dismissed H-1B Case: Biotechnology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF EZB-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 19, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a biotechnology research and development company, seeks to extend the 
Beneficiary's temporary employment as a "pharmaceutical researcher" under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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, Vermont Service Center, denied the pehtiOn. The Director concluded that the 
Petitioner does not have specialty occupation work available for the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the Director erred in finding that the Petitioner does not have work available in a specialty 
occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) 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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of EZB-
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petJtJOn, the Petitioner stated that the Beneficiary will serve as a "pharmaceutical 
researcher." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following job duties for the position (verbatim): · 
• work on the design and development of PAPS Synthesis and Purification kits, 
including a second generation kit for the production of stable isomerically pure 3' -
phosphoadenosine 5 '-phosphosulfate (3 '-PAPS); 
• conduct research to design and develop synthesis and purification protocols and 
biochemical reagents associated with our PAPS kits; 
• ensure compliance with established research protocols; SOPS, and other pertinent 
regulatory agency requirements; 
• monitor critical study phases and work with other team members and/or 
subcontractors to ensure that work is completed according to the study plan and 
within the established timeframes. 
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Matter of EZB-
The beneficiary will spend about 55% of his time performing the above duties. 
• study the structure, design, functions and application of our PAPS kits and related 
protocols and reagents to determine potential problems that can be addressed in future 
improvements; 
• design experiments and develop testing methodologies for product characterization 
and problem solving; 
• periodically review study data and prepare summaries and study reports for 
management's review; 
• schedule and evaluate pilot product trials and develop related development 
specifications; 
• ensure proper disposition of test articles, formulated samples, and study specimens; 
The beneficiary will spend about 25% of his time performing the above duties. 
• study current literature to assist in determining new and improved synthesis methods 
for PAPS by incubating ATP and a carrier-free [35S]-Na2S04 with ATP sulfurylase 
from Saccharomyces cerevisiae; 
• identify new research opportunities and propose specific research projects on 
sulfotransferases, sulfatases and other PAPS-binding proteins that may be of interest 
to the company; 
• design and develop new research projects related to PAPS synthesis and purification 
protocols and reagents; 
• develop research plans and strategies for new products, manage technical timelines, 
analyze results, mitigate risks, and make recommendations on assigned projects; 
• manage' the assigned product development process from concept to 
commercialization. 
The beneficiary will spend about 15% of his time performing the above duties. 
• prepare and review documents for product registrations; 
• assist in quality assurance audits and client/agency visits; 
• keep updated with recent developments in the field of biomedical/pharmaceutical 
research. 
The ben~ficiary will spend about 5% of his time pe1:{orming the above duties. 
According to the Petitioner, the position requires a bachelor's degree or the equivalent in pharmacy, 
chemistry, biochemistry, biotechnology, one of the life sciences, or a related field. 
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Matter of EZB-
Ill. ANALYSTS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (I) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 
In establishing the position as a specialty occupation, the Petitioner must describe the specific duties 
and responsibilities to be performed by the Beneficiary in the context of its business operations. 
users looks at the nature of the business offering the employment and the description of the 
specific duties of the position as it relates to the particular employer, as described in the Form 1-129, 
Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. It is only in 
this manner that the agency can determine the exact position offered, the location of employment, 
the proffered wage, and other salient aspects of the proposed employment 
Thus, a crucial aspect of this matter is whether the Petitioner has adequately described the duties of 
the proffered position within the context its operations, such that users may discern the nature of 
the position and whether the position indeed requires the theoretical and practical application of a 
body of highly specialized knowledge attained through at least a baccalaureate degree in a specific 
discipline. We find that the Petitioner has not done so here. 
For example, the Petitioner has described the duties comprising the proffered position in relatively 
abstract terms that lack sufficient detail and concrete explanation to establish the substantive nature 
of the work to be performed. Specifically, the Petitioner indicated that 55% of the Beneficiary's job 
duties include "work on the design and development of PAPS Synthesis and Purification kits," 
"conduct research to design and develop synthesis and purification protocols and biochemical 
reagents" and "monitor criteria! study phases and work with other team members ... to ensure that 
work is completed." However, the Petitioner did not further elaborate on the specific tasks, 
methodologies, and applications of knowledge that would be required in furtherance of these 
overarching duties. 
