remanded H-1B Case: Sales Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 8229096 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 23, 2020 
The Petitioner , a manufacturer of steel chains , seeks to employ the Beneficiary temporarily as a "Sales 
Manager - Latin America" under the H-1 B nonimmigrant classification for specialty occupations . 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S .C. 
§ 1101(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 qualifies as a specialty occupation. On appeal, the Petitioner 
asserts that the Director erred in denying the petition and submits a brief with additional evidence. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review , the decision of the Director is withdrawn. The matter is remanded for the entry 
of a new decision consistent with the foregoing analysis . 
I. SPECIAL TY OCCUPATION 
Based upon our review of the entire record of proceedings , we conclude that the Petitioner provided 
sufficient evidence to demonstrate that the proffered position is a specialty occupation. The totality 
of the record establishes , by a preponderance of the evidence, that the Petitioner 's particular position 
requires the theoretical and practical application of a body of highly specialized knowledge , and the 
attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum 
for entering into the occupation in the United States . The record establishes that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's or higher degree in a specific specialty , or its equivalent , 
and therefore satisfies the criterion at 8 C.F.R. § 214 .2(h)(4)(iii)(A)(4) . As such, we hereby withdraw 
the Director's finding on the specialty-occupation issue . 
II. LABOR CONDITION APPLICATION 
Although the Petitioner provided sufficient evidence to demonstrate that the proffered position is a 
specialty occupation, the petition cannot be approved because the record of proceedings is not 
currently sufficient to establish that the certified labor condition application (LCA) corresponds to and 
supports the H-lB petition. On the LCA, the Petitioner designated the proffered position as a Level I 
wage position. 1 However, the record clearly shows that the Petitioner requires Spanish language 
proficiency for the proffered position in addition to the degree requirement. The Petitioner's 
designation of the proffered position as a Level I position on the LCA is at odds with the Petitioner's 
requirement of foreign language skills for the position. A language requirement other than English in 
a job offer generally is considered a special skill. 2 Here, the Petitioner has not established that its 
foreign language requirement is reflected in the wage-level for the proffered position. 3 
On appeal, the Petitioner states that "the designation of this position as an entry-level, Wage Level I, 
position, is accurate." However, it is not apparent that the Petitioner considered the foreign language 
requirement of the proffered position when it determined the wage level. Therefore, it is not evident 
that the Petitioner provided a certified LCA that supports the petition. 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers. "4 It also serves to protect H-1 B 
workers from wage abuses. A petitioner submits the LCA to the Department of Labor (DOL) to 
demonstrate that it will pay an H-1 B 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). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) 
determines whether the LCA's content corresponds with 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, .... "). 
On the LCA, the Petitioner designated the proffered position under the occupational category for 
"Sales Managers," corresponding to the Standard Occupational Classification (SOC) code 11-2022. 
As noted, the Petitioner selected a Level I wage as consonant with the job requirements, necessary 
experience, education, special skills, and other requirements of the proffered position. However, due 
1 The Petitioner submits a certified LCA to demonstrate that it will pay an H-lB 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 who are performing the same services. See Section 212(n)(l) 
of the Act; 20 C.F.R. § 655.731(a). 
2 DOL, Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdt;NPWHC _ Guidance_ Revised_ 11 _ 2009.pdf 
3 A prevailing wage determination starts with an entry-level wage (Level I) and progresses to a higher wage level (up to 
Level TV) after considering the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. 
Dep't of Labor, 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 
4 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). 
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to the Petitioner's stated requirement of Spanish language proficiency in the proffered position it is 
clear that, at minimum, a Level II wage is required. 5 
Accordingly, the matter will be remanded to the Director to consider the LCA issue and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination as well as any other issue, and 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. 
5 We note that the difference in annual salary for the proffered position at a Level I wage compared to a Level TT wage is 
significant. As of the date the LCA was certified, the Level I prevailing wage was $67,538 annually versus a Level II 
annual prevailing wage of $106,059 for a SOC Code 11-2022 Sales Manager in I I. See 
www .flcdatacenter.com. 
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