MATTER OF S-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 21, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a computer software company, seeks to temporarily employ the Beneficiary as a "SaaS product manager" under the H-1 B nonimmigrant classification for specialty occupations. 1 Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the Beneficiary is not qualified to perform the duties of the proffered position. On appeal, the Petitioner submits additional evidence and asserts that the Director erred.

Upon de nova review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(2) of the Act, 8 U.S.C. § l 184(i)(2), states that a foreign national applying for classification as an H-1 B nonimmigrant worker in a specialty occupation must possess:

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in [Section 214(i)(l)(B) of the Act, 8 U .S.C. § 1184(i)(l )] for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree, and

1 The Petitioner explains that software as a service (SaaS) "is a software distribution model in which a third-party provider hosts its software application and makes it available to its customers via the Internet on a subscription basis."

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(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C), implementing section 214(i)(2) of the Act, specifies that, to qualify to perform services in a specialty occupation, the foreign national must:

(I) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Have [(1)] education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and [(2)] have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The provisions at 8 C.F.R. § 214.2(h)(4)(iii)(D) supplement the degree-equivalency requirement at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) by defining "equivalence to completion of at least a U.S. baccalaureate or higher degree" and by specifying the means for establishing that degree equivalency. The definitional segment at 8 C.F.R. § 214.2(h)(4)(iii)(D) states:

[F]or purposes of paragraph (h)( 4 )(iii)(C)( 4) of this section, equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty ....

The regulation then states that the degree-equivalency "shall be determined by one or more of following" five means:

(I) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience;

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(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);

(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;2

( 4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;

(5) A determination by the Service that [(a)] the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that [(b)] the [foreign national] has achieved recognition of expertise in the specialty occupation as a result of such training and experience ....

In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5):

For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks .... It must be clearly demonstrated [(1)] that the [beneficiary's] training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; [(2)] that the [beneficiary's] experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and [(3)] that the [beneficiary] has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;3

2 In accordance with this provision, we will accept a credentials evaluation service's evaluation of education on~r, not training or work experience. 3 Recognized authority means a person or organization with expertise in a particular field, special skills or knowledge in that field. and the expe1iise to render the type of opinion requested. 8 C.F.R. § 214.2(h)( 4 )(ii). A recognized authority's opinion must state: (1) the writer's qualifications as an expert: (2) the writer's experience giving such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom: (3) how the conclusions were reached; and ( 4) the basis for the conclusions suppo1ied by copies or citations of any research material used. Id.

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(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation m a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

By its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for U.S. Citizenship and Immigration Services (USCIS) application and determination. Experience will merit a positive determination only to the extent that the record of proceeding establishes all of the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)-including, but not limited to, a type of recognition of expertise in the specialty occupation.

II. ANALYSIS

The Petitioner asserts that the Beneficiary is qualified to perform the duties of the specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(2) and (4).4 However, the record does not sufficiently establish the Beneficiary's qualification under the statutory and regulatory requirements.

A. Foreign Degree Determined to be Equivalent to a U.S. or Higher Degree Required by the Specialty Occupation from an Accredited College or University

To determine whether the Beneficiary has a foreign degree determined to be equivalent to a U.S. Bachelor's degree required by the specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(2), we must first ascertain what is required for the proffered position. To inform this inquiry, we look to the record to consider the duties, requirements, and other documents filed in support of the petition.5

In the letter submitted in support of the H-1 B petition, the Petitioner indicated that the proffered position requires "a bachelor of science degree in architecture, engineering, computer science, mathematics, or a related scientific discipline and 5 years of software and/or digital product management and development experience at a senior level." On the labor condition application (LCA), the Petitioner designated the

4 The Petitioner does not assert, and the record does not establish, that the Beneficiary is qualified under 8 C.F.R. § 214.2(h)(4)(iii)(C)(/) or (3). 5 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 v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). Ifwe were limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization could 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.

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proffered position under the occupational category "Computer Occupations, All Other," corresponding to the SOC code 15-1199.6 To inform what is normally required for the occupational category corresponding to the proffered position, we 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.7 However, the Handbook provides only summary data for certain occupational categories, such as "Computer Occupations, All Other."8 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in Detail, https://www.bls.gov/ooh/about/ data-for-occupations/not­covered-in-detail.htm (last visited Nov. 20, 2018). The Handbook reports that the typical entry-level education for "Computer Occupations, All Other," is a "bachelor's degree," without identifying a specific specialty. 9 Id. When the Handbook does not provide sufficient information regarding the duties and educational requirements, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, authoritative sources) to establish that the particular position qualifies as a specialty occupation.

The Petitioner described nine duties of the proffered position. Examples include the following:

• [The Beneficiary] will review our SaaS search engine offerings (Ecommerce search, enterprise search, faceted search, full-text search, real-time search, concept search and website search engines for websites and mobile applications) from a software perspective becoming intimately familiar with our product's behavior, strengths and weaknesses. Based upon his review, [the Beneficiary] will provide a product software analysis.

