dismissed H-1B Case: Pharmacy

(b)(6)
JUL 0 1 2015 
DATE: 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be 
filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center. In the supporting documents, the petitioner describes itself as a retail pharmacy and 
compounding prescriptions company, with seven employees, that was established in In order 
to employ the beneficiary in what it designates as a compounding chemist position, the petitioner 
seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory. The Director denied 
the petition. 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting materials. We 
reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided 
sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
· as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred) ; see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation . To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F .R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 387. To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
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Page4 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard, USCIS regularly approves H-IB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
B. Proffered Position 
In the Form 1-129, the petitioner indicated that it wishes to employ the beneficiary as a 
compounding chemist on a part-time basis (25 hours per week)? In the support letter, the petitioner 
provided the following information regarding the duties and requirements of the proffered position: 
2 
[The beneficiary] will perform standard analytical tests and carry out assignments to 
compound chemicals and/or drugs, as necessary and as directed by a licensed 
pharmacist; perform analytical methods development/validation tests on raw 
materials and/or finished product; perform test on stability samples; perform data 
analysis, keep accurate records of test data and test procedures in laboratory 
notebook, follow all written departmental SOPs, etc. She will adhere strictly with 
State regulations and will not interact with patients nor will she perform any 
compounding activity that is restricted to a licensed pharmacist. At all times, she 
will work under the direct supervision of a licensed pharmacist. 
The petitioner states the beneficiary will be employed by " " We observe that " 
"is not the petitioning company. 
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* * * 
The usual minimum requirement for performance of the job duties of this position 
with our company, as with any other similar organization, is a Bachelor's degree in 
the sciences, Pharmacy, Pharmaceutical Sciences, Pharmaceutical Chemistry or 
equivalent and some relevant training and/or experience or a Master's degree in lieu 
of the Bachelor's degree and experience. 
Thereafter, in response to the RFE, the petitioner provided a new job description. More 
specifically, the petitioner stated that the position encompasses the following duties: 
• Testing of new materials 
• Testing of finished mixes 
• Compounding of chemicals/drugs 
• Record keeping and compliance 
with SOP & Regulations 
• Interacting with pharmacists 
C. Analysis 
5% 
5% 
75% 
10% 
5% 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
We recognize the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(hereinafter the Handbook) as an authoritative source on the duties and educational requirements of 
the wide variety of occupations that it addresses. 3 The petitioner asserts in the Labor Condition 
Application (LCA) that the proffered position falls under the occupational category "Chemists." 
We reviewed the chapter of the Handbook entitled "Chemists and Materials Scientists. "4 The 
Handbook describes the duties of "Chemists" in the subsection entitled "What Chemists and 
Materials Scientists Do" and states the following about the duties of this occupation: 
Chemists and materials scientists study substances at the atomic and molecular levels 
and the ways in which substances react with each other. They use their knowledge to 
3 All of the AAO's references are to the 2014-2015 edition of the Handbook, which may be accessed at the 
Internet site http://www.bls.gov/OCO/. 
4 For additional information regarding the occupational category "Chemists and Materials Scientists," see 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Chemists 
and Materials Scientists, on the Internet at http://www.bls.gov/ooh/life-physical-and-social-science/chemists­
and-materials-scientists .htm#tab-l (last visited June 24, 20 15). 
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develop new and improved products and to test the quality of manufactured goods. 
Duties 
Chemists and materials scientists typically do the following: 
• Plan and carry out complex research projects, such as the development of new 
products, processes, and testing methods 
• Direct technicians and other workers in testing procedures to analyze 
components and physical properties of materials 
• Instruct scientists and technicians on proper chemical processing and testing 
procedures, such as ingredients, mixing times, and operating temperatures 
• Prepare test solutions, compounds, and reagents (such as acids) used in 
laboratory procedures 
• Analyze substances to determine their chemical and physical properties, such as 
their structure and composition 
• Conduct tests on materials and other substances to ensure that safety and quality 
standards are met 
• Write technical reports that detail methods and findings 
• Present research findings to scientists, engineers, and other colleagues 
Many chemists and materials scientists work in basic and applied research. In basic 
research, chemists investigate the properties, composition, and structure of matter. 
