Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 1

Does that Position actually Qualify? Is THAT Really a Specialty Occupation?

By Joseph P. Whalen (September 30, 2014)

I. INTRODUCTION

When I began writing this article, the most recently posted AAO non-precedent

H1-B decision was an August 25, 2014, Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), Dismissal of the Appeal of an entry-level “Computer

Systems Analyst” I-129 Petition, issued under the signatory authority of Ron

Rosenberg, Chief, Administrative Appeals Office.1 That decision is well-written and

provides a rather good Primer on this subject matter. I am including the body of the

decision text with some highlighting included. I have included links and brief

references to some AAO I-140 cases involving EB-2 and EB-3 “Software Engineers”

to further illustrate the value of reading BALCA case decisions in concert with AAO

case decisions through narrowing the focus for this article to this occupation which is

becoming more common-place rather than a specialty.

As if by providence—more likely just by sheer luck—after I began writing this

article, I saw an item in LEXOLGY®, entitled: “When Hiring A Foreign Employee

May Really Be The Only Feasible Option” by Roy J. Barquet of Foley & Lardner

LLP. That article focused on a particular recent PERM labor cert decision. That

decision is: Kentrox, Inc., 2012-PER-00038 (May 22, 2014)(BALCA). The BALCA

case was before a panel consisting of: Rosen, Bergstrom and Krantz, Administrative

Law Judges (ALJs), and signed for the panel by ALJ Dana Rosen. The Certifying

Officer (CO) had denied the permanent labor certification; the panel reversed and

granted it. I feel that examining the BALCA decision may shed some needed

additional light on the AAO decisions.

II. ENTRY-LEVEL ANYTHING AS A SPECIALTY OCCUPATION?

Call me skeptical and you’d be right. While the 1st case above, before the AAO,

was for an H1-B non-immigrant and the BALCA case was for a permanent

immigrant worker they both involved “Software Engineer” types, the H1-B being a

“Computer Systems Analyst” in an Information Technology (IT) firm. The former

1

There have been an additional 26 decisions posted in that category since then, dated through Sept. 8th

#6. This article was placed on hold a few times along the way.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 2

position is described for these purposes by the U.S. Department of Labor's (DOL)

Occupational Outlook Handbook (OOH or Handbook) which has been accepted

as an authoritative source on the duties and educational requirements of most

occupations including a “Computer Systems Analyst”. The circumstances of the H1-

B position in the case under discussion seem to fit like a glove for “grooming”

someone to qualify for the position in the permanent labor application or “PERM”

labor cert. Once that PERM is attained, then we would usually be looking at EB-2 or

EB-3 “Software Engineers”. While EB-2 visas include professionals holding

advanced degrees (beyond bachelor’s) or people of exceptional ability, EB-3 visas

include members of the professions whose job requires at least a U.S. baccalaureate

degree (or a foreign equivalent), it also includes “skilled workers” with two years

training or work experience, and “other workers” performing unskilled labor

requiring less than two years training and/or experience. Various “software

engineers” may immigrate as EB-2 or EB-3 visa holders. Exactly how special must a

“specialty occupation” be for an H1-B versus the EB-2 or EB-3 qualifications? I will

leave the reader to ponder it and merely provide the following for easy reference.

2012 NAICS Definition

5415 Computer Systems Design and Related ServicesT2

54151 Computer Systems Design and Related ServicesT

This industry comprises establishments primarily engaged in providing expertise in the field of information technologies through one or more of the following activities: (1) writing, modifying,

testing, and supporting software to meet the needs of a particular customer; (2) planning and

designing computer systems that integrate computer hardware, software, and communication

technologies; (3) on-site management and operation of clients' computer systems and/or data processing facilities; and (4) other professional and technical computer-related advice and services.

Illustrative Examples:

Computer facilities management services

Custom computer programming services Computer hardware or software consulting services Software installation services Computer systems integration design services

541511 Custom Computer Programming Services This U.S. industry comprises establishments primarily engaged in writing, modifying, testing, and supporting software to meet the needs of a particular customer.

2

T = Canadian, Mexican, and United States industries are comparable.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 3

541512 Computer Systems Design Services This U.S. industry comprises establishments primarily engaged in planning and designing

computer systems that integrate computer hardware, software, and communication technologies.

The hardware and software components of the system may be provided by this establishment or company as part of integrated services or may be provided by third parties or vendors. These

establishments often install the system and train and support users of the system.

Illustrative Examples:

Computer systems integration design consulting services Local area network (LAN) computer systems integration design services Information management computer systems integration design services Office automation computer systems integration design services

541513 Computer Facilities Management Services This U.S. industry comprises establishments primarily engaged in providing on-site management and operation of clients' computer systems and/or data processing facilities. Establishments

providing computer systems or data processing facilities support services are included in this

industry.

541519 Other Computer Related Services This U.S. industry comprises establishments primarily engaged in providing computer related

services (except custom programming, systems integration design, and facilities management

services). Establishments providing computer disaster recovery services or software installation services are included in this industry.

Quick Facts: Software Developers

2012 Median Pay

$93,350 per year

$44.88 per hour

Entry-Level Education Bachelor’s degree

Work Experience in a Related Occupation None

On-the-job Training None

Number of Jobs, 2012 1,018,000

Job Outlook, 2012-22 22% (Much faster than average)

Employment Change, 2012-22 222,600

What Software Developers Do

Software developers are the creative minds behind computer programs. Some develop the applica tions that

allow people to do specific tasks on a computer or other device. Others develop the underlying systems that

run the devices or control networks.

Work Environment

Many software developers work for computer sys tems design and related services firms or software

publishers.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 4

How to Become a Software Developer

Software developers usually have a bachelor’s degree in computer science and strong computer programming

skills.

Pay

In May 2012, the median annual wage for applications software developers was $90,060. The median annual

wage for systems software developers was $99,000 in May 2012.

Job Outlook

Employment of software developers is projected to grow 22 percent from 2012 to 2022, much faster than the

average for all occupations. The main reason for the rapid growth is a large increase in the demand for

computer software.

Similar Occupations

Compare the job duties, education, job growth, and pay of software developers with similar occupations.

More Information, Including Links to O*NET

Learn more about software developers by visiting additional resources, including O*NET, a source on key

characteristics of workers and occupations.

Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2014-15 Edition, Software Developers, on the Internet at http://www.bls.gov/ooh/computer-and-

information-technology/software-developers.htm (visited September 12, 2014).

BRIGHT OUTLOOK OCCUPATION: 15-1133.00 - SOFTWARE DEVELOPERS, SYSTEMS SOFTWARE

Bright Outlook occupations are expected to grow rapidly in the next several years, will have large numbers of job openings, or are new and emerging occupations.

Every Bright Outlook occupation matches at least one of the following criteria:

Projected to grow much faster than average (employment increase of 22% or more)

…over the period 2012-2022 Projected to have 100,000 or more job openings over the period 2012-2022

New & Emerging occupation in a high growth industry

Growth and job openings source: Bureau of Labor Statistics 2012-2022 employment projections.

Projected growth represents the estimated change in total employment over the projections period (2012 -2022). Projected job openings represent openings due to growth and replacement.

Given the bright outlook, the good pay, the growth in this field, the growing reasonable expectation

and ease of obtaining a Bachelor’s Degree in the United States nowadays, is it really not feasible to

train an entry-level “software engineer” or “computer systems analyst” from our homegrown pool

of applicants? Are Americans really not motivated enough, bright enough, educated enough, and

unavailable in sufficient numbers to meet this need? I remain quite skeptical that America cannot

produce what this industry needs. I think there is much bias and manipulation by petitioners for

beneficiaries based on ethnic and cultural affinity as well as friendship and familial favoritism, but

sometimes situations arise that are reminiscent of indentured servitude. Nonimmigrant beware!

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 5

III. BALCA on “INFEASIBILITY-TO-TRAIN”

BALCA explained that IF the beneficiary has gained their experience for the

offered position with that same employer who is filing the PERM application THEN

they have a heavy burden of proof to meet. Three possibilities existed for the

employer to obtain the desired permanent labor certification. Those possibilities are

listed below. The option under which the employer won the appeal to BALCA is

thoroughly discussed in Kentrox (appended below).

The PERM case before BALCA was for a “Software Engineer” who gained work

experience used for the PERM application from working in the same position for

the sponsoring employer who filed the PERM application. In fact, the ONLY

WORK EXPERIENCE listed for the beneficiary was his experience gained while

working for the sponsoring employer beginning August 1, 2005 as a Software

Engineer. The CO denied finding that “… the Alien gained his qualifying experience

while working for the sponsoring employer in a job that appeared to be identical to

the job opportunity for which labor certification was being sought. The CO gave the

Employer three options for responding to this finding: (1) document that the

position in which the alien gained the qualifying experience is not substantially

comparable to the job offered; and/or (2) document that it is no longer feasible to

train a worker to qualify for the position; and/or (3) document that the Alien gained

the qualifying experience with a different employer.” Kentrox, at p. 4.

