U.S. Citizenship and Immigration . Services

MATTER OF V-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 27, 20I8

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a soitware development, computer programming, and consulting business, seeks to temporarily employ the Beneficiary as a "'Sr. Associate - Programmer Analyst" under the. H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section IOI(a)(I5)(H)(i)(b), 8 U.S.C. §I 101(a)(15)(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 California Service Center denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation.

On appeal, the Petitioner asserts that the Director erred and that it has established, by a preponderance of the evidence, that the proffered position is a specialty occupation. 1

Upon de novo review, we will dismiss the appeaL

L 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.

1 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.

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The regulation at 8 C.F.R. § 214.2(h)(4)(ii) large ly 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 fo llowing criteria to qualify as a specialty occupation:

(/) 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 usuall y associated with the attainment of a b<,tccalaureate or higher degree.

8 C.F.R. § 214.2(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 (I st Cir. 2007) (describing "a degree requirement in a specific specia lty" as "one that relates di rectly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 20 I F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that the Beneficiary will work offsite. In its letter supporting the petition, the Petitioner stated that the Beneficiary will be placed at its client, . to work on projects the Petitioner is pertom1ing lor at oftices in Pennsylvania.

The Petitioner initially p1~ovided an overview of proposed duties and asserted that its "Senior Associate - Programmer Analysts possess at a minimum, bachelor's degree, or their comparable equivalents in specialized fields such as Computer Science, Engineering or a related field, as well as relevant experience." In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary will be responsible for executing IT projects the Petitioner performs for its various clients. The Petitioner used the previously described duties as head ings and listed additional intorn1ation under each heading. On appeal, the Petitioner repeats the description submitted in response to the Director's RFE, with minor word changes. The Beneficiary's proposed duties and the time he will spend performing the duties are described as follows (paraphrased):

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• Responsible for developing and maintaining the Back-end data store for web application solutions- 20% • Work on data consolidation and centralization projects such as Data Hub • Work on techniques of NoSQL and use it to perform data ingestion from

multiple sources • Provide an XML model to provide a uniform storage and access of domain

data

• Drive data modeling and REST API creation for existing and future databases (e.g., MarkLogic)- 15% • Standardize data modeling as XML to store and represent data in a consistent

format • Use harmonization techniques and transform only the necessary data to the

standard format • Create REST APls (application programming interfaces) for the consumption

of the data from the Data Hub

• Support the development of evolving back-end data stores based on the needs of the client- l 0% • Iterative design and development of the data store • Build patterns in a way that the new changes can be implemented usmg

minimal impacts to the overall data structures • Maintain various versions of the data and baseline based on multiple iterations

by providing backward compatibility

• Build content search solutions using Marklogic, XQuery, XSLT, XML, to support high scalability, bulk transaction and high performance- 20% • Identify all the scenarios and use cases needing to search for data from

Marklogic Data Hub • Based on the searchable scenarios, configure the appropriate indexes needed

on the Marklogic Searches • Build the standard search A Pis using XQucry, XSL T • Build standard XMLs with various scenarios and use the Marklogic search

A Pis for unit testing

• XML Design and Modelling for effective Utilization of Marklogic A Pis- l 0% • Understand the various data attributes from a customer enterprise standpoint • Define a canonical model for a uniform representation of various entities • Develop the XML structures aligning to the canonical models to attribute to

the various attributes and entities and the relationships

• Perform application impact analysis, arriving high and low-level estimates -5% • Identify changes based on requirements or defects

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• Identify overall impacts to an existing solution to be implemented based on the requirements

• Detailed work breakdown of all activities based on requirements and design and estimates for various phases

• Extracting the functional rules from requirements and converting them into high and low level design components- I 0% • Identify all the transformation requirements from the source schemas to the

target standardized XML structures • Coding the rules as a part of ingestion or as a part of harmonization usmg

Mark logic utilities

• Perform unit & integration testing for the proposed requirements, defects tracking and maintaining the test artifacts for quality & quantitative purpose- I 0% • Document all unit test cases to provide almost I 00% coverage by identifying

all the data scenarios • •

Create XMLs and XQuerys to test the data Call the Al'Is and pass the XMLs to ensure that the results are consistent per the unit test scenarios

On appeal, the Petitioner intermittently claims that the position requires a "bachelor's degree," a "Bachelor's degree in the requisite tields," "a Bachelor's degree in a computer related field," or a "Bachelor's degree or equivalent in Computer Science, Engineering, or a related tield." It also states that "Business Administration is a related field that is acceptable for the position."

III. ANAL YSlS

Upon review of the record in its totality and for the reasons set out below, the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. Specifically, the record does not establish that the job duties require an educational background, or its equivalent commensurate with a specialty occupation.

