remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 21340578 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 12,2022 
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)(HXi)(b) , 8 U.S.C. 
§ 1101(a)(15XH)(iXb). 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 proffered position qualified as a specialty occupation and that 1he 
Beneficiary did not possess the qualifications to occupy the position. The matter is now before us on 
appeal. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of1he 
evidence . Section 291 of the Act; Matter ofChawathe, 25 I&N Dec . 369 , 375 (AAO 2010). 
We conduct de nova review on appeal, and we note that , in this matter , whether the Department of 
Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers 
(LCA), properly corresponds with and supports the petition is a threshold issue compared to the issues 
the Director raised in the petition denial. Accordingly, we will remand the matter to the Director for 
further review of the record and issuance of a new decision . 
I. LEGAL FRAMEWORK 
Before filing a petition for H-lB classification, the regulation requires pet1t10ners to obtain 
certification from the 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)(l). The pmpose 
of 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-lB 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). See also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220,231 (2d Cir. 2020) (quoting 20 
C.F .R. § 65 5. 0( a)( 1) and finding that a primary goal of U.S. non-immigrant foreign worker pro grams 
like the H-1B 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-1 B 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 
§ 655.73 l(a). See also 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'l, Inc., 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 
2009). 
Fmihem1ore, 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, U.S. Citizenship and 
Immigration Services (USCIS) "determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation ... , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-1B visa classification." 20 C.F.R. § 655.705(b). 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'l 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) ;ITServe All., Inc. v. Dep 't of Homeland Sec., 
No. 1 :20-CV-03855 (TNM), 2022 WL493081, at* 10 (D.D.C. Feb. l 7,2022)(citingSimeio Solutions, 
26 I&N Dec. at 546 n.6 and 20 C.F.R. § 655.705(b)); United States v. Narang, No. 19-4850, 2021 WL 
3484683, at *1 (4th Cir. Aug. 9, 2021) (finding that USCIS adjudicators evaluate whether the 
employment proposed in an H-1 B petition will conform to the wage and location specifications in the 
LCA); Parzenn Partners, LLC v. Baran, No. 19-CV-11515-ADB, 2020 WL 5803143, at *8-9 (D. 
Mass. Sept. 29, 2020) (finding that USCIS operates within its authority when it either considers or 
evaluates DO L's wage level regulation when determining if an LCA corresponds with and supports 
an H-1B petition). 
In a similar vein, USCIS possesses the authority to evaluate whether the proffered position's duties 
are in accordance with the occupational classification on the LCA, and if not, to determine under which 
occupational titles the responsibilities correspond. See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 
1167-68 (N.D. Cal. 2013) (in which the court agreed with USCIS that a large portion of the 
beneficiary's duties were most similar to those found within the Bookkeeping, Accounting, and 
Auditing Clerks occupation, rather than within the Accountants Standard Occupational 
Classificational (SOC) code.) Effectively, this reiterates the USCIS' ability to determine whether the 
LCA corresponds with and supports the petition. 
"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 Gloverv. West, 185 F.3d 1328, 1332 (Fed.Cir.1999)). The most 
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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 Corp., 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). 
Here, the plain language of the regulation is dispositive: USCIS is authorized to dete1mine the 
corollary nature of the proffered position's elements as represented in an LCA when compared with 
those same elements as represented on the Form I-129, as well as the Petitioner's actual position 
requirements. And to clarify, USCIS does not purport to exercise any authority over the LCA. Instead, 
we are ensuring that the claims made on the LCA sufficiently align to those made within the H-lB 
petition. 
Fmihe1more, 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 dete1mination 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-1 B petition without performing 
such a review. To illustrate, by simply submitting the LCA to DOL without also obtaining a prevailing 
wage dete1mination, a petitioner has only received DO L's certification that the form is complete and 
does not contain obvious inaccuracies. Id. 1 In fact, 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)). 
Fmiher, when DOL ce1iifies 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 other words, employers do 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 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. 
1 Employers my obtain a prevailing wage dete1mination by taking the additional step of submitting Form ETA-9141 
(Application for Prevailing Wage Determination) to DOL 's Na tionalPrevailing Wage Center. 
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Nov. 2009) (DOL guidance), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ 
Guidance_ Revised_ 11 _ 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 1-129, for an H-lB 
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 purp01i 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-1 B petition. 
