requirement for entry into the particular position. Because 
education requirements may differ markedly from one occupational classification to the next, the 
incorrect SOC code (e.g., occupational classification) can skew the analysis. Also, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) requires that the degree requirement is common to the industry in parallel 
positions among similar organizations. Because the degree requirement that is considered common to 
the industry for one occupation may also be distinct in comparison to others, USCIS must ensure the 
SOC code specified on the LCA is the one that most closely matches the position in the petition. 
It is also important to ensure the correct wage level is specified on the LCA because even if an 
employer designates the correct SOC code and satisfies the H-lB related requirements, if the wage 
level is lower than the position's requirements warrant, USCIS still cannot approve the H-lB petition 
because employers are required to compensate H-lB workers at the higher of either the prevailing 
wage for the occupational classification in the area of employment, or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of 
the Act; 20 C.F.R. § 655.73 l(a). Stated differently, were USCIS to allow an employer to compensate 
an H-lB worker at a wage level that is lower than the position's requirements warrant, it would not be 
compensating that individual at the necessary prevailing wage, nor the actual wage it pays to similarly 
situated employees. 
In summary, when filing an LCA and an H-lB petition, a petitioner subjects itself to two authorities: 
(1) to DOL through the certification process, or through a prevailing wage determination, and (2) to 
USCIS by way of our authority to ensure that the LCA corresponds with and supports the petition. 
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II. ANALYSIS 
Here, the Petitioner obtained an LCA certified under the SOC code, 23-1012 relating to "Judicial Law 
Clerks." The Petitioner specified a Level I prevailing wage on the LCA. Even though that required 
wage rate was only $51,917 annually, the Petitioner proposed to compensate the Beneficiary at 
$190,000 per year. 2 When it filed the petition, the Petitioner provided the position's description and 
duties and noted that they required a bachelor's degree (or foreign equivalent) plus: (1) two years of 
study toward a Juris Doctor degree, (2) current enrollment or completion of a Master of Laws degree, 
or (3) admission to the bar of a foreign jurisdiction and experience working as a lawyer in a foreign 
jurisdiction. This appears to exceed the education of the equivalent for the Judicial Law Clerks 
occupation as described in Appendix D of the DOL guidance, which would require the Petitioner to 
compensate the Beneficiary at or above the Level II wage rate. That Level II wage rate was listed as 
$60,902 annually and the Petitioner exceeded that monetary requirement in its proposed compensation 
listed on the Form 1-129. 
DOL provides guidance explaining that a job's SOC code is identified by selecting the Occupational 
Information Network (O*NET) job description "that most closely matches the employer's request" from 
a list of similar occupations. The DOL guidance further provides that the selection of the SOC code 
should not be based solely on the title of the employer's job offer, but instead what should be considered 
are the particulars of the employer's job offer in a comparison of the full description to the tasks, 
knowledge, work activities, and job zone information generally associated with an SOC occupation to 
ensure the most relevant occupational code has been selected. Therefore, the selection of the correct SOC 
code should be based on the position requirements and how those compare with the above identified areas 
of the O*NET. 
The Director indicated that conducting legal research was the single duty the position and the O*NET 
entry for Judicial Law Clerks had in common. However, we note other commonalities such as 
preparing various legal documents and case-related materials. And still, based on the DOL guidance, 
the correct SOC code is not identified simply through the position's duties. Instead, we must compare 
the O*NET 'Tasks, Knowledge, Work Activities, and Job Zone information" to the proffered position's 
requirements to then select the O*NET occupation "that most closely matches the employer's request" 
from a list of similar occupations. 
Additionally, the Director compared the Judicial Law Clerks SOC code with the O*NET occupational 
code for Lawyers under the 23-1011 SOC code and differentiated the two by whom they serve; judges 
versus clients. But according to DOL's Occupational Outlook Handbook (Handbook), the Lawyers 
occupational profile requires a law degree and oftentimes successfully passing a state's written bar 
exam as a prerequisite. How to Become a Lawyer, Bureau of Labor Statistics (Sept. 8, 2021), 
https://www.bls.gov/ooh/legal/lawyers.htm#tab-4. It is clear that the Petitioner's position 
requirements were less than those listed in the Handbook for the Lawyers occupational profile. 
2 For additional information, see the Online Wage Library - FLC Wage Search Wizard, Foreign Labor Certification Data 
Center, https://www.flcdatacenter.com/OESWizardStart.aspx (visited Mar. 3, 2022). 
