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MATTER OF W-S-, INC. DATE: SEPT.21,2017 APPEAL OF ... - Temporary Worker in a Specialty...leverage...

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. U.S .. Citizenship and Immigration Services MATTER OF W-S-, INC. Non-Precedent Decision of the Administrative Appeals Office DATE: SEPT.21,2017 APPEAL OF CALIFORNIA SERVICE CENTER DECISION PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT The Petitioner seeks to temporarily employ the Beneficiary as a "computer systems analyst" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8U.S.C. § 1101(a)(15)(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 I-129, Petition for a Nonimmigrant Worker, concluding that the record did not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) the Petitioner would engage the Beneficiary in an employer-employee relationship. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition. Upon de novo review, we will dismiss the appeal. I. PROFFERED POSITION The Petitioner is a computer consulting company. According to the Petitioner, the path of contractual succession for the Beneficiary's services is: [ Petitioner I (vendor) --------' I I (end-client) In response to the Director's request for evidence (RFE) and on appeal, the Petitioner and vendor 1 provided the following information about the Beneficiary's job duties: 2 1 The vendor's letter, dated March 24, 2016, mistakenly and repeatedly references the Beneficiary in the feminine pronoun case. The record provides no explanation for this inconsistency. Thus, we must question the accuracy of this document and whether the information provided is correctly attributed to this particular poshion and Beneficiary.
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    U.S .. Citizenship and Immigration Services

    MATTER OF W-S-, INC.

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: SEPT.21,2017

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

    PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT ~ORKER

    The Petitioner seeks to temporarily employ the Beneficiary as a "computer systems analyst" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8U.S.C. § 1101(a)(15)(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 I-129, Petition for a Nonimmigrant Worker, concluding that the record did not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) the Petitioner would engage the Beneficiary in an employer-employee relationship.

    In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition. Upon de novo review, we will dismiss the appeal.

    I. PROFFERED POSITION

    The Petitioner is a computer consulting company. According to the Petitioner, the path of contractual succession for the Beneficiary's services is:

    [ Petitioner I (vendor) --------' I I (end-client) In response to the Director's request for evidence (RFE) and on appeal, the Petitioner and vendor1

    provided the following information about the Beneficiary's job duties: 2

    1 The vendor's letter, dated March 24, 2016, mistakenly and repeatedly references the Beneficiary in the feminine pronoun case. The record provides no explanation for this inconsistency. Thus, we must question the accuracy of this document and whether the information provided is correctly attributed to this particular poshion and Beneficiary.

  • Matter of W-S-, Inc.

    Activi~ %Time

    Participate and support analysis of business requirements and opportunities to best 25% leverage PEGA PRPC and other components of PEGA delivery suite.

    Involve in design and development of t1ow diagrams using industry standard or 15% client proprietary tools and participate in brainstorming sessions.

    co:ordinate with development team to perform and implement integration testing, 20% coding checks to meet project specifications.

    Conduct unit test thoroughly for all deliverables against business requirements and 25% research and resolve coding issues and work with developers and testers in validation and testing of complex project scenarios and in the maintenance of Quality Standards.

    Interact with end users and SMEs, developers and collect inputs to prepare the 15% Functional Specification Document and conduct data modeling to ensure system is in line with business expectations.

    The Petitioner did not provide documentation from the end-client to verify any of the duties or provide information about the end-client's expectations with regard to the Beneficiary's responsibilities. 3

    II. SPECIALTY OCCUPATION

    We will first determine whether the record of proceedings establishes that the proffered position qualifies as a specialty occupation.

    A. Legal Framework

    Section 214(i)(l) of the Act defines the term "specialty occupation" as an occupation that requires:

    (A) theoretical and practical application of a body of highly specialized knowledge, and

    2 The appeal includes a revised job description from the vendor, which has several new job duties. However. the above job description accounts for I 00% of the Beneficiary's time, therefore, it is unclear when and under what circumstances the Beneficiary would perform these additional tasks. 3 On appeal, a letter from the vendor states that the end-client's statement of work (SOW) is confidential. Although a petitioner may always refuse to submit confidential commercial information if it is deemed too sensitive, a petitioner must also satisfy the burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 l&N Dec. 3 14 (BIA 1977).

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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. § 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,[f, 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 at 387.

    B. Analysis

    For the reasons set out below, we have determined that the proffered position does not qualify as a specialty occupation. 4

    1. Position Requirements

    As a preliminary matter, the requirements for the position as stated in the record raise a number of issues. The following chart summarizes the requirements for the position as stated in the record.

