dismissed H-1B Case: Pharmacy

U.S. Departmeark of Homeland Security 
20 Mass. Ave. W.W., Rm. A3042 
Washington, DC 20529 
Um S. Citizenship 
md Immigration 
FILE: EAC 04 033 541 60 Office: VEMONT SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigant Wo~ker Furscant to Section 101(a>(15)(W)(i)(b) of the 
Emmigration and Nationality Act, 8 U.S.C. 3 1 101(a)(l59(H)Qi)(b) 
ON BEHALF OF PETlTEONER: 
This is the decision of the Admmisb-atsve Appeals OfEce in your case. A3 documents have been returned to 
%he office that originally dec~ded your case. Any further inqusry must be made to that of5ce. 
Robe3 P. Wiernann, Director 
Administrative Appeals Office 
EAC 06 033 54160 
Page 2 
DISCUSSION: The director of the service center denied the nonimigrant P.isa petition and 4e matter 1s now 
before the Admmlstrative Appeals Offnce (M0) on appeel. The appeal wili be d:sm~ssed. The petlfion wall be 
denied. 
The petitloner is a pharmacy in the State of New Yo~k. In order to employ the beneficnary as a phamac~st, 
the petntioner endeavors to classify the beneficiary as a nonim1g2nt worker in 2 specialty occupation pssuant 
to sectio~ 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8U.S.C. 
§ 1 1Ol(a)Q15B(B)41)(b). 
The drrector dela:ed the petntaon on the basns that the petitloner had faded to prov~de evdence that the 
3eneficiax-y was a.rntho.-lzed to practice es a pkamac~st nn the State of New York. Prror to her declsaon to deny 
:he petitnon, tke &rector had issued a request for evzdence (WE) that included thns request: 
Please subm~t a copy of the benzeficnary's Incense to pract~ce the occ~pabon of phamacnst m 
the %ate sf New York. If law or reguiat~ons prohaht mak~ng a copy, the ong:nai must be 
ssabmtted. You must s~bm~t ellher ev~dence of a kcense, a letter from the Bncensmg a~thonty 
statnng thafl~lcensure w~ll be granted upon amval, or an omgnnal letter from the appropnate 
Iacensnng authority statmg that hcensu-re IS not requred. 
The perttnent part of the February 16, 2804 letter submitted an response to the WE states that the "oenefic~ary 
IS not Incensed BHI the State of New York, and that "he ns cot requared to have a incense to practace an the 
phamaceutlcal field because he IS requestmg a vlsa under level one pkamac~st." The 2:rector's decnsnon 
noted that the petntnoner faded to prov~de the evldence regard~ng S~censure that was reqcested m the ME, and 
the dec~sioc conrectiy d~scotunted the assert~on that lacensure ns s,ot requred. As correctly stated by the 
darector, "Assert~ons alone are not suf5elent evadence." 
Section 3 of the Form I-290B containzs the only statement presented on appeal. There counsel states: 
Hrnrnigrat~on Consrnliatnon Sen71ces, wkzch srepared the subm:tted 1-129 Petltlolz for a 
Won~nn_iga~t Worker for [the] petnhoner, on [the] benefic~ary's behalf, states nt ~ece~ved 
nnfomatnon from credible sources that [the] benefic:ery did not need a lacense to work .n 
[the] described go3 tntle. Imgat~oc Consultation Semnces relred on thns infomatlon m 
su3mattang the 1-129 pet~taon and response to the request for addntaonal nnfomataon. The 
submlt:ed ~nfonnatnon would sdffice to have [the] beneficiary's ronmtn~grm: classnficatnon 
approved. 
Section 214(1)(2)(A) of the Act, 8 U.S C. $ 1186.(1)(2)(A), states that an allen applymg for class15catnon as zn 
B-4B aona~mmgrant worker mxst possess "full state l~censure to practnce nn the occupatlon, ~f such B~censwe 
IS req~ared :o psactnce m the occupataon " The regulat~ons on the licensure requirements for EI-IB a~d other 
H nonammngant classaficat:ons are at 8 C.F.R. tj tj 2!4.2(h)(v)(A) to (E). 
Pursuant to the regulat~on at 8 C.P.R. 5 214.2(h)(v)(A), nf an occupakon requires a state or local license for 2n 
indiv~dual to fully perform the duties of the occqat~on, an allen (except zn H-1C nurse) seeh~g H 
EAC C4 033 54160 
Page 3 
classnfica5on in that occupatron must have that l~cense prior to approval of the pet::ion to be fomd qnaliEed 
to enter the United S:a:es and immediately engage In ernployanent in the occupation. 
Bmsuant to 8 C.Y.R. 5 214.2(1a)(v)(B), if a temporary l~cense IS avaalable and the aiaen 1s allowed to perfom 
the dutaes of the occrapat~on watho~t a permanent Iacense, the d~rector shall examnne the amatrare of the drtles, 
the level at whach the dukes are performed, the degree of supervasnon received, and any Bnm~tat~ons placed on 
the allesr. If an analys~s of the facts demonstrates that the alien mder supervaslon IS a~thonzed to fully 
perfom the duties of the occupat~on, H classaficatson may be granted. 
