remanded H-1B Case: Pharmacy

U.S. Citizenship 
and Immigration 
Services 
In Re: 8866229 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 5, 2020 
The Petitioner, a community retail pharmacy, seeks to temporarily employ the Beneficiary as a 
"regulatory and compliance analyst" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 Vermont Service Center denied the petition on two separate grounds, concluding 
that the record does not establish that: (1) the proffered position qualifies as a specialty occupation 
and (2) the Beneficiary is qualified for the proffered position. The matter is now before us on appeal. 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision is insufficient for review. Specifically, the Director must determine 
whether the proffered position 1) 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, 1 and 2) qualifies for classification as a specialty 
occupation . We therefore are withdrawing the Director's decision and remanding the matter for 
further review of the record and issuance of a new decision. 
On the LCA, the Petitioner designated the proffered position under the occupational category for 
"Pharmacists," corresponding to the Standard Occupational Classification (SOC) code 29-1051. 2 The 
Petitioner selected a Level I wage as corresponding to the job requirements, necessary experience, 
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) ("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. 
2 See https://www.onetonline.org /link/summary /29-l 051.00 
education, special skills, and other requirements of the proffered position. On appeal, the Petitioner states 
that the duties of the proffered position overlap several O*NET occupations, thus the Petitioner chose the 
highest-paying occupation, which is that of a pharmacist. The Petitioner also concedes that "the 
[B]eneficiary will not be carrying out the duties of a [p ]harmacist" in the proffered position and that the 
regulatory and compliance analyst "is an independent position with a focus on compliance with 
pharmaceutical regulations and assistance with the maintenance of crucial pharmacy standards." 
While the Director briefly acknowledged that the proffered position is not that of a pharmacist in her 
decision, she did not address the LCA designation, nor did she analyze the duties of the proffered position 
to determine whether the correct occupational category was selected on the LCA. The Director should 
compare the duties of the proffered position to those provided in the Occupational Information Network 
(O*NET). The DOL's "Prevailing Wage Determination Policy Guidance" provides clear guidance for 
selecting the most relevant O*NET occupational code classification, as follows: 
In determining the nature of the job offer, the first order is to review the requirements of 
the employer's job offer and determine the appropriate occupational classification. The 
O*NET description that corresponds to the employer's job offer shall be used to identify 
the appropriate occupational classification . . . . If the employer's job opportunity has 
worker requirements described in a combination of O*NET occupations, the NPWHC 
should default directly to the relevant O*NET-SOC occupational code for the highest 
paying occupation. For example, if the employer's job offer is for an engineer-pilot, the 
NPWHC shall use the education, skill and experience levels for the higher paying 
occupation when making the wage level determination. 
In addition, we note the following from the Frequently Asked Questions Section of the DOL's Office 
of Foreign Labor Certification website 3 regarding when the National Prevailing Wage Center (NPWC) 
considers a position to include a combination of occupations: 
While there are common skill sets that may be applied to more than one occupation, 
the NPWC looks to the job duties, the employer's requirements, and conditions of 
employment to determine the occupational SOC code and assess a wage level in that 
occupation. In principle, when skill sets cross disciplines a point is added on the 
worksheet in Appendix C of the Prevailing Wage Determination Policy Guidance -
Nonagricultural Immigration Program (Revised November 2009) (PWD Policy 
Guidance), which will raise the wage level by one level. For example, when a computer 
programmer is also required to market his or her program, the NPWC will view this as 
two distinct occupations. Therefore, a worksheet in Appendix C of the Prevailing Wage 
Guidance is created for each occupation, and the wage level for each occupation is 
raised by one level. Moreover, as described in the PWD Policy Guidance, the NPWC 
will assign the SOC code for the occupation that has the higher wage. 
Occupations with overlapping skills in such fields as computers, mathematics, or 
business operations will usually not be seen as a combination of occupations as long as 
they do not require two distinct skill sets. However, the NPWC will assign the SOC 
3 See https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!5l l (last accessed June 25, 2020). 
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based on the occupation with the higher wage and will issue a wage based on the 
appropriate level without adding an additional point for a combination of occupations. 
Additionally, when skill sets are not normal to either occupation, an additional point is 
added. Using the example above, in the instances where a computer programmer who 
is required to market his/her program also is required to have knowledge of a foreign 
language, a point is added, separate from the point for combination of occupation. 
According to O*NET, pharmacists generally: 
Dispense drugs prescribed by physicians and other health practitioners and provide 
information to patients about medications and their use. May advise physicians and other 
health practitioners on the selection, dosage, interactions, and side effects ofmedications. 4 
O*NET provides a list of 20 tasks related to the occupation for a pharmacist. While we acknowledge 
that some of these tasks may relate to the duties of the proffered position, it appears that the O*NET 
entries for regulatory affairs managers (SOC code 11-9199.01 ), compliance managers (SOC code 
11-9199.02), or regulatory affairs specialists (SOC code 13-1041.07) may be more closely aligned with 
the proffered position. O*NET provides the following general summaries, along with a list of specific 
tasks: 
Regulatory Affairs Managers (SOC code 11-9199.01) 
• Plan, direct, or coordinate production activities of an organization to ensure compliance with 
regulations and standard operating procedures. 
Compliance Managers (SOC code 11-9199.02) 
• Plan, direct, or coordinate activities of an organization to ensure compliance with ethical or 
regulatory standards. 
Regulatory Affairs Specialists (SOC code 13-1041.07) 
• Coordinate and document internal regulatory processes, such as internal audits, inspections, 
license renewals, or registrations. May compile and prepare materials for submission to 
regulatory agencies. 
The Director should compare the job descriptions the Petitioner provided to the complete list of "tasks" 
provided for in O*NET to determine whether the Petitioner selected the most appropriate SOC code. 
We acknowledge the Petitioner's statements regarding the selection of the O*NET occupation with 
the higher paying wage. However, it is not clear that the duties listed correspond to the O*NET 
occupation requested, or a combination of O*NET occupations that would lead to the one requested, 
but rather are encompassed by a different O*NET occupation that is better suited to the duties of the 
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proffered position. Again, the O*NET description that corresponds to the employer's job offer shall 
be used to identify the appropriate occupational classification. 5 
The Director should determine whether the record satisfies the regulation at 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(]), 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). In the event the 
Director concludes that the Petitioner provided the correct SOC code on the LCA, she should then 
determine whether or not the Petitioner accurately reflected the required wage level. 
If the Director concludes that the Petitioner has satisfied all of the above, she should then determine 
whether the position qualifies as a specialty occupation based upon the information in the record. Only 
if she concludes that the position qualifies as a specialty occupation should the Director then determine 
whether the Beneficiary qualifies for the proffered position. 6 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
5 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://t1cdatacenter.com/download/ NPWHC _Guidance_ Revised 
_l 1_2009.pdf. 
6 Specifically, the Director is required to follow long-standing legal standards and determine first, whether the proffered 
position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the 
position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the 
petitioner intends to employ him falls within [a specialty occupation]."). 
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