    4 The Petitioner submitted documentation to support the H-1 B 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.

    3

  • Matter of W-S-, Inc.

    Record of Proceedings

    Petitioner's Letter-March 31,2016 (page 4)

    Same Letter (page 4)

    Petitioner's RFE Response (Exhibit C) -Dec. 23,2016 (page .I)

    Same Document (page 2)

    Vendor's Statement-April 18,2017

    Degree Requirements

    • science or engmeenng (or its equivalent)

    • computer science, information technology, engineering, electronics, business administration, management information systems, or a related technical field

    • science, information technology, engineering, business administration, management information systems, or a related technical field

    • science or engmeenng (or its equivalent)

    • field closely and directly related to the nature of the work

    Other Requirements

    • none

    • work expenence

    • work expenence

    • none

    • none

    As discussed; the record lacks documentation from the end-client regarding the job requirements for the position. Where the work is to be performed for entities other than the Petitioner, such evidence is critical. Defensor at 387-88. The court in Defensor held that the former Immigration and Naturalization Service had reasonably interpreted the law 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. Jd. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary to perform that particular work. However, the record of proceedings does not contain such evidence.

    Furthermore, as evident from the above chart, the Petitioner has provided varying accounts about the educational background and work experience necessary for the performance of the duties of the positiOn. The Petitioner did not provide an explanation for the variances. Further, since the end-client's requirements were not provided, we must question: (1) how the Petitioner made such a determination; and (2) the accuracy of the statements. A Petitioner's preference for high-caliber employees is not sufficient to establish a position as a specialty occupation.

    Moreover, the Petitioner claims that a bachelor's degree in business administration is sufficient for the proffered position is inadequate to establish that it qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study

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  • Matter of W-S-, Inc.

    that relates directly and closely to the pos1t10n in question. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a general degree, such as business administration, without further specification, does not establish the position as a specialty occupation. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 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 147.5 '

    Further, the Petitioner states that a degree in one of several disparate fields (specifically: science,6

    computer science, information technology, engineering, electronics, business administration, or management information systems) is sufficient for the position. Notably, in general, provided the specialties are closely related, e.g., finance and accounting, 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 degrees in disparate fields, 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. 7 Section 214(i)(l)(B) of the Act (emphasis added). The Petitioner has not made this showing.

    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, or experience may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated that the entry requiren:ent is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the proffered position. 6 The term "science" is defined as "I a. The observation, identification, description, experimental investigation, and theoretical explanation of natural phenomena .... 2. Methodological activity, disciplines, or study 3. An activity that appears to require study and method." Webster's II New College Dictionary I 012 (2008). U.S. News and World Report's guide for colleges designates science programs into various subcategories, including biological sciences, chemistry, earth sciences, math, physics, statistics, as well as social science programs such as criminology, economics, English, history, political science, psychology, and sociology. See U.S. News and World Report, available at http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-science-schools (last visited Sept. 13, 2017). 7 While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly 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

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    The requirements provided by the Petitioner and vendor do not demonstrate that the proffered position qualifies as a specialty occupation.

    2. Place ofEmployment

    Moreover, to ascertain the intent of a petitioner, we must look to the Form 1-129 and the documents filed in support of the petition. It is only in this manner that we can determine the exact position offered, the location of employment, the proffered wage, et cetera.

    Here, the Petitioner has provided inconsistent information about where the Beneficiary will be employed. For example, on the Form 1-129 (page 5) the Petitioner stated that the Beneficiary would be employed off-site.

    5. Will the beneficiary(ies) work for you ofi-site at another company or organization's location·) IE] Yes D 1\o

    However, on the Form 1-129 (page 21), the Petitioner claimed that the Beneficiary would NOT be employed off-site.

    Section 4. Off-Site. Assignment ofH-lB Beneficiaries

    1. The beneficiary of this petition will be assigned to work at an off-site location for all or part of the period for which H-1 H classification sought.

    DYes ~~o

    The Petitioner did not provide an explanation for the inconsistencies and we are unable to reconcile its attestations. Moreover, other evidence in the record does not provide further clarity on the Beneficiary's worksite location. For example:

    • The Petitioner provided an offer of employment letter dated March 24, 2016 - a few days before the H-1B petition was submitted. It is endorsed by the Petitioner and Beneficiary, and it indicates that the Beneficiary will be "assigned to work at our client and or at office locations depending upon the requirement."

    • A March 24, 2016, statement from the vendor states that the Beneficiary will be placed at the end-client's facility, but further mentions that he will be performing "peripheral work to be done for other local clients as it arises."

