remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 9126871 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 2, 2020 
The Petitioner seeks to temporarily employ the Beneficiary 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. § 110l(a)(l5)(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 Petitioner had 
not established that the Beneficiary would be employed in a specialty occupation position. On appeal, 
the Petitioner submits additional evidence and asserts that that the Director erred in denying the 
petition . 
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Upon de nova review, the decision of the Director is withdrawn.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 . 
As noted, the Director concluded that the proffered position is not a specialty occupation. However, 
we find that conclusion premature, as the record of proceedings at the current time is not sufficiently 
developed so as to allow us to determine whether the certified labor condition application (LCA) 
corresponds to and supports the petition. Without knowing the answer to that question, we cannot 
determine the actual, substantive nature of the position, which means that as this record currently 
stands, we cannot make a determination on the specialty-occupation question. 
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." 1 It also serves to protect H-lB 
1 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). 
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, .... "). 
The Petitioner, which is located inl I North Carolina, asserts the Beneficial will work as a 
"DevOps/Cloud Migration Engineer" for an end-client via a mid-vendor inl._ _ ___. Texas. On the 
LCA, the Petitioner designated the proffered position under the occupational category for "Software 
Developers, Applications," corresponding to the Standard Occupational Classification (SOC) code 
15-1132. The Petitioner selected a Level II wage as consonant with the job requirements, necessary 
experience, education, special skills, and other requirements of the proffered position. 
When comparing the proposed duties of the proffered position to those provided in the Occupational 
Information Network (O*NET), it is not clear that the Petitioner selected the appropriate SOC code 
for the proffered position. The DOL's "Prevailing Wage Determination Policy Guidance" provides 
clear guidance for selecting the most relevant O*NET occupational code classification, as follows: 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the NPWHC should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the NPWHC shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
According to O*NET, software developers working under SOC code 15-1132 generally: 
Develop, create, and modify general computer applications software or specialized utility 
programs. Analyze user needs and develop software solutions. Design software or customize 
software for client use with the aim of optimizing operational efficiency. May analyze and 
design databases within an application area, working individually or coordinating database 
development as part of a team. May supervise computer programmers. 
O*NET also contains an entry for "Software Developers, Systems Software" (SOC code 15-1133).2 
Software developers working under this category generally: 
2 See https://www.onetonline.org/link/summary/15-l 133.00. 
2 
Research, design, develop, and test operating systems-level software, compilers, and network 
distribution software for medical, industrial, military, communications, aerospace, business, 
scientific, and general computing applications. Set operational specifications and formulate 
and analyze software requirements. May design embedded systems software. Apply principles 
and techniques of computer science, engineering, and mathematical analysis. 
In addition, O*NET also contains an entry for "Computer Systems Engineers/ Architects," 
corresponding to SOC Code 15-1199.02. Individuals working in this occupational category 
generally: 
Design and develop solutions to complex applications problems, system administration issues, 
or network concerns. Perform systems management and integration functions. 
As noted above, the Petitioner seeks to employ the Beneficiary as a "DevOps/Cloud Migration 
Engineer" at its end-client location. As recognized by the court in Defensor v. Meissner, 201 F.3d 
384, 387-88 (5th Cir. 2000), where the work is to be performed for entities other than the petitioner, 
evidence of the client companies' job requirements is critical. The Director should therefore compare 
the job descriptions the end-client provided in its letters to (1) software developers, applications; (2) 
software developers, systems software; (3) computer systems engineers/architects; and (4) any other 
related occupations in O*NET to determine whether the Petitioner selected the most appropriate SOC 
code for the proffered position. 
The Director should then determine whether the Petitioner selected the proper wage level. 
Specifically, the Director should consider the experience the end-client requires for the proffered 
position as represented in its letters. Both letters from the end-client state that in addition to possessing 
a bachelor's degree ( or foreign equivalent) in Computer Science or Computer Engineering, the 
Beneficiary must also have: 
• 8+ years of experience in general 
• 3 years of experience in A WS cloud 
• 5+ years of Tools Experience such as Jira, Jenkins, Selenium, Maven 
Consequently, the Director should consider whether the experiential prerequisites that the end-client 
requires would warrant an increase in the prevailing wage level at a higher rate than the Level II rate 
the Petitioner designated on the LCA under step two ofDOL's five-step process. 3 
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. 
3 The Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone for "Software Developers, 
Applications" (SOC Code 15-1132) designates this occupation as 7.0 < 8.0. An SVP rating of 7 to less than ("<") 8 
indicates that the occupation requires "over 2 years up to and including 4 years" of training. Therefore, even if the Director 
determines that the Petitioner selected the correct SOC code for the position, it appears that the Petitioner did not select 
the appropriate wage level based on the end-client's requirement of at least 8 years of experience. 
3 
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