remanded H-1B Case: Scientific Editing

U.S. Citizenship 
and Immigration 
Services 
InRe : 9319174 
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 . 19, 2020 
The Petitioner, a scientific, medical, and technological information provider, 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. § l 10l(a)(l5)(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 qualifies as a specialty occupation. 
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 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
Upon de nova review , the Director 's decision is withdrawn. The matter will be remanded to the 
Director for further consideration and action. 
I. SPECIAL TY OCCUPATION 
Upon review, the evidence of record establishes that the nature of the specific duties is so specialized 
and complex that the knowledge required to perform them is usually associated with the attainment of 
a baccalaureate or higher degree in a specific specialty, or its equivalent. Also , the degree required 
for the proffered position constitutes a body of highly specialized knowledge that relate directly to the 
duties of the proffered position . Therefore , we conclude that the evidence of record satisfies the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), and the Petitioner has established that the proffered 
position qualifies for classification as a specialty occupation. The Director 's decision will be 
withdrawn. 
The Petitioner cannot be approved , however , because it appears that the submitted labor condition 
application (LCA) may not correspond with the H-lB petition. More specifically, it is not clear if the 
Petitioner properly classified the proffered position at a Level II wage. The petition will be remanded 
to the Director for farther consideration and action and entry of a new decision. 
II. LABOR CONDITION APPLICATION 
The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." 1 It also serves to protect H-1 B 
workers from wage abuses. While the Department of Labor (DOL) certifies the LCA, U.S. Citizenship 
and Immigration Services determines whether the LCA's content corresponds with 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, .... "). 
In this matter, the Petitioner describes the proffered position as an "assistant scientific editor," and 
submitted an LCA under the standard occupational classification (SOC) code of 27-3041 (Editors) at 
a Level II prevailing wage. In response to the Director's request for evidence and again on appeal, 
the Petitioner explained that the complex nature of the proffered position required the services of an 
individual with at least a Ph.Din microbiology, or the equivalent. 
To assess whether the wage level listed on the LCA corresponds with the proffered position, the 
Director should apply DOL's guidance, which provides a five-step process for determining the 
appropriate wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). 
In this matter, the Director should focus on step 3 of DOL's aforementioned five-step process for 
wage-level determinations. The third step involves a comparison of the Petitioner's education 
requirement to those listed in Appendix D of the DOL guidance. 2 The Petitioner's stated minimum 
education requirement is a Ph.D in microbiology. The "Education & Training Category Code" for the 
occupation of "Editors" in Appendix D of the DOL guidance is 5, which is defined as a bachelor's 
degree. Because the Level I education requirement for "Editors" is a bachelor's degree, but the 
Petitioner requires a Ph.D, DOL guidance requires a two-level increase in the wage. For this reason, 
the Director should review the record to determine whether the Petitioner's Level II wage designation 
for the proffered position is correct. 
III. CONCLUSION 
As the Petitioner was not previously accorded the opportunity to address the above, we will remand 
the record for farther review of these issues. The Director may request any additional evidence 
considered pertinent to the new determination. 
1 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
2 Appendix D of the DOL guidance provides a list of professional occupations with their corresponding usual education 
level. 
2 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
3