sustained H-1B Case: Medical Physics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 31, 2024 InRe : 31111758 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner, a physics and dosimetry services provider for cancer treatment centers, seeks to 
temporarily employ the Beneficiary as a medical physics quality specialist 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 101(a)(15)(H)(i)(b). The H-lB program allows a U.S. 
employer to temporarily employ a qualified nonimmigrant 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner submitted a certified labor condition application (LCA) for the 
occupational classification in which the Beneficiary will be employed. The matter is now before us 
on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will sustain the appeal. 
I. LAW 
Before filing a petition for H-lB classification, the regulations require a petitioner to obtain 
certification from the U.S. Department of Labor that the organization has filed an LCA in the 
occupational specialty in which the beneficiary will be employed. 8 C.F.R. § 214.2(h)(4)(i)(B)(l) . 
The purpose of DOL's LCA wage requirement is "to protect U.S. workers' wages and eliminate any 
economic incentive or advantage in hiring temporary foreign workers." See Labor Condition 
Applications and Requirements for Employers Using Nonimmigrants on H-lB 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). See also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220,231 (2d Cir. 
2020) (quoting 20 C.F.R. § 655.0(a)(l) and finding that a primary goal of U.S. nonimmigrant work 
visa programs like the H-1 B Program is to ensure that "the employment of the foreign worker in the 
job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. 
workers."). 
The LCA also serves to protect H-1B workers from wage abuses. A petitioner submits the LCA to 
DOL to demonstrate that it will pay an H-1B worker the higher of either the prevailing wage for the 
occupational classification in the area of employment, or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
Furthermore, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state 
that it will comply with the terms of the LCA. While DOL certifies the LCA, U.S. Citizenship and 
Immigration Services (USCIS) "determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the labor condition application is a 
specialty occupation . . . , and whether the qualifications of the nonimmigrant meet the statutory 
requirements for H-1B visa classification." 20 C.F.R. § 655.705(b); see also Matter of Simeio 
Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015); see also ITServe Alliance, Inc. v. DHS, 590 F. 
Supp. 3d 27, 40 (D.D.C. 2022) (noting 20 C.F.R. § 655.705 requires USCIS "to check that the [H-1B] 
petition matches the LCA"). 
USCIS possesses the authority to evaluate whether the proffered position's duties are in accordance 
with the occupational classification on the LCA, and if not, to determine under which occupational 
titles the responsibilities correspond. See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 1167-68 (N.D. 
Cal. 2013) (in which the court agreed with users that a large portion of the beneficiary's duties were 
most similar to those found within the Bookkeeping, Accounting, and Auditing Clerks occupation, 
rather than within the Accountants Standard Occupational Classificational (SOC) code). 
It is important for users to ensure the employer has selected the SOC code on the LCA that most 
closely matches the proffered position for reasons that affect H-1 B statutory and regulatory 
requirements. First, the wrong SOC code can direct users to evaluate an inapplicable occupational 
title or occupation. It is the occupation itself that we evaluate to decide if it requires a "theoretical and 
practical application of a body of highly specialized knowledge," and "attainment of a bachelor's or 
higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation 
in the United States." Section 214(i)(l) of the Act. Therefore, an incorrect SOC code could mean we 
would not be able to properly evaluate whether a petitioner has satisfied the statute's definition of a 
specialty occupation. 
To determine whether the beneficiary will be employed in a specialty occupation, we look to the record 
to ascertain 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 beneficiary 
will be employed in an occupation that meets the statutory 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). 
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By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
The Petitioner provides medical physics and dosimetry services to hospitals and private cancer 
treatment centers. The Petitioner intends to employ the Beneficiary in the position of medical physics 
quality specialist. On the LCA submitted in support of the petition, the Petitioner designated the 
proffered position to be in occupational category of "Medical Scientists, Except Epidemiologists," 
assigned the SOC code 19-1042.00 in the Occupational Information Network (O*NET). 1 The LCA 
states that the wage rate to be paid is between $100,000 and $125,000 per year, which is a wage level 
II rate. 