In the above case, the employer was successful in convincing the BALCA panel

to overturn the CO’s denial by making a reasonable argument that “it was no longer feasible to train someone new” which teetered on proprietary knowledge. This was

based on various factors but what seemed to have been the critical points were that:

(1) there had just been some “downsizing”3 which meant that anyone else who

might have had specific programming skills, including proprietary knowledge of

this new program, was no longer available to train;

(2) this software engineer wrote a specific program and was the one who knew it

best, which amounted to, in my opinion, clear proprietary knowledge, and

(3) the final phase of the rollout of that proprietary program was at hand, so

(4) there was simply no time to train someone else to the level required to head-

up the rollout of, and do the troubleshooting on, that proprietary program.

3 If I got started on that, I might not stop. Not that anyone could win, but the best way not to “lose” is not to play

the game.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 6

Although, I am not an attorney4

specializing in employment-based immigration law,

I don’t have to be to guess that the beneficiary was probably an H1-B, and might have

even been employed as a student and/or new graduate through Curricular Practical

Training (CPT); Optional Practical Training (OPT) (pre-completion or post-

completion); and/or Science, Technology, Engineering, and Mathematics (STEM)

Optional Practical Training Extension (OPT) before that. I will go out a little further on

that limb to speculate that there could have been some maneuvering whether intentional

or subconsciously to nudge the development of the “project” and this particular

employee towards this ultimate position of “indispensability” to the employer and the

success of the company. That sounds a lot like an E-2 employee of an E-2 Treaty

Trader or Investor, or an L1-B, but that’s the stuff of another article (look for it soon).

IV. “GROOMING” A NONIMMIGRANT TO SEEK AN IMMIGRANT

VISA—IS IT REALLY WHAT CONGRESS HAD IN MIND?

I don’t know how frequently it happens that someone gets into such a marvelous

employment relationship through a nonimmigrant worker visa that they may be set

for life but I suppose it can happen. It might be worth the effort for someone to

study the following scenario. Suppose that someone comes to the U.S. as a student

to learn a particular body of knowledge. Sticking with the sample cases already

discussed, computer programming, computer science, and software engineering or

design, all seem like similar paths to similar career choices. Suppose further that our

international student completes an undergraduate and maybe even a graduate degree

in the field. The student utilizes CPT and then STEM OPT. They also manage to

obtain an H1-B. Then they start looking around for a permanent position with an

employer willing to sponsor them for an immigrant visa. It has been my personal

experience that such individuals do keep looking around for bigger and better

opportunities. Eventually an employer does file a PERM application and then an I-

140 for our long-time non-immigrant student-cum-worker. The “infeasibility to train”

option is going to gradually fade away from reality for most workers and employers.

The odd-ball situation in Kentrox, Inc. is probably going to remain an exception that

helps to prove the rule. I have seen more academicians and researchers stick with one

employer longer from student to greencard holder than computer analysts, software

engineers, programmers, etc. Actually, I think that Congress had the “high profile stars”

as well as, “academic and big business” types in mind; such as: researchers, professors,

extraordinary and exceptional ability folks, and multinational executives; when they

created a large percentage of “Brain Drain” immigrant visa classifications. That is

merely my guess. Anyway, I also wanted to point out that I think it would be interesting

if someone who actually had the time and inclination to examine these various

employment immigration pathways studied it and published something about it.

4 Read my b io below, I am not an attorney at all.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 7

V. ADDITIONAL AAO CASES

I have been looking at some recent AAO non-precedents in the EB-2 and EB-3

categories and was lucky to find two afore-mentioned “software engineers” and

another “programmer-analyst” as well. There seem to be some common errors

being made in these very similar filings. The most recent cases of interest to this

discussion which I had a chance to find are linked below. Please enjoy reading them.

EB-2 Software Engineer lacks experience (AAO AUG262014_05B5203)

“The director's decision denying the petition concludes that the beneficiary did not possess

the minimum experience required to perform the duties of the offered position by the

priority date.” (AAO AUG262014_05B5203) at 2.

EB-3 Software Engineer lacks degree (AAO AUG262014_01B6203)

“… Respective Roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) :

The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act,

which provides:

Any alien who seeks to enter the United States for the purpose of performing

skilled or unskilled labor is inadmissible, unless the Secretary of Labor has

determined and certified to the Secretary of State and the Attorney General that-

(I) there are not sufficient workers who are able, willing, qualified (or

equally qualified in the case of an alien described in clause (ii)) and available

at the time of application for a visa and admission to the United States and

at the place where the alien is to perform such skilled or unskilled labor,

and

(II) the employment of such alien will not adversely affect the wages and

working conditions of workers in the United States similarly employed.

It is left to USCIS to determine whether the offered position and the beneficiary qualify for

the requested preference classification, and whether the beneficiary satisfies the minimum

requirements of the offered position as set forth on the labor certification.

There is no doubt that the authority to make preference classification decisions

rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). In turn, DOL has

the authority to make the two determinations listed in section 212(a)(14).2 Id. at

423. The necessary result of these two grants of authority is that section 212(a)(14)

determinations are not subject to review by INS absent fraud or willful

misrepresentation, but all matters relating to preference classification eligibility not

expressly delegated to DOL remain within INS' authority.

Given the language of the Act, the totality of the legislative history, and the agencies'

own interpretations of their duties under the Act, we must conclude that Congress

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 8

did not intend DOL to have primary authority to make any determinations other

than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it

is for the purpose of "matching" them with those of corresponding United States

workers so that it will then be "in a position to meet the requirement of the law,"

namely the section 212(a)(l4) determinations.

Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). …”

(AAO AUG262014_01B6203) at 2-3

EB-3 Programmer Analyst lacks experience-bene lacks standing (AAO

AUG292014_01B6203)

“…….The term "affected party" is defined in the regulations as follows:

“For purposes of this section [Denials, appeals, and precedent decisions] ... affected

party (in addition to the Service) means the person or entity with legal standing in a

proceeding. It does not include the beneficiary of a visa petition.5

8 C.F.R. § 103.3(a)(l)(iii)(B) (emphasis added). …..” (AAO AUG292014_01B6203.pdf) at 2.

Some common issues arise regarding the required education, training, and/or

experience listed on the labor certification for the position in question. Some

positions do not fit within the visa category selected on the I-140. Some foreign

degrees will be found “not equivalent” (or sometimes a downright fraud degree from

a diploma mill is found). Very often, the beneficiary simply does not meet the

minimum requirements listed on the PERM labor certification. In that last scenario,

it is usually a desperate overreaching driven by a desire to get in the category with the

shortest waiting time. There may also be a misunderstanding about a particular

regulatory provision that allows for “retention” of priority dates across employment

categories. It seems that some folks are filing additional petitions while an earlier

petition is still pending and trying to retain a priority date to which they are

undeserving. You cannot keep the earlier filing date of a denied petition!

8 CFR § 204.5 Petitions for employment-based immigrants.

(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority

date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the

5 The Sixth Circuit and more recently (Sept. 22, 2014) the Eleventh Circuit Courts of Appeals have held that the

beneficiary (and each dependent) does have standing, under the APA, to challenge, in a District Court, an I-140

revocation which has resulted in denial of ad justment of status because they have suffered an “injury -in-fact”. AAO

I-140 decisions get challenged in District Court which can then lead to the Circuit Court. Otherwise, an AAO Visa

Petition Decision, especially in a family-based case, would have to ride with the BIA Dis missal of the Appeal of an

Immigration Judge’s Removal Order in order to reach the Circuit Courts of Appeals and then the Supreme Court.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 9

event that the alien is the beneficiary of multiple [APPROVED] petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A

petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is

not transferable to another alien.

Also see Matter of Al Wazzan, 25 I&N Dec.359 (AAO 2010) (Although AAO was

addressing AC21 portability, the sentiment applies here also. “To be considered “valid” in harmony with related provisions and with the statute as a whole, the

petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved”…”[by USCIS]).

INA § 204 Procedure For Granting Immigrant Visas

(e) Nothing in this section shall be construed to entitle an immigrant, in behalf of whom a petition under this section is approved, to be admitted the United States as an immigrant

under subsection (a), (b), or (c) of section 203 or as an immediate relative under section 201(b) if upon his arrival at a port of entry [(POE)] in the United States he is found not to be entitled to such classification. [POE includes adjustment of status by a USCIS Office.]

INA § 205 Revocation Of Approval Of Petitions

The Secretary of Homeland Security [USCIS] may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such

petition.

To return to the initial topic introduced in the title of this article and

expand upon it, I offer some questions to illustrate a framework. 6

Does the petitioner qualify to file an I-140? o If required, is the petitioner a U.S. employer, as defined by law?

o If required, does the petitioner have a PERM labor certification approval?

o Is it a bona fide and realistic job offer?

o Does the employer have the ability to pay the proffered wage?

Does the position qualify for the classification? o There is no such thing as an EB-2 exceptional ability janitor?

Does the beneficiary qualify for the position and classification? o Does the beneficiary have the required experience?

o Does the beneficiary have the required education? Degree?

o Does the beneficiary have the required training?

6 This is a general framework which leaves out a lot of possibil ities and only tries to account for the examples in

this article.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 10

ABOUT THE AUTHOR

I tell you what you NEED to hear, not what you WANT to hear!

