MATTER OF OSSC- LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 27.2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a software consulting and applications development company. seeks to temporarily employ the Beneficiary as an "IT project manager" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b). 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-IB 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 ofhighly 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 Petitioner had not established that the proffered position qualifies as a specialty occupation or that there was specialty occupation work available at the time of tiling for the entire validity period requested.

The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in her findings.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act. 8 U.S.C. § 1184(i)(l). detines 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 non­exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

Matter of OSSC- LLC

(I) 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

( .:/) 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 have consistently interpreted 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. Chertqff, 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, 20 l F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

The Petitioner submitted the following description of the Beneficiary's duties with the initial tiling:

• Project planning and estimation in line with customer expectations and end-to-end client engagement;

• Project issue and risk management; • Manage projects in accordance with plans and company's process framework; • Report on project progress against plan, including effort, schedule, milestones,

issues and risks; • Project management and process training for team members: • Analyze project metrics to ensure compliance to quality; • Drive the compliance of[] Service Level Agreements and make strategies to

overcome non-compliance; • Drive corrective measures proactively if non-compliance is observed in the

project; • Ensuring customer satisfaction & build ongoing relationships with them and

manage their expectations; • Work closely with internal stakeholders including sales [and] account

management to maximize further project opportunities for existing customers: • Follow change management process if changes are required to the project scope,

timeline, resources or budget.

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The Petitioner also stated that the proffered position '·normally requires at least a Bachelor's degree in Computer Science, Computer Applications or closely related technical or engineering field."'

III. ANALYSIS

The Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 1

Specifically, the record does not establish that the job duties require an educational background. or its equivalent, commensurate with a specialty occupation.2

A. 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 into the particular position.

On the labor condition application (LCA)3 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category .. Computer Occupations. All Other" corresponding to the Standard Occupational Classification (SOC) code 15-1199. which includes "Information Technology Project Managers."4

We often look to 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 variety of occupations that it addresses.5 However, there are some occupations for which occupational profiles have not been

1 We follow the preponderance ofthe evidence standard as specified in Matter o(Chawathe, 25 I&N Dec. 369, 375-76

(AAO 2010). 2 While we may not discuss every document submitted, we have reviewed and considered each one. ' The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See Maller o{Simeio Solutions. LLC 26 I&N Dec. 542, 545-546 (AAO 2015). 4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance"' issued by the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy: and (3) that he will receive specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin .. Prcl'lliling Wage Determination PoliL)' Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d. 5 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant information. To satisfy the first criterion, the burden of proof remains on the Petitioner to submit sufficient evidence to

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developed, such as for the occupational category "Computer Occupations, All Other."6 Since the Handbook does not provide sufficient information regarding the designated occupational category for the proffered position, it is incumbent upon the Petitioner to provide probative evidence (e.g .. documentation from other objective, authoritative sources) that supports a finding that the particular position qualifies as a specialty occupation.

The Petitioner acknowledges that the Handbook does not contain a chapter specifically for the "Information Technology Project Managers" occupational category, but states that ·'there is an entry for the similar occupation of Computer and Information Systems Manager[ s ]:· directly corresponding to SOC code 11-3021.00. The Petitioner then relies on the Hanclhook 's chapter on "Computer and Information Systems Managers'' which states. in part, that common job titles for these positions include "IT project managers," the job title for the proffered position. The Petitioner further explains that the Handbook states that these positions ''typically'' require .. a bachelor's degree in computer or information science."

However, as noted, the Petitioner classified the positiOn under the occupational category of "Computer Occupations, All Other," and not "Computer and Information Systems Managers." Notably, the ''Computer and Information Systems Managers" occupational category has significantly higher prevailing wages than "Computer Occupations, All Other,'' which underscores the fact that these are two separate and distinct occupations with different duties and levels of resporisibility. 7

For example, the summary report from the Occupational Information Network (O*NET) describes "Information Technology Project Managers" under the SOC code of 15-1199.09 as follows8

:

Plan, initiate, and manage information technology (IT) projects. Lead and guide the work of technical staff. Serve as liaison between business and technical aspects of

support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 6 Bureau of Labor Statistics, U.S. Dep 't of Labor, Occupational Employment Statistics: Occupational Employment and Wages, May 2016 Computer Occupations, All Other, https://www.bls.gov/oes/current/oesl51199.htm (last visited Sept. 26, 2017). 7 For example, according to the LCA, the prevailing wage for a Level I "Computer Occupations. All Other" position in the time and place of intended employment is $50,398 per year. In contrast, the Level I prevailing wage in the same time and place of intended employment for "'Computer and Information Systems Managers·· is $97.198 per year. For more information on prevailing wages generally, see the Foreign Labor Certification Data Center's Online Wage Library at http://www. tlcdatacenter.com/OES W izardStart.aspx (last visited Sept. 26, 20 17).

