U.S. Citizenship and Immigration Services

MATTEROFM-T-, INC.

APPEAL OF VERMONT SER VICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 2, 2019

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

The Petitioner, a software development services company, seeks to temporarily employ the Beneficiary as a "QA analyst II" under the H-lB nonimmigrant classification for specialty occupations. See 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner asserts that the Director erred and the evidence supports an approval of the petition. 1

Upon de nova review, we will dismiss the appeal. 2

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

1 The Petitioner submitted documentation in support of the H-lB petition, including evidence regarding the proffered position and its business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 2 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

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(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:

(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) 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. § 2 l 4.2(h)( 4)(iii)(A). We construe 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. Chertoff, 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").

11. PROFFERED POSITION

In its initial letter submitted with the For, 1-129, Petitioner for Nonimmigrant Worker, and on appeal, the Petitioner lists the duties of the proffered position as follows:

• Create and execute SQL statements to validate the data on Target Systems as a part of Database Testing;

• Design and execute Test plans and Test cases according to product backlog and user stories;

• Gather Out of the box user stories and created test scenarios and test cases; • Use Quality Center ALM to write Test Cases and log Defects; • Create the project Test strategy document which provides the overall framework

for the testing activities in the project; • Identified and organize the overall plan for test data, strategy and the Scope of

testing within the context of each Sprint; • Work with developers by updating the defects and resolving them and tracking the

status; • Defects found during testing should be logged in HP ALM (Quality Center);

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• Perform Sprint level testing, Functional Testing, Systems Integration Testing, UAT, and Regression Testing.

• Test Scripts for User Acceptance Testing should be provided after all the sprints are completed and executed in UAT (User Acceptance Training);

• Create the project Test strategy document which provides the overall framework for the testing activities in the project;

• Provide [Petitioner's] technical manager with bi-weekly project status updates, including any technical development needs;

• Participate in technical education coursework and/or professional seminar training provided by [Petitioner].

The end-client listed the duties and included percentages of time spent on the duties, as follows

Requirement Analysis & Test Automation Strategy (20%)

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Works closely with business and system analysts, technical architects and understand requirements to identify impacted areas/systems/processes and evaluate alternative solutions for [end-client] SellPoint project. Assess Business processes, integrated systems and Develop Test Automation Strategies, Design advanced Automation frameworks for Web UI, SOAP and REST APis, Batch Applications using HP-UFT (Unified Functional Testing) and HP-LeanFT (Lean Functional Testing), Selenium, RestAssured, SoapUI, Eclipse, Gradle, TestNG automation tools for the [end-client] insurance business, which are reusable across the enterprise. Review and understand the user acceptance criteria with the product owner and collaborate with all stakeholders. Gather requirements for Automation testing, identify the end-to-end business scenarios and ensure the coverage of all functionalities, interfaces, batch process and services in the automation flow. Documenting Automation Test Approach for identified automated tests that include architecture of the system under test, critical success factors for the test( s) and SLAs expected. Design and develop Hybrid Automation framework (Combination of Data Driven and Keyword) for the Web Services, Batch and Desktop applications used across the enterprise. Strategize for robust, scalable, and high quality test automation solutions for functional, regression testing

Designing & Developing Test Automation Suites (40%) • Design and develop complex automation testing suites using Core Java

programming (Object Oriented Programming and Collections) Visual Basic Scripting programming concepts, Creation of Global object repositories, Data sources, functions and libraries, Reusable components, HTML result reports, Recovery Scenarios, debugging issues and fix errors based on the Automation standards for automating Web GUis and various SOAP and REST APis and Add­Ins.

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• Creating runtime directories to maintain the application generated files and reports during the execution time. Amending the XML files to establish connection between interfaces, handling data using JSON, implementing Selenium/Java/TestNG given features including capture screenshots, extended reports and Apache POI for read/write excel sheets, etc.

• Enhance automation quality using JAVA, VB Script, Descriptive programming, Regular expressions, Dictionary objects implementation, Shell programming, Mercury Timer, Embedding the SQL queries within Automation scripts as input/output to scripts.

• Maintaining Automation assets in Git, HP-ALM tools and execute the Automation scripts using JENKINS Continuous integration tool on specific intervals, Automation of defect logging and tracking process in HP ALM.

