remanded H-1B Case: Sales Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 9504042 
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 Y 2, 2020 
The Petitioner, a web-based service provider, seeks to extend the Beneficiary's temporary employment 
as a "sales engineer" 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 Director further determined that the Petitioner did not establish the Beneficiary would 
perform qualifying duties for the period requested on the petition . 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) . Additionally , we conclude the 
availability of specialty occupation work is no longer an issue, and we withdraw the Director ' s 
decision on these matters. 
1 See Immigration and Nationality Act (the Act) section 10 l(a)(l 5)(H)(i)(b ), 8 U.S.C. § l 10l(a)(l5 )(H)(i)(b ). 
2 Section 291 of the Act; Matter of Chawathe, 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). 
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 
requirements. 4• 5 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. 
Here, the Petitioner obtained an LCA certified under the Standard Occupational Classification (SOC) 
code 15-2031, relating to "Sales Engineers" at a Level II 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 II wage rate. We question whether the specific 
skills required for the job are generally encompassed by the Occupational Information Network 
description for Sales Engineers. 6 
The Director should take the necessary steps to make this determination. In particular the Director 
may wish to consider whether several of the functions the Beneficiary would perform are atypical to 
the designated SOC code and instead align more with the SOC code 15-1199.01 relating to the 
Software Quality Assurance Engineers and Testers occupation. For instance, the responsibility to 
"verify[] the bug fix provided by the developers and do re-testing on the failed test cases" and to 
perform "regression testing, to verify new bug fixes do not impact old features or functions. The 
beneficiary takes the complete responsibility of the work product quality, by making sure there are no 
defects in the work product before getting released to the customer." 
Additionally, the Director may wish to consider if other duties such as "inventing new 
features/improvements to existing features" and "building new features/functions" as it relates to the 
Petitioner's products and services are more akin to the duties under the Software Developers, 
Applications or the Web Developers occupational categories. Finally, the Petitioner stated the 
Beneficiary would spend 80 percent of his time in their office in Utah, and the remaining 20 percent 
4 While DOL ceitifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
attestations and content corresponds with and supp01ts the H-1 B petition. See 20 C.F.R. § 655.705(6) ("OHS determines 
whether the petition is supp01ted 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 purp01i 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. 
5 See 20 C.F.R. § 655.705(b) ("OHS determines whether the petition is suppoited by an LCA which corresponds with the 
petition, .... "). See also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
6 See Step 4 of the DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ 
Revised_ 11 _ 2009 .pdf 
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in their California facilities. The Office of Foreign Labor Certification's Frequently Asked Questions 
and Answers provide additional guidance stating, "extensive travel outside the local area is not normal to 
most occupations and a point is almost always added in such circumstances."7 The Director should 
consider what, if any impact the Beneficiary's required travel between the two offices has on the 
prevailing wage rate. 
When evaluating which location to rely on to calculate the correct prevailing wage, the Director should 
consider both the Petitioner's office in Utah as well as its California location. We note that the wages 
differ for each location and, when relying on a Level II wage rate, the Petitioner did not utilize the location 
with the highest paying wage on the LCA. 
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. 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. 
7 OFLC Frequently Asked Questions and Answers, DOL (June 22, 2020), 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
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