U.S. Citizenship and Immigration Services

MATTER OF 1-S-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY31,2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an IT services provider, seeks to temporarily employ the Beneliciary as a "software developer" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-1 B program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 'equivalent) as a minimum prerequisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the evidence of record did not establish that the proffered position qualilies as a specialty occupation position.

On appeal, the Petitioner submits additional ·evidence and asserts that the Director erred m the decision. 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 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:

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

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

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

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

8 C.F.R. § 214.2(h)(4)(iii){A). We construe the term "degree" to mean notjust 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 degr~e 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).

As recognized by the court in Defensor, 201 F.3d at 387-88, where, as here, the work is to be performed for entities other than the petitioner, evidence of the client company's job requirements is critical. The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the beneficiary's services. /d. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specitic discipline that is necessary to perform that particular work.

II. PROFFERED POSITION

The Petitioner is engaged in the deployment of software consultants to "help companies leverage technology assets to their advantage." It asserts that the Beneficiary will serve as a "software developer" tor an end-client located in California, pursuant to a success ion of claimed contractual arrangements with other vendors. The Petitioner initially submitted a letter from the end-client that provided a job description for the protTered position as follows (verbatim):

• Gathering requirements from the Business owners & external vendors and developing Functional Design Documents.

• Perform Functional unit testing of various requirements identified and developed by the applications development team.

• Responsible for meeting with business owners to capture and document all requirements related to each report.

• Creation of functional design documents for each report. • Execution of a test plan and functional unit testing for each impacted report.

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• Experience in working through the project lifecycle over multiple assignments under aggressive time lines with minimal ramp-up time.

• Responsible for planning, implementing, and reporting on work progress. • Perform payroll processing activities for testing Benefits deductions like creating

pay sheets, calculating pay, confirming payroll, running/auditing reports and fixing payroll related issues.

• Test the database integrity by writing SQL queries and PS-Queries. Create queries for the business users using PS-Queries to review the results of benefit's enrollments and snapshots.

• Writing testing plans Test cases and executing Functional Unit testing, System · Integration, and help Business users with User Acceptance Testing.

• Provide functional expertise to resolve risks and bottlenecks related to system functionality of PeopleSoft HR, Payroll, Benefits Administration and General ledger systems.

The Petitioner provided a position description for the proffered position as follows (verbatim) in response to the Director's request for evidence (RFE):

Duties Relative Time Percentage Requirements analysis and design 30'Yc, Peoplesoft Application enhancement & Support 30% Interfaces & Integration build 20% Database design and development 20%

III. ANALYSIS

Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the Petitioner has not sufficiently established the work the Beneticiary would perform during the intended period of employment.

A. Inconsistent Degree Requirement

As a preliminary matter, we conclude that the Petitioner has provided inconsistent statements regarding the minimum requirements for the proffered position. The table below summarizes the variances in the education and work experience requirements for the protTered position.

Record of Proceedings Minimum Requirements Petitioner's March 2017 Either a bachelor's or a master's degree 111 computer Letter sc1ence, information systems, management information

systems, electrical/electronic engmeenng, physics, or a closely related field.

End-client's March 2017 At least a bachelor's degree 111 computer sc1ence, Letter engineering, information technology, mathematics, or

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science, or other related field in addition to relevant work experience.

Petitioner's November At least a bachelor's degree in computer science, or a 2017 Letter closely related field

The Petitioner has not consistently stated the minimum educational requirement for this position. At first, it stated different types of degrees (either a bachelor's or a master's degree) 1 and diverse fields: computer science, information systems, management infom1ation systems, electrical/electronic engineering, or physics. In response to the RFE, the Petitioner indicated that it required a bachelor's degree in computer science, or a closely related field. Further, the end-client provided a list of acceptable bachelor's degrees that differed from the Petitioner's list by also including unspecified engineering degrees, information technology, mathematics, or a general science degree, while omitting the physics degree, and also required unspecified work experience. The Petitioner did not provide an explanation for the variances in the minimum degree requirements. The Petitioner must res;lve this inconsistency in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988).

In short, the record contains numerous iterations of the claimed minimum requirements for entry into the proffered position. This is especially significant given the range of degrees the Petitioner potentially accepts for this position. For example, acceptance of electrical/electronic engineering, physics, management information systems degrees, without further explanation, indicates that the proffered position does not qualify as a specialty occupation which, by definition, requires the attainment of a bachelor's or higher "degree in the specific specialty." Section 214(i)(l )(B) of the Act.

