remanded H-1B Case: Technology Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 17858917 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 11, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations.1 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 California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation. In her decision, she raised concerns for 
the first time regarding the Petitioner's address of record. On appeal, the Petitioner asserts that the 
Director erred in the specialty occupation analysis and provides new evidence to clarify its address of 
record. The matter is now before us on appeal. While we conduct de nova review on appeal,2 we 
conclude that a remand is warranted in this case. 
The regulation at 8 C.F.R. § 103.2(b)(16)(i) states that: 
If the decision will be adverse to the applicant or petitioner and is based on derogatory 
information considered by the Service and of which the applicant or petitioner is unaware, 
he/she shall be advised of this fact and offered an opportunity to rebut the information and 
present information in his/her own behalf before the decision is rendered .... 
According to the Director's decision denying the petition, USCIS has become aware that the Petitioner 
was not doing business at the address provided in the petition and had only occupied the address of 
record for "approximately 30-40 days." This information affects, among other things, whether the 
labor condition application (LCA) submitted in support of the H-lB petition was materially changed, 
what services the Beneficiary would perform,3 and the overall credibility of the filing. 4 The Director 
did not raise these concerns in the request for evidence (RFE). By noting this deficiency in the record 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
3 The Petitioner indicated that the Beneficiary would work in-house at the Petitioner's address ofrecord. 
4 For example, the Petitioner appears to have left the address on the petition prior to even filing the petition. 
for the first time in her denial, she did not provide the Petitioner an opportunity to rebut the information 
pursuant to 8 C.F.R. § 103.2(b)(16)(i). 
However, as we will briefly discuss, the record as currently constituted does not establish eligibility 
for the benefit sought. The record does not sufficiently establish the nature of the Petitioner's business 
and the substantive nature of the proffered position. For example, the Petitioner describes itself as an 
"optimization, technology, and management consulting firm" but provides little context explaining its 
business. It says it offers many services including, "Software Development ... [and] Web and Mobile 
Application Development." However, based on its organizational chart, it is unclear who would 
perform these services. 5 
Furthermore, on the LCA submitted in support of the H-1B petition, the Petitioner designated the 
proffered position under the occupational category "Graphic Designers" corresponding to the standard 
occupational classification (SOC) code 27-1024.6 However, the duties for the proffered position 
include tasks and skills that do not align with the occupational code.7 We must determine whether the 
petition is supported by an LCA which corresponds to the position.8 While we need not determine 
which occupational category best applies to the proffered position, we note similarities between these 
proffered duties and those of higher paying occupations.9 This discrepancy undermines whether the 
LCA corresponds to the petition,10 including the occupational category certified therein.11 The 
Petitioner does not explain this discrepancy.12 
5 The employees include a data engineering lead, applied mathematician, data & product analyst, analyst, project lead, 
marketing lead, healthcare consultant, communications lead, product designer, project manager and the proffered position. 
6 A petitioner submits the LCA to 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). 
7 For example, the proffered position is tasked with building interactive prototypes using "different tools, platforms, and 
programming languages," and requires knowledge of HTML and CSS. "Testing prototypes" is also described as a duty 
and requires an understanding of "user-centered design (UCD), planning and conducting user research, user testing, A/B 
testing, rapid prototyping, heuristic analysis, usability and accessibility concerns." Another duty involves "research[ing] 
cutting-edge software and design concepts" and using qualitative and quantitative methods such as "ethnographic studies, 
guerilla testing, etc." These duties appear to take up approximately 20 to 25% of the proffered position's time. 
8 20 C.F.R. § 655.705{b). 
9 See, e.g., O*NET Online Summary Report for "15-1133.00 - Software Developers, Systems Software," 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/15-1133.00 (last visited 
Jun. 11, 2021); see also O*NET Online Summary Report for "15-1134.00 - Web Developers," 
https://www.onetonline.org/Archive_ONET-SOC_2010_ Taxonomy_09_2020/link/summary/15-1134.00 (last visited 
Jun. 11, 2021). 
10 If the duties for the position fall under more than one occupational category, the Petitioner should have chosen the 
relevant occupational code for the highest paying occupation, which is not '·Graphic Designers." See U.S. Dep't of Labor, 
Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 
2009); http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. At the time the Petitioner's LCA 
was certified, the Level 11 prevailing wage in the area of intended employment for "Software Developers, Systems 
Software" was $48.59 per hour, for "Web Developers" was $31.66 per hour, and for "Graphic Designers" was $25.49 per 
hour. See https://flcdatacenter.com/OESWizardStart.aspx. 
11 See Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
12 The Petitioner must resolve discrepancies in the record with independent, objective evidence pointing to where the truth 
lies. See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
2 
Accordingly, we remand the matter to the Director for issuance of 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. 
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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