dismissed H-1B Case: Pharmacy

U.S. Citizenship 
and Immigration 
Services 
In Re: 20509948 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 5, 2022 
The Petitioner , a retail pharmacy, seeks to temporarily employ the Beneficiary as a "regulatory and 
compliance analyst" under the H-lB nonimmigrant classification for specialty occupations . 
Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ l 10l(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the labor condition application (LCA) corresponds to and supports the petition. On 
appeal, the Petitioner asserts that the Director's decision was in error. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de nova 
review, we will dismiss the appeal. 
I. POST-FILING MATERIAL CHANGE 
Before addressing the basis upon which the Director denied the petition - her determination that the 
LCA does not correspond to and support the position - we will first address a more foundational 
deficiency that also precludes approval of this petition. Specifically, we conclude that the Petitioner's 
attempt at reclassifying the position under a different occupational category constitutes a post-filing 
material change, which is not permissible. 
The Petitioner designated the proffered position on the LCA under the occupational category 
"Compliance Officers," corresponding to the Standard Occupational Classification (SOC) code 13-
1041. According to the Department of Labor (DOL), this is a JobZone 3 occupation, requiring 
"medium preparation." DOL states that most JobZone 3 occupations require training in vocational 
schools , related on-the-job training, or an associate's degree. Emp't & Training Admin ., U.S. Dep 't 
of Labor , Occupational Information Network (O*NET) , Compliance Officers (2022) , 
https: //www .onetonline .org/link/summary /13-1041 .00. 
However , in response to the Director's request for additional evidence (RFE), the Petitioner stated that 
the proffered position aligns more closely with positions located within the "Regulatory Affairs 
Specialists" occupational category, corresponding to SOC code 13-1041.07. Id. at 
https: //www .onetonline .org/link/summary /13-1041.07 . This is a JobZone 4 occupation . Id. In 
contrast to JobZone 3 occupations , DOL states that most JobZone 4 occupations require a four-year 
bachelor's degree. Id. 
Even if we were to accept for the sake of argument the Petitioner's assertion that the new occupational 
category is merely a subcategory of the original one, we would not be able to overlook the fact that 
the new occupational category is located within a higher JobZone . The Petitioner 's attempt at 
relocating the proffered position from a JobZone 3 occupational category into a JobZone 4 
occupational category, post-filing, was not permissible. Doing so was not a mere clarification of the 
position's nature . It was instead an attempt to materially alter the nature of the position , which is not 
permitted in the H-lB program . 
The purpose of an RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established . 8 C.F.R . § 103.2(b)(8) . When responding to an RFE, the Petitioner 
cannot offer a new position to the Beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy , its associated job responsibilities, or the requirements of 
the position . The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg'l Comm'r 1978). If significant changes are made to the initial request for 
approval , the Petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the Petitioner in its response to the 
Director's RFE did not clarify or provide more specificity to the original duties of the position, but 
rather changed it from a JobZone 3 position to a JobZone 4 position. This is not permissible , and the 
petition will be denied on this basis alone. 
Having made this initial determination, we will now turn to the basis upon which the Director denied 
the petition: her conclusion that the record is not sufficient to establish that the LCA corresponds to 
and supports the H-lB petition . 
II. THELCA 
As noted, the Director concluded that the record did not establish that the LCA corresponds to and 
supports the petition. The purpose of the LCA wage requirement is "to protect U.S. workers' wages 
and eliminate any economic incentive or advantage in hiring temporary foreign workers ." See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in 
Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent 
Employment of Aliens in the United States , 65 Fed . Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) 
(to be codified at 20 C.F.R . pts. 655-56) (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 of an LCA] 
2 
with [DOL]."). According to section 212(n)(l)(A) of the Act, an employer must attest that it will pay 
a holder of an H-1 B 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. 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'l, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor 
Admin. Rev. Bd. July 30, 2009). 