    • The Petitioner submitted a Services Agreement between the vendor and end-client, dated. in 2012. However, this agreement is not endorsed by the end-client. While the vendor signed the agreement on May 4, 2012, the document does not bear a signature for the end-client.

    particular position.

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  • Matter of W-S-, Inc.

    The Petitioner did not submit any additional documentation from the end-client. There is a lack of evidence from the end-client demonstrating: (1) that it has a specific project;. (2) the details of a particular project, including the start date and duration8; (3) that it entered into a contract with the vendor for the Beneficiary's services - and issued an SOW and purchase order for his work; and ( 4) that the end-client is expecting or prepared for the Beneficiary to work at its facility.

    Consequently, the Petitioner has not established the Beneficiary's place of employment.

    Thus, for the above reasons, the petition cannot be approved. Nevertheless, we will perform a comprehensive analysis of the evidence provided pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).9

    3. First Criterion

    We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. 10

    On the labor condition application (LCA) 11 submitted in support of the H-1B petition, the Petitioner designated the proffered position under the occupational category "Computer Systems Analysts" corresponding to the Standard Occupational Classification code 15-1121. 12

    8 The Petitioner claimed that the Beneficiary's services were required from October I, 2016, to September 20, 2019. The vendor indicated that the Beneficiary was expected to start the project on January 16, 2017, and tentatively end on March 31, 2019. Thereafter, the vendor claimed that the Beneficiary's services were required for a period of three years. Not only are there variances in the information provided by the Petitioner and vendor, there is also a lack of evidence in the record demonstrating how they came to these conclusions. 9 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 10 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, \"lowever, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is consiaered as an aspect in establishing the general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 11 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 Solutions, LLC, 26 I&N Dec. 542, 545-46 (AAO 2015). 12 The Petitioner classified the proffered position at a Level II wage. We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have attained, either through education or experience, a good understanding of the occupation, but who will only

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  • Matter pf W-S-, Inc.

    The Handbook subchapter entitled "How to Become a Computer Systems Analyst" states, in pertinent part, that "[a] bachelor's degree in a computer or information science field is common, although not always a requirement." 13 According to the Handbook, "some firms hire analysts with business or liberal arts degrees." 14 It continues by stating that "many analysts have technical degrees, but such a degree is not always a requirement" - and that, in fact, "many analysts have liberal arts degrees." 15 The Handbook does not specify a degree level (e.g., associate's degree) for these business, technical, and liberal arts degrees.

    In the instant matter, the Petitioner has not provided documentation from a probative source to substantiate its assertion regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

    4. Second Criterion

    The second criterion presents two alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

    a. First Prong

    To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

    In determining whether there is such a common degree requirement, factors we often consider include: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

    perform moderately complex tasks that require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http:/lflcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing wage determination starts with an entry-level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d. · 13 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts (20 16-17 ed.). 14 !d. 15 !d.

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    As already discussed, the Petitioner has not established that its proffered position is one for which the Handbook (or other independent, authoritative source) reports an industry-wide requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. In addition, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

    In support of this criterion, the Petitioner provided copies of job announcements placed by other employers. However, upon review of the documents, we find that the Petitioner's reliance on the job announcements is misplaced.

    First, we note that some of the job postings do not appear to involve organizations similar to the Petitioner. For example, one is a United States District Court, one is a college, and the other advertisements provide little or no information regarding the hiring employers. The Petitioner did not supplement the record of proceedings to establish that these advertising organizations are similar to it.

    When determining whether the Petitioner and the organization share the same general characteristics, such factors may include information regarding the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an organization is similar and in the same industry without providing a basis for such an assertion.

    Second, some of the advertisements do not appear to be for parallel positions. For instance, many of the postings appear to be for more senior, experienced employment than the proffered position. 16

    Moreover, some of the postings do not include sufficient information about the duties and responsibilities for the advertised positions. Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day responsibilities, complexity of the job duties, supervisory duties (if any), and independent judgment required or the amount of supervision received. Therefore, the Petitioner has not sufficiently established that the primary duties and responsibilities of the advertised positions are parallel to the proffered position.

    Third, some of the postings do not indicate that at least a bachelor's degree in a directly related specific specialty (or its equivalent) is required. 17 For instance, one of the advertisements states that bachelor's degree in computer science is preferred. A preference is not an indication of a minimum

    16 For instance: requires a degree and six years of related experience or progressive work experience in addition to the six years of related experience; requires a degree and nine years of systems analysis experience; requires a degree and three years of experience in software development; and

    requires a degree and five to six years of experience in five different areas. However, the Petitioner indicated that the proffered position is a lower level (Level II) position on the LCA. 17 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the position. See section 214(i)(l)(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii).