They also experiment with combinations of elements and the ways in which they 
interact. In applied research, chemists investigate possible new products and ways to 
improve existing ones. Chemistry research has led to the discovery and development 
of new and improved drugs, plastics, cleaners, and thousands of other products. 
Materials scientists study the structures and chemical properties of various materials, 
to develop new products or enhance existing ones. They determine ways to 
strengthen or combine materials or develop new materials for use in a variety of 
products. Applications of materials science include inventing or improving 
superconducting materials, ceramics, and metallic alloys. 
Chemists and materials scientists use computers and a wide variety of sophisticated 
laboratory instrumentation for modeling, simulation, and experimental analysis. For 
example, some chemists use three-dimensional (3D) computer modeling software to 
study the structure and other properties of complex molecules. 
Most chemists and materials scientists work as part of a team. An increasing number 
of scientific research projects involve multiple disciplines, and it is common for 
chemists and materials scientists to work on teams with other scientists, such as 
biologists and physicists, computer specialists, and engineers. For example, in 
pharmaceutical research, chemists may work with biologists to develop new drugs 
and with engineers to design ways to mass produce the new drugs. For more 
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information, see the profiles on biochemists and biophysicists, microbiologists, 
zoologists and wildlife biologists, physicists and astronomers, computer and 
information technology occupations, and engineers. 
Chemists often specialize in a particular branch of the field. The following are 
examples of some types of chemists: 
Analytical chemists determine the structure, composition, and nature of substances, 
by examining and identifying their various elements or compounds. They also study 
the relationships and interactions between the parts of compounds. Some analytical 
chemists specialize in developing new methods of analysis and new techniques for 
carrying out their work. Their research has a wide range of applications, including 
food safety, pharmaceuticals, and pollution control. 
Inorganic chemists study the structure, properties, and reactions of molecules that 
do not contain carbon, such as metals. They work to understand the behavior and the 
characteristics of inorganic substances. Inorganic chemists figure out how these 
materials can be modified, separated, or used in products, such as ceramics and 
superconductors. 
Medicinal chemists research and develop chemical compounds that can be used as 
pharmaceutical drugs. They work on teams with other scientists and engineers to 
create and test new drug products. They also help develop new and improved 
manufacturing processes to produce new drugs on a large scale effectively. 
Organic chemists study the structure, properties, and reactions of molecules that 
contain carbon. They also design and make new organic substances that have unique 
properties and applications. These compounds have, in turn, been used to develop 
many commercial products, such as pharmaceutical drugs and plastics. 
Physical chemists study the fundamental characteristics of how matter behaves on a 
molecular and atomic level and how chemical reactions occur. Based on their 
analyses, physical chemists may develop new theories, such as how complex 
structures are formed. Physical chemists often work closely with materials scientists, 
to research and develop potential uses for new materials. 
Theoretical chemists investigate theoretical methods that can predict the outcomes 
of chemical experiments. Theoretical chemistry encompasses a variety of 
specializations itself, though most specializations incorporate advanced computation 
and programming. Some examples of theoretical chemists are computational 
chemists, mathematical chemists, and chemical informaticians. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-2015 ed 
Chemists and Materials Scientists, on the Internet at http://www.bls.gov/ooh/life-physical-and· 
social-science/chemists-and-materials-scientists.htm#tab-2 (last visited June 24, 2015). 
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Page 8 
In the section of the Handbook entitled "Work Environment," the Handbook states that chemists 
and materials scientists work in the following industries: 
Chemists and material scientists held about 90,900 jobs in 2010. The industries 
employing the largest numbers of chemists in 201 0 were the following: 
Research and 
development 
in the physical, 
engmeenng, 
and life 
sciences 
Pharmaceutical 
and medicine 
manufacturing 
Testing 
laboratories 
Federal 
government, 
excluding 
postal service 
State and local 
government, 
excluding 
education and 
hospitals 
20% 
17 
11 
7 
6 
Chemists and materials scientists typically work in laboratories and offices, where 
they conduct experiments and analyze their results. In addition to laboratories, 
materials scientists work with engineers and processing specialists in industrial 
manufacturing facilities. Some chemists also work in these facilities and usually are 
responsible for monitoring the environmental conditions at the plant. Chemists and 
materials scientists, who work for manufacturing companies, may have to travel 
occasionally, especially if their company has multiple facilities. 
