MATTER OF L-T-S- LTD.

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 11,2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a technology and engineering services company, seeks to temporarily employ the Beneficiary as a "technical consultant" under the H -1 B nonimmigrant classification for specialty occupations. See Immigration and N::ttionality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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, California Service Center, denied the petition. The Director concluded that the evidence of record does not establish that the Petitioner has specialty occupation work available for the Beneficiary for the intended employment period and that the Petitioner will have an employer-employee relationship with the Beneficiary.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and a brief, and asserts that the Director erred in her findings.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(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 to qualify as a specialty occupation: l

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(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) Tpe 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). U.S. Citizenship and Immigration Services (USCIS) has consistently interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 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. Cherto,ff, 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

In a letter submitted in support of the petition, the Petitioner stated that it had been contracted by a third party "to transfer of line form the reverse Medical facility to [the end client's] facility by 2018" and that the Beneficiary will perform his duties at the end client's offices. The Petitioner added that the Beneficiary's specific responsibilities will include (verbatim):

• Assisting in Revised Line Layout and capacity modeling[;] • Assisting in creation of test method and ensure Quality[;] • Ensuring the parameters of LASER machines and validate[;] • Capturing the current Process and recommend improvements in future state[;] • Performing Process Verification & validation[;] • Implementing Fixtures & other improvements to reduce cycle time and increase

throughput[;] • Creating Design Manufacturability (DFM)[;] • Working on Test method Qualification[; and] • Inspecting criteria standardization[.]

According to the Petitioner, the proffered "position requires a minimum education of a Bachelor's Degree in Electronics, Electrical Engineering, Computer Science, Information Technology or related degree."

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In response to the Director's request for evidence (RFE), the Petitioner provided a similar list of duties for the same project, but deleted the responsibilities of creating design manufacturability, working on test method qualification, and inspecting criteria standardization, and added "Vendor Management," "Market analysis for product," and "Managing sub-assembly line and small project."

On appeal, the Petitioner submits an unsigned statement of work for a new project with the same end client, as well as a letter, dated September 12, 2016, from the end client. In the letter, the end client's representative identifies the Beneficiary' s proposed duties for the projects as including (bullet points added):

• Develop processes validation requirement (IQ, OQ, PQ) and equipment qualifications;

• Initiate new and revised documentation; • Develop risk assessment; • Develop physical and functional test methods to ensure specifications are met; • Write and/or review design verification and validation protocols and reports; • Conduct testing outlined in protocols and test methods; • Perform process improvement, control and monitoring on the manufacturing

processes; [and] • Adhere to procedures on regulatory requirements.

In the same letter, the end client claims that its "complex projects require the individuals to have the minimum of a Bachelor's degree or its equivalent in the relevant technologies and domains" and that it understands that this is also an industry standard.

III. ANALYSIS

Upon review of the record in its totality and for the reasons 'set out below, we determine that the Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation.

For H-1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and substantiate that it has H-1 B caliber work for the Beneficiary for the entire period of employment requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to require the services of a person with at least a bachelor' s degree in a specific specialty, or its equivalent, to perform duties at a level that requires the theoretical and practical application of at least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for the period specified in the petition. Here, the Petitioner stated on the Form I-129 that it intended to employ the Beneficiary from October 1, 2016; to August 25,2019.

Although the Petitioner asserted that the Beneficiary would be employed offsite at the end client's facility in a specialty occupation position, the evidence of the record does not sufficiently support the Petitioner' s assertion. As the Director noted, the initial statements of work and descriptions of duties submitted were for a project that ended August 2016. While the Petitioner submits an unsigned

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statement of work pursuant to its master services agreement with the same end client on appeal, the Petitioner acknowledges that the statement of work is still being negotiated. This new statement of work is for the end client's project, and identifies eight engineers, including the Beneficiary, who will start work September 1, 2016. The duration of the statement of work for this project is six months with an evaluation for additional contract time to occur in February 2017.

First, even if we considered the information in this statement of work in conjunction with the end client's letter, also submitted on appeal, as evidence of the Beneficiary's potential work, the work identified expires more than 2 years prior to the end of the Beneficiary's intended employment period. Thus, the Petitioner has not established that is has definitive non-speculative work for the Beneficiary to perform. 1 Without properly executed agreements and work orders, service authorizations, or other similar documentation required by such agreements encompassing the period requested in the petition, we cannot find that the Petitioner has demonstrated availability of specific work for the Beneficiary at the time the petition was filed that would last for the entire period requested.