Joseph P. Whalen Independent EB-5 Consultant, EB-5

Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207

Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line)

E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or

http://eb5info.com/eb5-advisors/34-silver-surfer

DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring7. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I -924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent.

NAICS Code: 611430 Professional and Management Development Training

2012 NAICS DEFINIT ION: 611430 PROFESSIONAL AND MANAGEMENT DEVELOPMENT TRA INING

THIS INDUSTRY COMPRISES ESTABLISHMENTS PRIMARILY ENGAGED IN OFFERING AN ARRAY

OF SHORT DURATION COURSES AND SEMINARS FOR MANAGEMENT AND PROFESSIONAL

DEVELOPMENT. TRAINING FOR CAREER DEVELOPMENT MAY BE PROVIDED DIRECTLY TO

INDIVIDUALS OR THROUGH EMPLOYERS' TRAINING PROGRAMS; AND COURSES MAY BE

CUSTOMIZED OR MODIFIED TO MEET THE SPECIAL NEEDS OF CUSTOMERS. INSTRUCTION MAY

BE PROVIDED IN DIVERS E SETTINGS, SUCH AS THE ESTABLISHMENT'S OR CLIENT'S TRAINING

FACILITIES, EDUCATIONAL INSTITUTIONS, THE WORKPLACE, OR THE HOME, AND THROUGH

DIVERS E MEANS, SUCH AS CORRESPONDENCE, TELEVISION, THE INTERNET, OR OTHER

ELECTRONIC AND DISTANCE-LEARNING METHODS. THE TRAINING PROVIDED BY THESE

ESTABLISHMENTS MAY INCLUDE THE USE OF SIMULATORS AND SIMULATION METHODS.

That’s My Two-Cents, For Now!

7 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC-

prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 11

Cite as: Kentrox, Inc., 2012-PER-00038 (May 22, 2014)(BALCA)

U.S. Department of Labor

Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX)

Issue Date: 22 May 2014

BALCA Case No.: 2012-PER-00038

ETA Case No.: A-10312-30494

In the Matter of:

KENTROX, INC.,

Employer

on behalf of

RAMAN, VIKRAM,

Alien.

Certifying Officer: Atlanta National Processing Center

Appearances: Robert H. Cohen, Esquire

Porter Wright Morris & Arthur LLP Columbus, Ohio

For the Employer

Before: Rosen, Bergstrom and Krantz

Administrative Law Judges

DECISION AND ORDER

GRANTING CERTIFICATION

This matter involves an appeal of the denial by an Employment and Training

Administration, Office of Foreign Labor Certification, Certifying Officer (“CO”) of permanent alien labor certification under Section 212(a)(5)(A) of the Immigration and

Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the "PERM" regulations found at 20 C.F.R. Part 656.

http://www.oalj.dol.gov/Decisions/ALJ/PER/2012/In_re_KENTROX_INC_2012PER00038_(MAY_22_2014)_100155_CADEC_SD.PDF

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 12

BACKGROUND TIMELINESS OF REQUEST FOR

RECONSIDERATION/REVIEW

The initial question in this matter is whether the Employer timely requested

reconsideration of the CO denial of certification.

The denial letter was dated July 1, 2011, was addressed to the Employer in care of

its attorney, and was copied directly on the Employer. The address of the attorney used on the Audit Notification matches the address reported on the Form 9089. (AF 101, 180).1

By letter dated September 6, 2011, the Employer requested reconsideration by the CO and review by the Board of Alien Labor Certification Appeals (BALCA). (AF 1-100). A

FedEx US Airbill indicated that the request for reconsideration/review was placed for shipment with FedEx on September 6, 2011. (AF 100).2 The Employer argued that the

request for reconsideration/review should be considered timely because “the Employer did

not receive the decision until after counsel submitted an inquiry to the PLC Help Desk on August 10, 2011.” (AF 1). The Employer supported this contention with affidavits from the

Employer’s former counsel, current counsel, and the Employer’s contact (its Director of

Human Resources). (AF 93-96). The Employer also provided a copy of relevant email communications in August 2011 (AF 97-98), and a copy of the mailing envelope used by the

Atlanta National Processing Center (ANPC) to mail a copy of the denial letter with a

postmark of August 11, 2011. (AF 99). The Employer cited in support of its argument the BALCA panel decis ion in Michael K. Rosner, 2011-PER-197 and -825 (June 2, 2011). The

Employer’s counsel received the copy of the denial letter on August 15, 2011. (AF 96).

The CO declined to process the Employer’s request for reconsideration. In a

Memorandum transmitting the Appeal File to BALCA, the CO recited the facts surrounding the issuance of the denial letter and the issuance of the copy of denial letter following the

Employer’s status inquiry, but did not provide any analysis of those facts or the Employer’s

argument as to why it should be considered to have timely filed its request for reconsideration, other than to note that the ANPC had not received any return mail relating

to the denial. Rather, since the original denial was dated July 1, 2011, and the Employer did

not post-mark its request for reconsideration until 67 days later on September 6, 2011, the CO found that the request for reconsideration was not timely.

On appeal, the Employer filed an Appellate Brief reiterating and expanding on the arguments made in the motion for reconsideration as to why the request for

reconsideration/review should be considered timely. The CO did not file an Appellate Brief. __________________ 1 In th is Decision, “AF” is an abbreviation for “Appeal File.”

2 The Atlanta Nat ional Processing Center’s date/time stamp is illegib le. (AF 1).

- 2 –

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 13

DISCUSSION

TIMELINESS OF REQUEST FOR

RECONSIDERATION/REVIEW

The CO apparently sent the denial letter by regular mail, and has presented no

proof of actual delivery of the denial letter by the Employer or its attorney. The CO’s

apparent reason for not believing that the Employer did not receive the original denial

letter is that the ANPC did not receive any returned mail on this mailing.

The CO is not enti tled to a presumption of delivery of mail sent by the ANPC in the absence of proof of its internal mailing procedures. See Gentis Inc. v. USDOL, No.

2:09-cv- 05490-LP, slip op. at 9-10 (E.D.Pa. Jan. 11, 2011)8 (proof of internal mailing procedures required to invoke presumption). See also Gentis, supra slip op. at 10

(where only regular mail used, the presumption of delivery is weak); Youth Soccer Alliance, LLC, 2011-PER-1349 (Sept. 18, 2012); Michael K. Rosner, 2011-PER-197 (June 2, 2011); Terry Stuckey & Associates, Inc., 2011-PER- 146 (May 29, 2011);

Cumberland Food Market, 2011-PER-87 (May 1, 2011); 22 E. 41St Street Corp. / O’Casey’s, 2009-PER-402 (Jan. 7, 2011) (presumption of delivery is rebuttable);

Vincheer Fashion, Inc., 1998-INA-24, slip. op. at 5 (Sept. 23, 1998). (same). The fact that the CO did not receive any returned mail relating to the original denial letter is not in itself proof that the law firm or the Employer received the letter.

Even if the CO was entitled to a presumption of delivery, it is only a weak presumption, and we find that it was rebutted by the affidavits of the Employer’s current and former attorneys’ and its Director of Human Resources, and the documentation of

the August 2011 email correspondence. We also note that circumstantial evidence of a lack of a motive to fail to respond to the Audit Notification is relevant. See DGN

Technologies Inc., 2012-PER-1208 (Mar. 20, 2013) (citing Santana Gonzalez v. United States, 506 F.3d 274, 278 (3d Cir. 2007) for the proposition that circumstantial evidence, such as lack of motive to fail to respond to government instruction, may

support rebuttal of presumption of delivery). We have reviewed the entire record. It is clear that the Employer was endeavoring to respond promptly to the ANPC and CO’s

directives. It is unlikely that the Employer would have completely failed to respond to denial letter if it had been received.

Accordingly, we find that the time period for requesting for reconsideration/review must be equitably tolled until the date that the Employer actually received the copy of

the denial letter on August 15, 2011. Because the Employer filed its request for reconsideration/review within 30 days of actual receipt of the copy of the denial letter,

we find that it was timely filed. - 3 –

8

GENTIS, INC. V. OATES, DIST. COURT, ED PENNSYLVANIA 2011 {JANE OATES WAS ASSISTANT SECRETARY, UNITED STATES

DEPARTMENT OF LABOR}

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 14

BACKGROUND ACTUAL MINIMUM REQUIREMENTS ISSUE

The Employer is sponsoring the Alien for permanent employment in the United States for the position of “Software Engineer.” (AF 179-190). When the Employer filed

its Form 9089 PERM application, it indicated that the job opportunity required 24 months of experience in the occupation of software engineer, software developer, or a

related occupation. (AF 181). In the portion of the Form 9089 application in which an employer is required to list the experience that qualifies the Alien for the position, the only experience listed was the Alien’s work for the sponsoring Employer beginning

August 1, 2005 as a Software Engineer.

