remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17101935 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 14, 2021 
The Petitioner, a provider of scientific instruments, consumables, and services company, seeks to 
temporarily employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. 1 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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position is a specialty occupation and that the Beneficiary qualifies for the position. 
However, while this appeal was pending, the U.S. Court of Appeals for the Ninth Circuit issued a 
decision in Innova Sols., Inc. v. Baran, 983 F.3d 428 (9th Cir. 2020). Because the analysis utilized by 
the Director in arriving at her conclusion on the specialty-occupation issue appears impacted by that 
decision, we deem it appropriate to remand the matter for the Director to consider the question anew. 
With that said, however, we observed several issues as we reviewed the record of proceeding that the 
Director may wish to consider as she conducts her own review. 
The Petitioner states the Beneficiary will be employed as a "Manufacturing Execution Systems (MES) 
support analyst" and provides the following job duties for the position: 2 
• Design and document system use processes and procedures for customer review and 
approval - 50% 
• Develop and manage workflows based on Information Technology solutions and oversee 
Change Management activity for MES IT - 20% 
• Evaluate and Provisioning of users - 10% 
• Perform MES startup activities - 10% 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 The proffered position's duties are described in various levels of detail throughout the record. This list of duties comes 
from the Petitioner's initial letter of support. For the sake of brevity, we will not quote the entire description, however we 
have reviewed and considered the descriptions contained in the Petitioner's response to the Director's request for evidence 
(RFE), and counsel's appeal brief. 
• Assist with typical/reoccurring errors that users might come across, such as terminal 
connectivity issues, incorrect user rights, etc. - 5% 
• Provide 24/7 application support for W erum P AS-X, Orchestrate and Blue Mountain 
Regulatory Asset Manager. Also resolve technical issues during system implementation 
and release development - 5% 
According to the Petitioner, the minimum qualifications for the position are a bachelor's degree in 
pharmacology or a closely related field. On the labor condition application (LCA) submitted in 
support of the H-1 B petition, 3 the Petitioner designated the position within the occupational category 
"Computer Systems Analysts" corresponding to the standard occupational classification (SOC) code 
15-1121. The Petitioner submitted a LCA covering two work locations. The first location is in 
Massachusetts ( at the Petitioner's headquarters) and the position is designated at a Level I wage. The 
second location is in New York (at the end-client's offices) and there, the position is designated at a 
Level II wage. The Petitioner does not provide an explanation for the differing wage levels at the two 
work site locations. A position's level of responsibility within an organization is important for 
determining whether the certified LCA corresponds to and supports the position. 
According to the U.S. Department of Labor's wage-level guidance, petitioners must follow a five-step 
process for determining the appropriate wage level on the LCA. 4 If the Petitioner followed the five­
step process outlined above, it would appear as though the position should have been designated the 
same wage level on the LCA unless the duties of the position were to change significantly from one 
location to the other. The differing wage levels for the same position seems unusual, and it raises 
questions regarding the substantive nature of the position and whether the accompanying LCA 
corresponds to and supports the petition. 5 
3 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l). According 
to section 212(n)(l )(A) of the Act, an employer must attest that it will pay a holder of an H-lB 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 S:vs., Inc., 417 F.3d 
418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 20 IO); Michal Vojtisek-Lom & Adm 'r 
Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. 
July 30, 2009). 
4 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. 
5 To determine whether the Beneficiary will be employed in a specialty occupation, we look to the record to asce1iain 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 Beneficiaiy will be employed in an occupation that meets the statutmy 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 entty into the particular position, 
which is the focus of criterion 1; (2) industty 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). 
2 
Furthermore, as we reviewed the detailed duties and the work product provided, we were unable to 
ascertain which duties require a degree in pharmacology, which also calls into question the substantive 
nature of the position. For example, according to the description under the first duty6 - design and 
document system use processes and procedures for customer review and approval - the Beneficiary 
will perform the following nine tasks: (1) Support various [listed] MES systems; (2) Understand 
regulatory guidelines by FDA and implementing the FDA guidelines with Standard Operating 
Procedures []provided by the [end-client]; (3) Provide project execution leadership and mentor fellow 
project members for Client Manufacturing Systems support in Ireland; 7 (4) Create the framework and 
strategy for development of MES under the guidance of the customer; (5) Design and document[] 
various system events and updates by coordinating with customer and archiving all data for audits as 
required by the FDA; (6) Good understanding of the Software Development Lifecycle [] within the 
manufacturing system; (7) Create High Level Design (HLD) document corresponding to functional 
requirements as defined by Client; (8) Develop technical training documentation pertaining to system 
design, administration, and development tools; and (9) Develop and implement new processes for 
MES and guide MES IT support team in this implementation. 8 None of the above described duties 
appears to directly relate to a degree in pharmacology, which raises questions regarding the substantive 
nature of the position. 