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    requirement. Further, some of the postings report that a bachelor's degree is required, but they do not specify any particular discipline is required. Therefore, it appears that a degree in any field (or a general degree) is sufficient for these positions. Overall, the job postings suggest, at best, that although a bachelor's degree is sometimes required for these positions, a bachelor's degree in a spec~fic specialty (or its equivalent) is not. 18

    As the documentation does not establish that the Petitioner has met this prong of the regulations, further analysis regarding the specific information contained in each of the job postings is not necessary. 19 That is, not every deficit of every job posting has been addressed.

    The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

    b. Second Prong

    We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

    In support of the petition, the Petitioner and vendor provided information regarding the proffered position; however, the Petitioner did not submit a description (e.g., duties, requirements) of the position from the end-client. We reviewed the statements from the Petitioner and vendor, which indicate that the Beneficiary's work will include: (1) the analysis, design, development, testing, and implementation of applications; and (2) developing applications.

    When discussing H-IB employment, the description must be comprehensive enough to properly ascertain the minimum educational requirements necessary to perform those duties. While the record contains several iterations of the Beneficiary's responsibilities, the descriptions lack sufficient details establishing, for instance, the complexity or uniqueness of the job duties, supervisory duties

    18 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for estimates of population parameters and estimates of error"). 19

    The Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these employers.

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    (if any), independent judgment required, or the amount of supervision received. The Petitioner has not distinguished the proffered position as more complex or unique from other positions within the same occupation that can be performed by persons without such a degree. Further, the Petitioper has designated the proffered position as a Level II position on the LCA.20 This designation, when read in combination with the Petitioner's statements, the evidence presented, and the Handbook's account of the requirements for this occupation, suggests that the particular position is not so complex or unique to establish the position as a specialty occupation.

    In response to the Director's RFE, the Petitioner submitted an expert opinion letter authored by 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 a bachelor's degree in computer science or a related field (or the equivalent). We carefully evaluated assertions in support of the instant petition but, for the following reasons, determined his letter does not have significant weight in this matter.

    First, expertise, regarding current industry degree requirements for computer systems analyst positions is not established in the record. His supporting documentation indicates that most of his experience over the past 30 years has been in an academic setting as a faculty member within a university. His most recent publication was in 2005 and, although he briefly reference "consulting activity," he does not provide any dates or specific information to indicate any recent relevant consulting work.

    Moreover, has not provided sufficient information to establish his expertise on the practices of organizations seeking to hire computer systems analysts. Without further clarification, it is unclear how his education, training, skills, or experience would translate to expertise regarding the current recruiting and hiring practices of an enterprise engaged in "computer software and development" (as designated by the Petitioner in the petition) or similar organizations for computer systems analysts (or parallel positions).

    states that his assessment is based upon a description provided by the Petitioner of the company and the offered position. While provides a brief~ general description of the Petitionerls business activities, he does not demonstrate in-depth knowledge of its operations or how the duties of the proffered position would actually be performed in the context of its business

    20 The issue here is that the Petitioner's designation of this position as a Level 11 position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level II position would still require a minimum of an advanced degree in a specific specialty; or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act.

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    Matter of W-S-, Inc.

    enterprise. Further, did not acknowledge that the Beneficiary would be working offsite at an end-client's facility. Nor does mention that the Beneficiary's assignments are not limited to one particular client and/or project.

    Moreover, opinion letter does not cite specific instances in which his past opinions have been accepted or recognized as authoritative on this particular issue. There is no indication that he has conducted any research or studies pertinent to the educational requirements for such positions (or parallel positions) in the Petitioner's industry for similar organizations, and no indication of recognition by professional organizations that he is an authority on those specific requirements.

    states that he has "extensive consulting experience in the information technology industry, having consulted to government, industry, and academia, both nationally and internationally for over 30 years;" however, his curriculum vitae does not provide the dates of his consulting work or specific details regarding the areas of information technology he provided his expertise on.

    Even assuming possessed expertise on the degree requirements for computer systems analysts, his opinion letter does not substantiate his conclusions, such that we can conclude that the Petitioner has met its burden of proof. First, does not reference, cite, or discuss any studies, surveys, industry publications, authoritative publications, or other sources of empirical information which he may have consulted to complete his evaluation. Second, the record does not indicate whether was aware that, as indicated by the Level II wage on the LCA, the Petitioner considered the proffered position to be for an employee who is expected to perform moderately complex tasks that require limited exercise of judgment. Rather, specifically dissects several of the duties and examines the education requirements, as they relate to a bachelor's degree in computer science, required to perform them. He concluded that all of the examined duties and education requirements "are all applications of fundamental programming and software development principles which must be mastered before truly professional-level web development can be done [and that] web developers need to be proficient in high-level object-oriented languages." The Petitioner has not demonstrated that possessed the requisite information to adequately assess the nature of the position and appropriately determine parallel positions based upon the job duties and level of responsibilities.