According to O*NET' s description, pos1t10ns located within the medical scientist, except 
epidemiologist, occupation primarily "[ c ]onduct research dealing with the understanding of human 
diseases and the improvement of human health" and "[e ]ngage in clinical investigation, research, and 
development, or other related activities." O*NET OnLine Summary Report, supra. The Petitioner 
states that the medical physics quality specialist position will involve the following duties: 
[The Beneficiary] will provide [ q]uality assurance for medical linear accelerators. He 
will be responsible for the daily and monthly [q]uality [a]ssurance checks and annual 
calibration of the linear accelerator, HDR Unit and CT simulator. Under the guidance 
of a [ m ]edical [p]hysicist, [the Beneficiary] will provide validation assurance of 
dosimetry equipment, while working with the [d]osimetrist and [r]adiation 
[ o ]ncologists on computer treatment planning for setting up treatment processes. He 
will also be responsible for the validation and quality assurance of IMR T plans using 
Mapcheck [in] addition to setting up Mosfet diodes to measure dose outside field of 
treatment. Additionally, [the Beneficiary] will work with physicists and equipment 
engineers on maintenance schedules, quality checks, logs, and the testing of new 
systems and verification of dose plans. He will also be response for computer processes 
in the cancer center: data backup, hardware, and software validations as well as hospital 
in-services on radiation safety and engineering safety. 
The Petitioner states that the educational requirement for the position is a bachelor's degree in physics 
or sciences or a closely related degree field. The Beneficiary possesses the foreign equivalent of a 
Ph.D. in medical physics, as well as the foreign equivalent of a bachelor's degree, also in medical 
physics. 
The Director determined that the Petitioner did not submit a certified LCA for the occupational 
classification in which the Beneficiary will be employed because the Beneficiary's job duties are not 
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1 See O*NET OnLine Summary Report for "19-1042 - Medical Scientists, Except Epidemiologists," 
https://www.onetonline.org/link/summary/l 9- l 042.00. 
aligned with those of the occupation of "medical scientist, except epidemiologist." However, the 
Director did not challenge whether the position qualifies as a specialty occupation. 
On appeal, the Petitioner contends that the Director is not able to "override" DOL's decision to certify 
the LCA by determining that it does not correspond to the proffered position, because DOL is 
delegated the authority to ensure that employers comply with the requirements of the H-1B program. 
The Petitioner also contends that the occupational classification on the LCA does properly correspond 
with its job offer. 
We are not persuaded by the Petitioner's claim that the Director, in determining that the occupational 
classification on the LCA does not correspond to the proffered position, sought to "override" DOL's 
decision to certify the LCA. Under the regulations, USCIS has the authority to determine whether an 
H-1B petition is supported by an LCA which "corresponds with the petition." 20 C.F.R. § 655.705(b ); 
see also ITServe Alliance, Inc. v. DHS, 590 F. Supp. 3d at 40 (noting that 20 C.F.R. § 655.705 requires 
USCIS "to check that the [H-1B] petition matches the LCA"). Additionally, as stated above, it is the 
occupation itself that we evaluate to determine whether it qualifies as a specialty occupation under the 
statute and regulations. Therefore, identifying the correct SOC code is necessary in evaluating whether 
a petitioner has satisfied the specialty occupation requirement. 
In support of the Petitioner's claim that its proffered position does fall within the occupational 
classification on the LCA, the Petitioner submitted an opinion letter, a job duty chart, and information 
from O*NET and the Bureau of Labor Statistics Occupational Outlook Handbook (OOH) regarding 
the occupation. The Petitioner contends that O*NET provides only "general occupational 
characteristics," and that the selected occupational classification is the closest match to its job 
opportunity, even if not every job duty overlaps. 
The advisory opinion letter in the record is from an associate professor and senior medical physicist 
in the Department of Radiation Medicine at the 
In reviewing the letter, we conclude that it does little to support the conclusion that "medical scientist, 
except for epidemiologist" is the closest occupational category for the Petitioner's position. Although 
the letter states this conclusion, it does not describe how the tasks and work activities of the 
occupational category listed in O*NET correspond to the Petitioner's job offer. Instead, the letter 
simply lists these tasks and activities and states the conclusion that they are "consistent" with the 
Petitioner's job offer. The letter also does not provide another basis or explanation to support the 
conclusion that the occupation corresponds with the Petitioner's job opportunity. Additionally, the 
opinion letter notes that the typically educational requirement for entry into the occupation of "medical 
scientist, except epidemiologist" is a doctorate or professional degree, whereas the Petitioner's 
educational requirement is a bachelor's degree. Finally, while the professor claims that the degree 
requirement is consistent with the "medical scientific staff within my radiation oncology department" 
at the the professor states that these staff members' occupations include 
physicians, physicists, biologists, dosimetrists, and "related technology team members." However, 
the professor does not state that the department includes individuals in the occupation of "medical 
scientist, except epidemiologist." 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. 