Integration Testing (20%) • Integrate the Automation scripts developed for different interfaces and application

into one Core Automation framework to ensure the end-to-end Business Flows which covers multiple applications are Automated.

• Integrate the end-to-end automation business scenarios coded in the Selenium, HP Lean-FT using the Test-NG features/Frameworks.

• Schedule/Trigger the Automation suites using the ALM (QC), Jenkins CI (Continuous Integration) tool.

• Automation testing of APis to ensure the Subsystems is up and running responsive to the Service Request from other application.

Planning, Meetings, Reporting and Team Activities (10%) • Participate in project meetings/design groups with other team members in preparing

Risk Analysis reports and project development reports according to industry standards/regulations.

• Participate in Sprint Planning, Retrospect and Daily Scrum meetings. • Provide [Petitioner's] technical manager with weekly project status updates,

including any technical development needs.

Maintenance and Support (10%)

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Conduct daily defect triage meetings; communicates QA risks, milestones and status to the Project manager and other stake holders. Provide technical guidance to the Manual testing team to use the Automation Suites and monitor the progress through the reviews. Enhance the Test Scripts for ongoing changes and maintenance to the applications under test, based on the Sprint updates in the Agile environment; track issues and defects within the automation script and generate Status/Defect reports. Perform daily sanity check, Regression testing using the Test Automation Suites for every release and publish the results, in the fast paced Agile environment using continuous integration methodologies.

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The Petitioner listed nearly identical duties as the end-client in a May 16, 2018, employee itinerary.

The Petitioner stated in its initial letter and on appeal that the position requires, at a minimum, "a Bachelor's Degree in an industry recognized field, including Computer Science, CIS, Computer Applications, Engineering, Math, Electronics, Science, Technology, Communications, Business Administration, Management, or a related field." In its employee itinerary, the Petitioner listed "at least a Bachelor's Degree in an industry-recognized field or an equivalent educational degree or combination of education and experience." The end-client stated that the position requires a "Bachelor's degree in Computer Science or an equivalent educational degree or combination of education and experience."

III. ANALYSIS

For the reasons set out below, the proffered position does not qualify as a specialty occupation. Specifically, the record does not establish the substantive nature of the work that the Beneficiary will perform, which precludes a finding that the proffered position satisfies any criteria at 8 C.F .R. § 2 l 4.2(h)( 4)(iii)(A). 3

The Petitioner, which is headquartered in Delaware and has a regional office in . Florida, indicated that the Beneficiary will work offsite for ~- · · - · (end-client) in. Florida. The contractual chain appears to be as follows: Petitioner -----+ (mid-vendor) -----+

(end-client parent company)-----+ (end-client). On the Form 1-129, the Petitioner stated that the dates of intended employment are from August 21, 2017, to August 20, 2020.

On appeal, the Petitioner states that the Beneficiary will be assigned to the ' Project" pursuant to a signed Master Service Agreement and Statement of Work. The Petitioner states that the platform will support the ease of doing business, automation, streamlining sales processes, and enhance the end-client customer experience, and the Beneficiary will lead the SQL Quality Assurance Testing component of the team. However, the record does not contain sufficient evidence of the contractual arrangements among the Petitioner, the mid-vendor, the end-client parent company, and the end-client to adequately substantiate the Petitioner's claims regarding the Beneficiary's assignment.

The record contains a staffing company agreement, dated December 2014, between the Petitioner and the mid-vendor. The staffing company agreement includes a preliminary statement that the mid-vendor and the end-client parent company have entered into an agreement in which the mid­vendor has agreed to provide services related to the temporary workforce of the end-client parent company ' s affiliates, which includes "any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under the common control with the party" and that the mid-vendor is retaining the Petitioner to provide staffing services to the end-client parent

3 The Director states that the Petitioner is in the business of placing individuals at firms which need computer related services and is not the entity that ,vill provide the Beneficiary's duties. However, the Petitioner has consistently asserted that the Beneficiary will work in-house on its main software product, and the record does not indicate otherwise.