Additionally, it is important for USC IS to ensure the employer has selected the SOC code on the LCA 
that most closely matches the proffered position for reasons that affect H-1 B statutory and regulatory 
requirements. First, the wrong SOC code can direct USCIS to evaluate an inapplicable occupational 
title or occupation. It is the occupation itself that we evaluate to decide if it requires a "theoretical and 
practical application of a body of highly specialized knowledge," and "attainment of a bachelor's or 
higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation 
in the United States." Section 2 l 4(i)( 1) of the Act. Therefore, an incorrect SOC code could mean we 
would not be able to properly evaluate whether a petitioner has satisfied the statute's definition of a 
specialty occupation. 
Second, we also cannot provide a proper analysis under two H-1 B regulatory requirements. Those 
requirements fall under the regulations at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(l) and (2). 8 C.F.R. 
§ 214 .2(h)( 4 )(iii)(A)( 1) requires a petitioner to demonstrate that a baccalaureate or higher degree-or 
its equivalent-is normally the minimum requirement for entry into the particular position. Because 
education requirements may differ markedly from one occupational classification to the next, the 
incorrect SOC code (e.g., occupational classification) can skew the analysis. Also, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2) requires that the degree requirement is common to the industry in parallel 
positions among similar organizations. Because the degree requirement that is considered common to 
the industry for one occupation may also be distinct in comparison to others, USCIS must ensure the 
SOC code specified on the LCA is the one that most closely matches the position in the petition. 
It is also important to ensure the correct wage level is specified on the LCA because even if an 
employer designates the correct SOC code and satisfies the H-1 B related requirements, if the wage 
level is lower than the position's requirements warrant, USCIS still cannot approve the H-1 B petition 
because employers are required to compensate H-1 B workers at 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. § 655.73 l(a). Stated differently, were USCIS to allow an employer to compensate 
an H-1 B worker at a wage level that is lower than the position's requirements warrant, it would not be 
compensating that individual at the necessary prevailing wage, nor the actual wage it pays to similarly 
situated employees. 
In summary, when filing an LCA and an H-1 B petition, a petitioner subjects itself to two authorities: 
(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 supp01is the petition. 
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II. ANALYSIS 
The Director denied the petition on two bases: (1) the Petitioner did not demonstrate the position 
qualified as a specialty occupation as it relates to satisfying the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A); and (2) they did not establish that the Beneficiary is qualified to perfmm the 
duties of the offered position. 
Here, the Petitioner obtained an LCA certified under the SOC code, 13-1111 relating to "Management 
Analysts" and identified the position's title as Lead Assistant Manager. When it filed the petition, the 
Petitioner provided the position's description and expanded on those duties in its response to the 
Director's request for evidence. Only 10-15 percent of the duties the Petitioner provided were 
consistent with the Occupational Infmmation Network (O*NET) tasks for the Management Analysts 
SOC code the Petitioner identified on the LCA, while the remainder of the position's responsibilities 
fell outside that occupational category. The O*NET provides the following definition for the 
Management Analysts occupation: "Conduct organizational studies and evaluations, design systems 
and procedures, conduct work simplification and measurement studies, and prepare operations and 
procedures manuals to assist management in operating more efficiently and effectively. Includes 
program analysts and management consultants." 
For the position's duties that do not appear consistent with the Management Analysts occupational 
category, they were heavily focused on creating and maintaining information technology solutions or 
the use of predictive modeling, and a small percentage focused on building business relationships ( e.g., 
Statisticians (15-2041 ), Operations Research Analysts (15-2031 ), or Marketing Managers (11-2021)). 
Those duties include the following: 
Duties that are not consistent with the Management Analysts SOC code on the LCA: 
• Use analytical frameworks and methodologies to perform data extraction, data 
processing, data analysis and statistical model development. Utilize analytics tools like Python 
and SQL to perform statistical analysis for 20% of work time; 
• Utilize statistical classification techniques to cluster healthcare members into buckets that can 
be used for generalization of result in case of inconclusive data for 10% of work time; 
• Evaluate models to help select the best model that represents the input data. Perform the 
evaluation for regression and classification models for 10% of work time; 
• Deploy quantitative models to forecast customer rating patterns so that interventions can be 
planned accordingly for 10% of work time; 
• Build automated reports and dashboards to measure performance and business Key 
Performance Indicators. Audit data sets, visualizations, dashboards and tools end-to-end in 
identifying and prioritizing key issues and opportunities for improvement for 10% of work 
time; 
• Build analytical capabilities for that can be pitched across clients for 10% of work 
time; 
• Build actionable and insights driven data products for a variety of strategic business initiatives, 
stakeholder goals and user needs.Navigate through ambiguity to define clear product vision. 
Perform inquisitive analysis to find drivers of fluctuations in customer enrollments, revenue 
and assets. Identify patterns and trends in data to highlight opportunities and problem areas for 
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15% of work time; and 
• Develop and nurture existing client relation ships to achieve client and I I goals. 