Matter ofCaron Int'l, Inc., 19 I&N Dec. 791,795 (Comm'r 1988). However, wewillrejectanopinion 
4 
or give it less weight if it is not in accord with other information in the record or if it is in any way 
questionable. Id. We are ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. Here, we conclude the opinion letter is of little probative 
value for the reasons stated above. 
Regarding the Petitioner's job duty chart, this chart indicates which duties in the O*NET description 
for the "medical scientist, except epidemiologist" occupation correspond with the duties to be 
performed by the Beneficiary. O*NET provides 14 tasks and 13 detailed work activities for the 
occupation of"medical scientist, except epidemiologist." The job duty chart identifies 5 of these tasks 
and 8 of these detailed work activities that the Petitioner asserts correspond with those job duties. 
These 13 tasks and activities correspond to just under half of the 2 7 tasks and activities provided in 
the O*NET description. 
Based upon this, the O*NET classification for "medical scientists, except epidemiologists" appears to 
have some overlap with the Petitioner's proffered position, although it is clearly not an exact match. 
However, we acknowledge the Petitioner's claim that the duties of the Petitioner's proffered position 
will not be identical to the tasks and activities list in the O*NET and the Petitioner's job duty chart is 
helpful in demonstrating some of the similarities of the occupation and the Petitioner's position. 
Moreover, we note that because of the LCA requirement, a petitioner is required to designate an 
occupational category for the LCA, regardless of the difficulty in determining the best match for the 
proffered position. While the Director's decision did not identify an alternative occupational category 
that would be more appropriate for the Petitioner's proffered position, we conclude that it is useful to 
consider other occupational categories and whether they align better with the Petitioner's job 
opportunity. Because the Petitioner must select such a category for the job opportunity, the question 
is not just whether the selection closely corresponds, but also whether there is another occupational 
category which corresponds better. In this determination, we may look at the nature of a petitioner's 
business and the description of the specific duties of the position as it relates to the performance of 
those duties within the context of that particular employer's business operations. See GCCG Inc v. 
Holder, 999 F. Supp. 2d at 1167-68 (in which the court agreed with USCIS that a large portion of the 
beneficiary's duties were most similar to those found within the Bookkeeping, Accounting, and 
Auditing Clerks occupation, rather than within the Accountants SOC code). Here, the Petitioner states 
that it provides radiation oncology services to hospitals and private cancer treatment centers and is 
experienced in commissioning and establishing radiation oncology departments and in providing 
continuing physics and dosimetry services for cancer centers, such as shielding, licensing, and 
designing patient workflow. The proffered position appears to primarily involve calibrating, 
validating, and checking the machines, equipment, and computer systems used in delivering radiation 
therapy. 
Based upon the nature of the Petitioner's business and its description of the job opportunity, there are 
two alternate occupational categories that appear to be potential matches for the Petitioner's job 
opportunity - "Physicists," (SOC 19-2012.00), and "Medical Dosimetrists," (SOC 29-2036.00). 
According to O*NET, jobs within the "physicist" occupation primarily "[c]onduct research into 
physical phenomena, develop theories on the basis of observation and experiments, and devise 
methods to apply physical laws and theories." The tasks and work activities listed in O*NET focus 
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on the research and theoretical aspects of the physicist occupation, such as analyzing data from 
research, writing research proposals to receive fonding, and observing the structure and properties of 
matter to explore and identify the basic principles governing these phenomena. 