A. Minimum Requirements

As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than the petitioner, evidence of the client companies' job requirements is critical. The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered position qualities as a specialty occupation on the basis of the requirements imposed by the entities using the beneficiary's services. !d Such evidence must be sut1iciently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary to perform that particular work.

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Here, the Petitioner asserted that the Beneticiary will work for the end-client, and claimed that "our clients, as global insurance and financial institutions, will not accept Senior Associate - Programmer Analysts servicing a contract who lack the educational credentials and experience in the duties and technologies relevant to the industries and services provided." The Petitioner, however, docs not support this assertion with evidence. The record does not include evidence from describing this Beneficiary's proposed services and the educational credentials and experience in duties and technologies that requires, if any, to work on a specific project at its location. Given this specific lack of evidence, the Petitioner has not demonstrated that the proffered position requires an educational background, or its equivalent, commensurate with a specialty occupation based on the requirements imposed by the actual end-cl ient in this matter.

Even if we were to consider the Petitioner's stated degree requirements, we would find them inconsistent and insutlicient to demonstrate that the proffered position requires an educational background, or its equivalent, commensurate with a specialty occupation. The Petitioner, when initially describing the position, stated that the position required at minimum a bachelor's degree in specialized fields such as computer science, engineering, or a related tie ld, plus "relevant experience." In response to the Director's RFE, the Petitioner repeated the same degree requirement but omitted the "relevant experience" requirement, without explanation. The Petitioner must resolve this ambiguity in the record with independent, objective evidence pointing to where the truth lies. Matten?fHo, 19 I&N Dec. 582, 591-92 (BIA 1988).

On appeal, the Petitioner intermittently identifies the degree requirement as a general bachelor's degree; a bachelor's degree in undefined requisite fields; a bachelor's degree in computer sc ience, engineering, or a related field; or a business administration degree. The Petitioner's statements on appeal create further ambiguity in the record regarding the experience and type of bachelor's degree it claims is requi red to perform the duties of the position.

The Petitioner seems to assert that many diffe rent fields of study are acceptable for performing the duties of the proftered position. For example, the Petitioner seems to accept degrees in a wide range of tields including computer sc ience, engineering, and business, stating that the "analysis performed in the proffered position is multidisciplinary, and involves computer analysis, business analysis, and systems optimization." However, the acceptance of such a broad base of knowledge to perform the duties o f the proffered position conflicts with the statutory definition of specialty occupation, which requires a bachelor's degree in "the specitic specialty." Sectio!l 214(i)(l) of the Act (emphasis added).2 Additionally, the Petitioner indicates that a general bachelor's degree or a "degree in business administration would more than adequately prepare a candidate to perform these complex

-2 Whether read with the statutory ·'the" or the regulatory "a." both readings denote a singular "specialty." Section 214(i)( I )(B) of the Act; 8 C. F. R. § 214 .2(h)( 4)(ii). Nevertheless, 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 spec ialty. As explained more below, th is also includes even seemingly disparate specialties provided the evidence of record establishes how each acceptable, specific fie ld of study is directly related to the duties and responsibilities of the particular position.

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tasks." However, the Petitioner's acceptance of a general degree or a general-purpose business administration degree, without further specialization, is incongruous with a conclusion that the proposed position qualifies as a specialty occupation. Rather, the Petitioner seems to tind a degree of general applicability acceptable to perform the duties of the proffered position.

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 degrees in a wide range of fields such as computer science and business, or a degree with a generalized title such as business administration, without further specification,. does not establish the position as a specialty occupation. See Royal Siam Corp., 484 F.3d at 14 7 (the degree requirement must be in a specific specialty that relates directly to the position, which a general-purpose business administration degree does not meet). Cf Maller of Michael Hertz Assoc.\·., 19 l&N Dec. 558, 560 (Comm'r 1988) (a general college degree is not sufficient for specialty occupation purposes).

We have reviewed the Petitioner's argument that "business administration, ~omputer information systems, electronic engineering are directly related to the work being performed," however, the Petitioner does not sutliciently establish how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)( 1 )(B) of the Act (emphasis added). Absent this evidence, it cannot be found that the particular position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher degree in a specific specialty or its equivalent under the Petitioner's own standards3

Nevertheless, we have reviewed the duties of the position and will address the Petitioner's arguments on appeal that the proffered position qualifies as a specialty occupation under the criteria in subsections(/), (3), and (4) of8 C.F.R. § 21.4.2(h)(4)(iii)(A) 4

B. Criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J)

The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) requires that a baccalaure;1te or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position.

3 For this reason, we are not persuaded by the Petitioner's citation to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012). V./e note that 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 may, in certain instances, qualify the proffered position as a specialty occupation. However. the Petitioner does not assert this to be the case here. 4 The Director concluded the evidence was insufficient to establish that the position qualified as a specialty occupation under at least one of the criteria in 8 C.F.R. § 214.2(h)(4)(iii)(A). On appeal, the Petitioner discusses the position's qualification as a specialty occupation under the criteria in subsections(/), (J), and (4) of8 C.F.R. § 214.2(h)(4)(iii)(A). It does not provide new documentary evidence, or otherwise challenge the Director's determination of ineligibility. under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). ,.

