MATTER OF E-S-, INC.

Non-Precedent Decision of' the Administrative Appeals Office

DATE: JULY 18, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a software development, testing, 'and support company, seeks to temporarily employ the Beneficiary as a "senior software engineer" under the H-18 nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section l01(a)(l5)(H)(i)(b), 8 U.S.C. § 1 l01(a)(15)(H)(i)(b). The H-1 B 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 evidence of record does not establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

Upon de 110vo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U.S.C. § n 84(i)(l), defines the term "specialty occupation" as an occupation that requires:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) 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.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this• statutory definition, but adds a non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position must meet' one of the following criteria tb qualify as a specialty occupation:

Matter of E-S-, Inc.

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

( 4) The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 C.F.R. ~ 214.2(h)(4)(iii)(A). We.construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertojf, 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).

II. PROFFERED POSITION

The Petitioner claimed that it will employ the Beneficiary as a "senior software engineer." The certified labor condition application (LCA) submilled in support of the petition designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131.

In its initial letter of support, the Petitioner described the duties of the proffered position as follows:

• Create software programs and customize existing programs utilizing specific programming languages, frameworks and development environments.

• Gather requirements and needs, analyze, test, script and document them to strengthen quality and functionality of business-critical applications.

• Develop general system design including internal and external information flows, current and future system requirements and integration points.

• Create, design, technical and project documentati~n incl high-quality documentation of code[.]

• Utilize standard software developm~nt. methodologie_s, processes, techniques and quality planning methods in all-phases of work.

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In response to the Director's request for evid_ence (RFE), the Petitioner equated the proffered position to that of a software developer corresponding to SOC code 15-1132, 1 and provided the following updated description of the Beneficiary ' s duties:

• ANALYZE CLIENT'S NEEDS: Gather requirements and needs, analyze, test, script and document them to strengthen quality and functionality of business-critical applications. (20% of workload).

• DESIGN PARTS OF THE APPLICATION AND SYSTEM WITH REGARD TO HOW THE VARIOUS PARTS WILL WORK TOGETHER. Develop general system design including internal and external information flows, current and future system requirements and integration points. (30% of workload).

• RECOMMEND NEW SOFfWARE AND SOFTWARE IMPROVEMENTS TO EXISTING CLIENT SYSTEMS: Create new programs and update and customize existing programs utilizing a variety of specific programming languages, frameworks, and development environments. Utilize [the Petitioner's] proprietary tools and follow [the Petitioner's] processes and protocols for development. (30% of workload).

• CREATE DOCUMENTATION TO GIVE INSTRUCTION TO OTHERS INCLUDING PROGRAMMERS. Create design, technical and project documentation including high-quality documentation of code. (20% of workload).

Ill. ANALYSIS

Upon review, we conclude that .the record does not establish that the proffered position is a specialty occupation. Specifically, it does not appear that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.2

1 The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sough1 has hcen establishcd. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner cannot offer a new position lo the Beneficiary, or materially change a position ' s title, its level of authority within the organizational hierarchy, its assoc.:iatcd job responsibilities, or the requirements nl' the position. The Petitioner must establish that the posi tion offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg·t Comm'r 1978). If significant changes are made to the initial request for approval, the Petitioner must file a new petition rather than seek approval or a petition that is not supported by the fac1s in the record. 2 II appcars that the du tics of the proffcrcd position may c.:ha~gc during the requested validity period. The Petitioner staled in its support lellcr that the Beneficiary "will initially work" at one of the Petitioner's offices. However. it continued by slating that "[i]n the future, the Beneficiary may be assigned to a project at a client site." Moreover, its employment offer letter to the Beneficiary stales that while he will primarily be based_. at the Petitioner's offices in New York, he will be expected to travel to "existing and future client site locations." The nature of the Petitioner's business, which is designing, developing, and delivering product development and software engineering solutions for ils custonicrs, appears to be primarily dicnt-driven based on the requirements of a particular project. Although the Petitioner asserts that the Beneficiary will always be based at one of its offices, the lack of details regarding the proffered position, and the fact that the Petitioner's services are largely client-driven, render it difficult to detennine the actual duties the Beneficiary will ultimately perform. While the Petitioner also asserts that it has in-house projects, the record docs not provide sufficient information regarding its in-house projects and the Beneficiary's potential role in those projects.