The CO audited the Employer’s application. (AF 175-178). In addition to the

standard directive to submit recruitment documentation, the Audit Notification specified three subjects for special attention in the Employer’s audit response. One of those subjects became the basis for the CO’s denial of certification – the fact that the Alien

gained his qualifying experience while working for the sponsoring employer in a job that appeared to be identical to the job opportunity for which labor certification was being

sought. The CO gave the Employer three options for responding to this finding: (1) document that the position in which the alien gained the qualifying experience is not substantially comparable to the job offered; and/or (2) document that it is no longer

feasible to train a worker to qualify for the position; and/or (3) document that the Alien gained the qualifying experience with a different employer. (AF 177).

When the Employer submitted its audit response (AF 103-174), it chose to

document infeasibility to train. (See attorney’s cover letter to audit response at 103-104). The Employer’s documentation was in the form of a September 1, 2010 letter

authored by the Employer’s Vice President of Engineering. (AF 162).

On July 1, 2011, the CO issued a denial letter. (AF 101-102). The sole ground for

denial was that the Employer failed to prove in its audit response that the experience the alien acquired with the Employer was acquired in a position that was substantially dissimilar to the one currently being offered. The CO’s denial letter did not discuss, or

even acknowledge, the Employer’s infeasibility-to-train argument and evidence.

The Employer thereafter filed its request for reconsideration/review. (AF 1-100).

Because the CO did not consider the request to be timely, he did not evaluate the merits of the request. In the request, the Employer argued that “[b]ased on the reasons for the denial provided in the written decision, it is clear that the analyst either ignored

the evidence presented by the Employer in its audit response, or misinterpreted the applicable regulation.” (AF 7). The Employer argued that the regulation does not require

an employer to prove both dissimilarity of the jobs and infeasibility to train, but only one or the other. (AF 7).

- 4 –

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 15

DISCUSSION ACTUAL MINIMUM REQUIREMENTS ISSUE

The regulation at 20 C.F.R. §656.17(i) requires an employer to state its actual minimum requirements for the position. In the instant case, the fact that the Alien gained all of his qualifying experience with the sponsoring Employer caused the CO to question whether the requirement of 24 months of experience in the occupation of software engineer, software developer, or a related occupation, was the Employer’s actual minimum requirement. In other words, it appeared that the Employer was willing to hire the Alien without such experience, and was thus treating the Alien more favorably than U.S. workers.

Where the issue is the alien having gained the necessary experience while working for the sponsoring employer, the regulations provide two means for avoiding denial of the application based on a failure to state the actual minimum experience requirement. One is documentation that the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is being sought. The other is that documentation that it is no longer feasible to train a worker to qualify for the position. 20 C.F.R. § 656.17(i)(2)(i) and (ii). In the instant case, the Employer chose the infeasibility-to-train option.

The “infeasibility-to-train” provision has been addressed by several BALCA panels under the PERM regulations. See Teitel Bros, Inc., 201-PER-304 (Mar. 11, 2011); Burger King #642, 2010-PER-1524 (Aug. 17, 2011); Beth Bayer Consignment, 2010-PER-135 (Feb. 7, 2011); Peacock Ridge, 2011-PER-372 (May 24, 2012); Your Employment Service Inc., 2009-PER-151 (Oct. 30, 2009). Each of those panels relied on caselaw decided under the similar regulation found in the pre-PERM regulations. Under the pre-PERM caselaw, it was held that an employer must sufficiently document a change in circumstances to demonstrate infeasibility. See Rogue and Robelo Restaurant and Bar, 1988-INA-148 (Mar. 1, 1989) (en banc). The employer's burden of establishing why it is not now feasible to offer the same favorable treatment to U.S. applicants was characterized as heavy. 58th Street Restaurant Corp., 1990-INA-58 (Feb. 21, 1991); Fingers, Faces, and Toes, 1990-INA-56 (Feb. 8, 1991). Documentation must show more than just inefficiency. Admiral Gallery Restaurant, 1988-INA-65 (May 31, 1989) (en banc). And a mere contention that the employer is experiencing growth in business does not meet the standard for a change in circumstances sufficient to establish the infeasibility of training a U.S. worker. Farbell Electronics, 1994-INA-59 (Apr. 28, 1995). A review of the pre-PERM caselaw indicates that the Board required concrete documentation to support assertions made, and that the Board was generally skeptical about claims of infeasibility to train. But the burden was not insurmountable. In Avicom International, 1990-INA-284 (July 31, 1991), for example, the employer showed that a change in its corporate ownership and reduction in its workforce left the alien as the sole remaining employee with the knowledge and training required of an electronics engineer.

In the instant case, the Employer presented a statement from its Vice President of Engineering, Mark Tinker, in response to the audit notification that addressed both the business necessity of its educational and experience requirements, and the infeasibility to train a new worker for the instant position. The Alien had gained his experience while working as an

- 5 –

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 16

Associate Software Engineer and Software Engineer at the Employer. The Employer produces a suite of remote site management software products that provide 24-7 on-site monitoring systems relating to protection against theft, timely identification of problems, and advance notification concerning network and equipment failure. Over one million of the Employer’s products have been deployed in carrier and enterprise networks. The Employer needs the Software Engineer to have a master’s degree and two years of experience because of the very complex analytical requirements of the job, which include full lifecycle implementation of projects; understanding of the business needs of clients; design, testing and implementation of applications; and support for implemented applications. Mr. Tinker enumerated several specific examples of the position’s challenges, such as understanding packet loss and network congestion, performance and scalability issues, design and implementation of collection systems for hundreds of thousands of alarms and measurements from remote site appliances. The position also involves guidance and mentoring of more junior team members. Mr. Tinker stated that the Alien had become well- versed in the company’s site management products during his tenure. (AF 160-162). Specifically as to the infeasibility of training, Mr. Tinker explained that the company was in the midst of a “critical product maturation phase” for the next three years, and would be releasing new software updates and releases every six to nine months on its remote site management products. He stated that the Alien’s contributions to the product maturation phase were critical. According to Mr. Tinker, the Software Engineer “must have extensive knowledge of the software and how it has evolved to be able to contribute in a meaningful and timely way to regular update and release schedule.” Mr. Tinker stated

that in the fast-paced environment of software development, there is not time to train a new Software Engineer. Mr. Tinker stated that if he was to hire a Software Engineer with simply a Master’s degree and no applicable experience, the software development phase would stall. He stated that it would take at least two years to catch up to the stage the product is currently at, and that with a six to nine month release cycle, “there is just not enough time to provide training or allow even an experienced Software Engineer to attain the level of specific product structure knowledge necessary to perform at the required level.” (AF 162). Associated with Mr. Tinker’s statement were fact sheets on several of the Employer’s site management and security products. (AF 163-168). The Employer argued in its appellate brief that Mr. Tinker’s statement was entitled to considerable evidentiary weight because it was made by a person with knowledge of the facts. (Employer’s brief at 11).

It is clear from reviewing Mr. Tinker’s statement that he is intimately knowledgeable about the Employer’s products and business needs. His statement makes a credible presentation on the Employer’s need to keep the Alien on during product maturation and frequent product updates and releases because it would take two years to train someone to the Alien’s level of competency and specific product knowledge, during which time software development would stall. Mr. Tinker also credibly presented the argument that the six to nine month release cycle created too fast a pace to permit training or even to allow an experienced Software Engineer to attain the necessary specific product structure knowledge. Although the Appeal File contains no documentation directly supporting Mr. Tinker’s statement, his statement was thorough and specific, and was obviously written by a person with firsthand knowledge about whether training for the position that is the subject of the labor certification was feasible given the Employer’s business situation. See Gencorp, 1987-INA-659 (Jan. 13, 1988) (en banc), USDOL/OALJ Reporter at 2-3 (“[W]here an employer is required to prove the existence of an employment practice or the performance of an act and its results, written assertions which are reasonably

- 6 –

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 17

specific and indicate their sources or bases shall be considered documentation. This is not to

say that a certifying officer must accept such assertions as credible or true; but he/she must

consider them in making the relevant determination and give them the weight that they rationally

deserve.”). Under the facts of this specific case, we find that the Employer’s documentation of

infeasibility to train warrants application of Section § 656.17(i)(2)(i).

ORDER

Based on the foregoing, IT IS ORDERED that labor certification is GRANTED. This

matter will be returned to the Certifying Officer for issuance of the certification.

For the panel:

Digitally signed by Dana A. Rosen DN: CN=Dana A. Rosen, OU=Administrative Law Judge, O=Office of Administrative Law Judges, L=Newport News, S=VA, C=US Location: Newport News VA

DANA ROSEN

Administrative Law Judge

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become

the final decision of the Secretary unless within twenty days from the date of service a party petitions

for review by the full Board. Such review is not favored and ordinarily will not be granted except (1)

when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2)

when the proceeding involves a question of exceptional importance. Petitions must be fi led with:

Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a

written statement setting forth the date and manner of service. The petition shall specify the

basis for requesting full Board review with supporting authority, if any, and shall not exceed five

double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,

and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may

order briefs.

- 7 –

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 18

NON-PRECEDENT DECISION

(August 25, 2014)

Page 2

DISCUSSION: The service center director denied the nonimmigrant visa petition, and the

matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied.

On the Form I-129 visa petition, the petitioner describes itself as an 82-employee information technology and supply chain management company established in 1996.1 In order to employ the

beneficiary in a full-time position to which it assigned the job title "Computer Systems Analyst," the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant

to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). In support of this petition, the petitioner submitted a Labor Condition Application (LCA) certified for use with a job offer falling within the "Computer Systems

Analysts" occupational category, at a Level I (entry- level) prevailing wage rate.

