remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 20583575 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 110l(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 Nebraska Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the U.S. Department of Labor's (DOL) ETA Form 
9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) corresponded with 
and supported the H-1B petition . The matter is now before us on appeal. The Petitioner bears the 
burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the Act; 
Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de 
nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review , 
we conclude that a remand is warranted in this case. 
I. LEGAL FRAMEWORK 
The purpose of the DOL's LCA wage requirement is "to protect U.S. workers' wages and eliminate 
any economic incentive or advantage in hiring temporary foreign workers." 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]."). See 
also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 231 (2d Cir. 2020) (quoting 20 C.F.R . 
§ 655.0 and finding that a primary goal of U.S. non-immigrant foreign worker programs like the H-lB 
Program is to ensure that "the employment of the foreign worker in the job opportunity will not 
adversely affect the wages or working conditions of similarly employed U.S . workers.") . 
The LCA also serves to protect H-1B workers from wage abuses. 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)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
Before filing a pet1t10n for H-1B classification, the regulation requires pet1t10ners 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. 8 C.F.R. § 214.2(h)(4)(i)(B)(I). 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. While DOL certifies the LCA, USCIS determines whether the LCA's 
attestations and content corresponds with and supports the H-1B petition. See 20 C.F.R. 
§ 655.705(b). 1 See also Matter of Simeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). USCIS 
may consider DOL regulations when adjudicating H-1B petitions. See Int'! Internship Programs v. 
Napolitano, 853 F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'l Internship Program v. 
Napolitano, 718 F.3d 986 (D.C. Cir. 2013). 
Furthermore, the Act prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the 
[DOL] Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall 
provide the certification .... " Section 212(n)(l )(G)(ii) of the Act. USCIS precedent also states: 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition. 
Simeio Solutions, 26 I&N Dec. at 546 n.6. It is unclear how USCIS is to carry out its responsibilities 
to determine whether the LCA corresponds with and supports the H-1B petition without performing 
such a review. To illustrate, by simply submitting the LCA to DOL without also obtaining a prevailing 
wage determination, a petitioner has only received DOL's certification that the form is complete and 
does not contain obvious inaccuracies. Simeio Solutions, 26 I&N Dec. at 546 n.6. In fact, the DOL 
"is not generally permitted to investigate the veracity of the employer's attestations on the LCA prior 
to certification." Aleutian Cap. Partners, LLC, 975 F.3d at 225-26 (quoting Cyberworld Enter. 
Techs., Inc. v. Napolitano, 602 F.3d 189, 193 (3d Cir. 2010)). Further, when DOL certifies an LCA, 
it does not perform any meritorious review of an employer's claims to ensure the information is true. 
DOL's Office of Inspector General, 06-21-001-03-321, Overview of Vulnerabilities and Challenges 
in Foreign Labor Certification Programs 11 (2020) (describing the DOL Employment and Training 
Administration's role as "simply rubber-stamping during the application certification process"). In 
1 "In construing a statute or regulation, we begin by inspecting its language for plain meaning." Sullivan v. McDonald, 
815 F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give 
full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Glover v. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbon Fuel Co. v. USX Co1p., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. United States v. Pressley, 359 F.3d 347,349 (4th Cir. 
2004). 
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other words, it did not receive an evaluative determination from DOL on whether the LCA's content 
and the specifics were appropriate and accurate. 
In order to determine whether the "attestations and content" ( e.g., the standard occupation 
classification (SOC) code and the wage level) as represented on the LCA corresponds with the 
information pertaining to the proffered position as represented on the Form I-129, we follow DOL's 
guidance, which provides a five-step process for determining the appropriate SOC code and wage 
level. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _ Guidance_ Revised_ l l _ 2009 .pdf An 
employer "reaffirms its acceptance of all of the attestation obligations by submitting the LCA to 
[USCIS] in support of the Petition for Nonimmigrant Worker, Form I-129, for an H-1B 
nonimmigrant." 20 C.F.R. § 655.705(c)(l). When comparing the 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-1B petition. 
In summary, when filing an LCA and an H-1B petition, a petitioner subjects itself to two authorities 
as it relates to the LCA: (1) to DOL through the certification process, or through a prevailing wage 
determination, and (2) to USCIS by way of our authority to ensure that the LCA corresponds with and 
supports the petition. 
II. ANALYSIS 
The Petitioner initially offered the position's description with eight bullet points and provided 
additional details relating to each duty in response to the Director's request for evidence. For the sake 
of brevity, we will not quote all of the duties; however, we note that we have closely reviewed and 
considered them. 