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A. Variances in Educational Requirements

First, we find that the Petitioner has provided inconsistent information regarding the mm1mum requirements for the proffered position. For instance, the Petitioner initially staled that the proffered position requires a bachelor's degree or equivalent in engineering, computer science, mathematics, physics, information systems, or a similar field of study. In response to the RFE, the Petitioner stated that it requires at least a bachelor's degree or equivalent in computer science, information technology, software engineering, engineering management, or a closely related field. On appeal, the Petitioner indicates that the proffered position requires a degree in software engineering or a closely related discipline. The Petitioner did not provide an explanation for these variances.

B. First Criterion

We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry in to the particular position. To inform ~his inquiry, we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide yariety of occupations that it addresses.3

On the LCA 4 submitted in support of the H-1B petition, the Petitioner designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification code 15-l 131.

The subchapter of the DO L's Occupational Outlook Handbook (Handbook) entitled "How to Become a Computer Programmer" states the following: "Most computer programmers have a bachelor's degree in computer science or a related subject; however, some employers hire workers with an. associate's degree."5 According to the Handbook, the requirements to perform the duties of the computer programmer occupation incorporate a wide spectrum of educational credentials, including less than a bachelor's degree in a specific speci,alty. For example, the Handhook states that some_

3 All or our references arc lo the Handbook, which may be accessed al http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of rdevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the' duties· and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the burden or proof remains on the Petitioner to submit sufficient evidence to support a finding that its pa_rticular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. ~ The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-113 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 lo other employees with similar experience and qualifications who are performing lhc same scrvic.:cs. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Owlook '!-lwuibook, Computer Programmers, on the Internet at https://www.bls.gov/ooh/computer-and-information-technology/computer-progrnmmers.htm#tab-4 (last visited Jul. 18, 2018). ,1

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employers hire workers who have an associate's degree. Furthennore, while the Handbook ·s narrative indicates that most computer programmers obtain a degree (either a bachelor's or associate's degree) in computer science or a related field, the Handbook does not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the occupation. The Handbook does not support that a bachelor's degree in a specific specialty is normally the minimum requirement for entry into the occupation. Further, the Petitioner did not provide additional documentation from another probative, authoritative source to substantiate its assertion regarding the minimum requirement for entry into this particular position

The Petitioner submitted a letter from , professor of computer science at Pace University, who concludes that the duties of the position and its l~vel of complexity requires "bachelor's-level educational training (or the equivalent) in management information systems, IT, computer science, computer engineering, or a related technical field."

First, we note that evaluation does not discuss the duties of the proffered position in any substantive detail. Rather, he restates the same four bullet-point duties listed in the Petitioner's response to the RFE. He does not discuss them in the specific context of the Petitioner's business or the internal or end-client projects upon which ti)e Beneficiary would work. There is no indication that he possesses any knowledge of the Petitioner's proffered position beyond this limited job description. His level of familiarity with the actual job duties as they would be performed in the context of the Petitioner's business has therefore ·not been substantiated.

Moreover, regularly refers to the "complexity" of the position in his opinion and references the "high-level duties" of the position. In contrast, the Petitioner has only assigned the position a Level I wage on the LCA indicating that the proffered_position is an entry-level position.6

However, describes the position• as involving the most complex and sophisticated tasks, which does not appear consistent with the proffered position's generally described duties and level of responsibility. Given his lack of understanding of the level of responsibilities of the proffered position, it is not clear if he had sufficient information to determine the requirements of the position.