%%ere l~censure as requareht m any occ~~patlon, 8 C F.R. $ 214.2(h)(v)(E) specifies that the W petnt~on may 
only Se approved for a penod of one year or for the period that the tempora~ Incense 1s valid, whichever IS 
longer, unless the aPnen already has a permanent hcense to practace the occupat~on. 331s reg'olht~on also 
provades that an ahen who as accorded H classaficat~on m an occcpat~on whach requnres B~censuse may not be 
granted an extexsaon of stay or accorded a new H classnficat~on after the one year, unless he or she has 
(1) obtanned a pemanent jncense ~n the state of ictended employment, or (2) cont~nues to hold a, temporary 
Bacense valad rc the same state for the penod of the requested extensaon 
Sectnor, 6801 of Article 13'7 (Pharmacy) of Title VIII (The Profess~ons) of the New York State Consoladated 
Laws defines the pract~ce of phamacy as "the preparing, conpoundmg, presewzng, or t3e d~spenssng of 
drugs, medacmes, and therapeutac devaces on the bas~s of prescr~pt~ons or other legal XJ~~QTIQ." Sect~o~ 6863 
of that same Macle states. "Only a persona lacensed or asthenvase authorized under thas af~ncle shall practnce 
phamacy w Jse the tatle 'phamaclst' or any derivative." The htemet site of the Office of Professaons of the 
1 New York State Department of Educatnon pertment to the practice of phamacy includes thas anfomataon 
about 1:censure reqmrernents: 
hy use of the title '"hannacistl%with~n New York State requires licenseee. To be licensed as 
a 7"nzmacnst in New Uork State you must: 
e of good moral character; 
a be ~t least 21 years of age; 
o meet education, exanination, and experience requirements; and 
0 be a United States citizen or alien lawfulally admitted for permanent residence in the 
Unated States (Alien RegistPation Card /USCIS 1-551 Status - "Green Card"). 
1 The sect~on of the Office of Professions Internet snte that spec15cally addresses phamac:st Iacens~re 1s 
ww.op.nysed.gov/phamlIc.htm. 
EAC 04 033 54160 
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Thee Yenr Limited License 
Appl~cants who have met all other reqmrements for licensure as 2 phamacnst, but hwe r,ot 
achieved United States citizenship or permanent residentalien status, may be el~gible for a 
one-time, three-year Pimrted P~cense. An extension of the thee-year limited Incense oz" not 
more than one year may be granted. The a:~tkority of the Board oCRegents to gznt thee-year 
lamted lncenses (or extensions of those I~censes) exp:res September 30,2006. 
As indicated in the following excerpt from the letter of response to tile WE, the beneficiary would be 
pradticnng as a pharmacist as that profession is defined by the State of New York: 
As a pharmacist, [the beneficiary] will pe~fom the following duties: Reviewing prescriptions 
issrned by physicians to guarantee accuracy weighing, measuring and mixing ingredients. 
Compounding and dispensing prescribed phamaceeiticaBs, Consulting with pharmacy 
custoners, providing them with information of dmg interactions, side effects, dosage and 
storage of pharmaceuticals. He will enter the patient's data[,] prescribed medication and 
cost. He will also assay medications to determine identity and strength. This wi;P be a full 
time employment for [the beneficiary]. 
The burder of proof In these proceedmgs rests solely wrth the petltnoner. Sect~on 291 of the Act, 8 U.S.C. 
4 1361. The petnt~oner has failed to meet that burden which, an the context of this particular t;roceeding, 
would requlre the petitioner to establash that the beneficlaw 1s author~zed to pract~ce as a pkamaclst in the 
State of New York w~thout a Incense. Co~nsel ad the petltloner provide no ev~dence to support t3e asseartlons 
that licensxre :s not requi~ed. Gor~g on record w~thout supportmg documentary ev~dence as not s~fficient for 
purposes of meeting the bcrden of proof In these proceedings. Matter ofsoffici. 22 I&N Dcc. 158, 165 
(Comm. 1998) (catang Matter of Treasure Craft of California, 14 H&N Dec. 190 (Reg. Conm. 1972)). 
Withod docranrmentav evidence to support the clzim, the assertnms of counsel w~ll not satisfy the petatloner's 
burden of proof The unsupported assertnons of counsel do not const~tute evndence. Matter ofObaigbena, 19 
E&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 H&N Dec. 1 (BM 1983); Matter ofRanzirez-Sanchez3 
13 H&N Dec. 503,506 (BIA). 
As the petitioner has not s~staired the bwden of proof specified at section 29; of the Act, 8 U.S.C. 4 4,361, 
the appeal will be dismissed. 
O~ER: Tke appeal is dismissed. The petiko~ is denied.