remanded H-1B Case: Telecommunications

U.S. Citizenship 
and Immigration 
Services 
In Re: 8304891 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2020 
The Petitioner, a telecommunications and mass media organization, seeks to employ the Beneficiary 
temporarily as a "business data analyst II" under the H-1 B 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 Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review. 3 As noted, the Director concluded 
that the proffered position is not a specialty occupation. However, the record of proceeding is not 
sufficiently developed to allow us to determine whether the proffered position is actually located 
within the occupational category for which the Department of Labor (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) was certified. 4 
1 See Immigration and Nationality Act (the Act) section lOl(a)(l 5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) relating to our de nova authority. 
4 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 . 
Without knowing the answer to that question, we cannot determine the actual, substantive nature of 
the position. This means that we cannot make a determination on the specialty-occupation question 
based on the current record. Additionally, before filing a petition for H-lB classification, the 
regulation requires petitioners to obtain certification from DOL that the organization has filed an LCA 
in the occupational specialty in which its foreign national personnel will be employed. 5 Furthermore, 
the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state that it will 
comply with the terms of the LCA. 
We therefore are withdrawing the Director's decision and remanding the matter for farther review of 
the record and issuance of a new decision. Specifically, the Director should first make a determination 
on whether (1) the Petitioner obtained a certification from DOL that filed an LCA in the occupational 
specialty in which the Beneficiary would be employed; and (2) the LCA was certified for the 
appropriate occupational category, and therefore corresponds to and supports this H-lB petition. 6 
It is unclear from the record whether the Petitioner established that the proffered position's duties 
actually corresponded with those of positions located within SOC code 15-1121, corresponding to the 
occupational title "Computer Systems Analysts"; the SOC code the Petitioner designated on the LCA. 
Specifically, within the initial filing, the Petitioner provided a set of duties that while they could 
vaguely seem to relate to the Computer Systems Analysts occupation, lacked sufficient detail to 
determine the actual functions the Beneficiary would perform for the Petitioner. 
Within the response to the Director's request for evidence (RFE), I • I the Petitioner's 
Director of Business Planning, restated the initially provided functions and supplied greater detail 
relating to the work the Beneficiary would perform in his daily duties under each of those initial 
functions. However, the majority of those duties (majority in number and percentage of time the 
Beneficiary would spend performing those duties) that conveyed greater detail in the RFE response 
appear to be properly classified under the Software Developers, Applications occupational title, SOC 
code 15-1132, and under the 15-1199.08 SOC code for the Business Intelligence Analysts 
occupational classification. 
To illustrate, the Occupational Information Network (O*NET) definition for the Computer Systems 
Analysts entry describes their role as: "Analyze science, engineering, business, and other data 
processing problems to implement and improve computer systems. Analyze user requirements, 
procedures, and problems to automate or improve existing systems and review computer system 
capabilities, workflow, and scheduling limitations. May analyze or recommend commercially 
available software." Their primary responsibility is to improve the way that companies do their work 
through leveraging existing technologies or proposing and setting up new technologies. 
A sample of the duties within the RFE response that appeared to diverge from those of the Computer 
Systems Analysts occupational category consisted of the following: 
• Perform technical data analysis on big data sets to summarize various metrics, perform analysis 
to identify, communicate, and repair missing or corrupt date in the data lake; 
5 8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
6 See Id.; Simeio Solutions, 26 I&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
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• Create reports that communicate crucial business attributes to evaluate business performance, 
and to build forecast models; 
• Work on each of the steps in the lifecycle of report creation from gathering requirements to 
analyzing data viability across databases using structured query language (SQL); 
• Develop technical aspects and logic of the data extraction in SQL; 
• Push the results into reporting wireframes, which are also developed based off of requirement 
gathering sessions with business users; 
• Summarize metrics by developing complex business logic through SQL; 
• Develop reporting logic in high-level programming languages, system rules, and policies that 
fit into the Petitioner's dynamics; 
• Cross compare millions of records under significant time constraints; 
• Quantify technical and business metrics at each step of different business processes by 
exploring the mobile divisions big data and developing intricate SQL code to extract relevant 
data; and 
• Document and perform all code changes which are part of managing system requirements and 
mitigating risk due to system enhancements. 
In addition to considering the above, the Director should determine whether the newly added duties 
within the RFE response constituted a material change when compared to the initial duties. In other 
words, were the initial duties primarily related to the Computer Systems Analysts SOC code, but the 
expanded duties strayed into other SOC codes materially altering the Petitioner's presentation of the 
position. 
On the issue of whether we can provide relevant analysis of a position as a specialty occupation, a 
petitioner's selection of the incorrect SOC code on the LCA may preclude such an evaluation. 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 at 8 C.F.R. § 214.2(h)(4)(iii)(A) and how these may differ 
markedly from one occupational classification to the next. Additionally, the wages differ greatly from 
one occupational classification to the next and the use of an incorrect SOC code may not result in the 
Petitioner paying a high enough wage for the work the Beneficiary would perform. 
It appears that the Petitioner included skills within its position that are not encompassed within the 
O*NET report for Computer Systems Analysts. However, if the Director determines that the 
Petitioner utilized the correct SOC code, she should evaluate whether "the requirements are indicators 
o_f skills that are beyond those of an entry level worker" and decide whether those requirements warrant 
an increase in the wage level above the Level I designated on the LCA. 7 
Along those same lines, the Director may wish to evaluate whether it's more likely than not that the 
Petitioner normally requires (1) work experience for the proffered position, which it failed to state 
within this petition, and (2) a number of years of experience for the position in the petition that would 
7 DOL, Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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require an increase in the wage level. In particular, we note that the job ads the Petitioner presented 
each required work experience, and each of its advertisements we found on the Internet also required 
work experience. Further, the Petitioner did not explain why it designated the position title at a level 
II (implying that a level I position exists), but it presented the position at a Level I prevailing wage 
rate on the LCA. The Director may also wish to address whether that adversely effects the Petitioner's 
claims. 
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. 
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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