As a matter of discretion, we may use opm1on statements submitted by the Petitioner as advisory. Maller of Caron Int'/. Inc., 19 l&N Dec. 791, 795 (Comrn'r 1988). However, we will reject an opinion or give it less weight if it is not in accord with other information in the record or if ii is in any way questionable. Id. In this instance, the expert opinion docs not offer sufficient probative value in establishing the proffered position as a specialty occupation.

The Petitioner cites Next Generation Tech., Inc. v. Johnson, (S.D.N. Y. Sept. 29, 2017) and Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012), as relevant here. These

r, We note the Petitioner's submission of a new LCA for a Level II computer programmer in response to the RFE. However, we note that the Petitioner maintains that the pos_ition was properly classified as a Level I position.

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cases arise out of different jurisdictions than the instant matter.7 Nevertheless, even if we considered the logic underlying the matter, we find that the Petitioner has not demonstrated that the proffered position is a specialty occupation.

The court in Next Generation relied in part on a U.S. Citizenship and Immigration (USCIS) policy memorandum regarding "Computer Programrpers" indicating generally preferential treatment toward computer programmers, and "especiallf' toward companies in that particular petitioner's industry. However, USCIS rescinded the policy memorandum cited by the court in Next G . 8

eneratwn.

The Petitioner cites to Residential Finance for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge."

We agree with the-aforementioned proposition that "[t]he knowledge and not the title of the degree is what is important." In· general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body or highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as philosophy and engineering, would not meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly sp_ecialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the Act (emphasis added). For the aforementioned reasons, however, the Petitioner has not met its burden to establish that the particular position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in order t? perform those tasks.

The record lacks sufficient evidence to support: that the position, as described, is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

7 In contrast to the broad precedenlial au1hori1y of the case law of a United States circuit court, we arc not bound to follow the published decision of a United States district court in matters arising even within the same district. See K-S-, 20 I&N Dec. at 719-20. Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis docs not have to be followed as a matter of law. Id. 8 See USCIS Policy Memorandum PM-602-0142, Rescission of 1he December 22. 2000 "Guidance memo 011 I-fl B computer re/a1ed positions" (Mar. 31, 2017), https://www.uscis.gov/silcs/defaull/files/filcs/nativedocumcnts/PM-6002-0l42-H1 B ComputcrRelatedPositions Rccission.pdf.

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C. Second Criterion

The second criterion presents two, · alternative prongs: "The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong looks to the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

' We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." See Slwnti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)).

The Petitioner has not established that its proffered position is one for which the Handho<Jk ( or other independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requir~ment. ·

The Petitioner provided copies of job vacancy announcements for a number of positions it deems akin to the proffered position. Upon review, however, the postings do not appear to be for positions parallel to the one proffered in this matter. For instance, one posting is for a software development engineer, and requires five years of "overall automotive work experience" and a minimum of three to ten years of experience in the development of automotive electronics/software design. Another posting, for the position of software developer specialist, requires at least two years of experience with Java, at least two years of experience with Oracle, SQL, or other database experience, and at least one year of experience with Spring. The remaining two postings are by companies that do not appear parallel to the Petitioner, given that one is'. a Fortune 500 company and the other employs over 120,000 employees in 39 countries. 9 ·

9 See https:, (last visited Jul. 18, 2018).

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The Petitioner also submitted excerpts from a USCIS report listing H-1B approvals by employer, and claims that the report, which lists positions titles and associated educational credentials, demonstrates a standard educational requirement for the proffered position within the Petitioner's industry. This report alone is insufficient to establish a routine hiring requirement in similar entities, as the record lacks specific information regarding the nature of the hiring entities, the duties of the positions listed in the report, and t~e nature of the educational requirements of such positions.

The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4}(iii}(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

The record does not demonstrate that the necessary knowledge for the proffered position is attained through an established curriculum of particular courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent. While a few rela~ed courses and subjects may be beneficial "in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered position.