Chemists and materials scientists typically work on research teams. They need to be 
able to work well with others towards a common goal. Many serve in a leadership 
capacity and need to be able to motivate and direct other team members. 
Work Schedules 
Chemists and materials scientists typically work full time and keep regular hours. 
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Page9 
Handbook, 2014-2015 ed., Chemists and Materials Scientists, on the Internet at 
http://www.bls.gov/ooh/life-physical-and-social-science/chemists-and-materials-scientists.htm#tab-
3 (last visited June 24, 20 15). 
In the Form I-129 the petitioner designated its business operations under the North American 
Industry Classification System (NAICS) code 446110- "Pharmacies and Drug Stores."5 The U.S. 
Department of Commerce, Census Bureau website describes this NAICS code by stating that this 
"industry comprises establishments known as pharmacies and drug stores engaged in retailing 
prescription or nonprescription drugs and medicines." See U.S. Dep't of Commerce, U.S Census 
Bureau, 2012 NAICS Definition, 446110 - Pharmacies and Drug Stores, on the Internet at 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited June 24, 2015) . This industry is not 
noted in the Handbook as employing chemists. Further, as noted above, chemists typically work 
full-time and keep regular hours. The petitioner indicated on the Form I-129 that its proffered 
position is not a full-time position, and that the beneficiary will work 25 hours per week. 
Upon review of the record of proceeding and the chapter regarding "Chemists and Materials 
Scientists" in the Handbook, we find that the petitioner has not provided sufficient evidence to 
demonstrate that its proffered position has the same or similar duties, tasks, knowledge, work 
activities, etc. that are generally associated with "Chemists." For example, the petitioner does not 
claim that the beneficiary will plan and carry out complex research projects, such as the 
development of new products, processes, and testing methods. In addition, the petitioner does not 
assert that the beneficiary will direct technicians and other workers in testing procedures to analyze 
components and physical properties of materials. Further, the petitioner does not report that the 
beneficiary will instruct scientists and technicians. This is further illustrated by the fact that the 
record of proceeding does not establish that the beneficiary will write technical reports and present 
research findings to scientists, engineers, and other colleagues. The fact that the beneficiary may 
apply some chemical principles in the course of her job is not sufficient to establish the proffered 
position as a chemist position. 
The Director reviewed the job description provided by the petitioner and found that the proffered 
position falls under the occupational classification of "Pharmacy Technicians." The Handbook 
states the following about this occupational category: 
Pharmacy technicians help licensed pharmacists dispense prescription medication. 
They work in retail pharmacies and hospitals. 
Duties 
Pharmacy technicians typically do the following: 
5 NAICS is used to classify business establishments according to type of economic activity, and each 
establishment is classified to an industry according to the primary business activity taking place there. See 
U.S. Dep't of Commerce, U.S. Census Bureau, NAICS, on the Internet at 
http://www.census.gov/eos/www/naics/ (last visited June 24, 2015). 
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• Take the information needed to fill a prescription from customers or health 
professionals 
• Measure amounts of medications for prescriptions 
• Package and label prescriptions 
• Organize inventory and alert pharmacist to any shortage of medication or 
supplies 
• Accept payment for prescriptions and process insurance claims 
• Answer phone calls from customers 
• Arrange for customers to meet with pharmacist if customers have questions about 
medications or health matters 
Pharmacy technicians work under the supervision of pharmacists, who must review 
prescriptions before they are given to patients. In most states, technicians can 
compound or mix some medications and call physicians for prescription refill 
authorizations. Technicians also may need to operate automated dispensing 
equipment when filling prescription orders. 
