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APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 10, 2017

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

The Petitioner, an information technology services company, seeks to temporarily employ the Beneficiary as a "computer programmer" under the H- t B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(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 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 prerequisitefor entry into the position.

The Director of the Vermont Service Center denied the petition, concluding that the Petitioner had not established that it has specialty occupation work available for the Beneficiary.

On appeal, the Petitioner submits a brief and states that it will submit an additional brief and evidence within 30 days. To date we pave not received an additional brief or other evidence to support the appeal. The record is considered complete.

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), 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 i.n 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:

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(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 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. Cherto.[(; 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

On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 13-employee "software development, outsourcing and consulting firm" located in Texas. The Petitioner seeks to employ the Beneficiary as a computer programmer for a three year period until September 2019. 1 Although the Petitioner specified that the Beneficiary will work off-site, the Petitioner listed the Beneficiary's sole place of employment as its Texas address.

The labor condition application (LCA) submitted in support of the Form I-129 states that the proffered position corresponds to the Standard Occupational Classification (SOC) code and occupation title 15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The LCA confirms the Beneficiary's sole place of employment as the Petitioner's

office.

In its support letter, the Petitioner explained that the Beneficiary will be assigned to its in-house project creating a

(Project H). The Petitioner described the duties of the protiered position as follows:

• Gather information, determine alternatives, create requirements, functional/technical processes.

1 The Petitioner requested a start date in September 2016. The beginning of the 2017 fiscal year, and hence the earliest possible start date of employment, would be in October 2016.

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• Deliver high quality, efficient solutions through innovative approaches to dynamic business deadlines in a complex and dynamic environment.

• Ability to multi-task development, support and on-going maintenance projects and meet re-engineering opportunities.

• Interact with internal business customers and other members of the team on integration and project management.

• Drive implementation and improvement projects. Knowledge in business analysis and year-end tax reporting.

• New configuration to support new lines of business and changes to existing ones. • Provide Break-fix support in a live production environmentincluding functional and

technical initiative issues. • Regularly interact with internal customers, vendors and technical team on support and

business. • Assess new enhancements and project requests with stakeholders to understand and

prioritize requests. • Lead cross-functional projects including project schedule development, requirements

elicitation, executing test plans, system implementation and post go-live hyper care support.

In an addendum to the Beneficiary's employment contract, the Petitioner listed the duties of the proffered position as follows:

• A competent technocrat having 1 0+ years of experience in SAP (EWM/MM/WM) Implementation & Technical Support, Sales & Marketing & Research.

• Exposure in modern concepts of end-to-end program planning and implementation from scope management, to activity sequencing, effort & cost estimation, risk analysis for quality management in adherence.

• Competent in configuration having configured end-to-end implementations in EWM, MM and WM and RF Handheld, HUM, Bar-coding (10, 20-PDF417 & Quick Response) & Label printing.

• Strong knowledge . of ABAP Objects, Performance analysis, ALE, IDoc and Debugging skills.

• Prepare Functional Specifications for RICEF (Reports, Interfaces, Conversations, Enhancements and Forms) objects.

• Acquired experience in executing the SAP projects for implementation; support projects & rollout.

• Possess strong knowledge in business mapping and customization activities with integration with other modules.

• Engage in the execution of large SAP implementation projects with worlds leading organizations.

• Strong Knowledge in configuring and customizing for HUM & SCM-EWM, MM­PUR (Accounts Payable/Procure to Pay (P2P) Processes, MM-IM, MM-IN, LE-WM, LE-MOB.

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• Review and Test System Upgrades: Install SAP supplied updates (OSS notes, LCP's); Install new releases of SAP; Install new releases of SAP; Install new releases ofbolt-ons (EPC, SRM, Documentum, ADFS)

• Keep manager or team lead informed of significant cross-team, cross-functional issues and/or significant technical challenges as appropriate. Proactively work to solve these issues while including the key functional and/or business stakeholders.