The Petitioner" claims that the Beneficiary is well-qualified for the pos1t1on, and references his qualifications. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but wh~ther the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A}(2).

D. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were we ·limited solely to reviewing a petitioner's claimed

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self-imposed requirements, an organization couid bring any individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. Id. Evidence provided in support;of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

The Petitioner provided a list of all current and past employees it claims performed the duties of senior software engineer, along with a list of their educational credentials. The record, however, contains no evidence that these individuals have or had the same or similar substantive responsibilities, duties, and performance requirements as the proffered position. Moreover, there is no documentary evidence confirming their employment with the Petitioner. The Petitioner, therefore, has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A).

E. · Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish 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. ·

In the instant case, relative specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered position. As discussed, the job description in the record does not give insight into the particular duties of the proffered position as it will be performed for the particular client or in-house projects to which the. Beneficiary will be assigned. We hereby incorporate our earlier discussion regarding the lack of evidence about the substantive nature of the specific duties the Beneficiary will perform, and the particular aspects of those duties that are so specialized and complex that their performance requires the application of at least a bachelor's degree in a specific specially.

The Petitioner has not demonstrated that its 'proffered pos1t1on is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

IV. NON-CORRESPONDING LCA

·Beyond the Director's decision, we note that the LCA provided in support of the instant petition is certified for a computer programmer in New York at a Level I prevailing wage level. In response to the RFE and again on appeal, however, the Petitioner asserted that the proffered position is more akin tq that of a software developer, and submitted excerpts from the Handbook and O*Net pertaining to this occupational category in support of its assertions. The Petitioner stated that the occupations of computer programmer and software developer "share many duties and similarities," and presented a side-by-side comparison of its own description of duties to the Handbook\· description of the duties associated with the occupation of software developer. Upon review, it appears that most, if not all, of the stated duties correspond to those of a software developer.

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The prevailing wage for the occupational category of "Software Developers, Applications," at a Level l wage in New York, is significantly higher than the prevailing wage for the "Computer Programmer" category selected by the Petitioner. 10 Thus, according to DOL guidance, if the Petitioner believed its position was appropriately described as a software developer, or was a combination of both a computer programmer and software developer, it should have chosen the relevant occupational code for the highest-paying occupation. However, the Petitioner chose the occupational category for the lower paying occupation for the proffered position on the LCA. 1 t

While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that the Department of Homeland Security (OHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports thatyetition. The regulations state, in pertinent part:

For H-1B visas ... OHS accepts the employer's petition (OHS Form 1-129) with the DOL certified LCA attached. In doing so, the DHS determines whether the petitio11 is supported hy an LCA which corresponcis with the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a fashion model of distinguished merit and abil~ty, and whether the qualifications of the nonimmigrant meet the statutory req·uirerilents of H-1B visa classification.

20 C.F.R. ~ 655.705(b) (emphasis added).

The regulation at 20 C.F.R. § 655.705(b) requires that USClS ensure that an LCA actually ·supports the H-1B petition filed on behalf of the Beneficiary. Here, the Petitioner has not submitted a certified LCA that corresponds to the claimed duties of the proffered position. Therefore, the petition cannot be approved for this additional reason.

V. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. J

ORDER: The appeal is dismissed.

_Cite as Matter of E-S-, Inc., ID# 1350954 (AAO July 18, 2018)

10 The annual prevailing wage for a Level I computer brogrammer in the Petitioner's Metropolitan Statistical Arca (MSA) at the time the LCA was certified was In contrast, the annual prevailing wage for a Level I software developer in the Petitioner's MSA at the same time was 11 In response to the RFE and on appeal, the Petitioner states that another LCA, certified prior to filing, was available for use with respect to this position. However, this second LCA, certified for a computer programmer at a Level II wage at the same location, also does not correspond to this petition, given the additional evidence demonstrating that the proffered position is most akin 10 that of a software developer.

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