Identify potential client partnerships to expand retail and financial services 
practice for 5% of work time. 
Duties that are consistent with the Management Analysts SOC code on the LCA: 
• Break down business challenges for clients in healthcare insurance services to deliver solutions 
around Analytics and Data Science for 5% of work time; and 
• Present results, insights, and recommendations to senior leadership. Identify consumption 
opportunities and engage with business stake holders on implementation of solutions. Ensure 
solutions delivered are consumed and tangible business impact is created for 5% of work time. 
As it stands, 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 LCA was 
certified. While DOL certifies the LCA, 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); Simeio 
Solutions, 26 I&N Dec. at 546 n.6. 
The DO L guidance explains that a job's SOC code is identified by selecting the O*NET job description 
"that most closely matches the employer's request" from a list of similar occupations. DOL' s Board 
of Alien Labor Certification Appeals has interpreted this guidance to instruct employers to select the 
occupation that best corresponds to the employer's job offer. See the Board of Alien Labor 
Certification Appeals decisions: Maestro Soccer, LLC, 2018-PWD-00001, at 3 (Dec. 21, 201 7); Gen. 
Anesthesia Specialists P'ship Med. Grp. (GASP), 2013-PWD-00005, at 6 (Jan. 28, 2014); Emory 
Univ., 20ll-PWD-00001, at 6-7 (Feb. 27, 2012). The DOL guidance further states: 
The selection of the O*NET-SOC code should not be based solely on the title of the 
employer's job offer. The NPWHC should consider the particulars of the employer's 
job off er and compare the full description to the tasks, knowledge, and work activities 
generally associated with an O*NET-SOC occupation to [ensure] the most relevant 
occupational code has been selected. 
Therefore, the selection of the correct SOC code should be based more on the position requirements 
and how those compare with the identified areas of the O*NET than they are on any job title. 
According to the DOL guidance: "If the employer's job opportunity has worker requirements 
described in a combination of O*NET occupations, the [ choice of which SOC code to be selected] 
should default directly to the relevant O*NET/SOC occupational code for the highest paying 
occupation." See also Maestro Soccer, LLC, 2018-PWD-00001, at 3 (Dec. 21, 201 7). It appears that 
the Petitioner devised a position consisting of multiple SOC codes but it did not select the SOC code 
that best corresponds to its job offer. Additionally, the record is not sufficiently developed for us to 
determine whether the Petitioner selected the SOC code associated with the highest paying occupation 
because it utilized a private wage survey that is not part of the record. 
As noted above, the wrong SOC code can direct USCIS to evaluate the incorrect occupational title or 
occupation. It is the occupation itself that we evaluate to decide if it requires a "theoretical and 
practical application of a body of highly specialized knowledge," and "attainment of a bachelor's or 
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higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation 
in the United States." Section 2 l 4(i)( I) of the Act. Therefore, an incorrect SOC code could mean we 
would not be able to properly evaluate whether a petitioner has satisfied the statute's definition of a 
specialty occupation. 
Additionally, we cannot provide a proper analysis under multiple H-1 B regulatory requirements when 
a petitioner identifies the wrong SOC code on the LCA (i.e., the requirements at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), (2)). Because the degree requirement that is considered common to the 
industry for one occupation may also be distinct in comparison to others, the incorrect SOC code on 
the LCA adversely affects our ability to evaluate the regulatory requirements. In summary, the 
Petitioner appears to have selected the incorrect SOC code on the LCA, but because the Director did 
not address this issue, we will not rely on it as a basis to make a final detennination on this appeal 
We are therefore precluded from deciding that the proffered position is a specialty occupation. 
The Director should first determine whether (1) the Petitioner obtained a certification from DOL that 
it 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-IB petition. See 8 C.F.R. § 214.2(h)(4)(i)(B)(l); Simeio Solutions, 26 I&N Dec. at 
546 n.6; 20 C.F.R. § 655.705(b ). If the Director's determination on that issue is adverse to the 
Petitioner, no further action should be necessary. However, if the Director decides in the Petitioner's 
favor on the first issue, it should then determine whether the organization would compensate the 
Beneficiary at the appropriate wage in accordance with the DOL guidance for "Wage Determination 
Using Employer-Provided Wage Surveys." See DOL guidance at 14-16 and Appendix F. Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
III. BENEFICIARY QUALIFICATIONS 
As the above issues are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
the arguments that the Beneficiary is qualified to perform services in a specialty occupation. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter of M-F-O-, 
28 T&N Dec. 408, 41 7 n.14 (BIA 2021) ( declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
IV. 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. If the Director determines it is necessary, they may 
request any additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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