Further, the Beneficiary's duties as described in the record appear to require laboratory work, but the 
Petitioner does not have the requisite license to conduct such experiments. For example, the 
Beneficiary is required to "design experiments and develop testing methodologies," "schedule and 
evaluate pilot product trials and develop related development specifications," and "ensure proper 
disposition of test articles, formulated samples, and study specimens." 
On appeal, the Petitioner states that "[USerS] assumes that the company needs a permit to operate as 
a commercial office relating to chemical research and requests local zoning permits." The Petitioner 
further asserts "there is no evidence in the record that demonstrates that this company requires such a 
zoning permit" The Petitioner states that "[t]he research and development is done on a 
mathematical processes and when at times small amounts of chemicals are required it does not mean 
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(b)(6)
Matter of EZB-
that the tests are performed on si[te] and are usually coordinated with the companies who produce 
the chemicals." Notably, the Petitioner did not submit evidence such as contract with other 
companies. "[I]t is incumbent upon the petitioner .to resolve the inconsistencies by independent 
objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. !d. at 591-92. 
Further, the evidence in the record contradicts the Petitioner's claims that it does not require such 
license. For example, the record contains a number of analysis reports as the Beneficiary's work 
samples that appear involve laboratory work. Specifically, a report titled "Property Analysis 
Report" included remarks such as "sample also soluble in ethanol" and "melting point testing was­
failed due to very low melting point." The Petitioner also submitted photographs and described 
them as "business property and operations . 
. . photos of our laboratory area, lab instruments and lab 
equipment." In addition, the record also contains "Chemical Hygiene Responsibilities Manual" 
which has the Petitioner's name on its cover page and outlines its procedures regarding handling of 
chemicals on its premises. 
Moreover, the record contains an expired materials license issued by the U.S. Nuclear Regulatory 
Commission for suggesting that the Petitioner once had a valid license. Therefore, if, in 
fact, the majority of the Beneficiary's duties entail design, development, and research related to its 
PAPS kits as claimed, it appears that the Petitioner would be required to have a valid materials 
license. 1 However, the Petitioner did not provide a valid materials license; therefore, it has not 
submitted sufficient evidence that the Beneficiary would actually spend the majority of his time 
performing the proffered duties. 2 "[G]oing on record without supporting documentary evidence is 
I Further, the Pennsylvania Department of Environmental Protection, which has jurisdiction over the Petitioner's office 
as the Petitioner is located in Pennsylvania, states, in part: 
Users of all byproduct, source and specific nuclear material are required to obtain a license from the 
department prior to obtaining those radioactive materials. This material is used in hospitals, colleges 
and industries for medical, research and industrial purposes. The department issues specific , general 
and reciprocity licenses for the use of radioactive material. The objective of the licensing program is to 
ensure radioactive material is used safely, disposed of properly and facilities are tree from 
contamination when licensed operations are terminated. 
See http://www. dep. pa.gov /Business /Radiation Protecti on/Radi ati onC on tro I /Radioactive-Materials-Licensing/Pages 
/defau1t.aspx. (last visited July 15, 20 16). 
2 We further note that the Beneficiary's tax returns indicate that the Beneficiary is listed as a proprietor for an internet 
sales business ' and derived additional income from it. This raises additional questions whether the 
Beneficiary is actually employed in the proffered position. The record of proceedings does not indicate that the 
Beneficiary has a concurrent H-1 B visa from In fact, the Petitioner states that the "beneficiary has not 
worked and will not work for any other companies while in H-1 B status with our company." However, the 
Beneficiary's admission and continued stay in the United States is conditioned on the maintenance of the H-1 B 
"nonimmigrant status in which the alien was admitted or to which it was changed under section 248" and compliance 
"with the conditions" of that status. Section 237(a)( 1 )(C)(i) of the Act, 8 U .S.C. § 1227(a)(l)(C)(i). It appears that the 
Beneficiary may be engaged in unauthorized employment, which constitutes a lack of maintenance and compliance with 
the conditions of his H-1 B nonimmigrant status under section 237(a)(l )(C)(i) of the Act. 