The director denied the petition, concluding that the evidence of record does not demonstrate that the beneficiary is qualified to perform the duties of a specialty occupation.

The record of proceeding before this office contains the following: (1) the Form I-129 and supporting documentation; (2) the director's request for additional evidence (RFE); (3) the

petitioner's response to the RFE; (4) the director's letter denying the petition; and (5) the Form I-290B, a brief, and supporting documentation.

We find that upon review of the entire record of proceeding, the evidence of record does not overcome the director's ground for denying this petition. Accordingly, the appeal will be dismissed, and the petition will be denied.

Beyond the decision of the director, however, we first find an additional aspect which, although not addressed in the director's decision, nevertheless also precludes approval of the petition, namely, the

petitioner's failure to establish that the position as described constitutes a specialty occupation2 U.S.

Citizenship and Immigration Services (USCIS) is required to follow long-standing legal standards

and determine first, whether the proffered position qualifies as a specialty occupation, and second,

whether an alien beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The

facts of a beneficiary's background only come at issue after it is found that the position in which the ______________________________________________________

1 The petitioner provided a North American Industry Classification System (NAICS) Code of 541511, " Custom

Computer Programming Services." U.S. Dep't of Commerce, U.S. Census Bureau, North American Industry

Classification System, 2012 NAICS Definit ion, "541511 Custom Computer Programming Services,"

http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited Aug. 20, 2014).

2 An application or petition that fails to comply with the technical requirements of the law may be denied by this

office even if the service center does not identify all of the grounds for denial in the initial decision. See Spencer

Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff’d, 345 F.3d 683 (9th Cir. 2003).

We conduct appellate review on a de novo basis (See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)), and it was

in the course of this review that we identified this additional ground for denial.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 19

NON-PRECEDENT DECISION

Page 3

petitioner intends to employ him falls within [a specialty occupation]."). Therefore, for this additional reason, the petition must be denied. Accordingly, we will first address our finding that the petitioner failed to demonstrate that the

proffered position qualifies for classification as a specialty occupation. We will then address the director's finding that the evidence of record does not establish that the beneficiary is qualified to

perform the duties of a specialty occupation.

I. The Petitioner and the Proffered Position

As noted above, the petitioner stated on the Form I-129 that it has been doing business as an information technology and supply chain management company since 1996, that it currently employs

82 individuals, and that it has a gross annual income of $32,609,797. The petit ioner's net annual

income was left blank.

The petitioner's April 1, 2013 letter of support, which was filed with the Form I-129, described the

petitioner as follows:

THE PETITIONER

[The petitioner] is an established leader in strategy and business process consulting,

systems integration and outsourced business services in Supply Chain Management. The firm is rated by AMR research as one of the top SAP supply chain planning

providers. Headquartered in [REDACTED] California, part of the region known as

[REDACTED] of California, we have 110 employees around the [REDACTED] [The petitioner] is the division of the $14.4 billion [REDACTED]----a respected

multinational industrial conglomerate.

The letter further described the proffered position and its duties as follows:

JOB DUTIES FOR [THE BENEFICIARY]

[The beneficiary] will work for [the petitioner] as a Computer Systems Analyst, and will be involved in the analysis, modification, design, and continued development and

implementation of software and system components from the inception of projects to

completion for our client, [***REDACTED REDACTED***] USA. He will work to meet clients' ongoing software needs through systems analysis, integration, upgrading,

and ongoing support. He will utilize his skills and academic background to review,

design, and create new software products to improve clients' existing system, and coordinate the implementation of new software to ensure compatibility and cohesive

response in the overall network. [The beneficiary] will work to ensure that quality standards are maintained, and evaluate existing systems to improve production and

workflow.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 20

NON-PRECEDENT DECISION

Page 4

The Computer Systems Analyst will prepare and review diagrams, spreadsheets, and flowcharts to illustrate sequences and steps in the system, and to identify problems and

propose solutions. He will coordinate with clients and users to evaluate requests for

modifications for feasibility, and make recommendations based on users' needs. [The beneficiary] will also keep abreast of developments and innovations in the field of

information technology through reading of technical manuals and reports, and provide

assessment to clients of new technology and products.

Specifically, [the beneficiary] will also be responsible for:

Solution design and implementation (40%):

• Use of proprietary tools/template to capture business requirements and

map businesses processes, identify gaps and design solution.

• Integrate with proprietary custom solutions and prepare functional

specification on standard solution enhancement.

• Configure solution to map business processes.

• Assist in development of workflows, forms, data conversion,

enhancements and reports.

Validating solution and fixing defects (20%):

• Prepare test strategy, plan and test scripts to validate functionalities provided in solution.

• Perform unit testing, integration testing and assist on user acceptance

testing to validate solution.

• Recording, investigating and fixing defects.

Documentation & User training (20%):

• Document the configuration, processes on solution and development.

• Prepare user training documentation and train the users.

• Prepare solution support documents and provide training.

Hyper care and support solution (20%):

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 21

NON-PRECEDENT DECISION

Page 5

• Responsible for managing and supporting, during post go-live of solution and operational support using proprietary tool.

• Will also escalate issues within the defined escalation process for any urgent issues.

• As a SAP Supplier Re lationship Management/procurement solution expert, will serve as an expert on the solution for fixing defects and assuring

performance of solution.

The petitioner further states that "[t]he minimum requirements for this professional position are a

Bachelor's degree in Computer Science, Engineering, and Technology or any related field and relevant work experience."

II. Specialty Occupation

Again, we will first address whether the proffered position is a specialty occupation. Based upon a

complete review of the record of proceeding, we find that the evidence fails to establish that the position as described constitutes a specialty occupation. For this additional reason, the petition

must be denied.

A. Law and Interpretations

To meet the petitioner's burden of proof with regard to the proffered position's classification as an H-1B specialty occupation, the petitioner must establish that the employment it is offering to the

beneficiary meets the following statutory and regulatory requirements.

Section 214(i)(l) of the Act, 8 U.S.C. § l184(i)(l), defines the term "specialty occupation" as an

occupation that requires:

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

knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following:

Specialty occupation means an occupation which [(1)] requires theoretical and

practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics,

physical sciences, social sciences, medicine and health, education, business

specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent,

as a minimum for entry into the occupation in the United States.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 22

NON-PRECEDENT DECISION

Page 6

Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must also meet one of the following criteria:

(1) 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.

As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory

language must be construed in harmony with the thrust of the related provisions and with the statute

as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction of language which takes into account the design of the statute as a whole is preferred); see also COIT

Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-

F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet the statutory and regulatory

definition of specialty occupation. To otherwise interpret this section as stating the necessary and sufficient conditions for meeting the definition of specialty occupation would result in particular

positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or regulatory

definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be

met in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty

occupation. As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. § 214.2(h) (4)(ii), users consistently interprets the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations. These professions, for which petitioners have regularly been able to establish a minimum entry requirement in the United States of a baccalaureate or higher degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the particular

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 23

NON-PRECEDENT DECISION

Page 7

position, fairly represent the types of specialty occupations that Congress contemplated when it created the H-1B visa category.

To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply rely on a position's title. The specific duties of the proffered position, combined with the nature of the

petitioning entity's business operations, are factors to be considered. USCIS must examine the

ultimate employment of the alien, and determine whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title of

the position nor an employer's self-imposed standards, but whether 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 as the minimum for entry into the

occupation, as required by the Act.

B. Preliminary Findings Regarding the Proffered Position's Duties and the Relative

Complexity of the Position

Based on the evidence that is provided, we do not find that it establishes relative complexity,

specialization and/or uniqueness as distinguishing aspects of eit her the proposed duties or the position that they are said to comprise. While the petitioner may claim that the nature of the proposed

duties and the position that they are said to comprise elevate them above the range of usual Computer Systems Analyst positions and duties by virtue of their level of specialization, complexity, and/or

uniqueness, the evidence of record does not support these claims. Going on record without

supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of

Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).

As evident in the job description quoted above, the record of proceeding presents the duties

comprising the proffered position in terms of relatively abstract and generalized functions. More specifically, they lack sufficient detail and concrete explanation to establish the substantive nature of

the work and associated applications of specialized knowledge that their actual performance would

require within the context of the petitioner's particular business operations. Take for example the following duty description:

Assist in development of workflows, forms, data conversion, enhancements and reports.

The evidence of record contains neither substantive explanation nor documentation showing the range and volume of workflows, forms, data conversion, enhancements and reports that the

beneficiary would have to assist in developing. Likewise, the record does not clarify the substantive work and associated applications of specialized knowledge that would be involved in the referenced

duty. Likewise, we see that the petitioner does not provide substantive information with regard to the

particular work, methodologies, and applications of knowledge that would be required for the percentage-assigned duties, such as "Hyper care and support solution-20%." Thus, we conclude that,

as generally described as all of the elements of the constituent duties are, they do not - even in the

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 24

NON-PRECEDENT DECISION

Page 8

aggregate - establish the nature of the position or the nature of the position's duties as more complex, specialized, and/or unique than those of other computer systems analyst positions.

