MATTER OF I-G-C- INC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB.13,2019

PETITION: FORM I-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-1 B nonimmigrant classification for specialty occupations. 1 The H-1 B 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

• • 2 . petlt10n.

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 preemptive issue compared to the proffered position qualifying as a specialty occupation. Accordingly, we will remand the matter to the Director for further review of the record and issuance of a new decision.

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I. LABOR CONDITION APPLICATION

A. Legal Framework

The LCA serves ,as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § 1 ! 82(n)(l ).3 According to section 212(n)(l )(A) of the Act, an employer must attest that it will pay a holder of an H-IB visa the higher of the prevailing wagt?._ in the "area of employment" or the amount paid to other employees with simil1:1r experience and qualifications who are performing the same services.4 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's content correspond_s with the H-1 B petition.5 When assessing the

1 See Immigration and Nationality Act (the Act) section I0l(a)(l5)(H)(i)(b), 8 U.S.C. § I I0l(a)(l5)(H)(i)(b). 2 We decline the Petitioner's request for oral argument. 8 C.F.R. § I 03.3(b). .

Matter of Matter of 1-G-C- Inc

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-lB 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 seven bullet points to describe the proffered position, as follows (note: errors in original have not been changed):

I. Use Google Analytics to better target our niche market customers; run Google AdWords and Face book campaigns to promote our products;· analyze the goals, impressions and CTR (Click through Rate) to optimize each Digital Marketing Campaign. This duty takes around 60% of the total time spend. '

2. Manage the design and development of digital marketing projects that are assigned to the design & coding teams in China by communicating the project needs and objectives in technical terms to improve understanding, efficiency and effectiveness, managing the project timeline to meet all project milestones and providing feedbacks to improve the quality of the end product. This duty takes around 10% of the total time spend. ·

3. Manage monthly email campaign to maintain customers and drive sales. This duty takes around 10% of the total time spend.

4. Plan, organize and execute major marketing events. This duty takes around 10% of _the total time spend .

. 5. Maintain Company Face book account. This duty takes around 5% of the total time spend. 6. Negotiated digitally related strategic alliance contract or sponsorship to improve branding

awareness. This duty takes around 5% of the total time spend. 7. Perform other related duties as required and assigned.

Within a separate letter accompanying the RFE, the Petitioner also indicated the position consisted of the following additional duties (note: errors in original have not been changed):

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3 See Labor Condition Applications and Requirements for Employers Using Non immigrants on H-1 B 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 ofan LCA] with [DOL]."). . . 4 See 20 C.F.R. § 655.731 (a); Venkatraman v. REI Sys., Inc:, 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Pate/'v. Boghra, 369 F. App'x 722, 723 (7th Cir. 20 IO); Michal Vojtisek-lom & Adm·,. Wage & Hour Div. v. Clean Air Tech. int 'I, Inc., No. 07-97, ?009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009), 5 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 Matter of 1-G-C- Inc

8. Develop and execute web-based and digital media programs and campaigns include developing and, writing content for online. advertising, overseeing website strategy and designing collateral materials across all platforms like web, social media, and mobile;

9. Track sales from all marketing efforts, analyze online customer behavior insights, and report results to key personnel;

10. Manage vendor relationships to ensure any outsourced work is consistently high-quality, cost-effective, and reflects the flrm's specifications; and

11. Review/report on sales data compared with marketing budgets to determine efficacy and cost - effectiveness of all marketing efforts.

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. 6 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 $48,000. However, it appears that the Petitioner either (1) selected the incorrect occupational classification on the LCA based on the duties, or (2) designated a wage level that 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. They help companies understand what products people want, who will buy them, and at what price."7 Similarly, the O*NET entry for Market Research Analysts and Marketing Specialists "[r]esearch market conditions in local, regional, or national areas, or gather information to determine potential sales of a product or service, or create a marketing campaign. May gather information on competitors, prices, sales, and methods of marketing and distribution." In contrast, O*NET states that a subcategory of the Comp~ter Occupations; All Other classification - Search Marketing Strategists (SOC code 15-1199.10) utilize "search t~arketing tactics to increase visibility and engagement with content, products, or services in Internet-enabled devices or interfaces. Examine search query behaviors on general or specialty search engines or other Internet-based content. Analyze research, data, or technology to understand user intent and measure outcomes for ongoing optimization."8 The O*NET also provides the following duties for Search Marketing Strategists:

6 DOL, Emp' t & Tra ining Admin. , Prevailing Wage Determination Policy Guidance, Nonagric . Immigration Programs (rev. Nov. ·2009) (DOL guidance), available at http://flcdatacentei-. com/download/NPWHC_ Guidance_ Revised 11 2009.pdf 7 - -

Handbook, Market Research Analysts, https://www.bls.gov/ooh/bus iness-and-financial/market-research-analysts.htm#tab-2 (last visited Feb. 12, 201 9). · 8 For additional in formation,. see O*NET On Line, https://www.onetonl ine.org/link/summary/ l 5- I I 99. IO (last visited Feb. 12, 2019). . .

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Matter of Matter of 1-G-C- Inc

f • Collect and analyze Web metrics, such as v1s1ts, time on site, page· views per v1S1t,

· transaction volume and revenue, traffic mix, click-through rates, conversion rates, cost per acquisition, or cost per click. .

• Assist in setting up or optimizing analytics tools for tracking visitors' behaviors. • Improve search-related activities through ongoing analysis, experiri1entation, or optimization

tests, using A/B or multiv~riate methods.9 - · .

These Search Marketing Strategists duties correlate ·with the proffered position's duty number one ·. listed· above comprising the majority of the ~eneficiary's work time. The O*NET also lists the

following duties for Search Marketing Strategists that bear marked similarities to the proffered position's duties two, three, and eight above: · ·

• Participate in the development of implementation of online marketing strategy. • Conduct oriline marketing initiatives, such as paid ad placement, affiliate programs, . '

sponsorship programs, email promotions, or viral marketing campaigns on social media Web sites. 10

We note _that a position locate_d with the "Search Marketing Strategists" category at a Level I wage rate for the relevant timeframe and location would have demanded approximately $30,000 more than the annual rate the Petitioner indicated it would compensate the Beneficiary. 11 Were we to factor in increa·sing the prevailing wage rate to a Level II to account for the Petitioner devising duties that are a combination of occupations, or for including duties that are atypical to the correct occupational classification, the proposed salary would have been deficient by $46,557. 12 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. 13 Consequently, it does not appear that the Petitioner selected the correct occupational classification oh the LCA, whi_ch does not comply with the DOL guidance.

We further observe that a portion of the. proffered position's duties· are .more .akin to other occupational classifications (e.g., 11-2011.00 -: Advertising, Promotions, and Marketing Managers; 11-2021.00 :: Marketing Managers; or 41-3011.00 - Advertising Sales Agents). However, as the duties comprising 80 percent of the Beneficiary's time - duties one, two, three, and eight - demand a

9 Id IO Id 11 For additional information, see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search Wizard available at http://www.tlcdatacenter.com/OESWizardStart.aspx. . . 12 "Any requirec,i 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 riot normal to the occupation." For additional information, see Office of Foreign Labor Certification's Frequently Asked Questions and Answers, available at https://www.foreignlaborcert.doleta.gov/faqsansw'ers.cfm (last visited Feb. 12, 2019). 13 DOL guidance, available at http://www.foreignlaborcert.doleta.gov/pdf/N PWHC _Guidance_ Revised_ I I_ 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.do1eta,gov/faqsanswers.cfm (last -visited Feb, 12, 2019). '

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Matter of Matter of 1-G-C- Inc

significantly higher wage rate, we find it unnecessary 'to correlate the proffered· position's duties to those of the other occupations.

The Petitioner's use of Market Research Analysts and Marketing Specialists SOC code does not appear to have been correct, and the Director should first determine whether this LCA corresponds. with and supports the petition. 14 . .

II. 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, she may request any additional evidence considered pertinent to the new determination.

ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.

Cite as Matter of 1-G-C- Inc, ID# 1744 734 (AAO Feb. 13, 2019)

14 See 20 C.F.R. § 655.705(b).

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