We note that the Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 20 12), for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge."

We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree is what is important." In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as physics and electrical engineering, would not meet the statutory

1 Notably, if the proffered position requires a master's degree for the proffered position, then the wage level would increase by one level, and the labor condition application (LCA) in the record would not correspond to the petition. The Petitioner designated the proffered position as a Levell position on the LCA.

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requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l )(B) of the Act (emphasis added). The Peti tioner has not adequately done so here.

In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in Residential Finance.2 We also note that, in contrast to the broad precedential authority of the case law of a United States circuit court, we are not bound to follow the published decision of a United States district court in matters arising even within the same district. See Maller of K-S-, 20 l&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed as a matter of.Iaw. !d.

Therefore, in light of the inconsistencies regarding the minimum educational requirements tor the position, the record does not establish that the position qualifies as a specialty occupation.

B. Specialty Occupation Employment

It is essential to note that in order to detennine whether a particular job qualifies as a specialty occupation, we do not simply rely on a position's title. The specific duties of the proffered position, combined with the nature of the petitioning entity's business operations, are factors to be considered. We must examine the ultimate employment of the individual, and determine whether the position qualifies as a specialty occupation. See generally Defensor, 201 F.3d 384. The critical element is not the title of the position or an employer's self-imposed standards, but whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation, as required by the Act.

The Petitioner submitted a November 2017 opinion letter from . in response to the RFE to establish that the proffered position qualifies as a specialty occupation. focused his analysis of the claimed specia lty occupation nature of the proffered position, and included a position description within his letter that he characterized as "a breakdown of the specific duties that [the Beneficiary] will perform." The cited position description substantia lly differed from the position descriptions which we previously quoted above, despite the fact that opinion letter was submitted contemporaneously to the Petitioner's November 2017 letter, which contained the Petitioner's position description. For example, he discussed that the Beneficiary

2 It is noted that the district judge's decision in that case appears to have been based largely on the many factual errors made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district court 's conclusions and description of the record, if that matter had first been appealed through the available administrative process, we may very.well have remanded the matter to the service center lor a new decision for many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter.

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spends I 0% of his time performing "synchrous/asynchrus messaging" and 10% of his time to "dev~lop few interfaces to pull and push data from Neither the end-client nor the Petitioner mention these job tasks in their letters, nor are these referenced tasks explained e lsewhere in the record . Moreover, the source of the pos ition description cited in letter was not identified therein. He also did not indicate that he was aware of the specifics of the Beneficiary's claimed employment at the end-client location. We may, in our di~cretion, use opinion statements submitted by the Petitioner as advisory. Malter c~f Caron Int'l, Inc., I 9 I&N Dec. 791 , 795 (Comm' r I 988). However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. !d. Accordingly, we find the record does not demonstrate that · is, as claimed, an expert on the current requirements for the proffered position, or that he possessed the requisite information· to adequately assess the nature of the position. Therefore, we therefore find the cited position description and accompanying analysis in his letter to be of little probative value.

Importantly to the matter at hand, the Petitioner also has not provided adequate documentation about the specifics of the end-client project to demonstrate that it will have non-speculative work for the Beneficiary for the entire period of his proposed stay as an H- 1 B nonimmigrant3

, and the nature of such work. The Petitioner seeks to employ the Beneticiary as an H-I B nonimmigrant from October 2017 through August 2020.4 It asserts that the Beneficiary will work as a software developer at an end-client' s location in CA, and supported the petition with an LCA solely for that work 1

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3 The agency 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 as follows:

Historically, the Service has not granted H-1 B classification on the basis of speculati ve, 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 expimsions 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 firsi examine the duties of the position to be occupied to ascertain whether the duties of the position requ ire the attainment of a specif1c 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 th is country.

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

4 The Petitioner employed the Beneficiary through post-completion optional practical training. 8 C.F.R. § 274a.l2(c)(3)(i)(B); 8 C.F.R. § 214.2(f)( IO)(i i)(A)(3). 5 The Petitioner is required to submit a certified LCA with the H-I B petition demonstrate that it will pay the 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 Matter ofSimeio Solwions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15).