The DOL provides guidance explaining that a job's SOC code is identified by selecting the Occupational 
Information Network ( O*NET) job description "that most closely matches the employer's request" from 
a list of similar occupations. The DOL guidance further provides that the selection of the SOC code 
should not be based solely on the title of the employer's job offer, but instead what should be considered 
are the particulars of the employer's job offer in a comparison of the full description to the tasks, 
knowledge, and work activities generally associated with an SOC occupation to ensure the most relevant 
occupational code has been selected. Therefore, the selection of the correct SOC code should be based 
on the position requirements and how those compare with the identified areas of the O*NET. Upon 
review of the record, we have determined that the majority of the duties align with the SOC code the 
Petitioner selected when it filed the LCA with DOL. Therefore, we remand the matter to the Director 
to consider any remaining eligibility requirements. 
One eligibility requirement the Director may wish to address is whether the Petitioner specified the correct 
wage level on the LCA. In particular, we note that the Petitioner included duties requiring specialized 
knowledge and expertise elements that appear to go beyond those listed in the O*NET for the Business 
Intelligence Analysts occupation. As the Director noted, those included special knowledge that were 
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more akin to Software Developers under the SOC code 15-1252. Step four of the DOL guidance 
provides that when an employer's requirements are not listed in the O*NET for the selected SOC code, 
then the requirements should be evaluated to determine if they represent special skills. If the specific 
skills the employer requires are generally encompassed by the O*NET description, increasing the 
wage level may not be necessary. However, if the requirements are indicators of skills that are beyond 
those of an entry level worker, for the specified SOC code, this may necessitate adding a point to the 
worksheet thereby elevating the wage level by one increment. 
Additionally, the Office of Foreign Labor Certification's (OFLC) Frequently Asked Questions and 
Answers-under question nine-provide additional guidance associated with skills that are atypical 
to an occupation stating: "Any required skills in addition to those listed in O*NET are considered 
atypical for the occupation and ... will raise the wage level by one level either because it contains a 
combination of occupations or because it contains job requirements not normal to the occupation." 
OFLC Frequently Asked Questions and Answers, United States Department of Labor Employment & 
Training Administration (Feb. 16, 2022), https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm. 
Because the Petitioner's raised the issue on appeal that the duties in question were not identified within 
the Director's decision to deny the petition, we will discuss them below. The following three position 
duties are seemingly atypical to the Business Intelligence Analysts occupation and align with the Software 
Developers SOC code, which would require increasing the wage rate to a Level II: 
• Apply knowledge of software development and a variety of programming languages to build 
database traffic with suppliers' inventory systems to allow management to view current and 
historical information on the corporation's internal website in order to make informed strategic 
decisions; 
• Utilize software development and a variety of programming languages to build real time and 
interactive hourly, daily, device, web traffic, Path Analysis, etc. dashboard to visualize 
performance and provide data driven insights to better understand customer; and 
• Build high quality SQL database to house and analyze sales and marketing data, conduct thorough 
database testing to ensure robustness, troubleshoot system errors, and optimize performance. 
The Petitioner designated a Level II wage rate on the LCA, which would account for these three duties. 
However, one additional duty that the Petitioner specified may be atypical to both the Business 
Intelligence Analysts and the Software Developers SOC codes. The Petitioner described that duty as: 
• Utilize web development knowledge such as search engine optimization (SEO) and Google 
Analytics to create new web traffic rules, tags, and configurations to thoroughly track customer 
journey, customer retention, e-commerce, KPis, trends, anomalies, and opportunities. 
This skill apparently aligns with Search Marketing Strategists under the 13-1161.01 SOC code. If the 
Petitioner seemingly included responsibilities from two additional SOC codes beyond the code listed on 
the LCA, it may have been required to raise the wage level by two increments to a Level III. The 
Petitioner selected a Level II wage rate and indicated it would compensate the Beneficiary at an hourly 
rate of$55.00 or $114,400 annually. If the Director agrees that the above analysis is correct, the Petitioner 
should have designated the wage rate at a Level III, which would require compensation at the $66.04 
hourly rate or $137,363 annually. That would result in an approximate $23,000 annual deficiency, which 
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would be contrary to the purpose of the LCA wage requirement (1) to protect U.S. worker's wages and 
eliminate any economic incentive or advantage in hiring temporary foreign workers, and (2) to protect 
H-lB workers from wage abuses. If the Director agrees with our above analysis, they should determine 
whether any opinion letters in the record that contain contrary conclusions should gamer sufficient 
evidentiary value. 
In summary, the Director should evaluate our foregoing analysis when considering whether the Petitioner 
satisfied the remaining eligibility requirements. 
III. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the 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, and we do not express an 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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