remanded H-1B Case: Biotechnology Investment

U.S. Citizenship 
and Immigration 
Services 
In Re: 10771689 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 28, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the proffered position was 
not a specialty occupation, and we dismissed the Petitioner's appeal as moot. We have since reopened 
the matter in order to consider the merits of the appeal. Accordingly , we will reinstate the appeal in 
order to consider the Petitioner's brief and evidence. 
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) . While we conduct 
de nova review on appeal, 1 a remand is warranted in this case because the Director's decision appears 
insufficient for review. 
As noted, the Director concluded that the proffered position is not a specialty occupation. However, 
the record of proceedings is not sufficiently developed to allow us to determine whether the proffered 
position is actually located within the occupational category for which the Department of Labor (DOL) 
ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) was 
certified. 2 Without knowing the answer to that question, we cannot determine the actual, substantive 
nature of the position. This means that we cannot make a determination on the specialty occupation 
question based on the current record. 
1 See Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
2 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
attestations and content corresponds with and supports the H-lB petition. See 20 C.F.R. § 655.705(b) ("DHS determines 
whether the petition is supported by an LCA which corresponds with the petition .... "). See also Matter of Simeio 
Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). When comparing the standard occupation classification (SOC) code 
or the wage level indicated on the LCA to the claims associated with the petition, USCIS does not purport to supplant 
DOL 's responsibility with respect to wage determinations . There may be some overlap in considerations , but USCIS ' 
responsibility at its stage of adjudication is to ensure that the content of the DOL-certified LCA "corresponds with" the 
content of the H-lB petition. 
As presently constituted, the record does not appear sufficient to establish that the LCA corresponds 
with and supports the petition. 3 It is unclear from the record whether the Petitioner established that 
the proffered position's duties actually correspond with those of positions located within Standard 
occupational Classification (SOC) code 19-1029, corresponding to the occupational title "Biological 
Scientists, All Other" as designated by the Petitioner on the LCA. 
DOL requires the U.S. employer to select the SOC code with 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. Stated plainly, the employer must compare the 
proffered position's stated duties with the overall information found in Occupational Information 
Network's (O*NET) and select the occupation that most closely matches the employer's duties. If the 
employer's duties include requirements described in a combination of O*NET occupations, the DOL 
guidance instructs employers to default to the relevant SOC code for the highest paying occupation. 
It does not appear that the Petitioner followed the DOL guidance when it selected the O*NET 
occupation for the LCA. The majority of the proffered position's duties appear laden towards those 
found in the O*NET entries for "Financial Analysts," classified under SOC code 13-2051, or 
"Investment Fund Managers," classified under SOC code 13-9199.03. 4 
Specifically, we note that the Petitioner, a venture capital company, seeks to employ the Beneficiary 
in the position of "biotechnical investment analyst." According to its description of the duties to be 
performed, the Beneficiary will "help source and evaluate international investments." She will spend 
60% of her time sourcing and conducting due diligence of investment opportunities, which includes 
collating potential investment opportunities and presenting them to the directors of the company. The 
remaining 40% of her time will be devoted to supporting of portfolio companies, which the Petitioner 
states requires developing a business plan and budget, setting up operations and hiring managers. 
Overall, the Beneficiary's duties appear focused on recommending and identifying investments for the 
Petitioner and monitoring developments in the biotechnology, medical, and educational technology 
sectors to help identify the best prospects for investment for the Petitioner's portfolio companies. It 
does not appear that the Beneficiary will be primarily performing the duties of a scientist, although 
the Petitioner states that her scientific background will assist her in performing her duties. 
For the above reasons, the Petitioner's selection of the "Biological Scientists, All Other" occupational 
category does not appear to have been correct, and the Director should first determine whether this 
LCA corresponds with and supports the petition. 5 
3 See 20 C.F.R. § 655.705(b); Simeio Solutions, 26 I&N Dec. at 546 n.6. 
4 For additional information, see O*NET OnLine, available at https://www.onetonline.org/link/summary/15-l l 99.10 (last 
visited Sept. 22, 2020). 
5 We further note that the compensation for Financial Analysts and Investment Fund Managers for the same location and 
timeframe is significantly higher than the wage the Petitioner indicated it would pay to the Beneficiary. Compare the 
wages for Biological Scientists with those for Financial Analysts and Investment Fund Managers, respectively, on the 
Foreign Labor Certification Data Center, Online Wage LibraLJFLC Wage Search Wizard at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= 19-1029&area year= l 8&source= 1 (SOC 19-1029); 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= 13-2051 &area -,=!~YfW= l 8&source= 1 (SOC 13-2015); 
and https://www.flcdatacenter.com/OesQuickResults.aspx?code= l 1-9 l 99&area=L______lc'ityear= 18&source= 1 (SOC 11-
9199 .03) (last visited Sept. 22, 2020). 
2 
Accordingly, the matter will be remanded to the Director to consider the LCA issue and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
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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