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company's affiliates as needed. The record includes a letter from the end-client stating that it is an affiliate of its parent company. The staffing company agreement also states that the Petitioner's workers shall "perform services in conformity with a Statement of Work ("SOW"), a Work Authorization ("WA"), a Purchase Order ("PO") or other written or other electronic or written form

"

The record includes a" Work Order" for the Beneficiary as a "Testing Specialist, Sr" listing project dates of August 21, 2017 until July 27, 2018. The Petitioner has not provided the agreement referenced above between the mid-vendor and the end-client parent company, or of any other agreements, statements of work, etc. among the Petitioner, the mid-vendor, the end-client parent company, and the end-client for the proffered position and covering the requested time period. Without additional documents that include the terms and conditions of the contractual agreements among the parties, including the Petitioner, the mid-vendor, the end-client parent company, and the end-client, and the requirements for the project, we are unable to determine the substantive nature of the Beneficiary's assignment, such that we may determine if a specialty occupation exists for the duration of the requested employment period. 4

Furthermore, while the duties described by the Petitioner and the end-client for the proffered position appear to fall under O*NET Online Software Quality Assurance Engineers and Testers Standard Occupational Classification (SOC) code 15-1199.01, the Petitioner's August 14, 2017, offer of employment to the Beneficiary mentions proposed duties of a variety of computer occupations, such as a software engineer and computer programmer, which are inconsistent with the aforementioned SOC code. Specifically, the offer letter mentions that the employee shall perform "system analysis, software design and development, computer programming, program testing, and implementation, consulting, technical writing or other specialized technical work .... " The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988).

The record includes additional inconsistencies and deficiencies regarding the education required to perform the duties of the proposed position. The Petitioner initially included bachelor's degrees in fields such as engineering, math, electronics, science, technology, and business administration as acceptable for the position, whereas the end-client did not include all of these fields. Furthermore, accepting degrees in generalized fields such as science and business administration demonstrates that, more likely than not, the proposed position does not qualify as a specialty occupation. 5 A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely 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 administration, without further specification, does not establish the position as a specialty

4 The agency made clear long ago that speculative employment is not permitted in the H-IB program. See, e.g. , 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 5 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. For example, an entry requirement of a bachelor 's or higher degree in business administration with a concentration in a specific field, or a bachelor 's or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor 's or higher degree in a specific specialty that is directly related to the proffered position. See Royal Siam Corp., 484 F.3d at 147.

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occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). Similarly, a "science" degree without further specification does not assist in establishing the position is a specialty occupation. In addition, the record includes a mid-vendor requisition notice which appears to be for the proffered position based on the job duties listed, and it includes an experience requirement of four years or more. This description itself does not correlate to the Petitioner's own stated requirements. The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988).

We reviewed the letter from University, who offers his opinion on the requirements of the proffered position. In his letter, (1) describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) lists the duties proposed for the Beneficiary; and (3) states that these duties require at least a bachelor's degree in computer science, computer information systems, and related fields. s assertions in support of the instant petition are not persuasive.

First, we observe that does not discuss the duties of the proffered position in any substantive detail. Rather, he restates the same duties listed in the Petitioner's appeal letter. He does not discuss the duties in the specific context of the Petitioner's business, and any particular project to which the Beneficiary will be assigned. Thus, his level of familiarity with the actual job duties as they will be performed in the context of the Petitioner's business is questionable. That is, there is no indication that he possesses any knowledge of the proffered position beyond this job description. Therefore, we question the basis of his ultimate conclusion about the minimum educational requirement for this particular position. Moreover, the record does not include any relevant research, studies, surveys, or other authoritative publications as part of his review or as a foundation for his opinion. The opinion letter from is insufficient to establish the nature of the actual positon and thus assist in establishing the position as a specialty occupation. Matter of Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory opinion when it is "not in accord with other information or is in any way questionable.").

The Petitioner also claims that the Beneficiary is well qualified for the position and references his qualifications. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. In order to establish that the position qualifies as a specialty occupation, the description must sufficiently describe the actual work the Beneficiary will perform, and the correlation between that work and the need for a particular level of knowledge in a specific specialty. See Defensor v. Meissner, 201 F.3d at 387 (a "common sense reading" of the regulations indicates an intention to fully implement the definition of "specialty occupation"). Here, the Petitioner has not provided sufficient probative evidence of the actual nature of the proposed position and has not provided consistent evidence of the requirements for the position.

Based on the inconsistencies and lack of contractual agreements, the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, which therefore precludes a conclusion 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

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for entry into 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.

Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a specialty occupation.

IV. CONCLUSION

The record does not demonstrate that the proffered position qualifies for classification as a specialty occupation. The appeal will therefore be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter of M-T-, Inc., ID# 3165567 (AAO May 2, 2019)