remanded H-1B Case: Biochemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 11860621 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "biochemist" under the H-lB 
nonimmigrant classification for specialty occupations. Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(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 California Service Center denied the petition , concluding that the record did not 
establish that the proffered position is a specialty occupation. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 1 While we conduct de novo review on appeal, we conclude that a 
remand is warranted in this case for the following reasons. 2 
I. ANALYSIS 
The Petitioner describes itself on the Form 1-129, Petition for a Nonimmigrant Worker, as an 
environmental testing laboratory and services company, established in 1987. In its initial letter in 
support of the petition, the Petitioner states that it "provide [s] premium quality environmental and 
chemical analyses, at competitive rates." The Petitioner seeks to employ the Beneficiary in-house as 
a "biochemist" on a part-time basis for 34 hours per week and designates the proffered position on the 
labor condition application (LCA) 3 as being located within the "Biochemists and Biophysicists" 
occupational category, corresponding to the standard occupation classification (SOC) code 19-1021 
at a level II wage. 
1 Section 291 of the Act ; Matter ofChawathe, 25 I&N Dec . 369,375 (AAO 2010). 
2 Matte r of Christo 's Inc., 26 I&N Dec . 537,537 n.2 (AAO 2015) . 
3 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 who are performing the same services . See Section 
212(n)(l) of the Act; 20 C.F.R . § 655.731(a) . 
The Petitioner initially provided a broad description of the proffered position that does not appear to 
correspond to the SOC code selected on the designated LCA. On appeal, the Petitioner provides a 
different list of duties. As we will discuss in this decision, we decline to consider this new evidence 
and will instead remand the matter for farther action so that the Director may consider it in the first 
instance. 
A. Basis of Remand 
On October 11, 2019, the Director issued a request for additional evidence (RFE) addressing three 
evidentiary deficiencies in the record. First, the RFE requested evidence to establish that the Petitioner 
had sufficient work available to employ the Beneficiary. Second, the RFE requested evidence to 
establish the Beneficiary's qualifications to perform the services of a biochemist. Lastly, the RFE 
requested additional evidence to establish that the Beneficiary had maintained her nonimmigrant 
status. On December 21, 2019, the Petitioner timely responded to the RFE and provided additional 
evidence addressing these three issues. The Director's decision, however, was based on a fourth and 
distinct issue not addressed in the RFE or RFE response. Specifically, the Director concluded that the 
record contained insufficient evidence to establish that the position qualifies as a specialty occupation 
under at least one of the four regulatory criteria enumerated at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A)(])-( 4). 
On appeal, the Petitioner responds to the issue of whether the position qualifies as a specialty 
occupation and provides a different position description as well as the percentage of time the 
Beneficiary will devote to her duties and the coursework she took that would prepare her to perform 
her work For re first time on appeal, th P i i n r 1 n itled "EPA Contract 
I _ and an associated EPA Statement of Work 
(SOW) relating to .__ ________________________ __.'4 
We have carefully considered whether we can or should review this newly-submitted evidence on 
appeal. Multiple precedent decisions address whether such evidence on appeal will be considered. 
First, in Matter of Obaigbena, 19 I&N Dec. 533, 53 7 (BIA 1988), the Board of Immigration Appeals 
(Board) determined that where a petitioner fails to timely and substantively respond to agency 
correspondence, the appellate body will not consider any evidence first offered on appeal as its review 
is limited to the record of proceeding before the district director. Further, in Matter of Soriano, 19 I&N 
Dec. 764,766 (BIA 1988), the Board held that if a petitioner was put on notice of an evidentiary 
requirement (by statute, regulation, form instructions, an RFE, notice of intent to deny, etc.) and given 
a reasonable opportunity to provide the evidence, then any new evidence submitted on appeal 
pertaining to that requirement would not be considered, and the appeal would be adjudicated based on 
the evidentiary record before the director. 5 Conversely, if that petitioner had not been put on notice 
of the deficiency or given reasonable opportunity to address it before the denial, and on appeal submits 
4 In its RFE response, the Petitioner attempted to include this voluminous evidence by providing a website link, however 
the Director correctly determined the evidence to be outside the record of proceeding. 
5 See also Matter of Jimenez, 21 l&N Dec. 567, 570 n.2 (BIA 1996), which found that claims of eligibility presented for 
the first time on appeal were not properly before the appellate authority, and that the appellate body would not issue a 
determination on the new eligibility claims. 
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additional evidence addressing the deficiency, the record would generally be remanded to allow the 
Director to initially consider and address the newly-submitted evidence. 6 
Where, as here, the Director did not put the Petitioner on notice of the deficiency in the evidence with 
respect to whether the position qualifies as a specialty occupation, and the Petitioner has submitted 
new evidence to address the deficiency, we will not consider the new evidence and will instead 
remand. While a remand is appropriate, we wish to note that the record before the Director contained 
several ambiguities regarding the substantive nature of the position, which we believe do call into 
question whether the position qualifies as a specialty occupation. Accordingly, the Director may want 
to also consider the issues outlined below. 