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Matter of EZB-
not sufficient for purposes of meeting the burden of proof in these proceedings." Matter of Soffici, 
22 I&N Dec. 158, 165 (eomm'r 1998) (citing Matter of Treasure Craft of Cal., 14 l&N Dec. 190 
(Reg'! eomm'r 1972)). Therefore, if the Petitioner is not licensed for the Beneficiary to perform the 
proffered duties, then no bona fide job offer exists to support the position as proffered in this 
petition. 
There are additional discrepancies in the record that undermine the Petitioner's claims regarding the 
protiered position. Specifically, the Petitioner provided some documents as evidence of the 
Beneficiary's work. However, the Director noted that at least one of the articles appears to be 
plagiarized. In response, the Petitioner stated that it was not claiming to be the developer of the 
method identified in the document or claiming intellectual property rights. Instead, the Petitioner 
asserted that the document was submitted as evidence of the Beneficiary testing and evaluating 
samples, which required him to duplicate steps developed by the other researchers verbatim. The 
Petitioner further claimed that "under intellectual property law, publication and dissemination of 
such research requires the author's permission." The Petitioner stated "printing it or using it to 
advance your research does not require such permission, unless you are publishing the results of 
your research." 
However, the Petitioner's submission of a plagiarized document, without properly providing credit 
to the original writer, as "documentary examples of work product created or produced by the 
Beneficiary" undermines its credibility. Notably, the Petitioner did not acknowledge that it was not 
the Beneficiary's original work product until the Director raised the issue in the NOID. Doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition." Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). 
In addition, the Petitioner asserts that its business activity also includes "research and testing of fine 
chemical products and textile dyes, as part of our company's plans to commence trading activities in 
fine chemical products and textile dyes, which are currently being implemented as part of our 
company's expansion strategy." The Petitioner submitted invoices and prospective client letters. 
Petitioner states on appeal that it "is a research and development company and [we] will continually 
have new or different products that they will be researching and developing." However, we note that 
some letters are dated from 2009; this petition is filed in 2014. It appears that the Petitioner's plans 
to expand have been ongoing since 2009, and there is insufficient evidence to substantiate its plans 
for expansion. users regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.F.R. § !03.2(b)(l). A visa petition may 
not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., I 7 I&N Dec. 248, 249 
(Reg'! eomm'r 1978). A petitioner may not make material changes to a petition in an effort to make 
a deficient petition conform to USeiS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 
(Assoc. eomm'r 1998). 
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Because of the discrepancies discussed above, we 'cannot determine the nature and scope of the 
Beneficiary's employment. The record lacks evidence sufficiently concrete and informative to 
demonstrate: (I) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness 
and/or specialization of the tasks; and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. "[I]t is incumbent 
upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 
19 I&N Dec. at 591. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore 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 (I) 
the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (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 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
IV. PRIOR PETITIONS 
Finally, the Petitioner claims that the present petition should be approved because USC IS previously 
approved an H-1 B extension "for an identical type of employee" to the Beneficiary. The Director's 
decision does not indicate whether the prior approvals of the other nonimmigrant petitions were 
reviewed. If the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the Director. We are not required to approve petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See Matter of Church Scientology Int'l, 19 I&N Dec. 593,597 (Comm'r 1988). It would 
. be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors as binding 
precedent." Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval 
also does not preclude users from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
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Matter of EZB-
556 (5th ~ir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow 
the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BJA 2013). Here, that burden 
has not been met3 
ORDER: The appeal is dismissed. 
Cite as Matter of EZB-, ID# 17615 (AAO July 19, 2016) 
3 
Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address any of the additional 
grounds of ineligibility we observe in the record of proceedings. 
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