    For the reasons discussed, we find that opinion letter lends little probative value to the matter here. 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 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 credentials of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform

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  • Matter of W-S-, Inc.

    them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

    5. Third Criterion

    The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

    The record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor v. Meissner, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices,, as well as information regarding employees who previously held the position.

    The Petitioner stated that it normally requires all of its employees to be qualified to deal with all of its business requirements. The Petitioner specifically stated' that it is "in the practice of hiring persons with minimum baccalaureate degree or higher in specific specialty positions. The Petitioner then submitted the education credentials and evidence of employment for three of its employees; however, the Petitioner did not provide the job duties and day-to-day responsibilities for these individuals. The Petitioner also did not submit any information regarding the complexity of the job duties, supervisory duties (if any), independent judgment required or the amount of supervision received. Accordingly, it is unclear whether the duties and responsibilities of these individuals were the same or similar to the proffered position.

    The Petitioner also submitted several of its own job advertisements for computer systems analyst and computer programmer positions. All of its advertisements require a bachelor's or master's degree in technology, science, engineering, information technology, computer science, or a related field, along with years of experience, ranging from six months of experience with a master's degree or five years of experience with a bachelor's degree. Further, all of the advertisements list a starting salary for the positions that is multiple times over the Beneficiary's expected salary listed on the petition. For these reasons, it appears that the Petitioner's job advertisements provided are for more senior positions than the one offered here. This, again, is in contrast to the proffered position, which the Petitioner designated as a wage Level II on the LCA, a wage level that only requires a moderate understanding of the occupation. As such, we cannot conclude that the Petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent for the proffered position.

    The record, therefore, does not establish that the Petitioner normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the duties of the position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

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  • Matter of W-S-, Inc.

    6. Fourth Criterion

    The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent.

    The Petitioner a.sserts that the job duties of the proffered position are specialized and complex. We again refer to our earlier comments and findings with regard to the implication of the Petitioner's designation of the proffered position in the LCA as a Level II wage, and hence one not likely distinguishable by relatively specialized and complex duties. We have also reviewed the job descriptions for the proffered position. While we understand that the Beneficiary must have some skills and technical knowledge in order to perform these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (r its equivalent) as a minimum for entry into the occupation. The record does not include probative evidence that the duties require more than technical proficiency in the field.

    Upon review of the totality of the record, the Petitioner has not established that the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. For the reasons discussed above, .the evidence of record does not satisfy the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A).

    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 qualifies as a specialty occupation.

    III. EMPLOYER-EMPLOYEE RELA TIONSHJP

    We will now briefly address the issue of whether or not the Petitioner qualities as an H -1 B employer. As previously discussed, there is insufficient documentation evidencing> what exactly the Beneficiary would do for the period of time requested or where exactly and for whom the Beneficiary would be providing services. Given this specific lack of evidence, the Petitioner has not established who has or will have actual control over the Beneficiary's work or duties,21 or the condition and scope of the Beneficiary's services.22 In other words, the Petitioner has not established whether it has made a bona fide offer of employment to the Beneficiary based on the

    21 The record contains discrepancies as to who will review the Beneficiary's work. For instance. the vendor initially stated that the Beneficiary will report to the Petitioner. However, on appeal, the vendor states that "[the Beneficiary's] day-to-day project deliverables will be reviewed by the client's Project Manager to ensure that it conforms to the client's quality and acceptance standards." The Petitioner submitted its organizational chart showing the proffered position reporting to a project manager, who then reports to the president/CEO. 22 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. See, e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998).

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  • Matter of W-S-, Inc.

    evidence of record or that the Petitioner, or any other company which it may represent, will have and maintain an employer-employee relationship with the Beneficiary for the duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an employer-employee relationship with respect to the sponsored H-1 B nonimmigrant worker). Therefore, the appeal is dismissed for this additional reason.

    IV. CONCLUSION

    The appeal must be dismissed because the Petitioner did not establish that: (1) the proffered position is a specialty occupation; and (2) it would engage the Beneficiary in an employer-employee relationship.

    ORDER: The appeal is dismissed.

    Cite as Matter qfW-S-, Inc., ID# 564344 (AAO Sept. 21, 2017)

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