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Then, the Director compared the position in the petition to the Paralegals and Legal Assistants 
occupational profile in the Handbook and indicated that the primary focus of the Petitioner's position 
was to assist attorneys in a law firm, which appears to match not only the specific duties of the 
Paralegals and Legal Assistants SOC code, but also the Handbook's synopsis of "What Paralegals and 
Legal Assistants Do." The Petitioner responded that the position was more complex than one that is 
classified under the Paralegals and Legal Assistants occupational profile in part based on the education 
level of that occupation when compared with the proffered position. But the Director considered that 
as the Petitioner's preference for higher education credentials. 
We agree with the Director that there are some instances in which an employer will apply a level of 
education that is merely a preference and is not necessarily warranted by the position's responsibilities. 
And we agree that the "Paralegals and Legal Assistants" and the "Judicial Law Clerks" occupational 
profiles in the Handbook reflect some related tasks. However, in this instance, the complexities of 
this proffered position's related tasks and the preparation and knowledge required to perform them at 
a more intricate level can be attained through the education described by the Petitioner. 
We note that the Paralegals and Legal Assistants occupational title falls under an O*NET Job Zone 3 
grouping, while the Judicial Law Clerks occupational title is grouped under Job Zone 5. An O*NET 
Job Zone 3 groups together occupations that only require medium preparation. More specifically, 
most occupations in this zone "require training in vocational schools, related on-the-job experience, 
or an associate's degree." See O*NET OnLine Help, O*NET OnLine (Mar. 1, 2022), 
http://www.onetonline.org/help/online/zones. Contrast those education requirements with those of the 
Judicial Law Clerks occupational title under Job Zone 5, which groups occupations based on the need 
for extensive preparation and most of the occupations in this grouping require graduate school up to 
and including a Doctor of Philosophy, Doctor of Medicine., or a Juris Doctor degree. Id. DOL's 
guidance instruct us to "Review the Tasks, Knowledge, Work Activities, and Job Zone information" in 
O*NET to understand what is generally required to prepare and to perform in a particular occupation. 
When considering these areas within the O*NET, and complexities of this offered position combined 
with the annual compensation, we conclude this is a further indication that the Judicial Law Clerks 
occupation that the Petitioner designated on the LCA was the best SOC code. Although this 
occupational code and the proffered position are not a precise match, DOL guidance instructs 
employers to select the O*NET job description "that most closely matches the employer's request." 
Based on the facts of this case we have determined that the Petitioner selected the occupational code 
that was the best match with the duties of the proffered position. 
As it relates to the Level I wage rate specified on the LCA, the Director indicated that the position 
appears to require special skills and knowledge that exceed that of entry-level positions in the Judicial 
Law Clerks occupation and the Director implied that the specified wage level was incorrect. Although 
the Director did not provide analysis relating to what wage level rate the position appeared to require, 
they concluded that this further demonstrated the LCA did not correspond with the petition. However, 
regarding our consideration of wage levels, we consider the totality of the record to assess whether 
the Petitioner complied with section 212(n)(l)(A) of the Act. That statute requires a petitioner to 
compensate a foreign national with the higher of: (1) the actual wage level it pays to all others with 
similar experience and qualifications for the specific employment in question, or (2) the prevailing 
wage level for the occupational classification in the area of employment. 
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Here, even if the position's requirements would mandate an increase in the wage level by one 
increment, the annual rate of compensation the Petitioner proposed on the Form I-129 far surpassed a 
Level II wage rate. 3 This further illustrates that the Petitioner complied with section 212(n)(l )(A) of 
the Act, as well as the ultimate purpose of the LCA program, which is "to protect U.S. workers' wages 
and eliminate any economic incentive or advantage in hiring temporary foreign workers." 
III. CONCLUSION 
The Petitioner has established that the LCA's attestations and content corresponds with and supports 
the H-1B petition. See 20 C.F.R. § 655.705(b). See also Simeio Solutions, 26 I&N Dec. at 546 n.6. 
Therefore, we remand the matter to the Director for further proceedings to consider any remaining 
eligibility requirements. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
3 For additional information, see the Online Wage Library - FLC Wage Search Wizard, Foreign Labor Certification Data 
Center, https://www.flcdatacenter.com/OESWizardStart.aspx (visited Mar. 3, 2022). 
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