C. Analysis

Having made the above preliminary findings, we turn now to the application of each supplemental,

alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) to the evidence in this record of proceeding. We will first discuss the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which is satisfied by

establishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is normally the minimum requirement for entry into the particular position that is the subject of the petition.

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 it addresses.3 As noted above, the petitioner submitted an LCA in support of this

position certified for a job offer as a computer systems analyst, within the "Computer Systems

Analysts" occupational classification.

The Handbook's discussion of the duties and educational requirements of computer systems analysts

states, in pertinent part, the following:

Computer systems analysts typically do the following:

• Consult with managers to determine the role of the IT system in an

organization

• Research emerging technologies to decide if installing them can

increase the organization's efficiency and effectiveness

• Prepare an analysis of costs and benefits so that management can

decide if information systems and computing infrastructure

upgrades are financially worthwhile

• Devise ways to add new functionality to exist ing computer systems

• Design and develop new systems by choosing and configuring

hardware and software

• Oversee the installation and configuration of new systems to

customize them for the organization

____________________________ 3

The Handbook, which is available in printed form, may also be accessed online at

http://www.bls.gov/ooh The references to the Handbook are from the 2014-15 edition available online.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 25

NON-PRECEDENT DECISION

Page 9

• Conduct testing to ensure that the systems work as expected • Train the system's end users and write instruction manuals

Computer systems analysts use a variety of techniques to design computer systems

such as data-modeling, which create rules for the computer to follow when presenting data, thereby allowing analysts to make faster decisions. Analysts conduct in-depth tests and analyze information and trends in the data to increase a system's performance and efficiency. Analysts calculate requirements for how much memory and speed the computer

system needs. They prepare flowcharts or other kinds of diagrams for programmers or engineers to use when building the system. Analysts also work with these people to solve problems that arise after the initial system is set up. Most analysts do some programming in the course of their work. Most computer systems analysts specialize in certain types of computer systems that

are specific to the organization they work with. For example, an analyst might work predominantly with financial computer systems or engineering systems. Because systems analysts work closely with an organization's business leaders, they help the IT team understand how its computer systems can best serve the organization. In some cases, analysts who supervise the initial installation or upgrade of IT systems

from start to finish may be called IT project managers. They monitor a project's progress to ensure that deadlines, standards, and cost targets are met. IT project managers who plan and direct an organization's IT department or IT policies are included in the profile on computer and information systems managers. Many computer systems analysts are general-purpose analysts who develop new

systems or fine-tune existing ones; however, there are some specialized systems analysts. The following are examples of types of computer systems analysts:

U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm#tab-2 (accessed Aug. 20, 2014). The Handbook states the following with regard to the educational requirements necessary for entrance into this field:

A bachelor's degree in a computer or information science field is common,

although not always a requirement. Some firms hire analysts with business or

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 26

NON-PRECEDENT DECISION

Page 10

liberal arts degrees who have skills in information technology or computer

programming.

Most computer systems analysts have a bachelor's degree in a computer-related

field. Because these analysts also are heavily involved in the business side of a

company, it may be helpful to take business courses or major in management

information systems. * * *

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.

Id. at http://www.bls.gov/ooh/computer-and-information-technology/computer- systems-

analysts.htm#tab-4 (accessed Aug. 20, 2014).

These statements from the Handbook do not indicate that at least a bachelor's degree in a specific specialty or its equivalent is normally required for entry into this occupational category. First, the

Handbook's statement that "most" computer systems analysts have a bachelor's degree in a computer-related field is not the same as stating that such a degree is a minimum entry requirement. Second, even if most computer systems analyst positions required such a degree,

the first definition of "most" in Webster's New College Dictionary 731 (Third Edition, Hough Mifflin Harcourt 2008) is "[g]reatest in number, quantity, size, or degree." As such, if merely

51% of systems analyst positions require at least a bachelor's degree or a closely related field, it could be said that "most" system analyst positions require such a degree. It cannot be found, therefore, that a particular degree requirement for "most" positions in a given occupation equates

to a normal minimum entry requirement for that occupation, much less for the particular position proffered by the petitioner. Instead, a normal minimum entry requirement is one that denotes a

standard entry requirement but recognizes that certain, limited exceptions to that standard may exist. To interpret this provision otherwise would run directly contrary to the plain language of the Act, which requires in part "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."§ 214(i)(l) of the Act.

Additionally, with regard to positions that do require attainment of a bachelor's degree or equivalent, the Handbook does not indicate that a bachelor's degree in a specific specialty or the

equivalent is normally required. For instance, the Handbook states that technical degrees are not always required, and that many computer systems analysts have liberal arts degrees and gained

their programming or technical expertise "elsewhere."

Furthermore, the materials from DOL's Occupational Information Network (O*NET OnLine)

submitted by counsel do not establish that the proffered position satisfies the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) either. Unfortunately, O*NET OnLine is not particularly useful in determining whether a baccalaureate degree in a specific specialty, or its equivalent, is a

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 27

NON-PRECEDENT DECISION

Page 11

requirement for a given position, as O*NET OnLine's Job Zone designations make no mention of the

specific field of study from which a degree must come. As was noted previously, we interpret the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or

higher degree, but one in a specific specialty that is directly related to the proffered position. The Specialized Vocational Preparation (SVP) rating is meant to indicate only the total number of years

of vocational preparation required for a particular position. It does not describe how those years are

to be divided among training, formal education, and experience and it does not specify the particular type of degree, if any, that a position would require. Therefore, O*NET OnLine information is not

probative of the proffered position being a specialty occupation.

Nor does the record of proceeding contain any pers uasive documentary evidence from any other

relevant authoritative source establishing that the proffered position's inclusion within the Computer

Systems Analyst occupational group is sufficient in and of itself to establish the proffered position as, in the words of this criterion, a "particular position" for which "[a] baccalaureate or higher degree

or its equivalent is normally the minimum requirement for entry."

Finally, as noted previously, the petitioner submitted an LCA certified for a job prospect with a wage-level that is only appropriate for a comparatively low, entry-level position relative to others

within its occupation (that is, Level I), which signifies that the beneficiary is only expected to possess

a basic understanding of the occupation.4

As the evidence in the record of proceeding does not establish that at least a baccalaureate degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the _____________________________ 4

The Prevailing Wage Determination Policy Guidance (available at

http://http://www.foreignlaborcert.doleta.gov/pdf/NPWHC Guidance_ Revised 11_ 2009.pdf (last visited

Aug. 20,2014)) issued by DOL states the following with regard to Level I wage rates:

Level I (entry) wage rates are assigned to job offers for beginning level employees who

have only a basic understanding of the occupation. These employees perform routine tasks

that require limited, if any, exercise of judgment. The tasks provide experience and

familiarization with the employer's methods, practices, and programs. The employees may

perform higher level work for training and developmental purposes. These employees

work under close supervision and receive specific instructions on required tasks and

results expected. Their work is closely monitored and reviewed for accuracy. Statements

that the job offer is for a research fellow, a worker in training, or an internship are

indicators that a Level I wage should be considered [emphasis in original].

The proposed duties' level of complexity, uniqueness, and specializat ion, as well as the level of

independent judgment and occupational understanding required to perform them, are questionable, as

the petitioner submitted an LCA cert ified for a Level I, entry-level position. The LCA's wage-level is

appropriate for a proffered position that is actually a low-level, entry position relat ive to others within

the same occupation. In accordance with the relevant DOL explanatory informat ion on wage levels, by

submitting an LCA with a Level I wage rate, the petitioner effectively attests that the beneficiary is only

required to possess a basic understanding of the occupation; that she will be expected to perform routine

tasks requiring limited, if any, exercise of judgment; that she will be closely supervised and her work

closely monitored and reviewed for accuracy; and that she will receive specific instructions on required

tasks and expected results. See id.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 28

NON-PRECEDENT DECISION

Page 12

particular position that is the subject of this petition, the petitioner has not satisfied the criterion

described at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

Next, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. §

214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common (1) to the

petitioner's industry; and (2) for positions within that industry that are both: (a) parallel to the

proffered position, and (b) located in organizations that are similar to the petitioner.

In determining whether there is such a common degree requirement, factors often considered by USCIS 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)).

Here and as already discussed, the petitioner has not established that its proffered position is one for which the Handbook reports a standard, industry-wide requirement for at least a bachelor's degree in a specific specialty or its equivalent. Nor are there any submissions from a professional

association in the petitioner's industry stating that individuals employed in positions parallel to the proffered position are routinely required to have a minimum of a bachelor's degree in a

specific specialty or its equivalent for entry into those positions. Nor has the petitioner submitted any letters or affidavits from firms or individuals in the industry attesting that such firms "routinely employ and recruit only degreed individuals.

Therefore, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. §

214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common (1) to the petitioner's industry; and (2) for positions within that industry that are both: (a) parallel to the

proffered position, and (b) located in organizations that are similar to the petitioner.

Next, the evidence of record does not satisfy the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that “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.”