Second, when attempting to ascertain the proposed duties of the proffered position, the duties for the new project do not correspond to the Petitioner's initial statement of duties, nor the statement of duties submitted in response to the Director's RFE. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 5 82, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Jd. at 591-92. Further, even upon review of all the versions of the Beneficiary's proposed duties in the record, the descriptions are generic and lack the detail necessary to convey the Beneficiary's actual day-to-day tasks. Thus, we are unable to ascertain what actual duties will be expected of the Beneficiary and whether those

1 Speculative employment is not permitted in the H-l B program. A 1998 proposed rule documented this position 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 workforce needs arising from potential business expansions or the expectation of potential new customers or contracts. To detennine whether an alien is properly classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the position to be occupied to ascertain whether the duties of the position require the attainment of a specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate properly a request for H-1 B classification. Moreover, there is no assurance that the alien will engage in a specialty occupation upon arrival in this country.

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 ). While a petitioner may change its intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material change in intent

· through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E).

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duties will incorporate the theoretical and practical application of a body of highly specialized knowledge, associated with the attainment of a'baccalaureate or higher degree in the specific specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)(1) of the Act. Without additional information and documentation establishing the project(s) secured for the Beneficiary for the duration of the intended employment period and accordingly, the specific -duties the Beneficiary would perform on the projects, we are unable to discern the substantive nature of the position and whether the proffered position indeed qualifies as a specialty occupation.

Consequently, the proffered position does not satisfy any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines: (1) the normal minimum educational requirement for the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 4. As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), the proffered position does not qualify as a specialty occupation.

We further find that the Petitioner has not demonstrated that the end client requires a degree in a specific specialty to perform the duties of the proffered position. As recognized in Defensor, 201 F.)d at 387-88, the end client must provide sufficient information regarding the proposed job duties to be performed at its location and the requirements to perform those duties. In other words, as the nurses in that case would provide services to the end client hospitals and not to the petitioning staffing company, the petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation determination. !d. Here, the record of proceedings in this case is similarly devoid of sufficient information from the end client. In the September 12, 2016, letter referenced above; the end client stated that its "complex projects require the individuals to have the minimum of a Bachelor's degree or its equivalent in the relevant technologies and domains[.]" The end client did not detail what specific specialty is required for the proffered positiOn. Without more, it cannot be· determined that the proffered position qualifies for classification as a specialty occupation. Royal Siam Corp. v. Chert off, 484 F .3d at 14 7. The vague reference to "relevant technologies and domains" is insufficient to establish that the work the end client expects the Beneficiary to perform requires a bachelor's or higher degree in a specific specialty.

IV. EMPLOYER-EMPLOYEE RELATIONSHIP

Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-IB employer. The United States Supreme Court determined that where federal law fails to clearly define the term "employee," courts should conclude that the term was "intended to describe the

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· conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."

!d. ; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 5~8 U.S. 440,445 (2003) (quoting Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)).

As such, while social security contributions, worker's compensation contributions, unemployment insurance contributions, federal and state income tax withholdings, and other benefits are still relevant factors in determining who will control the Beneficiary, other incidents of the relationship, e.g. , who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, where will the work be located, and who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who will be the Beneficiary's employer. As noted above, the record of proceedings lacks sufficient documentation evidencing exactly what the Beneficiary would do for the period of time requested. We also observe that the record does not clearly identify the Beneficiary's supervisor or who will instruct the Beneficiary on his daily tasks while located at the Petitioner's end client's facility. For example, the Petitioner's organizational chart shows that the Beneficiary will report to the Petitioner's program manager. However, the proposed statement of work submitted on appeal indicates that key project personnel will report to

a project manager. It is not clear where and for whom works. Moreover, the proposed statement of work references the end client' s responsibilities as providing engineering direction and technical guidance. The Petitioner has not clearly set out the parameters of the end client's interaction with and instruction of the Beneficiary on particular projects. 2 Given this lack of evidence, the Petitioner has not established who has or will have actual control over the

2 We recognize that the Petitioner' s agreement with its end client states that the Petitioner will supervise the activities of

its personnel , however, this broad statement is 11nsufficient to substantiate that the Petitioner will direct the nature and extent of the Beneficiary's work to ens,ure that the Beneficiary will primarily perform specialty-occupation work.

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Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. Without full disclosure of all of the relevant factors, we are unable to properly assess whether the requisite employer-employee relationship will exist between the Petitioner and the Beneficiary.

Therefore1 in addition to finding above that the proffered position is not a specialty occupation, we will affirm the Director's decision and dismiss the appeal because the record does not establish that the Petitioner qualifies as an H-1B employer.

V. CONCLUSION

The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of L-T-S- Ltd., ID# 161191 (AAO Jan. 11, 2017)