remanded H-1B Case: Food Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 10861399 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 5, 2020 
The Petitioner, a food testing laboratory , seeks to temporarily employ the Beneficiary under the H-IB 
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 H-IB 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 qualified as a specialty occupation. On appeal, the Petitioner 
submits additional evidence and asserts the Director erred in denying the petition . 
Upon de nova review, we conclude that the preponderance of the evidence satisfies the "specialty 
occupation" definition at 8 C.F.R. § 214.2(h)(4)(ii) and also the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4) for a particular position whose specific duties are so specialized and complex 
that their performance requires knowledge usually associated with attainment of a baccalaureate or 
higher degree in a specific specialty . The Petitioner sufficiently developed the position's duties that it 
demonstrated a nexus between an established course of study leading to a specialty degree, and how 
such a curriculum is necessary to perform the proffered position 's specialized and highly complex 
duties. Therefore, the record satisfies the fourth criterion of the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), and we withdraw the Director 's decision . 
However, the record appears to support a determination that the prevailing wage rate designated on 
the Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA) was not correctly calculated based on the Petitioner's position 
requirements. 1 
1 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) ("DRS 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 
Step three of the process for determining the appropriate wage level relates to "Education." Under 
step three, the DOL guidance concentrates on comparing the Petitioner's minimum education 
requirement to that contained in Appendix D of the DOL guidance. However, the Biological 
Technicians category is not listed in Appendix D. 2 For occupations that are not listed in Appendix D, 
the DOL guidance states: "[U]se the education level for what 'most of these occupations' require or 
'these occupations usually require' described in the O*NET Job Zone for that occupation." The 
O*NET entry for Biological Technicians provides that most of these occupations require a four-year 
bachelor's degree, while some do not. The Director should consider whether the Petitioner's 
minimum educational requirements were more than what "most occupations require" in O*NET for 
this particular occupation, which would result in an increase in the wage by one level. 
Here, the Petitioner obtained an LCA certified under the Standard Occupational Classification (SOC) 
code 19-4021, relating to "Biological Technicians" at a Level I prevailing wage rate. While it appears 
the Petitioner selected the most appropriate SOC code, what is unclear from the present record is 
whether it properly designated the prevailing wage at a Level I wage rate. 
We cannot issue an ultimate eligibility determination because a position that satisfies the statutory and 
regulatory requirements of a specialty occupation, but is one in which the organization would not pay 
the appropriate wage, cannot be approved. Those conditions violate section 212(n)(l) of the Act and 
the intent to protect the wages and working conditions ofU.S. workers. We therefore are withdrawing 
the Director's decision and remanding the matter for further review of the record and issuance of a 
new decision. Specifically, the Director should first make a determination on whether the Petitioner 
included the correct wage rate on the LCA, and that it therefore corresponds to and supports this H-1 B 
petition. 
As the Petitioner was not previously accorded the opportunity to address the 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. 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. 
or the wage level indicated on the LCA to the claims associated with the petition, USCTS does not purport to supplant 
DOL's responsibility with respect to wage determinations. There may be some overlap in considerations. but USCTS' 
responsibility at its stage of adjudication is to ensure that the content of the DOL-certified LCA "corresponds with" the 
content of the H-IB petition. 
2 See Step 3 of the DOL, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC Guidance 
Revised 11 2009.pdf. Appendix D provides a list of professional occupations with their corresponding usual education 
level. 
2