• Documentation of technical design specifications. • Documentation and execution of comprehensive unit, integration, and system test

scripts. • Facilitate capturing issues identified in testing and ensure their resolution prior to

implementation. • Regularly report status and raise issues/risks as appropriate. Anticipate and adjust for

. problems and roadblocks while eliminating roadblocks within control. • Develop strong working relationships with individuals at all levels of company,

operations, and IT applications and infrastructure teams. • Optimizing existing application design to give value add to the customer. Ticket

count analysis & Identifying problem areas. • Design, develop and maintain scripts for automation and maintenance of DB

Environments. • Participate actively in upgrade and testing activities of DB Environments.

In response to the Director' s request for evidence (RFE), the Petitioner summarized the proffered position as being "involved in the full application development life cycle: analyzing user needs and requirements, designing, implementing, testing, and debugging our in-house products including [Project H]." The Petitioner then listed the proffered duties as follows:

Analyze user needs and requirements- 15%

• Design, develop and maintain scripts for automation and maintenance ofDB analysis & Identifying problem areas.

• Optimizing existing application design to give value add to the customer. Ticket count and IT applications and infrastructure teams.

• Perform capacity analysis, feasibility analysis and other needs assessments.

Design and develop applications - 50%

• Design and implement a storage infrastructure/architecture to ensure that the solution meet disaster recovery, handle large amounts of disparate data to deliver optimum performance, etc.

• Design and develop back-end database interfaces to web and mobile applications. • Deploy ABAP Object;, Performance analysis, ALE, !Doc and Debugging. • Design and build relational databases to meet business requirements, data availability,

and data integrity.

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• Regularly report status • Regularly report status and raise issues/risks as appropriate. Anticipate and adjust for

identified in testing and ensure their resolution prior to implementation. • Develop database objects and structures for data storage, retrieval and reporting to

meet our application specifications.

Testing and debugging- 15%

• Perform on-going optimization of the systems to ensure adequate capacity, availability and scalability.

• Ensure that the database is satisfying business requirements.

Deploying and Supporting- 20%

• Deploy database on the Web and application server. • Manage data storage with an existing data warehouse system. • Review and Test System Upgrades: Install SAP supplied updates (OSS notes,

LCP's), Accounts Payable/Procure to Pay (P2P) Processes, MM-IM, MM-IN, LE­WM,LE-MOB.

• Manage database allocation by installing, configuring and maintaining Enterprise Storage subsystems.

• Analyze performance of enterprise storage system and make recommendations for improvement and technical plans for future initiatives, growth and resource needs.

• Configure end-to-end implementations in EWM, MM, scope management, to activity sequencing, effort & cost estimation, risk analysis for quality.

• Install new releases, configure and customize HUM & SCM-EWM, MM-PUR.

According to the Petitioner, the proffered position requires at least a "Bachelor's degree (or equivalent) in a relevant field."

III. ANALYSIS

Upon review of the entire record, we find that the Petitioner has not established that it has specialty occupation work available for the Beneficiary. That is, the Petitioner has not established that, at the time of filing, it has secured definite, non-speculative, H-1 B caliber work for the Beneficiary for the entire validity period requested.

In this matter, the Petitioner asserts that the Beneficiary will only work at the Petitioner's office on in-house project(s). However, on question 5, part 5 of the Form I-129, the Petitioner specifically answered "yes" to the question of whether the Beneficiary will work "off-site at another company or organization's location." While the Petitioner explained that it would place the Beneficiary at other off-site locations only if "for any unforeseeable reason the current project is

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terminated prematurely," the Petitioner stated this only i.n the context of its subcontractor/vendor agreements, not in the context ofits Form 1-129.

Further, the Petitioner has not consistently identified which and how many internal projects the Beneficiary will work on. Initially the Petitioner stated that the Beneficiary will only work on Project H. No other projects were identified or implied. But in response to the Director's RFE, the Petitioner stated that the Beneficiary will be involved in projects "including" or "such as" Project H. The Petitioner then identified another project, its ' project which serves the energy industry, as the company's first software application "being developed in­house by [the Petitioner's] in-house software development team." The Petitioner specified that the Beneficiary is "part of this in-house software development team." It is thus not evident whether the Beneficiary will work on Project H, the project, or both.