B. Considerations on Remand 
As stated above, the Petitioner designated the pos1t10n under the SOC for "Biochemists and 
Biophysicists" on the LCA. It appears that the incorrect SOC may have been designated on the LCA 
based on the Petitioner's initial description of the duties. When comparing the duties of the proffered 
position to those provided in the Occupational Information Network (O*NET), it does not appear that the 
Petitioner selected the appropriate SOC code for the proffered position. According to O*NET, 
biochemists and biophysicists generally: 
Study the chemical composition or physical principles of living cells and organisms, their 
electrical and mechanical energy, and related phenomena. May conduct research to further 
understanding of the complex chemical combinations and reactions involved in 
metabolism, reproduction, growth, and heredity. May determine the effects of foods, 
drugs, serums, hormones, and other substances on tissues and vital processes of living 
organisms. 7 
O*NET provides a list of 24 tasks related to the occupation for biochemists and biophysicists. While 
we acknowledge that some of these tasks may relate to the duties of the proffered position, it appears 
that the O*NET entry for environmental science and protection technicians, including health (SOC code 
19-4091) is more closely aligned with the position. 8 According to O*NET, environmental science and 
protection technicians, including health generally: 
Perform laboratory and field tests to monitor the environment and investigate sources of 
pollution, including those that affect health, under the direction of an environmental 
scientist, engineer, or other specialist. May collect samples of gases, soil, water, and other 
materials for testing. 
Furthermore, many of the 25 tasks listed for an environmental science and protection technicians, 
directly relate to the proffered position. 
6 Soriano, 19 l&N Dec. at 766. 
7 See https://www.onetonline.org/link/summary/19-1021.00. 
8 See https://www.onetonline.org/link/summary/19-4091.00. 
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In addition, we note that the Department of Labor's Occupational Outlook Handbook (Handbook) 
provides that a biochemist and biophysicist position generally requires a Ph.D., and that a bachelor's 
and master's degree holder would generally only qualify for an entry-level position. 9 Here, the 
Petitioner has designated the position as a level II wage on the LCA, which does not correspond to an 
entry (level I wage) position. The Beneficiary of this petition does not hold a Ph.D. and therefore, the 
Petitioner's choice of SOC and wage level on the LCA conflicts with the Handbook's educational 
qualifications for the proffered position thereby creating farther ambiguity about the substantive nature 
of the proffered position. 
In light of the above, the Director should compare the job descriptions the Petitioner provided in its 
initial filing, and on appeal to the complete list of tasks provided for biochemists and biophysicists in 
O*NET to determine whether the Petitioner selected the most appropriate SOC code. The Director 
should then determine whether the record satisfies the regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(l), 
which requires a petitioner to obtain certification from DOL that it has filed an LCA "in the 
occupational specialty in which the alien( s) will be employed" and if the petition is supported by an 
LCA that corresponds to the petition under 20 C.F.R. § 655.705(b). 
We note too that the Petitioner's RFE response contradicts other evidence leading to more ambiguity 
and questions regarding the substantive nature of the position. The purpose of an RFE is to elicit 
farther 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, a 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. A petitioner must 
establish that the position offered to a 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, a petitioner must file a new petition 
rather than seek approval of a petition that is not supported by the facts in the record. 
Here, the Petitioner initially describes the position as requiring a bachelor's degree in chemistry, 
biochemistry, biotechnology, or a related field. In its RFE response, the Petitioner changes the 
minimum qualifications for the position to a bachelor's degree in biochemistry, biotechnology, or a 
closely related field such as pharmaceutical science. The Petitioner provided an expert opinion letter 
which also changes the minimum qualifications for the position to a bachelor's degree in biochemistry, 
biotechnology or a related field and the expert opinion fails to mention a pharmaceutical science 
degree. The record before the Director did not explain how the different degree fields impart the 
required "body of highly specialized knowledge" and how each field is directly related to the duties 
and responsibilities of the position. 10 Section 214(i)(l )(B) of the Act. As a result, the Director may 
wish to examine if the evidence on appeal supports finding that the Petitioner has met its burden or if 
9 See https://www.bls.gov/ooh/life-physical-and-social-science/biochemists-and-biophysicists.htm#tab-4. 
10 The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber 
candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. We 
disagree with any inference that a degree that prepares an individual to perfonn a position is the same as a degree that is 
required in order to perform the duties of the proffered position. Put simply, stating that a person with a bachelor's degree 
in a particular discipline could perform the duties of the proffered position is not the same as stating that such a degree is 
required to perform those duties. 
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it creates more ambiguity regarding the substantive nature of the position or the mm1mum 
qualifications for the position. 
On appeal, the Petitioner claims that the Beneficiary will provide chemical analysis under the SOW 
and will be assigned to the EPA Superfund project I ~ 
The Petitioner explains that the chemical analysis data is used for a variety of purposes such as 
determining the nature and extent of contamination at a hazardous waste site, assessing priorities for 
response based on risks to human health and the environment, determining appropriate clean-up 
actions, and determining when remedial actions are complete. However, the initial description of the 
position does not contain any mention of the Beneficiary's work on the EPA Superfund project or of 
the organizational hierarchy within which the Beneficiary will work. These inconsistencies create 
ambiguity regarding the substantive nature of this position because we are unable to determine the 
scope of the EPA project and the services to be performed by the Beneficiary. 
With the record before the Director, the Petitioner had not established the substantive nature of 
proffered position. A few errors or minor discrepancies are not reason to question the credibility of a 
beneficiary or a petitioner seeking immigration benefits. See, e.g., Spencer Enterprises, Inc. v. United 
States, 345 F.3d 683, 694 (9th Cir. 2003). However, doubt cast on any aspect of a petitioner's proof 
may undermine 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). 
The record therefore does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the 
substantive nature of the Beneficiary's services that 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. 
II. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the deficiencies and 
inconsistencies in the record discussed above, we will remand the record for further review of these 
issues. The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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