MATTER OF 1-G-C-INC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 31, 2018

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an international telecommunications and media firm, seeks to employ the Beneficiary temporarily as a "market research analyst" 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. § 1101(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 Director of the Vermont Service Center 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. On appeal, the Petitioner asserts that the Director erred in denying the petiti9n. 1

Upon de novo review, we will dismiss the appeal.

I. LABOR CONDITION APPLICATION

As an initial matter, the record does not establish that the Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA), properly corresponds with and supports the petition.

A. Legal Framework

The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l).2 According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay

1 We decline the Petitioner's request for oral argument. 8 C.F.R. § 103.3(b). 2 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) (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

Matter of 1-G-C- Inc

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.3 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's content corresponds with the H-1B petition.4 When assessing the wage level indicated on the LCA, 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.

B. Analysis

The Petitioner obtained an LCA certified under the standard occupation classification (SOC) code, 13-1161 relating to "Market Research Analysts and Marketing Specialists." In its response to the Director's request for evidence (RFE), the Petitioner provided nine bullet points to describe the proffered position, as follows (note: errors in original have not been changed):

1. Design and manage paid social media campaigns, and lead the definition and implementation of a content based, digitally enabled marketing strategy with an emphasis on two industry segments in the market globally. This duty takes around 30% of the total time spend.

2. Create and manage editorial contents to reach the global target audience, on social media, such as WeChat, Weibo, Facebook, YouTube, Instagram; Oversee design and execution of snackable and interactive content including videos, infographics, etc. This duty takes around 20% of the total time spend.

3. Create and Maintain 24/7 WeChat Customer Service System to provide strong consumer service, e.g. quality control, responsiveness, evaluation, and attention to detail. This duty takes around 20% of the total time spend.

4. Analyze, review, and report on effectiveness of campaigns in an effort to maximize results; Compile reports for management showing results (ROI), monitor effective benchmarks (best practices) for measuring the impact of social media campaigns. This duty takes around 10% of the total time spend.

5. Approve and edit web copy and oversee design of web page elements. This duty takes around 5% of the total time spend.

6. Develop and expand channel followers and increase engagement. Monitor, listen and respond to users in the community. This duty takes around 5% of the total time spend.

ofan LCA] with [DOL]."). 3 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. Int'/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 4 See 20 C.F.R. § 655.705(b) ("OHS determines whether the petition is supported by an LCA which corresponds with the petition, .... ").

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Matter of 1-G-C- Inc

7. Serve as an advocate for the marketing team in social media, engaging in dialogues, answering questions where appropriate and providing training as required. This duty takes around 5% of the total time spend.

8. Maintain brand consistency (message and visual) across channels of communication. This duty takes around 5% of the total time spend.

9. Perform other related duties as required and assigned.

DOL guidance states that "[t]he [Occupational Information Network (O*NET)] description that corresponds to the employer's job offer shall be used to identify the appropriate occupational classification" for determining the prevailing wage for the LCA. 5 Here, the Petitioner specified the proposed employment would be in Virginia and selected a Level I prevailing wage. The Petitioner indicated it would compensate the Beneficiary at an annual rate of $52,000. However, it appears that the Petitioner either (1) selected the incorrect occupational classification on the LCA based on the duties, or (2) its wage level designation was too low for the position's duties.

According to DOL's Occupational Outlook Handbook (Handbook), Market Research Analysts "study market conditions to examine potential sales of a product or service. Thel help companies understand what products people want, who will buy them, and at what price." In contrast, the Handbook states that a separate occupational classification - Advertising, Promotions, and Marketing Managers - perform the following:

• Plan advertising campaigns, including which media to advertise in, such as radio, television, print, online media, and billboards; and

• Evaluate the look and feel of websites used in campaigns or layouts, which are sketches or plans for an advertisement.

The Handbook further describes promotions managers as those who "direct programs that combine advertising with purchasing incentives to increase sales. Often, the programs use direct mail, inserts in newspapers, Internet advertisements, in-store displays, product endorsements, or special events to target customers."7 These three responsibilities are similar to duties number one, two, and five listed above.

Additional, unrelated occupations within the Handbook provide that Software Developers "develop the applications that allow people to do specific tasks on a computer or another device," and Computer Programmers "write and test code that allows computer applications and software

5 DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at http://tlcdatacenter.com/download/NPWHC_Guidance_ Revised 11 2009.pdf 6 Ha;;dbook, Market Research Analysts, https://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm#tab-2 (last visited Oct. 30, 2018). 7 Handbook, Advertising, Promotions, and Marketing Managers, https://www.bls.gov/ooh/management/advertising­promotions-and-marketing-managers.htm#tab-2 (last visited Oct. 30, 2018).