DOL's guidance on the LCA states that, if a proffered position involves a combination of different occupational classifications, then the petitioner should select the relevant occupational code for the highest-paying occupation. 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_! I_ 2009.pdf. Thus, if the Petitioner believed its position to be a combination of the "'Computer Occupations. All Other" and ·'Computer and Information Systems Managers·· occupational classifications, then the Petitioner should have submitted an LCA for ·'Computer and Information Systems Managers.'' 8 O*NET OnLine Summary Report for '' 15-1199.09 - Information Technology Project Managers," https:/ /www.onetonline.org/link/summary/ 15-1 199.09 (last visited Sept. 26, 20 17).

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projects. Plan project stages and assess business implications for each stage. Monitor progress to assure deadlines, standards, and cost targets are met.

Samples ofjob titles for this occupational category include "IT Manager," ''Program Manager" and "Senior Project Leader/Team Lead."9 On the other hand, O*NET indicates that ''Computer and Information Systems Managers" will "[p ]Ian, direct, or coordinate activities in such fields as electronic data processing, information systems, systems analysis, and computer programming.'' 10

Additional tasks include ''direct daily operations of department. analyzing workflow. establishing priorities, developing standards and setting deadlines" and ''develop and interpret organizational goals, policies, and procedures" and sample job titles include "Application Development Director," "Computer Services Director" and "Information Systems Director.'' 11 Given the difference in the duties, responsibilities, and prevailing wages for these two occupational categories, it logically follows that the two categories do not necessarily share the same degree requirements for minimum entry. The Petitioner does not adequately explain why these two occupational categories should be deemed to share the same minimum educational requirements.

In addition, the O*NET summary report for ''Information Technology Project Managers:· referenced and submitted by the Petitioner. is also insufficient. In particular, the Petitioner points to O*NET survey information indicating that 84% of employers in this occupation require a bachelor's degree. while 16% require a post-baccalaureate certificate or master's degree. However, O*NET does not indicate whether these required degrees must be in any specific specialty. Likewise, O*NET assigns this occupation a Job Zone Four rating, but does not indicate whether the four-year bachelor's degrees required by most, but not all,, of these occupations must be in a specific specialty directly related to the occupation. Therefore, O*NET information is not probative of the proffered position being a specialty occupation.

The Petitioner has not provided sufficient documentation to substantiate its assertion regarding the minimum requirement for entry into this particular position. The Petitioner, therefore, has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

B. 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 !he allernalive. 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 concentrates upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

9 ld 10 O*NET OnLine Summary Report for ''11-3021.00 ~ Computer and Information Systems Managers," https:/ /www.onetonline.org/link/summarylll-3021.00 (last visited Sept. 26, 20 17). II fd

Matter qf OSSC- LLC

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 establish that such firms ··routinely employ and recruit only degreed individuals.'' See Shanti. 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)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. 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 requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner· s industry attesting that such firms "routinely employ and recruit only degreed individuals:·

As the record does not include probative evidence that a ''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, the Petitioner has not satisfied the first alternative prong of8 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.

On appeal, the Petitioner states that the proffered position "requires more technical expertise tha[ n] may be the case in large[r] organizations." More specifically, the Petitioner explains that all of its "project managers need to have several years of software development experience ... [and] are expected to take on some software development duties on smaller projects in order to promote efficient use of resources." However, the Petitioner's job description for the Beneficiary does not expressly include any software development duties. 12 At most, the Petitioner indicated that the

12 Even if the Petitioner's job description contemplated the Beneficiary's performance of software development duties, the Petitioner has not explained how such duties would be consistent with the ·'Computer Occupations, All Other"

Matter of OSSC- LLC

Beneficiary would be managing a development team based in India. Without more, the Petitioner has not sufficiently explained how the Beneficiary's proposed work differs from other IT project managers under the same SOC code, or even how the size of its organization impacts the complexity or uniqueness of the position. In addition, we note the Petitioner's Level I designation of this position on the LCA, indicating that it is an entry-level position for an employee who has only basic understanding ofthe occupation. 13

While we acknowledge that the Petitioner provided an expanded job description in response to the Director's request for evidence (RFE) and a list of the Beneficiary"s courses that are directly related to each of the duties, the test to establish a position as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the position itself qualifies as a specialty occupation. Here, the Petitioner did not sutliciently develop relative complexity or uniqueness as an aspect of the duties of the position. Thus, it cannot be concluded that the Petitioner has satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

C. 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. If we were limited solely to reviewing the Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to the

occupational category or the "Information Technology Project Managers" sub-category. We note, for example, that the Level I prevailing wages in the same area and time period of intended employment for "Software Developers. Applications" ($67 ,184 per year) and "Software Developers, Systems Software" ($69,534 per year) are higher than for the ·'Computer Occupations, All Other" category selected by the Petitioner. For more information on prevailing wages generally, see the Foreign Labor Certification Data Center's Online Wage Library at http://www. tlcdatacenter.com/OES W izardStart.aspx (last visited Sept. 26. 20 17).