In this particular case, the petitioner has failed to credibly demonstrate that the duties the beneficiary will perform on a day-to-day basis constitute a position so complex or unique that it

can only be performed by a person with at least a bachelor's degree in a specific specialty or its equivalent.

The record of proceeding does not contain sufficient evidence to establish relative complexity or uniqueness as aspects of the proffered position. Rather, the petitioner has not distinguished either

the proposed duties, or the position that they comprise, from generic computer systems analyst work, which, the Handbook indicates, does not necessarily require a person with at least a

bachelor's degree in a specific specialty or its equivalent to perform. As such, there is insufficient

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 29

NON-PRECEDENT DECISION

Page 13

evidence to find that the position is so complex or unique as to require the theoretical and practical application of a body of highly specialized knowledge such that a person with a bachelor's in a

specific specialty or its equivalent is required to perform that position.

The petitioner therefore failed to establish how the beneficiary's responsibilities and day-to-day

duties comprise a position so complex or unique that the position can be performed only by an

individual with a bachelor's degree, or the equivalent, in a specific specialty.

As the evidence of record therefore fails to establish that the beneficiary's responsibilities and day-to- day duties comprise a position so complex or unique that the position can be performed only by an

individual with at least a bachelor's degree in a specific specialty or its equivalent, the petitioner has

not satisfied the second alternative prong at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(2) either.

We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty or its

equivalent for the position. To satisfy this criterion, the record must contain documentary evidence demonstrating that the petitioner has a history of requiring the degree or degree equivalency, in a specific specialty, in its prior recruiting and hiring for the position. Additionally, the record must establish that a petitioner's imposition of a degree requirement is not merely a matter of preference for high-caliber candidates but is necessitated by

the performance requirements of the proffered position.5

Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, then any

individual with a bachelor's degree could be brought to the United States to perform any occupation

as long as the employer artificially created a token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty

or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other words, if a petitioner's assertion of a particular degree requirement is not necessitated by the actual performance

requirements of the proffered position, the position would not meet the statutory or regulatory

definition of a specialty occupation. See § 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation").

To satisfy this criterion, the evidence of record must therefore show that the specific performance requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory

declaration of a particular educational requirement will not mask the fact that the position is not a

specialty occupation. USCIS must examine the actual employment requirements, and, on the basis of that examination, determine whether the position qualifies as a specialty occupation. See generally

Defensor v. Meissner, 201 F. 3d at 387. In this pursuit, 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 _________________________________________________ 5

Any such assertion would be undermined in this particular case by the fact that the petitioner indicated in the LCA that its proffered position is a comparatively low, entry-level position relative to others within the same occupation.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 30

NON-PRECEDENT DECISION

Page 14

a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in a specific specialty as the minimum for entry into the occupation as required by the Act.

As the record of proceeding contains no evidence regarding the petitioner's recruiting and hiring of any other computer systems analysts, there is no evidence for consideration under this criterion. As

the record of proceeding does not demonstrate that the petitioner normally requires at least a

bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).

Next, the evidence of record does not satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which

requires the petitioner to establish that the nature of the proffered position's 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 the specific specialty or its equivalent.

In reviewing the record of proceeding under this criterion, we reiterate our earlier discussion regarding the Handbook's entries for positions falling within the "Computer Systems Analysts" occupational category. Again, the Handbook does not indicate that at least a bachelor's degree in

a specific specialty, or the equivalent, is a standard, minimum requirement to perform the duties of such positions; and the record indicates no factors, such as supervisory responsibilities, that

would elevate the duties proposed for the beneficiary above those discussed in the Handbook for entry- level positions. As reflected in this decision's earlier discussion, the proposed duties as described in the record of proceeding contain no indication of specialization and complexity such

that the knowledge they would require is usually associated with any particular level of education in a specific specialty or its equivalent. As generically and generally as they were

described, the duties of the proposed position are not presented with sufficient detail and explanation to establish the substantive nature of the duties as they would be performed in the specific context of the petitioner's particular business operations. Also as a result of the

generalized and relatively abstract level at which the duties are described, the record of proceeding does not establish their nature as so specialized and complex relative to other

positions within the same occupation as to require knowledge usually associated with at least a bachelor's degree in a specific specialty, or the equivalent. We incorporate into the analysis of this criterion this decision's earlier comments and findings with regard to the generalized level at

which the duties are described in the record. The evidence of record does not develop the duties in sufficient detail to establish their nature as so specialized and complex that their performance

would require knowledge usually associated with the attainment of at least a bachelor's degree in a specific specialty. For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed duties meet the relative specialization and complexity threshold at 8

C.F.R. § 214.2(h)(4)(iii)(A)(4).

Additionally, we find that both on its own terms and also in comparison with the three higher wage levels that can be designated in an LCA, by the submission of an LCA certified for a wage-level I,

the petitioner effectively attests that the proposed duties are of relatively low complexity as

compared to others within the same occupational category. This fact is materially inconsistent with the level of complexity required by this criterion.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 31

NON-PRECEDENT DECISION

Page 15

As earlier noted, the Prevailing Wage Determination Policy Guidance issued by the U.S. Department of Labor (DOL) states the following with regard to Level I wage rates:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform r outine

tasks that require limited, if any, exercise of judgment. The tasks provide experience and

familiarization with the employer's methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These

employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

Statements that the job offer is for a research fellow, a worker in training, or an

internship are indicators that a Level I wage should be considered [emphasis in original].

See DOL, Employment and Training Administration's Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Rev. Nov. 2009), available on the Internet at:

http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf

The pertinent guidance from the Department of Labor, at page 7 of its Prevailing Wage

Determination Policy Guidance describes the next higher wage-level as follows:

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the

occupation. They perform moderately complex tasks that require limited judgment. An

indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as

described in the O*NET Job Zones.

Id. The above descriptive summary indicates that even this higher-than-designated wage level is appropriate for only "moderately complex tasks that require limited judgment. " Id. The fact that this

higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately complex tasks that require limited judgment," is very telling with regard to the relatively low level of

complexity imputed to the proffered position by virtue of its Level I wage-rate designation.

Further, we note the relatively low level of complexity that even this Level II wage-level reflects

when compared with the two still-higher LCA wage levels, neither of which was designated on the

LCA submitted to support this petition.

The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage

designation as follows:

Level III (experienced) wage rates are assigned to job offers for experienced

employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 32

NON-PRECEDENT DECISION

Page 16

of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be considered.

Frequently, key words in the job title can be used as indicators that an employer's job offer is for an experienced worker ....

See DOL, Employment and Training Administration's Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Rev. Nov. 2009), available on the Internet at:

http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf

The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as

follows:

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment's procedures and expectations. They generally have management and/or supervisory responsibilities.

Id. Here we again incorporate our earlier discussion and analysis regarding the implications of the

petitioner's submission of an LCA certified for the lowest assignable wage-level. By virtue of this

submission, the petitioner effectively attested that the proffered position is a low-level, entry position relative to others within the occupation, and that, as clear by comparison with DOL's instructive

comments about the next higher level (Level II), the proffered position did not even involve

"moderately complex tasks that require limited judgment" (the level of complexity noted for the next higher wage-level, Level II). See id.

For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed

duties meet the specialization and complexity threshold at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

As the petitioner has not satisfied at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it

cannot be found that the proffered position is a specialty occupation. This aspect of the petition

precludes its approval and makes the beneficiary's qualifications irrelevant. However, we will nonetheless also address the lack of sufficient evidence of record to establish the beneficiary is

qualified to serve in a specialty occupation.

III. Beneficiary Qualifications

We will now address the director's determination that the evidence in the record has not established

that the beneficiary is qualified to perform the duties of a specialty occupation. Based on a complete review of the record of proceeding, we find that the evidence fails to establish that the

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 33

NON-PRECEDENT DECISION

Page 17

beneficiary is qualified to perform the duties of a specialty occupation. Accordingly, the appeal

will be dismissed, and the petition will be denied for this additional reason. The statutory and regulatory framework that we must apply in our consideration of the evidence

of the beneficiary's qualification to serve in a specialty occupation follows below.

Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-lB nonimmigrant worker must possess:

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in paragraph (l)(B) for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree, and

(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C)

states that an alien must also meet one of the following criteria in order to qualify to perform services in a specialty occupation:

(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States

baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or

higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

In addition, 8 C.F.R. § 214.2(h)(4)(v)(A) states:

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 34

NON-PRECEDENT DECISION

Page 18

General. If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien (except an H-1C nurse) seeking H

classification in that occupation must have that license prior to approval of the

petition to be found qualified to enter the United States and immediately engage in employment in the occupation.

Therefore, to qualify an alien for classification as an H-1B nonimmigrant worker under the Act, the petitioner must establish that the beneficiary possesses the requisite license or, if none is required,

that he or she has completed a degree in the specialty that the occupation requires. Alternatively, if a license is not required and if the beneficiary does not possess the required U.S. degree or its foreign

degree equivalent, the petitioner must show that the beneficiary possesses both (1) education,

specialized training, and/or progressively responsible experience in the specialty equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through progressively

responsible positions relating to the specialty.