The Petitioner submitted information about Project H's development, progress, timelines, team members, and funding. For instance, the Petitioner stated in its supporting "memorandum" that this project "kicked off in December 2015 with project time line till August 2019." In another document entitled the "project charter," the Petitioner consistently indicated that the product should be implemented, i.e., "go-live," by August 2019. Yet the timeline contained in the project's "statement of work" (version 1.0 created in December 20 I 5) indicates that the testing and go-live phases would be comp~ete in "August 2016-2017." The phase of longest duration, the accounting module, would be complete in "September 2017-2018." The Petitioner has not explained:- (1) whether these dates refer to August 2016 or August 2017, and September 2016 or September 2017; (2) why the go-live phase would be completed before the accounting module is finished; and (3) what work, if any, remains beyond September 2017 or 2018 through August 2019.

The Petitioner's "memorandum'~ identifies Project. H's development team as cons1stmg of the following five employees: (1} project manager and solution architect; (2)

software developer; (3) computer systems analyst; ( 4) computer programmer (offshore )L; and (5) computer programmer. On the

other hand, the Petitioner's organizational chart and performance reviews depict all of these employees, except for as holding different positions.

In particular, the organizational chart and performance reviews identify as the "IT lead" or "information technology manager 1." The Petitioner similarly stated m its RFE response that "employees are expected to provide [timesheets] to the Supervisor, at the end of each week." However, elsewhere in the record the Petitioner identified the Beneficiary's direct supervisor as \vho is the project's manager, and depicted as having no supervisory, managerial, or lead duties in his capacity as a software developer.

2 The Petitioner also stated that "[s]ome of team members are already involved in this project by helping us from India,"

indicating that more than one project member works offshore.

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The Petitioner also has not demonstrated sufficient funding for its internal project. The Petitioner indicated that the project requires $400,000 for "production and testing of prototypes." In another document, the Petitioner indicated that the project would require total funding of approximately $500,000 to $800,000. But the Petitioner's request for a $350,000 business loan was denied, and the record does not contain evidence that the Petitioner is "in the process of acquiring SBA bank Joan for the development of this product" or otherwise has sufficient income to cover the cost of production. On appeal the Petitioner now asserts that it "did ,not need funds when the project is in requirement gathering, design phase [because an] existing team worked on these phases." This statement directly conflicts \Vith prior information that computer equipment alone would reqmre $30,000, plus another $35,000 specifically for "requirement gathering/as-is/to-be design."

In denying the petition, the Director informed the Petitioner that a recent site visit conducted by U.S. Citizenship and Immigration Services officers revealed that the Petitioner' s office is only 268 square feet in size. This appears insufficient to provide the Beneficiary and the other development team members with the necessary space and equipment to perform the claimed project work. The Petitioner has not addressed this concern on appeal. This lack of information further calls into question whether the Petitioner will actually assign the Benetl.ciary to work on the claimed in-house project(s).

Accordingly, for all of the above reasons, we find the record insuft1cient to demonstrate that the Petitioner has definite, non-speculative work available for the Beneficiary for the entire validity period requested. 3

We also find the record insufficient to demonstrate that the Beneficiary will perform work of H-1 B caliber. That is, the Petitioner has not demonstrated that the proffered position qualifies as a

3 Speculative employment is not permitted in the H-1 B program. For example, a 1998 proposed rule documented thi s 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 8 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 aris ing from potential business expansions or the expectation of potential new customers or contracts. To determine 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 \Vhether the duties of the position require the attainment of a specific bachelor's degree. See section 2 I4(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the ali en has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of thi s 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 specia lty occupation upon arrival in this country.

Petitioning Requirements for the H Nonimmigrant Class ification, 63 Fed. Reg. 30,419, 30,4 I 9-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214).