Pharmacy technicians working in hospitals and other medical facilities prepare a 
greater variety of medications, such as intravenous medications. They may make 
rounds in the hospital, giving medications to patients. 
Handbook, 2014-2015 ed., Pharmacy Technicians, on the Internet at 
http://www.bls.gov/ooh/healthcare/pharmacy-technicians.htm#tab-2 (last visited June 24, 2015). 
It is important to note that according to the petitioner, the beneficiary will spend 75% of her time 
compounding chemicals/drugs. The Handbook states that in most states pharmacy technicians can 
compound or mix medications. 
Furthermore, the subchapter of the Handbook entitled "How to Become a Pharmacy Technician" 
states, in part, the following about the requirements for this occupation: 
Becoming a pharmacy technician usually requires earning a high school diploma or 
the equivalent. Pharmacy technicians typically learn through on-the-job training, or 
they may complete a postsecondary education program. Most states regulate 
pharmacy technicians, which is a process that may· require passing an exam or 
completing a formal education or training program. 
Education and Training 
Many pharmacy technicians learn how to perform their duties through on-the-job 
training. These programs vary in length and subject matter according to the 
employer's requirements. 
Other pharmacy technicians enter the occupation after completing postsecondary 
education programs in pharmacy technology. These programs are usually offered by 
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vocational schools or community colleges. Most programs award a certificate after 1 
year or less, although some programs last longer and lead to an associate's degree. 
They cover a variety of subjects, such as arithmetic used in pharmacies, 
recordkeeping , ways of dispensing medications, and pharmacy law and ethics. 
Technicians also learn the names, uses, and doses of medications. Most programs 
also include clinical experience opportunities, in which students gain hands-on 
experience in a pharmacy. 
The American Society of Health System Pharmacists (ASHP) accredits pharmacy 
technician programs that include at least 600 hours of instruction over a minimum of 
15 weeks. In 2012, there were 213 fully accredited programs, including a few in 
retail drugstore chains. 
Licenses and Certification 
Most states regulate pharmacy technicians in some way. Consult your state's Board 
of Pharmacy for its particular regulations. Requirements for pharmacy technicians 
typically include some or all of the following: 
• High school diploma or GED 
• Criminal background check 
• Formal training program 
• Exam 
• Fees 
• Continuing education 
Some states and employers require pharmacy technicians to have certification. Even 
where it is not required, certification may make it easier to get a job. Many 
employers will pay for their pharmacy technicians to take the certification exam. 
Two organizations offer certification: The Pharmacy Technician Certification Board 
(PTCB) and the National Healthcareer Association (NHA). 
Handbook, 2014-2015 ed., Pharmacy Technicians, available on the Internet at 
http://www.bls.gov/ooh/healthcare/pharmacy-technicians.htm#tab-4 (last visited June 24, 2015). 
The Handbook states that a high school diploma, or the equivalent, is sufficient for entry into this 
occupation in the United States. The narrative of the Handbook states many pharmacy technicians 
learn how to perform their duties through on-the-job training. It continues by stating that other 
pharmacy technicians attend postsecondary education programs in pharmacy technology at 
vocational schools or community colleges, which award certificates. These programs typically last 
one year or less. The Handbook further states that many training programs include internships, in 
which students get hands-on experience in a pharmacy. Thus, it does not support the claim that the 
occupational category is one for which normally the minimum requirement for entry is a 
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Page 12 
baccalaureate degree (or higher) in a specific specialty, or its equivalent. Even if it did (which it 
does not), the record lacks sufficient evidence to support a finding that the particular position 
proffered here, would normally have such a minimum, specialty degree requirement, or its 
equivalent. 
It is incumbent upon the petitioner to provide persuasive evidence that the proffered position 
qualifies as a specialty occupation under this criterion. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) 
provides that "[a]n H-1B petition involving a specialty occupation shall be accompanied by 
[ d]ocumentation ... or any other required evidence sufficient to establish ... that the services the 
beneficiary is to perform are in a specialty occupation." In the instant case, the duties and 
requirements of the position as described in the record of proceeding do not indicate that this 
particular position proffered by the petitioner is one for which a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook, or other authoritative source, reports a standard industry-wide requirement of at 
least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the 
previous discussion on the matter. The petitioner did not submit documentation from the industry's 
professional association stating that it has made a degree a minimum entry requirement. 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar 
organizations. However, the petitioner's reliance on the job announcements is misplaced. 
