remanded H-1B Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10743562 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 12, 2020 
The Petitioner, a software, services and internet technologies company, seeks to temporarily employ 
the Beneficiary as an "operation program manager" under the H-1B 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-1B 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 
submits a brief, provides additional evidence, and asserts that the Director erred. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de novo.2 Upon de nova 
review, we will remand the matter for further action. 
The Petitioner included a December 2018 support letter (Support Letter) describing the proffered 
position. The Support Letter indicates the position may be reassigned: 
[The petitioner] may need the beneficiary to work on other or additional project 
assignments of equivalent professional challenge requiring the same core duties of this 
specialty occupation and requiring the same educational attainment in order to meet the 
needs of the company and its customers. Thus, the probable reassignments should be 
deemed part of the present job description included in this petition. (emphasis added) 
This statement raises questions about the labor certification application (LCA) and should be explored 
to ensure that the Petitioner has complied with the LCA requirements and the definition of the 
"particular worker's job functions" under "place of employment" at 20 C.F.R. § 655.715(1)(ii) before 
approval of the petition may be considered. Specifically, this statement does not clearly indicate 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
whether the Beneficiary's probable reassignments would include changing the area of employment on 
a more permanent or long-term basis. 
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-1B 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. lnt'I, Inc., No. 07-97, 2009 WL 2371236, 
at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
Further, the Director may also wish to consider whether certain inconsistencies we have observed 
regarding the Petitioner's stated educational requirements for the position impact its overall eligibility 
claims. The December 2018 Petitioner support letter initially states the position requires a "Bachelor's 
or a Master's degree, depending on the project, in a related field." In the Petitioner's December 2019 
request for evidence (RFE) response, the Petitioner states the "role requires at least a bachelor's 
degree." The Petitioner's documents never specify the specialty knowledge required for the 
educational degree, but only state the position will "apply academic knowledge of coding patterns and 
design, as well as theoretical understanding of data analysis and mathematics." However, Counsel's 
March 2020 appeal brief and August 20193 RFE response letter, and the December 2019 opinion letter 
froml I assert the educational requirement for this position to be a bachelor's or its 
equivalent and specifies the degree should be in computer science, engineering, technology 
management, or a related field. This creates ambiguity in the record. It is not clear that the Petitioner 
actually requires a bachelor's degree in a specific specialty, or its equivalent, to perform the duties of 
the proffered position as required by the statutory and regulatory definitions. Section 214(i)(I) of the 
Act, 8 U.S.C. § 1184(i)(I); 8 C.F.R. § 214.2(h)(4)(ii). The Petitioner must establish that the position 
offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See 
Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). The Director may wish 
3 We observe the August 7, 2019 date on Counsel's RFE letter seems to be incorrect. The original RFE was sent on October 
2, 2019 and the RFE response documents were received by USCIS on December 26, 2019. 
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to consider the implications of these inconsistencies as they consider: (1) if the position is a specialty 
occupation; and (2) whether the LCA corresponds with and supports the H-1B petition, as required. 
As the Petitioner was not previously accorded the opportunity to address the deficiencies and 
inconsistencies in the record discussed 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. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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