Again, DOL guidance requires the petitioner to select the occupational code and classification for the highest-paying occupation when a job opportunity involves a combination of different occupational classifications. 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_! 1_2009.pdf. Therefore, the Petitioner's explanation regarding the highly technical nature of the position based on its software development duties is not supported by the certified LC A for a Level I, entry-level position under the lower-paying occupational category of "Computer Occupations, All Other.'' 13 A Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g .. doctors or lawyers), even a Levell, entry-level position would still require a minimum of a bachelor's degree in a specific specialty. or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act.

..,

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United States to perform any occupation as long as the Petitioner created a token degree requirement. !d. 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, who indicated on the H -1 B petition that it has 10 employees. provided educational and other documents for 13 individuals it employs in the United States and India. The only relevant hiring history, however, is that of the U.S. petitioning entity. as listed on the H-1 B petition. Therefore, the hiring practices of a different entity, even if related, cannot be considered here. 14 A corporation is a separate and distinct legal entity from its owners or stockholders. See Matter ofM-, 8 I&N Dec. 24, 50-51 (A.G., BIA 1958); Matter ofAphrodite lnvs. Ltd., 17 I&N Dec. 530 (Comm'r 1980); and Matter (?fTessel, Inc., 17 I&N Dec. 631 (Act. Assoc. Comm 'r 1980).

Moreover, we can only consider individuals who are employed in the same or similar position. As the Petitioner did not sufficiently document which of the 13 individuals are employees of the U.S. petitioning company performing the same or similar duties as the Beneficiary would perform. we are unable to determine whether the Petitioner meets this criterion. 15 Therefore. the Petitioner has not established that it meets this criterion.

D. 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.

The Petitioner does not claim, and a review of the record does not support. that it meets this criterion.

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

14 The Petitioner in this matter is OSSC- LLC. According to the Petitioner, its affiliated company in India is , and both the Petitioner and the Indian company are subsidiaries of a U.S. holding company,

15 Based on payroll information submitted by the Petitioner, 12 of these 13 individuals are employed by the Indian affiliate company. Only one individual appears to be employed by the U.S. petitioning entity. However, this individual's resume does not list any employment with the Petitioner, and the Petitioner has not otherwise documented his or her job duties. Moreover, the Petitioner indicated that it has not previously employed IT project managers in the United States by stating, for instance, that it "is presently in the process of developing a US-based program management and project management layer" to manage its development team in India. Therefore, it is not apparent that this individual is employed by the U.S. petitioning entity in the same or similar position, in order to be relevant under this criterion.

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IV. AVAILABILITY OF WORK AT THE TIME OF FILING

The Director also denied the petition because the Petitioner did not submit evidence in response to the RFE which established eligibility at the time of filing pursuant to 8 C.F.R. ~ 1 03.2(b)( 12). USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l ). A visa petition may not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978). A petitioner may not make material changes to a petition in an etTort to make a deficient petition conform to USCIS requirements. See Matter of !zummi, 22 I&N Dec. 169. 176 (Assoc. Comm'r 1998).

The record contains: 1) a statement of work for a different company. the relevance of which has not been explained here 16

; 2) a "Fresh Departments- Custom Ordering & Fulfillment Proposal" signed in July 2016; 3) a work order signed in August 2016: and 4) a ··Blueprinting Proposal" signed in February 2017. The Petitioner tiled the instant petition in April 2016. As such, the submitted documents do not demonstrate the availability of work as ofthe time of filing.

On appeal, the Petitioner argues that ''U[.]S[.] companies hiring H-1 B workers cannot wait until contracts are actually signed to start the hiring process:· The agency, however, made clear long ago that speculative employment is not permitted in the H-1 B program. For example. a 1998 proposed rule documented this position, in pertinent part, as follows:

Historically, the Service has not granted H-1 B classification on the basis of speculative, or undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an alien to engage in a job search within the United States. or for employers to bring in temporary foreign workers to meet possible H'orkfhrce needs arisingfrom potential business expanshms or the expectation ofpotential new customers or contracts. (Emphasis added.)

Petitioning Requirements for the H Nonimmigrant Classification. 63 Fed. Reg. 30.419. 30.419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214).

In light of the above, the Petitioner has not established that it had sutlicient specialty occupation work available for the Beneficiary at the time of tiling for the entire validity period requested. This conclusion is further supported by the Petitioner's vague statements about its "plan" to acquire another IT company and its submission of a second, alternative LCA with another otlice location "in the event [the Petitioner is] not able to realize the acquisition as planned."

16 We note that this company has the same ·'Enablement Manager" as the Petitioner. Nevertheless, the Petitioner has not explained its exact relationship with this company.

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V. CONCLUSION

The Petitioner has not established that 1) the proffered position qualities as a specialty occupation; and 2) it had definite, non-speculative specialty occupation work available at the time of tiling for the entire validity period requested.

ORDER: The appeal is dismissed.

Cite as Matter ofOSSC- LLC ID# 564761 (AAO Sept. 27, 2017)

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