The petitioner describes itself as a retail pharmacy and compounding prescriptions company 
established in with seven employees. The petitioner claims that it has a gross annual income of 
"$3 Million." Although required on the petition, the petitioner did not provide its net annual income. 
~ --------~---~---~ ~- -·· ~····-·----- -~- ---~------~--- ----------
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Page 13 
As previously discussed, the petitioner designated its business operations under the NAICS code 
44611 0 - "Pharmacies and Drug Stores." 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. 
The petitioner submitted a number of job postings; however, the postings contain little or no 
information regarding the advertising employers. Consequently, the record is devoid of sufficient 
information regarding the employers to conduct a legitimate comparison of the organizations to the 
petitioner. The petitioner did not supplement the record of proceeding to establish that the 
employers are similar to it. That is, the petitioner has not provided sufficient information regarding 
which aspects or traits (if any) it shares with the organizations. 6 
Further, some postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 7 For instance, the Actavis posting states that a degree is 
6 When determining whether the petitioner and the organization share the same general characteristics, such 
factors may include information regarding the nature or type of organization, and, when pertinent, the 
particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that 
may be considered). It is not sufficient for the petitioner to claim that an organization is similar and in the 
same industry without providing a legitimate basis for such an assertion. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
7 
As discussed, the degree requirement set by the statutory and regulatory framework of the H-1B program is 
not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related to the duties 
of the position. See 214(i)(l)(b) of the Act and 8 C.P.R.§ 214.2(h)(4)(ii). 
In addition, although a general-purpose bachelor's degree, such as a degree in business, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a 
particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 
484 F.3d at 147. Specifically, the United States Court of Appeals for the First Circuit explained in Royal 
Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-lB specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of 
Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
(b)(6)
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necessary, but it does not state that a specific specialty is required. Moreover, some of the 
advertisements do not appear to be for parallel positions. For example, one of the advertisements is 
for a Chemist III, which requires a degree and 3 to 6 years of experience. Another posting is for a 
Chemist II and requires a degree and 3 to 7 years of experience. The advertised positions appear to 
be for more senior positions than the proffered position. More importantly, the petitioner has not 
sufficiently established that the primary duties and responsibilities of the advertised positions are 
parallel to the proffered position. 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 8 That is, not every deficit of every job posting has been addressed. 
The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the 
first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. Upon review, we find that 
the petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. For instance, the petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the duties it asserts are so complex and unique. While a few related courses 
may be beneficial in performing certain duties of the position, the petitioner has not demonstrated 
how an established curriculum of such courses leading to a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the proffered position. The 
description of the duties does not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record does not establish which of 
I d. 
8 The petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
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the duties, if any, of the proffered position would be so complex or unique as to be distinguishable 
from those of similar but non-degreed or non-specialty degreed employment. 
The evidence of record does not establish that this position is significantly different from other 
positions in the occupational category "Pharmacist Technicians" such that it refutes the Handbook's 
information that a bachelor's degree in a specific specialty, or its equivalent is not required for the 
proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. The petitioner has not satisfied the 
second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree ina 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that 
a proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-lB visa and/or to underemploy an individual in 
a position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See § 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining the term 
"specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
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the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: ifUSCIS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form 1-129 petition that it has seven employees and that it was 
established in (approximately two years prior to the filing of the H-lB petition). The 
petitioner stated that this would be the first time employing someone in the proffered position. 
The petitioner did not provide documentary evidence to support the assertion that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the 
duties of the position. The petitioner has not satisfied the third criterion of 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A). 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and 
complex than positions that are not usually associated with at least a bachelor's degree in a specific 
specialty, or its equivalent. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
(b)(6)
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For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.