Regarding the "medical dosimetrist" occupation, according to O*NET these jobs typically "[g]enerate 
radiation treatment plans, develop radiation dose calculations, communicate and supervise the 
treatment plan implementation, and consult with members ofradiation oncology team." The tasks and 
work activities listed for this occupation focus on patient care, for example calculating prescribed 
radiation doses, developing radiation treatment plans, educating patients regarding treatment plans, 
and measuring the amount of radioactivity in patients or equipment. The O*NET does state that 
performing "quality assurance system checks, such as calibrations, on treatment planning computers," 
is one of the occupation's tasks, which does correspond to the Petitioner's position. 
While these occupations do relate to the Petitioner's business operations and to the job opportunity, 
and some of the tasks and activities of both occupations correspond to the proffered position, it is not 
clear that either of these is a closer or more appropriate match for the Petitioner's position than is the 
"medical scientist, except epidemiologist" occupation. The tasks and work activities listed in O*NET 
for "physicists" focus on the research and theoretical aspects of that occupation, and those for the 
"medical dosimetrist" occupation focus on patient care. The Petitioner's job opportunity does not 
appear to involve either research or direct patient care. 2 
Also relevant here, the three occupational categories have similar prevailing wage ranges and the 
Petitioner's offered wage for the position is within the range of the prevailing wages for all three. 
Therefore, the Petitioner's selection of this occupational category, rather than another, does not appear 
to have impacted the wage range to be offered for the position. This is relevant because the purpose 
of the LCA wage requirement is to protect U.S. workers' wages and eliminate any economic inventive 
or advantage in hiring temporary noncitizen workers and to protect H-1B workers from wage abuses. 
See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B 
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 Were we to conclude that either of these occupations are more closely aligned to the Petitioner's job opportunity, it would 
also be relevant whether they qualify as specialty occupations. According to O*NET, the "physicist" occupation typically 
requires a graduate or doctoral degree. Additionally, the OOH contains a profile for the occupation "Physicists and 
Astronomers" and states that the occupation typically requires a Ph.D. in physics, astronomy, or a related field for some 
positions or a bachelor's degree in physics for others. See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Physicist and Astronomers, https://www.bls.gov/ooh/life-physical-and-social-science/physicists-and­
astronomers.htm. The physicist occupation would therefore appear to qualify as a specialty occupation on that basis. For 
"medical dosimetrists," however, O*NET states that these occupations may require only an associate's degree while the 
OOH states that medical dosimetrists typically need a bachelor's degree in medical dosimetry or a related field. See Bureau 
of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Medical Dosimetrists, 
https://www.bls.gov/ooh/healthcare/medical-dosimetrists.htm. As such, the "medical dosimetrist" occupation may or may 
not qualify as a specialty occupation. Because we conclude that the Petitioner's position is not more closely aligned with 
this occupation, however, we need not reach a finding on this issue. 
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The occupational category selected by the Petitioner is a reasonable, albeit not exact, match for the 
job duties of the proffered position. And moreover, the other potential, alternative occupational 
categories do not appear to be closer matches for the Petitioner's proffered position and possess similar 
wage levels that are within the range of the Petitioner's offered wage for the position. 
When reviewed within the context of the Petitioner's business operations, the Petitioner's description 
of the position, and the O*NET occupational classification system and its potential alternative 
occupations, we conclude that the evidence of record is sufficient to demonstrate by a preponderance 
of the evidence that the position sufficiently corresponds to the occupation of medical scientists, except 
epidemiologists. See Matter ofChawathe, 25 I&N Dec. at 3 7 6 ("[e ]ven if the director has some doubt 
as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director 
to believe that the claim is "more likely than not" or "probably" true, the applicant or petitioner has 
satisfied the standard of proof''). Additionally, the evidence of record establishes that the proffered 
position qualifies as a specialty occupation as defined at section 214(i)(l) of the Act and 8 C.F.R. 
§ 214.2(h)(4)(ii). The record also demonstrates that the Beneficiary is qualified to perform the duties 
of the specialty occupation, as he possesses at least the foreign equivalent of a U.S. bachelor's degree 
in physics. 
III. CONCLUSION 
As set forth above, we conclude that the evidence of record establishes, more likely than not, that the 
Petitioner has submitted a certified LCA for the occupational classification for which the Beneficiary 
will be employed. Moreover, the evidence establishes that the Petitioner intends to employ the 
Beneficiary in a specialty occupation and that the Beneficiary is qualified for the occupation. 
ORDER: The appeal is sustained. 
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