remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17016876 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 18, 2021 
The Petitioner, a software development and IT consulting company, seeks to temporarily employ the 
Beneficiary as a "computer programmer" under the H-lB nonimmigrant classification for specialty 
occupations. 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 position is a specialty occupation, and the Petitioner filed a timely appeal. After the 
Director's decision was issued, the U.S . Court of Appeals for the Ninth Circuit issued a decision in 
Innova Sols., Inc. v. Baran, 983 F.3d 428 (9th Cir. 2020) . Because the analysis utilized by the Director 
in arriving at her conclusion on the specialty-occupation issue appears impacted by that decision, it is 
appropriate to remand the matter for the Director to consider the question anew. As she reconsiders 
the specialty-occupation issue, the Director may also wish to consider the following issues we have 
observed in our review of the record. 
The Petitioner obtained a labor condition application (LCA) certified for a position located within the 
standard occupation classification (SOC) code 15-1131 relating to the "Computer Programmers" 
category at a Level II prevailing wage rate. Whether an LCA properly corresponds to and supports a 
petition is an issue which must be addressed before we can address whether the proffered position 
qualifies as a specialty occupation. 1 It is unclear from the record whether the Level II wage rate 
1 While Department of Labor (DOL) certifies the LCA, USCIS determines whether the LCA's attestations and content 
corresponds to and supports 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 .. .. "). See also Matter of Simeio Solutions , 26 I&N Dec. 542, 
546 n.6 (AAO 2015). When comparing the wage level or the standard occupation classification (SOC) code 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 . 
Further , USCIS may consider DOL regulations when adjudicating H-lB petitions . See Int'/ Internship Programs v. 
Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), ajf'd sub nom. Int '! Internship Program v. Napolitano , 718 F.3d 986 
(D.C. Cir. 2013). 
designated on the LCA represents the correct wage level based on the Department of Labor's (DOL) 
five-step process contained within the DOL guidance and the Office of Foreign Labor Certification's 
(OFLC) Frequently Asked Questions and Answers. 2 These sources instruct the public on selecting 
the correct wage level evaluating various aspects such as any atypical duties across SOC codes that an 
employer's job may include. 
We question whether the specific skills required for the job are generally encompassed within the 
Occupational Information Network (O*NET) description for Computer Programmers 3 because the 
record may be insufficient to establish the substantive nature of the position. The Petitioner provided 
two sets of duties for the position: one within the Petitioner's letter of support and another in response 
to the Director's request for additional evidence (RFE). 4 The Director may wish to explore two 
additional issues. The first is that the position's level of responsibility appears unclear, thus it is 
difficult to determine if a Level II wage on the LCA is appropriate. 5 In addition, the position's duties 
generally appear more closely related to the tasks associated with "Software Quality Assurance 
Analysts and Testers." 6 And, we note that a Level II (if that is the appropriate wage level) Software 
Quality Assurance Analysts and Testers is associated with a higher prevailing wage than a Level II 
Computer Programmer. 7 The Director may wish to take additional steps to determine first the 
substantive nature of the position, including the position's level of responsibility, and once that is 
resolved, whether the SOC code and wage level designated on the LCA are also correct. In other 
words, the Director may wish to determine whether the LCA corresponds to and supports the petition. 
2 See DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC_Guidance_ 
Revised_l 1_2009.pdf.; OFLC Frequently Asked Questions and Answers, Foreign Labor Certification (Dec. 11, 2019), 
https://www.foreignlaborce1i.doleta.gov/faqsanswers.cfm. 
3 See Step 4 of the DOL guidance. 
4 The second set of duties includes three additional duties not found in the first set of duties. These are: (1) perform test 
point estimation based on functional point analysis on product/sprint back log to determine test effort and scheduling 
requirements; (2) ensure compliance of the developed application with WCAG and Section 508 accessibility requirements 
by performing manual and automation testing by using tools such as WA VE and AChecker; and (3) coordinate with project 
stakeholders as part of the project management activities to resolve issues related to the quality and ensure delivery of fit 
for use application components iteratively as needed. The second set of duties also adds additional information to the 
following duty "Prepare documents such as issue reports, metrics reports, user help manual, product FAQ and lessons 
learnt document for reference by stakeholders." (The italicized text is included in the second set of duties but not the first 
set of duties.) While there is overlap between the two sets of duties, the Director may wish to seek clarification to resolve 
any inconsistencies. 
5 The level of responsibility of the position is unclear for two reasons. First, the record contains an organizational chart in 
which the Beneficiary's role is shown to be a part of the "STARS Portal Management" group and her position title is 
"Testing Team." The organizational chaii conflicts with the position description because it does not identify the 
Beneficiary's position as a "computer programmer," and the position of"Testing Team" is not identified anywhere else in 
the record. Second, the record is not clear as to what the duties of a "Testing Team" would be or if the duties would relate 
to the duties generally associated with a computer programmer. Accordingly, the Director may wish to request additional 
evidence to dete1mine the Beneficiary's exact role in the Petitioner's organization as well as if she supervises other 
individuals on the 'Testing Team" and/or if the duties of a "Testing Team" mirror those of a computer programmer or 
would be more closely associated with the duties of a Software Quality Assurance Analyst and Tester. See 
https://www.onetonline.org/link/summary/l 5-1253.00 (last visited May I 0, 2021 ). 
6 See https://www.onetonline.org/link/summary/15- l 253.00 (last visited May I 0, 2021 ). 
7 The prevailing wage for a Level TT computer programmer is $65,978 a year compared to the prevailing wage for a Level 
II Software Quality Assurance Analyst and Tester, which is $72,654 a year. However, because we find that the substantive 
nature of the position is unclear, we make no ultimate determination about which SOC code more closely aligns with the 
position's duties. 
2 
As the Ninth Circuit's Innova Sols., Inc. decision appears to affect this petition and the Petitioner was 
not previously accorded the opportunity to address the above additional concerns, we will remand the 
record for farther 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. Accordingly, the following order shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
3