In addition, many of the position's duties include vague terms such as "maintain good understanding," 
"support," "provide project execution," and "create ... document ... as defined by Client." These 
duties do not appear to sufficiently explain the substantive nature of the proffered position for us to 
infer how a degree in pharmacology would relate to the duties. The Director may wish to examine 
whether a more substantive and meaningful job description from the Petitioner would help to establish 
the substantive nature of the position, i.e. the actual work the Beneficiary would perform and thereby 
the level of education and knowledge necessary to perform the duties of the position. 
On appeal, the Petitioner argues that the Beneficiary will apply her knowledge of pharmacology in the 
context of the Petitioner's "complex business operations" and argues that "[t]o successfully deliver 
results that enhance [the Petitioner's] operations, the incumbent must have a strong understanding of 
[its] business operations." It is true that USCIS is required to consider a position's duties in the context 
of the Petitioner's overall business, however it is the position itself: more so than the complexity of 
the Petitioner's mission or operations, that is relevant to an analysis of whether the degree required is 
related to and necessary to perform the duties of the proffered position. A degree in a field related to 
a business' operations could be useful for any employee to have, however, that is not the standard 
applied in determining if a position is a specialty occupation. USCIS must examine the ultimate 
6 This duty is said to require half of the Beneficiary's time. 
7 We agree with the Director that the level of responsibility of the position is unclear due to the position requiring 
mentorship of fellow project members. As stated above, the level of responsibility would affect the wage level designated 
on the LCA if the Petitioner correctly utilized the five-step process provided by DOL guidance. In particular. step five 
focuses on supervisory duties. However, as the Director did not deny on account of the incorrect wage level on the LCA, 
upon remand, the Director may wish to examine this issue more closely. 
8 On appeal, the Petitioner adds two additional tasks associated with this duty to include: (1) Ensure documentation 
generated meets the regulatory requirements of CFR 21 pati 11 and the applicable global regulations related to the activities 
being performed; and (2) Work with executive level TT specialists to break down complex processes into repeatable steps 
to ensure consistent execution of tasks within qualified software environments. The Petitioner did not provide any 
explanation for how these additional tasks relate to the knowledge acquired during pursuit of a degree in pharmacology, 
therefore, they appear to create further ambiguity in the record regarding the substantive nature of the position. 
3 
employment of the beneficiary and determine whether the position qualifies as a specialty occupation 
based on the duties of the position within the context of a petitioner's business. See Royal Siam Corp. 
v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" 
as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. 
Meissner, 201 F.3d 384, 387 (5th Cir. 2000). In sum, the complexity of the Petitioner's business 
operations or mission, alone, would be insufficient to find that this position is a specialty occupation 
unless the duties of the position itself require specialized knowledge in the field of pharmacology. 
The Petitioner provided a chart which highlights three courses taken by the Beneficiary during her 
bachelor's and master's degree coursework, and attempts to show how these courses relate to the 
duties of the position. 9 While three courses may prepare an individual to perform tasks relevant to the 
position, three courses are not sufficient to establish specialized knowledge equivalent to a bachelor's 
degree. Rather than show that the position requires an individual with a degree in pharmacology, the 
chart appears to show that to qualify for the position, the holder must have IT and data administration 
skills along with general knowledge of the pharmaceutical and manufacturing industry, which is not 
the minimum qualifications of the position. 10 This discrepancy appears to create further ambiguity 
regarding the substantive nature of the position. 11 
As the Ninth Circuit's Innova Sols., Inc. decision directly affects the Director's analysis of the 
specialty-occupation issue and the Petitioner was not previously accorded the opportunity to address 
the concerns identified above, we will remand the record for further action. 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. Accordingly, the following order 
shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
9 The first course is "CPI - 10 Database Design and Management," which the Petitioner argues provides the Beneficiary 
with the knowledge to perform data administration tasks and restore the databases of qualified systems and software. The 
second course is "Advances in Pharmacology," which the Petitioner states imparts knowledge of the manufacturing and 
drug substance analysis necessary for the position. The last course identified is "Pharmaceutical Engineering," because it 
focuses on the production, characterization, and usage of pharmaceutical materials, which is knowledge needed to design 
and document systems use processes. 
10 We note that the Petitioner's business o erations are not limited to the pharmaceutical See 
https:/~---.----------.--------------......,_......,......._.--"'-"""""'--'-'-'......,_....._.,..__...,,,_.,.......,_,___..........,..,,,,._.....,c......J"""'-......., 
Petitioner's website, it's mission is to 
~-----------~----~ Therefore, applying the Petitioner's logic, it appears degrees in fields 
as disparate as food science, nutrition, biology, finance, medicine (among others) may be helpful and relevant to the 
Petitioner's business and would also equip the holder of the proffered position with sufficient knowledge to carry out the 
duties. 
11 Reviewing the work product provided, we note that the documents do not sufficiently demonstrate why a degree in 
pharmacology would be relevant to the position. 
4