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Matter of 1-G-C- Jnc

programs to function properly."8 Duty number three listed above involves creating and maintaining an application the Petitioner utilizes to communicate with its clients. Such a function bears a closer resemblance to the duties of Software Developers or Computer Programmers than it does to Market Research Analysts and Marketing Specialists. Based upon the above, the Petitioner has not established that it properly classified the proffered position under Market Research Analysts and Marketing Specialists, rather than under Advertising, Promotions, and Marketing Managers, with one-fifth of the duties relating to a computer or information technology occupational classification.

When a position is actually a combination of occupations, a petitioner, at a minimum, must use the SOC code for the occupation that has the higher wage. 9 The following are the Level II prevailing wage rates for the relevant timeframe and location for each occupation - we are providing the Level II wage rates because when skill sets cross disciplines, the result is a combination of occupations and one point is added on the worksheet raising the wage level by one level: 10

• Software Developers, Applications: $90,646 • Computer Programmers: $81,640 • Advertising and Promotions Managers: $86,133 year. 11

Each of these occupations pays a higher wage than the one designated on the LCA. Consequently, it does not appear that the Petitioner selected the correct occupational classification on the LCA, which does not comply with the DOL guidance.

Even if we were to presume that the Petitioner had selected the correct SOC code of Market Research Analysts, a portion of the duties we discuss above are atypical for this occupational classification and require knowledge beyond that indicated in O*NET. According to the OFLC FAQs, "[a]ny 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."12

For all of these reasons, the Petitioner has not established that submitted LCA corresponds with and h • · 13 supports t e petition.

8 Bureau of Labor Statistics, DOL, Handbook, Software Developers, https://www.bls.gov/ooh/computer-and­information-technology/software-developers.htm#tab-2 and Computer Programmers, https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-2 (last visited Oct. 30, 2018). 9 DOL guidance, available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_l 1_2009.pdf; see also DOL Employment & Training Administration, Office of Foreign Labor Certification's (OFLC) Frequently Asked Questions and Answers (FAQs), available at https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Oct. 30, 2018). io Id 11 For additional information, see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search Wizard available at http://www.flcdatacenter.com/OESWizardStart.aspx. i2 Id 13 See 20 C.F.R. § 655.705(b).

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Matter of 1-G-C- Inc

II. SPECIAL TY OCCUPATION

The Petitioner's statements regarding the nature of the position's duties do not appear to align with the certification of the LCA for a position located within the "Market Research Analysts and Marketing Specialists" occupational category. This conflict challenges the petition's overall reliability in establishing the nature of the proffered position and in what capacity it will employ the Beneficiary. It also raises questions regarding what the actual, substantive nature of the work to be performed by the Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines ( 1) the normal minimum educational requirement for the particular position, which is the focus of criterion one; (2) industry positions which are parallel to the proffered position and thus appropriate for review for a common degree requirement, under the first alternate prong of criterion two; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion three; and (5) the degree of specialization and complexity of the specific duties, which is the focus of criterion four.

We are therefore precluded from finding that the proffered position is a specialty occupation. 14

III. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought.

ORDER: The appeal is dismissed.

Cite as Matter of 1-G-C-Inc, ID# 1558357 (AAO Oct. 31, 2018)

14 Even if we were to set this issue aside and assume that the proffered position had been properly placed within the Advertising, Promotions, and Marketing Managers occupational category, we would likely still conclude that the proffered position is not a specialty occupation. A review of the Handbook does not indicate that, simply by virtue of its occupational classification, such a position normally requires a bachelor's degree in a specific specialty, or the equivalent. To the contrary, the Handbook specifically states that most of these positions require a bachelor's degree, but it lacks any indication that a bachelor's degree in a specific specialty is required. Instead, the bachelor's degree could be in advertising or journalism, or another field. See the Handbook, Advertising, Promotions, and Marketing Managers, https://www.bIs.gov/ ooh/management/adverti sing-promotions-and-marketing-managers.htm#tab-2 (last visited Oct. 30, 2018). A requirement for a bachelor's degree, with no further specialization, is not a requirement for a bachelor's degree in a specific specialty, or the equivalent. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm 'r 1988); see also Royal Siam Corp. v. Chertoff, 484 F .3d 139, 14 7 (1st Cir. 2007). As such, absent evidence that the position would satisfy one of the alternative criteria available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the petition could not be approved for this additional reason.

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