In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions

at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following:

(1) An evaluation from an official who has authority to grant college-level credit for

training and/or experience in the specialty at an accredited college or university

which has a program for granting such credit based on an individual's training and/or work experience;

(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or

Program on Noncollegiate Sponsored Instruction (PONSI);

(3) An evaluation of education by a reliable credentials evaluation service which

specializes in evaluating foreign educational credentials;6

(4) Evidence of certification or registration from a nationally-recognized

professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have

achieved a certain level of competence in the specialty;

(5) A determination by the Service that the equivalent of the degree required by the

specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and

that the alien has achieved recognition of expertise in the specialty occupation as

a result of such training and experience ....

___________________________________________________

6

The petitioner should note that, in accordance with this provis ion, we will accept a credentials evaluation

service's evaluation of education only, not training and/or work experience.

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 35

NON-PRECEDENT DECISION

Page 19

In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5):

For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be

demonstrated for each year of college-level training the alien lacks .... It must be

clearly demonstrated that the alien's training and/or work experience included the theoretical and practical application of specialized knowledge required by the

specialty occupation; that the alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the

specialty occupation; and that the alien has recognition of expertise in the specialty

evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized

authorities in the same spec ialty occupation;

(ii) Membership in a recognized foreign or United States association or society in

the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS application and determination, and that, also by the clear terms of the rule, experience will

merit a positive determination only to the extent that the record of proceeding establishes all of the

qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) including, but not limited to, a type of professional recognition.

The record contains a March 19, 2013 evaluation of the beneficiary's academic credentials prepared

by [ REDACTED ] Evaluator, [REDACTED] Mr. [REDACTED] maintains that "[o]n the basis

of the credibility of [ REDACTED ] the number of years of coursework, the nature of the coursework, the grades earned in the coursework, and the hours of academic coursework, it is the

judgment of [REDACTED] that [the beneficiary] has attained the equivalent of a Bachelor of

Science degree in Industrial Engineering, from an accredited institution of higher education in the United States."

In this matter, the petitioner is seeking the beneficiary's services as a computer systems analyst. While a computer systems analyst does not, by virtue of its classification alone, qualify as a

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 36

NON-PRECEDENT DECISION

Page 20

specialty occupation, based on the information provided in the Handbook, a specialty occupation- level computer systems analyst would most commonly have a bachelor's or higher degree in a

computer or information science field for entry into that position. See U.S. Dept. of Labor, Bureau of

Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm#tab-4

(accessed Aug. 20, 2014). Therefore, the petitioner fails to demonstrate how the beneficiary, by

virtue of holding the equivalent of a U.S. bachelor's degree in industrial engineering, is qualified to perform the duties of a computer systems analyst.

In response to the director's RFE, counsel submitted a September 18, 2013 letter from [REDACTED]

[REDACTED] Ph.D., concluding that "based on the accepted equivalency ratio of 3 years of progressive

experience being the equiva lent of one year of academic coursework in conjunction with my subjective analysis of [the beneficiary's] five years of work history as evidenced by his resume and

work letters, it is my expert opinion that [the beneficiary] has no less than the equivalent of a

Bachelor's degree in Management Information Systems."

On appeal, counsel submitted a January 13, 2014 expert credential evaluation from [REDACTED]

[REDACTED] Ph.D. Dr. [REDACTED] found that based on the beneficiary's academic coursework and "considering more than nine years of progressively responsible work experience and professional

training in Management Information Systems, and related area, it is my opinion that [the beneficiary] has attained the equivalent of a Bachelor of Science degree in Management

Information Systems from an accredited institution of higher education in the United States."

To begin, we note that Dr. [REDACTED] and Dr. [REDACTED] have provided inconsistent information with

respect to the beneficiary's qualifications. Dr. [REDACTED] references that the beneficiary has "five

years of work history" while Dr. [REDACTED] references that the beneficiary has "nine years of progressively responsible work experience and professional training." It is incumbent upon the

petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits

competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-

92 (BIA 1988).

Furthermore, in order to evaluate a beneficiary's training and/or experience, an evaluation must be

issued from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit

based on an individual's training and/or work experience. The documentation submitted with this

petition is not sufficient to establish this criterion.

The letter from [REDACTED] [REDACTED] Registrar, [REDACTED] states that Dr. [REDACTED] "has the authority to make determinations concerning the granting of college-level credit for training and

experience in the concentrations of Computer Science and related fields that the University offers."

The record fails, however, to evidence that Dr. [REDACTED] has the authority to "grant" college-level credit for training and/or experience in the specialty at an accredited college or university which has

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 37

NON-PRECEDENT DECISION

Page 21

a program for granting such credit based on an individual's training and/or work experience as required by 8 C.F.R. § 214.2(h)(4)(iii)(D)(1).

Furthermore, the letter from [REDACTED] [REDACTED] Ph.D., [REDACTED] states the following:

Professor [REDACTED] reviews credential of foreign and domestic students for educational transfer credit in the areas of Multimedia, Journalist, Graphic Design,

Web and Computer Application Development, and related fields that the University offers. . . . Dr. [REDACTED] evaluates knowledge acquired from

universities for matriculated students, as well as from professional experience.

Further, Professor [REDACTED] is excellent in evaluating relevant domestic and

international education and relevant work experience of students to determine

their academic experience, and he is authorized to recommend the award of

credits by [REDACTED]

Therefore, the record also fails to evidence that Dr. [REDACTED] has the authority to "grant" college

level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work

experience as required by 8 C.F.R. § 214:2(h)(4)(iii)(D)(1).

Thus, the supporting documentation is not sufficient to establish that the evaluators, Dr. [REDACTED] or Dr. [REDACTED] currently have the authority to grant college-level credit for training or experience.

Going on record without supporting documentary evidence is not sufficient for purposes of meeting

the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)).

The petitioner has also failed to satisfy any of the criteria outlined in 8 C.F.R. [REDACTED]

§ 214.2(h)(4)(iii)(D)(1)-(4), thus, we will next perform a Service evaluation pursuant to 8 C.F.R.

§ 214.2(h)(4)(iii)(D)(5). We reiterate that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS application and determination, and that, also by the clear terms of the

regulation, experience will merit a positive determination only to the extent that the record of

proceeding establishes all of the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) - including, but not limited to, a type of professional recognition.

In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5):

For purposes of determining equivalency to a baccalaureate degree in the

specialty, three years of specialized training and/or work experience must be

demonstrated for each year of college-level training the alien lacks .... It must be clearly demonstrated that the alien's training and/or work experience included the

theoretical and practical application of specialized knowledge required by the

specialty occupation; that the alien's experience was gained while working with

peers, supervisors, or subordinates who have a degree or its equivalent in the

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 38

NON-PRECEDENT DECISION

Page 22

specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

7

(ii) Membership in a recognized foreign or United States association or society in

the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign

country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

Upon review of the record, the petitioner has not provided sufficient corroborating evidence as outlined in 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). The record contains copies of the beneficiary's academic

transcript, his diploma from the University of Roorkee, his resume, and the above referenced

academic credentials evaluation and expert opinion letters.

Although the record contains some information regarding the beneficiary's work history, it does not

establish that this work experience included the theoretical and practical application of specialized knowledge required by the proffered position; that it was gained while working with peers,

supervisors, or subordinates who held a bachelor's degree in the specific specialty or its equivalent; and that the beneficiary achieved recognition of his expertise in the specialty as evidenced by at least

one of the five types of documentation delineated in 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v).

Accordingly, the beneficiary does not qualify under any of the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i)-(v) and, therefore, does not qualify to perform the duties of a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). As such, the petitioner has failed to

establish that the beneficiary qualifies to perform the duties of a specialty occupation. Accordingly,

the petition must also be denied on this basis.

IV. Conclusion and Order ________________________________

7

Recognized authority means a person or organization with expertise in a particular f ield, special skills or

knowledge in that f ield, and the expertise to render the type of opinion requested. A recognized authority's

opinion must state: (1) the writer's qualif ications as an expert; (2) the writer's experience giving such opinions,

citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the

conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of any research

material used. 8 C.F.R. § 214.2(h)(4)(ii).

Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 39

NON-PRECEDENT DECISION

Page 23

We agree with the director's findings that the petitioner failed to demonstrate that the beneficiary is qualified to perform the duties of a specialty occupation. Beyond the decision of the director,

we find that the petitioner has also failed to establish that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position

qualifies as a specialty occupation. An application or petition that fails to comply with the technical requirements of the law may be

denied by this office even if the service center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043

(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only if it shows that we abused our discretion with respect to all of our enumerated

grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff'd. 345 F.3d 683.

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed. The petition is denied.

H1-B Appeal Dismissal Not a Specialty Occupation (AAO AUG252014_03D2101.pdf) Hyperlink

Look for more case decisions from AAO at:

http://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/aao-non-precedent-decisions

Look for more case decisions from BALCA at: http://www.oalj.dol.gov/libina.htm

A variety of immigration decisions and more are found in the DOJ-EOIR Virtual Law Library at:

http://www.justice.gov/eoir/vll/libindex.html

The latest Unites States Code is found at: http://uscode.house.gov/

Find the e-CFR and more at: http://www.gpo.gov/fdsys/