U.S. Citizenship and Immigration Services

MATTER OF C-G- INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 28, 2018

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

The Petitioner, a software consulting company, seeks to temporarily employ the Beneficiary as a programmer 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. § 1 10l(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 prerequisite for entry into the position.

The Director of the Vermont Service Center denied the petition. concluding that the evidence of record did not establish that the Petitioner had specialty occupation work available to the Beneficiary for the requested validity period. On appeal, the Petitioner claims that, contrary to the Director's decision, the preponderance of the evidence supports approval of the petition.

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 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:

(1) 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 have construed 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 Ro_val Siam Corp. v. Chert(~((, 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").

II. ANALYSIS

Upon review of the record in its totality and for the reasons explained below, we conclude that the Director's decision to deny the petition for insufficient evidence of specialty-occupation work for the specified H-1 B employment period \vas correct. 1

The Petitioner indicated that the Beneficiary will be assigned to work on the project. at its location. However, the Petitioner did not provide sufficient evidence to substantiate that a bona fide project exists for the Beneficiary.

For example, a document entitled" -2015,'' appears to be a presentation on the capabilities of an already existing system. In particular. the box appearing under "Key Tasks'' on the "Project Management" page suggests that the document may actually be referring to another company's e-billing product already on the market, i.e., billing suite: 2

• IT Strategy Assessment framework provides quantitative and qualitative analysis associated with Business Alignment, Organizational Effectiveness, Governance and Technical Architecture capabilities and processes[.]

1 We follow the preponderance of the evidence standard as specified in Mafler ofChawathe. 25 I&N Dec. 369, 375-76

(AAO 2010). 2 We found promotional information about suite on the Internet at http://www.

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Support for this observation is fortified by the box at the bottom right-hand corner at page 11 of the request-for-evidence response's (paginated) version of the ' l -20 15" document, which, reads:

PwC PMO Framework

• The Development of Program Management Office Framework has been an evolutionary process based on years of client project experience ....

Neither the submissions on appeal nor any other evidence substantiates the Petitioner's claim of H-1 B-caliber programmer work for the Beneficiary. While the record's documentary evidence lists many generic duties for the protTered position, it does not substantiate that there would actually be a project upon which the duties would be performed.

We have considered all of the evidence in the record, with a particular focus on whether the Petitioner has substantiated its claim that it had sufticient H-1 B caliber work for the Beneficiary for the employment period specified in the petition. We conclude, however, that even the aggregate of all of the evidence does not establish that the petition was filed for work which would require the services of an H-1 B specialty-occupation level programmer for the three-year employment period specified in the petition. The substantive nature of the project asserted to be the foundation for the proffered position and the need for the Beneficiary remains unsubstantiated.

As the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, this 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 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 profTered 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.

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h )( 4)(iii)(A), it has not demonstrated that the proffered position qualities as a specialty occupation. As a related matter, by not submitting evidence demonstrating the work that the Beneficiary will perform during the requested H-1 B validity dates, the Petitioner precluded the Director from exploring whether the Petitioner has made a bonafide otTer of employment to the Beneficiary.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:

Matter of C-G- Inc.

Aside from the deficiency in substantive inf()fmation about the actual project upon which the Beneficiary would perform her duties - which in itself requires us to dismiss the appeal - the discrepancies that we highlighted above also preclude a favorable result, unless the Petitioner resolves them by independent and objective evidence pointing to where the truth lies. See Matter ol Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

In addition, the Petitioner initially stated that a bachelor's degree in business administration is acceptable. However, the requirement of a bachelor's degree in business is inadequate to establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly to the position in question. Since there must be a close correlation between the required specialized studies and the position, the requirement of a degree with a generalized title, such as business. without further specification, does not establish the position as a specialty occupation. Cl Maller ol Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). U.S. Citizenship and Immigration Services has consistently stated that, although a general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a particular position, requiring such a degree. without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147.

Moreover. the Petitioner also stated that a degree in one of several disparate fields (e.g., engineering. computer science, statistics, mathematics, economics, commerce. or business) is sufficient for the position. This too is inadequate to establish the proffered position as a specialty occupation.

In general, provided the specialties are closely related. 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

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 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 ascetiain 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 aJ·ien 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 atTival 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 is certainly permitted to 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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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.

A minimum entry requirement of degrees in disparate fields, however, would not meet the statutory 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.4 Section 214(i)(l)(B) of the Act (emphasis added). The Petitioner has not made this showing. For instance, the Petitioner has not explained how a degree in commerce, without more, would provide the skill sets in programming that the Petitioner claims are necessary to perform the proffered position. This lack of explanation raises additional questions as whether such skills are actually needed, or alternatively, whether the Petitioner's claimed educational requirements are credible.

III. CONCLUSION

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

ORDER: The appeal is dismissed.

Cite as Matter (~fC-G-lnc .. ID# 930589 (AAO Feb. 28, 2018)

4 While the statutory "the" and the regulatory ·'a" both denote a singular ''specialty," we do not so naJTowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)(l )(B) of the Act 8 C .F.R. § 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position.