A petitioner submits the LCA to the Department of Labor (DOL) to demonstrate it will pay an H-1B 
worker the higher of either the prevailing wage for the occupational classification in the area of 
employment or the actual wage paid by the employer to other employees with similar duties, 
experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). While DOL 
certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
content corresponds to the H-1B petition. See 20 C.F.R. § 655.705(b); Matter of Simeio Solutions, 
LLC, 26 I&N Dec. 542, 546 n.6 (AAO 2015); ITServe Alliance, Inc. v. Dep 't of Homeland Sec., 
--- F Supp. 3d. ---, 22 WL 493081, at *10 (D.D.C. Feb. 17, 2022). 
The Petitioner's attempt at a post-filing relocation of the proffered position from a JobZone 3 
occupational category into JobZone 4 was discussed above. The Director denied the petition, 
concluding that the LCA did not correspond to and support the petition because "the LCA submitted 
with this petition is certified by the Department of Labor for SOC 13-1041.00 and not subset 13-
1041.07." On appeal, the Petitioner argues that the Director erred because the prevailing wage for 
both compliance officers and regulatory affairs specialists is the same. The Petitioner further argues 
that because regulatory affairs specialists are a subcategory of compliance officers, the LCA still 
corresponds to and supports the petition. 
We will first address the Petitioner's argument that the two occupational categories share a prevailing 
wage. While that is ostensibly true, that broad assertion ignores the nuanced interplay between 
prevailing wage levels, JobZone designations, and the minimum requirements of the H-1B program. 
In other words, we do not agree that the prevailing wages for the two occupational categories are de 
facto the same for purposes of the H-1 B petition before us. 
The minimum requirements ofJobZone 3 and JobZone 4 occupations were discussed above, and DOL 
set forth the mechanism for determining LCA prevailing wage levels in a 2009 document. See 
generally Emp't & Training Admin., U.S. Dep't of Labor, Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (providing a process by which to 
determine a position's wage level). That document provides a 5-step process by which to determine 
a position's wage level, and part of that process is to consider an occupational category's minimum 
requirements as set forth in O*NET. 
In order to qualify for classification as a specialty occupation, a position must require, at a minimum, 
a bachelor's degree in a specific specialty. Section 214(i) of the Act, 8 U.S.C. § 1184(i). As noted, 
JobZone 3 occupations do not carry that minimum entry qualification. JobZone 4 occupations, on the 
other hand, do. When it comes to selecting wage levels, application of the DOL guidance referenced 
above differs depending upon the JobZone. Consequently, even if the two categories carry the same 
prevailing wage overall, the wage levels of the specific positions would likely differ. The Petitioner 
3 
has resolved none of this. The record as currently constituted does not establish that the LCA 
corresponds to and supports the H-lB petition, and the Director's decision will stand. 
III. ADDITIONAL ISSUES 
Because each of the two issues identified above independently mandates denial of this petition, we 
will not explore in detail the additional issues we have identified on appeal. However, we will briefly 
address them here so that the Petitioner will be prepared to address them in any future H-1 B filings. 
First, the record as currently constituted does not establish the substantive nature of the position, which 
means we cannot determine whether it is a specialty occupation. We discussed the Petitioner's pivot 
from JobZone 3 to JobZone 4 above, which alone calls into question the actual, substantive nature of 
the position. However, we would have questions regarding the nature of the position even ifwe were 
to set that foundational deficiency aside. 
The record does not establish that the proffered position's duties are in fact those of a regulatory affairs 
specialist. The Petitioner describes itself as a retail pharmacy with 3 employees, one of whom is the 
Beneficiary. We note that the Petitioner filed this petition as an amended petition, requesting an 
extension of the Beneficiary's H-lB status. USCIS records indicate that the Beneficiary's prior H-lB 
petition indicated she would provide the services of a regulatory and compliance officer, and that the 
Petitioner filed a corresponding LCA using the SOC code for pharmacists. According to DOL, the 
prevailing wage for pharmacists is approximately double that of a regulatory affairs specialist. 