• [The Beneficiary] will conduct an overall review of our present interdepartmental (Design, Engineering, Sales and Marketing and Operations) communication protocol as it relate to product development. Based upon his review, [the Beneficiary] will provide an analysis.

6 A petitioner submits the LCA to DOL 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 duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. § 655.731 (a). 7 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source ofrelevant 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.

The Handbook provides summary data for a range of occupations including, for example: postmasters and mail superintendents; agents and business managers of artists, performers, and athletes; farm and home management advisors; audio-visual and multimedia collections specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; travel guides; and agricultural inspectors. 9 Although the Petitioner asserts that it requires a bachelor's degree in architecture for the proffered position, the Handbook does not inform that the "Computer Occupations, All Other," category requires a bachelor's or higher degree in a specific specialty. The degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii).

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• [The Beneficiary] will research our direct competitors becoming intimately familiar with their search engine products, sales and marketing strategies and positioning. Based upon his review, [the Beneficiary] will provide a product software competitive analysis.

Although the search engine research and communication protocol duties relate to the designated "Computer Occupations, All Other," category, the duties seem unrelated to a degree in architecture.

On appeal, the Petitioner asserts that the Beneficiary is qualified to perform the duties of the "SaaS product manager" position in the "Computer Occupations, All Other," category based on a foreign bachelor's degree in architecture, a field seemingly unrelated to computer occupations. 10 To support this assertion, the Petitioner submits an opinion letter from , a professor of computer science and engineering. asserts that he has the authority to grant college-level credit for training and experience in the specialty at an accredited college or university which has a program for granting such credit.

As a matter of discretion, we may use opm1on statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 795 (Comm'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 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.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue."').

asserts that he reviewed the Petitioner's description of the proffered position's duties and concludes that "successfully carrying out typical SaaS Product Manager job duties requires at least a bachelor's degree, or its equivalent, in a highly related field," without specifying which fields are highly related to the position. also asserts that "the architectural design, computer aided design and simulation courses directly applies [sic] to the job duties performed, and is a strong asset in this role," forming a "strong educational foundation in Computer Science." However, does not specify any particular course(s) he believes establishes that foundation. further opines that the Beneficiary's "management-related courses, such as Product Analysis, Applied Workshops, Environment Analysis, Review of Methodologies, Regulations and Compliance and Cost Evaluation represent a core set of knowledge for a SaaS Product Manager position." In sum,

concludes that "the curricula completed by [the Beneficiary] has a direct correlation with the specific duties of the SaaS Product Manager position."

10 For example, the Handbook states that relevant degree specialties for the "Software Developers" occupational category are "computer science, software engineering, or a related field ." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Software Developers, https://www.bls.gov/ooh/computer-and-information­technology/software-developers.htm#tab-4 (last visited Nov. 20, 2018).

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However, the record does not contain sufficient information to establish that the curricula the Beneficiary completed is equivalent to a U.S. baccalaureate or higher degree in a specific specialty, required to perform the duties of the proffered position. Many of the course titles in the translation of the academic record are specific to architecture, and do not readily establish that they are relevant to the proffered position. For example, course titles such as "Architectural Theories, from Renaissance to 1945," "Construction I: Materials and Framing," "Architectural Theories, from 1945 to Today," "Construction II: Components and Fixtures," "Dwelling Projects," "Building Rehabilitation Projects," "Lighting and Real-Life Ambiences," and "Nature and Culture: Esthetical Aspects of Landscape," do not appear to apply toward a degree relevant to the proffered position. Without substantially more information, we cannot determine whether courses with such titles would support the conclusion that the Beneficiary's architecture degree qualifies him for the "Saas product manager" position.

Furthermore, in response to our request for evidence (RFE), the Petitioner submits an evaluation of the Beneficiary's bachelor's degree from Silvergate Evaluations, a credentials evaluation service which specializes in evaluating foreign educational credentials. The Silvergate academic evaluation concludes that the Beneficiary "has attained the equivalent of a Bachelor's Degree in Architecture from an accredited institution of higher education in the United States." However, the issue here is that the record does not sufficiently establish that the Beneficiary's foreign degree in architecture is a degree related to the proffered position. Accordingly, the record does not establish that the Beneficiary holds a foreign degree determined to be equivalent to a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university.

B. Experience in the Specialty Equivalent to the Completion of a Baccalaureate or Higher Degree Required by the Specialty Occupation from an Accredited College or University

On appeal, the Petitioner asserts that the Beneficiary is qualified to perform the duties of the specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) because he "has the education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in Management Information Systems." To support this assertion, the Petitioner submits a second opinion letter from ______ and

a professor of management and information systems.

Again, as a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter o.f Caron Int 'l, Inc., 19 I&N Dec. 791 at 795. 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 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. ; see also Matter of V-K- , 24 I&N Dec. at 502 n.2.