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On the labor condition application (LCA)5 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Systems Analysts" corresponding to the Standard Occupational Classification (SOC) code 15-11216

We otien look to the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses7 The Handbook's subchapter entitled "How to Become a Computer Systems Analyst" states, in pertinent part, that a bachelor's degree is not always a requirement and that "[s]ome finns hire analysts with business or liberal arts degrees who have skills in information technology or computer programming." Bureau of Labor Statistics, U.S. Dept. of Labor, Occupational Outlook Handbook, Computer Systems Analysts, on the Internet at https://www.bls.gov/ooh/computer-and-information­technology/computer-systems-analysts.htm#tab-4 (last visited Apr. 20, 20 18). The Handbook also states: "Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or· technical expertise elsewhere." ld

According to the Handbook, a bachelor's degree in a directly related discipline is not required for entry into the occupation. While the Handbook further reports that many analysts have technical degrees, the Handbook does not spccif~· the degree level for these teclmical degrees (e.g., associate's degree). Further the Handbook states that business and liberal arts degrees may be acceptable. Thus, the

' Handbook does not support the claim that the occupational ,category of"Computer Systems Analysts" is one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, 'or its equivalent.

On appeal, the Petitioner points out that the Handbook also reports that "[m]ost computer systems analysts have a bachelor's degree in a computer-related field." The Petitioner argues that this statement should be interpreted as establishing the "normal minimum requirement for the job classification." We disagree. As the Petitioner acknowledges, a computer systems analysts occupation encompasses a broad base of responsibilities and duties and the required education and

5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B \Vorker the higher of either the prevailing wage !Or 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 o[Simeio Solutions. LLC. 26 I&N Dec. 542, 545-546 (AAO 20 15). 6 The Petitioner classilicd the proffered position at a Level II wage on the submitted labor condition application (LCA). indicating that it is a position for an employee who has a good understanding_of the occupation but who will only perform moderately complex tasks that require limited judgment. See U.S. Dep't of Labor, Ernp't & Training Admin .. Prevailing Wage Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009). available at http://www. foreignlaborcert.doleta.gov/pdf/NPWHC_ Guidance_ Revised _11_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. 7 We do not. however. maintain that the Handbook is the exclusive source of relevant information. To satisfy the first criterion. the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its pm1icular position will normally have a minimum. specialty degree requirement, or its equivalent. for entry.

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experience to adequately perform these duties also varies. The Handbook does not establish a normal minimum requirement for entry into the particular position.

The Petitioner asserts that the Occupational Information Network (O*NET) Summary Report for SOC code 15-1121.00- Computer Systems Analysts supports its degree requirement. We agree that O*NET assigns this occupation a Job Zone "Four" rating, which groups it among occupations for which "most ... require a four-year bachelor's degree, but some do not." O*NET Summary Report for "15-1121.00 - Computer Systems Analysts," http://www.onetonline.org/l ink/summary/15-1121.00 (last visited Apr. 20, 2018). Significantly, O*NET does not indicate that a four-year bachelor's degree required by Job Zone Four occupations must be in a specific specialty directly related to the occupation. Again, the requirement of a general bachelor's degree for entry into the occupation does not establish that the occupation is a specialty occupation. The O*NET information docs not refer to any specific discipline, as required; therefore the information is not probative of the profTered position being a specialty occupation.

The Petitioner has not submitted other probative evidence to support a finding that its particular position will normally have a minimum, specialty degree requirement, or its equivalent, for entry under 8 C.F.R. § 214.2(h)(4)(iii)(A)(/).

C. Criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J)

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 Petitioner asserts that it normally requires, a bachelor's degree in computer science, engineering, or a related field for all its senior associate - programmer analyst positions. In support of this assertion, the Petitioner submits foreign degrees, educational equivalency opinions, and payroll documentation related to approximately 40 of its employees. On appeal, the Petitioner also provides a brief synopsis of each of these individual's duties. Each synopsis includes a portion of the generic duties the Petitioner initially provided for the p'roffered position. The Petitioner has not provided objective evidence that these individuals, despite their similar job titles and some general overlapping duties, are employed in the same capacity as the profTered position. The Petitioner asserts on appeal that each of its senior associates - programmer analysts perform requirements analysis, designing programs or applications, writing code in various languages, testing the code for bugs, and maintenance of the code. However, these core duties, in the abstract, do not include the necessary detail to determine that they require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation, as required by the Act.