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The record contains a supply service agreement (SSA) with S-T-B-T-S- (mid-vendor), which indicated that the Petitioner will provide "associates" to the mid-vendor to perform services for the mid-vendor's clients as described in a statement of work (SOW). The Petitioner also provided a letter from the mid-vendor which indicated that it supplies staff to K-S- (prime vendor) "for all of their contract needs." The mid-vendor further stated that "all vendors by contract must enter into an agreement with [us] for any stalling engagements at [the prime vendor) or its customers." The record also contains a letter from the prime vendor and from the end-client, U-0-C-. The p'rime vendor reiterated the previously described position description provided by the end-client in its March 2017 letter, and indicated that the Beneficiary's assignment with the end-client "is expected to last through October 2017, [with) an opportunity for an extension."

The end-client stated in its letter that:

[The Beneficiary] is providing services to [the prime vendor] with [the prime vendor) acting as his "end-client". This letter confirms that [the Beneficiary J started on this project on October 23, 2016 and [is) expected to continue with possible multiple extensions. The current forecast states that it will continue at least till the end of

• 2017. [The end-client] consulting services contract with [the prime vendor] is currently valid. Our contract with [the prime vendor] provides for extension and, on as-need basis, we will exercise this provision to accommodate our needs.

We conclude that the SSA and the letters provided to document the contractual arrangements for the provision of the Beneficiary's services at the end client site between the Petitioner, two-intermediary vendors, and the ultimate end-client, do not sufficiently demonstrate that the Petitioner has non­speculative, specialty occupation employment to offer the Beneficiary. Beyond the submitted SSA between the Petitioner and the mid-vendor, the record is devoid of the actual contractual documentation that form the claimed basis of the service agreements that the various parties allude to in their letters. To illustrate, the Petitioner has not provided a copy of its SOW for the provision of the Beneficiary's services trom the mid-vendor to the prime vendor, who is another service provider, nor has it provided sufficient documentary evidence of the respective contractual arrangements between the mid-vendor and the prime vendor, and the prime vendor and the end­client.

Without full disclosure of the terms and conditions of the contractual agreement between the parties, we are unable to determine the substantive nature of the Beneficiary's assignment, such that we could determine if a specialty occupation exists for the duration of the requested employment period. The letters do not adequately describe the nature of the Beneficiary's employment, in order to demonstrate that the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specilic specialty as the minimum for entry into the occupation, as required by the Act. Specifically, while the record contains a letter from the end-client, the letter describes the Beneficiary'~ duties in relatively general and repetitive terms without providing sufficient information regarding the

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particular work and associated educational requirements. For example, the duties include "gathering requirements from the Business owners & external vendors and developing Functional Design Documents," "creation of functional design documents for each report" and "responsible for meeting with business owners to capture and document all requirements related to each report."

Without a meaningful job description, the record lacks evidence sufficiently informative to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a specific specialty. The duty descriptions do not communicate: (I) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a speci.tic specialty.

Moreover, while the documentation alludes to possible contractual extensions for the provision of the Beneficiary's services to the end-client, we observe that absent elective, subsequent-to-filing contractual extensions by the end-client, the claimed agreements that underlay the Beneficiary's employment at the end-client site were set to expire in late 2017 at the time the Beneficiary's employment with the Petitioner was desired to commence, while the requested period of H-1 B employment extends through August 2020. Therefore, based upon the record in its entirety, we find that the Petitioner has not demonstrated that, as of the time of filing, it secured definite, non­speculative specialty occupation work for the Beneficiary for the entire validity period requested 6

users regulations atTirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is tiled. 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 Maller ofMichelin Tire Corp., 17 l&N Dec. at 249.

For the reasons discussed above, we conclude that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. 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 (I) the normal minimum educational requirement for entry into the particular position, which is the focus of criterion I; (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. Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F .R. § 2!4.2(h)( 4 )(iii)( A), it cannot be found that the proffered position qualities for classification as a specialty occupation.

6 Further. without full disclosure, we are also unable to detennine whether the requisite employer-employee relationship will exist between the Petitioner and Beneficiary. ·

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IV. CONCLUSION

The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Maller of 1-S-. Inc., ID# 1280403 (AAO May 31, 20 18)

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