Both and reviewed translations of the degree and academic transcript, and letters from representatives of two organizations for whom the Beneficiary worked, summarizing the Beneficiary's duties as an employee. However, ___ and disagree regarding (1)

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how much prior relevant academic experience the Beneficiary possesses, (2) how much of the Beneficiary's work history applies to establishing equivalence to a U.S. bachelor's or higher degree in a particular specialty, and (3) the total amount of qualifying experience the Beneficiary accrued through his work history.

concluded that the Beneficiary's employment between May 6, 2010, and June 15, 2013, and between June 24, 2013, and September 15, 2015, total "four (4) years and 4 months of documented professional work experience in the area of Management Information Systems with increasing responsibilities." However, that period totals five years and four months. also determined that the Beneficiary's degree and academic transcript establish that 85 out of 96 credit hours may be applied toward a bachelor's degree in management information systems but does not specify which courses he is counting to make up 85 credit hours in management information systems. As discussed above, many of the course titles are specific to architecture, and do not readily appear to apply toward a degree in management information systems.

On the other hand, asserts that he "would count that 2 years of [the Beneficiary's] studies in the undergraduate program would apply towards an equivalence of a Bachelor's degree in Management Information Systems," although does not specify which specific courses would apply. In addition to contradicting opinion about qualifying education,

believes that more work experience should apply than the four years and four months ( or even five years and four months) of experience found relevant. Unlike

includes the three-month period from June through August 2009 during which the Beneficiary worked for the employer for whom he later worked from May 2010 through June 2013.

also includes the 15 months between January 2016 and March 201 7 during which the Beneficiary worked for the Petitioner as a "management consultant." opines that the Beneficiary "deployed some of the specialized knowledge and skills normally acquired while earning a Bachelor's degree in Management Information Systems" during 6.7 years.

In sum, the extent of and agreement is that, at most, two years of the Beneficiary's bachelor's degree apply toward the equivalent to a bachelor's degree in management information systems. However, they do not provide sufficient information to establish which particular courses they believe apply and, moreover, they reached their conclusions without reviewing or referencing syllabi or additional information describing the actual coursework.

Furthermore, in response to our RFE, the Petitioner submits opinion letters from and , both associate professors of computer science, and from

an associate dean of a business school. The latter three opinion letters disagree with each other and with and regarding how much of the Beneficiary's work experience should apply toward an equivalent to the completion of a qualifying degree. concludes that the Beneficiary "worked in the field of Information Technology for more than eight years," whereas concludes that the Beneficiary has "more than five years of practical experience," and concludes that the Beneficiary's "four-plus years of employment reflect experience and training in positions of progressively increasing responsibility." Because the

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five opinion letters in the record dispute the extent of the Beneficiary's relevant work experience, ranging from as little as four to as much as eight years, we exercise our discretion in this matter to give the opinions minimal weight. 11 See Matter o.f Caron Int 'l, Inc., 19 I&N Dec. 791 at 795; see also Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm' r 1988).

We further conclude that the record does not establish that the Beneficiary has achieved recognition of expertise in the specialty occupation as a result of such training and experience. 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). Documentation to satisfy this prong of the regulation can include "[r]ecognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation." 8 C.F .R. § 214.2(h)( 4 )(iii)(D)(5)(i). 12 While the Petitioner asserts that

and qualify as "recognized authority" within the meaning of 8 C.F .R. § 214.2(h)(4)(ii), the opinion letters, as mentioned, contain discrepancies that undermine their authority. Further, the letters do not sufficiently establish all of the requirements under 8 C.F.R. § 214.2(h)( 4 )(ii), including the writers' experience giving such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom, or the basis for the conclusions supported by copies or citations of any research material used.

III. CONCLUSION

For the reasons outlined above, the record does not sufficiently demonstrate the Beneficiary's qualification under the statutory and regulatory requirements.

ORDER: The appeal is dismissed.

Cite as Matter ofS-, Inc., ID# 1367013 (AAO Nov. 21, 2018)

11 We further note that, although one of the letters from a prior employer mentions that the Beneficiary supported a "small development team," it does not discuss whether the members of that team had a bachelor's or higher degree, or its equivalent, in the specialty occupation. See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). Moreover, although the letter also mentions that the Beneficiary "interact[ ed] directly with fellow computer programmers" and "worked relentlessly to help software engineers develop and implement their big ideas [as] an original member of , Canada's first national software development competition," the letter does not discuss whether any of those computer programmers or software engineers had a qualifying degree, or its equivalent. Even if it did, those activities appear to have been outside the scope of the Beneficiary's employment. 12 The Petitioner does not claim, and the record does not demonstrate, that the Beneficiary satisfies the criteria at 8 C.F.R. § 2 l 4.2(h)(4)(iii)(D)(5)(ii)-(v).

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