remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 6841996 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 25, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S .C. § l 10l(a)(l5)(H)(i)(b). 
The Director of the California Service Center denied the petition, concluding that the record does not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner asserts that 
the Director's finding was incorrect because the decision was based on the wrong occupation. 
While we conduct de novo review on appeal, a remand is warranted in this case because the Director's 
decision appears insufficient for review. Specifically, we note that whether the Department of Labor 
(DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA), 
properly corresponds with and supports the petition is an antecedent issue compared to the proffered 
position qualifying as a specialty occupation. 1 In different terms, we cannot provide an accurate 
analysis for the proffered position under one Standard Occupational Classification (SOC) code if the 
duties the Petitioner provided appear to more properly correspond with a different code. Accordingly, 
we will withdraw the Director's decision and we will remand the matter to the Director for further 
review of the record and issuance of a new decision . 
Here, the Petitioner used the standard occupation classification (SOC) code of 15-1132 for "Software 
Developers, Applications" on the LCA with a corresponding Level II prevailing wage . The Director, 
however, determined that the position as described was more akin to that of a "Computer Systems 
Analyst," corresponding to SOC Code 15-1121, and evaluated the proffered position under the 
1 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
attestations and content corresponds with 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 standard occupation classification (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 . Further, U.S. Citizenship and Immigration Services may consider DOL regulations when 
adjudicating H-lB petitions. See lnt 'l Jnternship Programs v. Napolitano , 853 F. Supp. 2d 86, 98 (D.D.C. 2012), ajf'd 
sub nom. lnt 'l Jnternship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013) . 
guidance set forth in DOL's Occupational Outlook Handbook for that occupational classification. On 
appeal, the Petitioner contends that the Director mischaracterized the proffered position and did not 
properly evaluate the duties under the correct occupational title. Specifically, the Petitioner states that 
"it is arbitrary and capricious action by the USCIS to assume that the job duties are of a different job 
title then as mentioned by the Petitioner with the supporting documents." We agree. While there 
may be some overlap in their respective duties, a computer systems analyst and a software developer 
are two separate occupations. Therefore, the Director should have determined whether a software 
developer, and not a computer systems analyst, is a specialty occupation. 
If the Petitioner selected the incorrect SOC code on the LCA, as the Director suggests, we cannot 
provide a relevant analysis of a position as a specialty occupation. The initial issue concerns the 
statutory and regulatory definitions of a specialty occupation and how these focus on the broader 
occupation as a whole, and the use of an incorrect occupational code may result in an erroneous 
outcome, or one that does not properly assess the actual nature of the occupation in which the 
Beneficiary would engage. 
A subordinate concern relates to the education requirements we consider under the regulatory criteria 
and how these may differ markedly from one occupational classification to the next. It would not be 
a valuable use ofUSCIS resources to analyze the position requirements under an incorrect SOC code. 
Namely, under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(]), degree requirements to enter an 
occupation are not the same for all positions in a particular field of endeavor. 
As a general example, degree requirements for positions located in the Software Developers, 
Applications occupation (usually a bachelor's degree, typically in computer science or software 
engineering) differ from those of a Computer Systems Analyst (a bachelor's degree in a 
computer-related field is common, but degrees in business or liberal arts are also acceptable). 2 
Likewise, when considering 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), a degree requirement considered 
common to the industry for one occupation may also be distinct in comparison to others. In making 
the determination on the SOC code, the Director should consider whether the Petitioner followed the 
DOL guidance, which explains that a job's SOC code is identified by selecting the O*NET job description 
that best corresponds to the employer's job offer. 3 
The Director should determine whether the Petitioner selected the appropriate occupational category 
for the position. If the Director concludes that the SOC code on the LCA was correct, it should 
readdress whether the record demonstrates that the proffered position requires a baccalaureate or 
higher degree in a specific specialty, or its equivalent. 
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 and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
2 See the relative entry for each occupational title found at https://www.bls.gov/ooh/. 
3 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.pdfAlso see the Board of Alien Labor Certification Appeals decisions: Gen. Anesthesia Specialists 
P'shipMed. Gip. (GASP). 2013-PWD-00005, at 6 (Jan. 28, 2014); Emo1y Univ., 2011-PWD-00001, at 6-7 (Feb.27.2012). 
2 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3