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specialty occupation because the evidence of record does not establish the substantive nature of the proffered position.4

The record does not establish the substantive nature of the proffered position because the Petitioner has provided inconsistent, ambiguous descriptions of the Beneficiary's job duties. For example, the Petitioner's support letter described the proffered duties as primarily involving gathering business requirements, e.g. , " [gathering] information, detennin[ing] alternatives, creat[ing] requirements, functional/technical processes," "interact[ing] with internal customers, vendors and technical team on support and business," and "[assessing] new enhancements and project requests with stakeholders to understand and prioritize requests." Yet in response to the RFE, the Petitioner added substantial web, application, and database design and development duties such as "[designing] and develop[ing] back-end database interfaces to web and mobile applications,""[ designing] and build[ing] relational databases," and "[deploying] database on the Web and application server." The Petitioner has not explained how the latter set of job duties is consistent with the former.

The Petitioner also has not explained how the stated job duties are consistent with the "Computer Programmers" occupational classification selected on the LCA. Neither O*NET nor the Occupational Outlook Handbook, both of which we consider as authoritative sources on the duties of the wide variety of occupations that they address, indicates that computer programmers typically perform job duties involving gathering business requirements, and designing and developing software, web, and mobile applications and databases. 5

Several of the stated job duties - partitularly the ones in the addendum to the Beneficiary' s employment agreement - do not convey the actual duties, tasks, ,or services to be perforn1ed. For example, the duties of "[a] competent technocrat having I 0+ years of experience in SAP (EWM/MMJWM) Implementation & Technical Support, Sales & Marketing & Research" and "[ c ]ompetent in configuration having configured end-to-end implementations in EWM, MM and WM and RF Handheld, HUM, Bar-coding (lD, 2D-PDF417 & Quick Response) & Label printing" appear to relate to the Beneficiary's abilities rather than further illuminating the substantive nature of the proffered position.6 In fact, these and other job duties, including "[e]ngage in the execution of large SAP implementation projects with world[']s leading organizations," do not appear relevant to the claimed in-house project(s) at hand. The Petitioner does not claim the Beneficiary will perform sales or marketing duties, or that the in-house project(s) will include bar-coding, label printing, or world-wide leading organizations.

4 We will withdraw the Director's comments that "the position ~f Computer Programmer is traditionally considered a specialty occupation,' ' The Director has not provided any persuasive reasoning nor cited to any authoritative sources to support such a conclusion. . 5 For more information about the "Computer Programmers" occupational classification, see the O*NET Details Repo1t for "Computer Programmers," https: //www.onetonline,orgllink/details/ 15-1131.00 (last visited Apr. I 0, 20 17); US Dep' t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed,, "Computer Programmers,'' https: //www.bls,gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-2 (Apr. I 0, 20 17), 6 These job duties appear verbatim in the Beneficiary's resume.

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For all of the above reasons, we find that the Petitioner has not established the substantive nature of the work the Beneficiary will perform. This therefore precludes a finding that the proffered position satisfies 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 entry into the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the profiered 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. Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4 )(iii)(A), we cannot find that the proffered position qualifies for classification as a specialty occupation.

Finally, we cannot find that proffered position qualifies as a specialty occupation by virtue of its minimum educational requirement. Here, the Petitioner stated that the proffered position requires at least a "Bachelor's degree (or equivalent) in a relevant field." The Petitioner has not specified what field or fields it considers "relevant" and which it would accept for entry into this particular position.

As previously stated, 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, 484 F.3d at 147; Defensor, 201 F.3d at 387. Cf Matter o.lMichael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). Accordingly, a petitioner must demonstrate that its proffered position requires a precise and specific course of study that relates directly and closely to the position in question. The Petitioner has not done so here.

IV. CONCLUSION

The Petitioner has not established that it has definite, non-speculative specialty occupation caliber work available for the Beneficiary for the entire validity period requested.

ORDER: The appeal is dismissed ..

Cite as Matter of , ID# 302705 (AAO Apr. 10, 2017) -----

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