Furthermore, government records indicate that the Petitioner filed a subsequent H-lB petition (which 
remains pending), and that the LCA associated with that petition uses the SOC code for positions 
located within the "Management Analysts," occupational category, and it designates the position at a 
wage level 1. Such positions carry a higher prevailing wage than either of the occupational categories 
the Petitioner has alternatively identified as appropriate here. The conflicting and varying use of 
different occupational categories filed on behalf of this Beneficiary raises significant credibility 
concerns. More importantly, the information creates ambiguity about the substantive nature of the 
proffered position because the job duties associated with these various occupational categories vary 
greatly. 
Moreover, given the Petitioner's relatively small size - three employees - we have questions regarding 
the Beneficiary's chain of command, both upward and downward. Some of the occupational 
categories designated by the Petitioner require supervision, while others entail the Beneficiary 
supervising others. The record as currently constituted is unclear as to who the Beneficiary would 
supervise, or by whom she would be supervised. This ambiguity raises additional questions as to the 
position's actual, substantive nature. Again, this makes it impossible for us to determine whether the 
position is a specialty occupation. It also raises yet more questions as to the appropriate wage. 
As we have previously stated, to determine whether the Beneficiary will be employed in a specialty 
occupation, we look to the record to ascertain the services the Beneficiary will perform and whether 
such services require the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a bachelor's degree or higher in a specific specialty or its 
equivalent. Without sufficient evidence regarding the duties the Beneficiary will perform, we are 
unable to determine whether the Beneficiary will be employed in an occupation that meets the statutory 
4 
and regulatory definitions of a specialty occupation and a position that also satisfies at least one of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position 
determine: (1) 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Next, if the Petitioner were ever able to successfully establish the substantive nature of the position, 
and that it is indeed a specialty occupation requiring the attainment of a bachelor's degree ( or its 
equivalent) in a specific specialty, there would be questions as to how the Beneficiary's foreign degree 
( equated to a U.S. bachelor's degree in pharmaceutical sciences) would qualify her to perform the 
work described in the petition. The Beneficiary's transcript does not contain a single course on 
regulatory or compliance management or U.S. health care privacy laws, which appear to be a major 
aspect of the proffered positions duties. However, the Beneficiary's qualifications to perform the 
position's duties will become relevant only if and when the position is found to be a specialty 
occupation. Matter of Michael Hertz Assocs., l 9 I&N Dec. 558, 560 (Comm'r 1988) ('The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). 
Finally, we point out that USCIS's recent policy change concerning deference to prior approved 
petitions is not applicable here because the policy concerns extension requests for petitions filed with 
the same facts as the original petition. 2 USCIS Policy Manual A.4(B)(l), 
https://www.uscis.gov/policymanual; see also USCIS Policy Alert, PA-2021-05, Deference to Prior 
Determinations of Eligibility in Requests for Extensions of Petition Validity (Apr. 27, 2021), 
https ://www.uscis.gov/ sites/ default/files/ document/policy-manual-updates/202104 2 7-Deference. pdf. 
That is certainly not the case here; the Petitioner has elected to file this request as an amended petition. 
Because this is not such a petition, there is no prior approval to which we could defer. 
IV. CONCLUSION 
The Petitioner has not established that it is more likely than not that the LCA corresponds to and 
supports the H-1 B petition, and the appeal must therefore be dismissed. The Petitioner's attempt to 
materially alter the petition after its filing further mandates the petition's denial. We have also 
identified shortcomings which, while not grounds for denial here, should be resolved in any future 
H- lB filings. 
Accordingly, the appeal will be dismissed. In visa petition proceedings, it is the petitioner's burden 
to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden under section 214(i)(l) of the act or under any of the 
four criteria found in 8 C.F.R. § 214.2(h)(4)(iii)(A). 
ORDER: The appeal is dismissed. 
5