The Petitioner does not include information regarding these individuals' level of responsibility or evidence that these individuals will be employed on the same project and for the same end-client. Without knowing the specific job duties these employees perform, their level of responsibility in each position, and other specifics about the project or client these employees serve, we cannot

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determine the relevance of these employees' educational credentials. Even if considered relevant, it is not clear that evidence related to these analysts can lead to a valid conclusion as to the spccilic degree requirement for this position. The Petitioner states that it currently employs 280 people. The Petitioner does not include evidence of how many of those individuals are programmer analysts, quality assurance analysts, software developers, general administrators, or other positions. Without knowing how many other "Senior Associate - Programmer Analysts" the Petitioner has employed and their educational credentials. we cannot determine what statistically valid inferences, if any, can be drawn from this claimed "sampling" of evidence. See generally Earl Bobbie. The Practice of' Social Research 186-228 (7th ed. 1995).

We also note that a petitioner's declaration of a particular educational requirement will not mask the fact that the position is not a specialty occupation. U.S. Citizenship and Immigration Services (USC IS) must examine the actual employment requirements and, on the basis of that examination, determine whether the position qualities as a specialty occupation. See generally Defensor, 201 FJd . .

384. The critical element is not the title of the position, or the fact that an employer has routinely insisted on certain educational standards, but whether performance of the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)(l) of the Act. According to the Court in Defensor, 'To interpret the regulations any other way would lead to an absurd result." !d. at 388. If USC IS were constrained to recognize a specialty occupation merely because the petitioner has an established practice of demanding certain educational requirements for the proffered position - and without consideration of how a bcncliciary is to be specifically employed - then any beneficiary with a bachelor's degree in a specilic specialty could be brought into the United States to perform non-specialty occupations, so long as the employer required all such employees to have baccalaureate or higher degrees. See id.

The Petitioner has not satisfied 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

D. Criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)

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 pertorm them is usually associated with the attainment of a baccalaureate or higher degree in a specilic specialty, or its equivalent.

The Petitioner provides a broad description that essentially indicates that the Beneficiary will be involved in understanding customers' reporting requirements, designing and developing data solutions to meet customers' needs using Marklogic, working with others to develop data models and AP!s, and identifying, analyzing, and resolving production issues. We have considered the Petitioner's assertion on appeal that its explanation of the type and variety of technologies its programmer analysts use, as well as its claims regarding the Beneticiary's required knowledge, demonstrate that the duties are specialized and complex. However, the Petitioner does not correlate

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these general tasks to the Benefic iary's proposed assignment at That is, the Petitioner provides an overview of the tasks but does not communicate (I) the actual work that the Beneficiary will perform on a daily basis at worksite; (2) the complexity or special ization of those tasks; or (3) the correlation between the work and a need for a particular level of education of highly special ized knowledge in a spec itic specialty. We again point out the record's lack of documentati on from the end-client regarding not only the specific job duties to be performed by the Beneficiary, but also information regarding whatever the end-client may or may not have specified with regard to the educational credentials of persons to be assigned to its project.

The Petitioner does not explain how or why this particular position requires more than an undefined technical degree, certificates, or experience in .the software, platforms, and systems envi ronments to perform the duties it describes. T he evidence of record does not establ ish that this position is significantly different from other computer systems analysts positions such that it refutes the Handbook's information to the effect that there is a spectrum of degrees acceptable for computer systems analysts positions, including degrees not in a specific specialty.

The Petitioner has n ot sufficientl y developed the relati ve specialization and complex ity of the proffered position as an aspect of the position. Although the Petitioner emphasizes that the Beneficiary's duties are highly technical, technical duties, alone, are insuffic ient to elevate the duties to a specialty occupation. On appeal, the Petitioner asserts that "[t]he duties of the proffered position are distingui shable because the Beneficiary's job duties involve s ignificant responsibility." However, the Petitioner does not explain or differentiate the Beneficiary's responsibil ities from other computer systems analysts. The Petitioner has not expanded upon the description to demonstrate that the proposed duties are more specialized and complex than the duties of other computer systems analysts. The record docs not demonstrate how the duties described require the theoretical and practical appli cation of a body of highly specialized knowledge such that a bachelor's or higher degree in a speci llc specialty, or its equivalent, is req uired to perform them.

The Petitioner has not establi shed that the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usuall y associated with the attainment of a baccalaureate or higher degree in a speci lic specialty, or its equivalent, under 8 C. F.R. § 2I4.2(h)(4)(ii i)(A)(4). The Petitioner has not established that it has satisfied any of the cri teri a at 8 C.f.R. § 214.2(h)(4)(iii)(A) and, therefore, that the proffered position qualiti~s as a spec ialty occupation.

IV. CONCLUSION

The Petitioner has not established that the proffered position is a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Mauer<?( V-. Inc. , ID# 12 14802 (AAO Apr. 27, 20 18)

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