remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17774652 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 21, 2021 
The Petitioner, a software product engineering and development company, seeks to temporarily 
employ the Beneficiary as a "personnel/technical recruiter" under the H-lB nonimmigrant 
classification for specially 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 Nebraska Service Center denied the petition, concluding that the record does not 
establish that the Beneficiary is qualified for the proffered position. On appeal, the Petitioner asserts 
that the Director erred. While we conduct de nova review on appeal, we conclude that a remand is 
warranted in this case because the Director's decision is insufficient for review. Specifically, the 
Director is required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was 
qualified for the position at the time the nonimmigrant visa petition was filed. Cf. Matter of Michael 
Hertz Assocs., 19 I&N Dec. 558,560 (Comm'r 1988) ("The facts of a beneficiary's background only 
come at issue after it is found that the position in which the petitioner intends to employ him falls 
within [a specialty occupation]."). 
As he explores the specialty-occupation issue on remand, the Director may also wish to consider 
whether the labor condition application (LCA) corresponds to and supports the H-lB petition. The 
Petitioner indicated on the Form 1-129, Petition for Nonimmigrant Worker, that the Beneficiary will 
work "off-site at another company or organization's location." This raises questions as to whether 
the Petitioner has complied with the LCA requirements and, in particular, the definition of the 
"particular worker's job functions" at the "place of employment." See generally 20 C.F.R. 
§ 655.715(1)(ii). 1 In other words, as things currently stand we cannot determine if the submitted LCA 
covers all areas of employment, as required, because the petition does not provide the address(es) of 
the off-site work location(s). The Director may wish to clarify this matter. 
1 The submitted LCA provides wages for._l ___ __,INew York and._l ___ _.I Nevada. 
A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate that it will pay an 
H-1B 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)(1) of the Act; 20 C.F.R. § 655.731(a). 
The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. 
§ 1182(n)(1). See Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B 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) (indicating that the wage protections 
in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with 
[the filing of an LCA] with [DOL]."). According to section 212(n)(1)(A) of the Act, an employer 
must attest that it will pay a holder of an H-IB visa the higher of the prevailing wage in the "area of 
employment" or the amount paid to other employees with similar experience and qualifications who 
are performing the same services. See 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 
F.3d 418,422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal 
Vojtisek-Lom &Adm 'r Wage &Hour Div. v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, 
at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
Accordingly, the matter will be remanded to the Director to consider (1) if the position is a specialty 
occupation; and (2) whether the LCA corresponds with and supports the H-1B petition, as required. 
We express no opinion regarding the ultimate resolution of this case on remand and the Director may 
request any additional evidence considered pertinent to the new determination and any other issue. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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