U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile
U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile
U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile
U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile
U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile

U.S. Citizenship Non-Precedent Decision of the and ... - Temporary Worker iآ  4. Strategizing mobile

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  • U.S. Citizenship and Immigration Services

    MATTER OF S-B-A-1-S-, LLC

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: APR. 18, 2019

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

    The Petitioner, a unified employee benefits and protection firm, seeks to employ the Beneficiary temporarily as a "senior business systems analyst" 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 Director of the California Service Center denied the Form 1-129, Petition for a Nonimmigrant Worker, concluding that the record did not establish that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

    Upon de nova review, we will withdraw the Director's decision. We will remand the matter for further proceedings consistent with the analysis below and for the entry of a new decision.

    I. SPECIAL TY OCCUPATION

    Considering the Petitioner's statements and evidence collectively within the record, we conclude that as presented, the proffered position qualifies as a specialty occupation. The totality of the evidence is sufficient to establish that the nature of the specific duties proposed for the Beneficiary is so specialized and complex that the knowledge required to perform them is usually associated with at least a U.S. bachelor's degree in a specific specialty, as required by 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). We therefore withdraw the Director's decision. However, even though the record of proceedings is sufficient to establish the position qualifies as a specialty occupation, the record does not appear to establish that the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA) corresponds to and supports the H-lB petition, as required.

  • Matter of S-B-A-1-S-, LLC

    II. LABOR CONDITION APPLICATION

    A Legal Framework

    The purpose of DO L's LCA wage requirement is "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers." 1 It also serves to protect H-IB workers from wage abuses. A petitioner submits the LCA to DOL to demonstrate that it will pay an H-IB 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. 2 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's content corresponds with and supports the H-IB petition.3 When comparing the standard occupation classification (SOC) code or the wage level indicated on the LCA to the claims associated with the petition, USCIS does not purport to supplant DOL' s responsibility with respect to wage determinations. There may be some overlap in considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the content of the DOL-certified LCA "corresponds with" the content of the H-IB petition.

    The regulation at 20 C.F.R. § 655.705(b) was amended by 65 Fed. Reg. 80,110, 80,210 (proposed Dec. 20, 2000) and states: "In [accepting an employer's petition with the DOL-certified LCA attached], the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the statutory requirements for H-IB visa classification." 4 USCIS is authorized to determine the corollary nature of the proffered position's elements as represented in an LCA when compared with those same elements as represented on the Form 1-129, as well as the Petitioner's actual position requirements. Without such a comparison, it is unclear how USC IS would comply with its responsibilities under the statute. 5 Furthermore, USCIS precedent states:

    DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the LCA absent a determination that the application is incomplete or obviously inaccurate. Section 212(n)(l )(G)(ii) of the Act. In contrast, USCIS must determine whether the attestations and content of an LCA correspond to and support the H-IB visa petition. 6

    1 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with [DOL]."). 2 Section212(n)(l) of the Act; 20 C.F.R. § 655.731(a) ); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patelv. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010);Michal Vojtisek-Lom &Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 3 See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with the petition .... "). See also Matter of Simeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). 4 20 C.F.R. § 655.705(b). 5 See section 212(n)(l) of the Act. 6 Simeio Solutions, 26 I&N Dec. at 546 n.6.

    2

  • . Matter of S-B-A-1-S-, LLC

    In order to determine whether the "attestations and content" (e.g., the SOC code and the wage level) as represented on the LCA corresponds with the information pertaining to the proffered position as represented on the Form 1-129, we follow DOL's guidance, which provides a five-step process for determining the appropriate SOC code and wage level. 7

    B. Analysis

    The Petitioner obtained an LCA certified for a position located within the "Computer Occupations, All Other" occupational category for employment in California. 8 When it filed the petition, the Petitioner provided the position's description and expanded upon that description in response to the Director's request for evidence (RFE).

    Within the Computer Occupations, All Other category, the Petitioner identified a sub-category under the Business Intelligence Analysts category associated with the 15-199.08 SOC code. The Occupational Information Network (O*NET) entry for Business Intelligence Analysts provides the following description: "Produce financial and market intelligence by querying data repositories and generating periodic reports. Devise methods for identifying data patterns and trends in available information sources." The essence of this occupational category is to collect business data from various sources, analyze the material, and generate reports using a methodology that is easy to understand. This provides the recipients of the analysis with actionable material, enabling them to make better informed decisions.

    However, several of the duties the Petitioner initially provided, and subsequently expanded upon do not appear to be sufficiently related to the duties found within the O*NET entry for Business Intelligence Analysts. As a result, the Director should ascertain whether the LCA corresponds to and supports the petition. The Petitioner initially provided the following duties for the proffered position:

    1. Identify the user and business needs form key stakeholders and outline data flow strategy to manage the business processes landscape;

    2. Exploring, analyzing, and recommending changes in business, processes, and core mobile technology based upon careful review of data querying reports;

    3. Documenting business process workflows and technical process workflows; 4. Strategizing mobile roadmap plans and sprint planning, in order to evaluate and prioritize the

    implementation of road map items; 5. Evaluating user acceptance testing (UAT) results for incidents and enhancements, then

    working with the quality assurance (QA) team to deliver a quality mobile feature/product; 6. Writing user stories for mobile application development; 7. Creating data mapping documents for front-end screen to back-end database data flows;

    7 U.S. Dep't of Labor, Emp' t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) (DOL guidance), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_11_2009.pdf. 8 The Petitioner identified a sub-category within the Computer Occupations, All Other category, within the "Business Intelligence Analysts" category associated with the 15-199.08 SOC code.

    3

  • Matter of S-B-A-1-S-, LLC

    8. Creating mobile screen wire-frames in accordance with the business and technical requirements which will be used by the Ul/UX developers;

    9. Creating test scenar