MATTER OF R-E-T- INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY22,2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a software consulting company, seeks to temporarily employ the Beneficiary as a "business systems analyst" under the H-1 B nonimmigrant classification for specialty occupations. Immigration and Nationality Act (the Act) section I 0 I (a)(IS)(H)(i)(b ), 8 U.S.C. § II 0 I (a)(IS)(H)(i)(b ). The H-1 B program allows a U.S. employer to temporarily employ a qualified foreign w9rker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the proffered position does not qualify as a specialty occupation. .

On appeal, the -Petitioner submits additional evidence and asserts that the Director erred.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an occupation that requires:

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

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

The regulation at 8 C.F.R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­exhaustive list of fields of endeavor. In addition, the regulations provide that the profrered position must meet one of the following criteria to qualify as a specialty occupation:

(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

Maller of R-E-T- Inc.

(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 degre~;

(3) The employer normally requires a degree or its equivalent for the position; or

( 4) The nature of the specific duties [is J so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

II. ANALYSIS

Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established the substantive nature of the work the Beneficiary would perform during the intended period of employment, which precludes the determination of whether the proffered position qualifies as a specialty occupation. 1

The Petitioner stated that the Beneficiary would work for the Petitioner off-site at the location of E- (the client). In response to the Director's request for evidence (RFE), the Petitioner provided the client's description of the position's duties as follows:

• Use a disciplined approach for technical design, development and final build documentation. Work in a team ,of skilled interdisciplinary professionals in an aggressive and fast-paced environment;

• Process analysis & technical design, collaborat[ e J with business analysts and coordinat[e] with offshore development team on regular basis;

• Work on Siebel [p]roduction [c]ontiguration ([c]onfiguration of [p]roducts, [ c ]lass, [a ]ttributes, [ s ]tructure, [ u ]ser [i]nterface, [b ]usiness [r]ules including [ e ]ligibility and [ c ]ompatibility [r Jules, catalog administration);

• Responsible for [m]igration of [p]roducts & [p]ricelists to different Siebel [ e ]nvironments;

1 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered position and its business operations. Although we may not discuss every document submitted, we have reviewed and .considered each one.

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Maller of R-E-T- Inc.

• Responsible for designing the complex pricing solutions using Siebel dynamic pricing procedure;

• Design, install/implementation, support and~ maintain Siebel [ o ]pen Ul; • Involve [sic] in finalizing and Siebel configuration design. Work with external

system in finalizing integration approach and design which includes WSDL, [ d]ata map sheet and integration specific configuration;

• To work on Siebel EAI in design and developing the inbound and outbound interfaces using the web services, xml and SOAP;

• Siebel configuration and customization using Siebel tools for [a]ccount [m]anagement, [c]ontact [m]anagement, [o]pportunity [m]anagement, [m]arketing & [c]ampaigns, [t]ask based UI, workflow process manager, [i]nbound­[o]utbound web services, Siebel [s]cripting;

• To administer the Siebel [i]nfrastructure which includes managing the Siebel [s]ervers and code deployments across Siebel development, quality and production environments;

• Provide guidance and [f]eedback to less experienced staff; • Consistently test newly developed applications for quality assurance; • Direct revenue saving by helping product teams identify product gaps, repetitive

tasks and develop automation tools.

The client's description of the position's duties is substantially a verbatim copy of the Petitioner's description of the position's duties also .submitted in response to the RFE. According to the client, the protTered position requires "at least a Bachelor's degree in Computer Science, or a related field." The client described the project on which the Beneficiary would work simply as

To determine whether a particular job qualifies as a specialty occupation, we do 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. We must examine the ultimate employment of the individual , and determine whether the position qualifies as a specialty occupation. See generally Defensor, 201 F.3d 384. The critical element is not the title of the position or 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.

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

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Matter of R-E-T- Inc.

In this case, the client's descriptions of the position's duties are generic and do not sufficiently convey the actual work the Beneficiary would perform. Moreover, the client's limited statement that the Beneficiary would work on does not sufficiently describe those products, their level of specialization or complexity, the Beneficiary's role in the project, and how the Beneficiary's role in the project requires "at least a Bachelor's degree in Computer Science, or a related field." The Petitioner has not supplemented the record with additional explanations of the Beneficiary's work, either. For example, the Petitioner stated that the Beneficiary would work on the and that each major release is "called Project." It later stated in response to the RFE that the Beneficiary "will continue to perform business systems analysis on [the client's] new product applications." However, the Petitioner does not sufficiently correlate its statements about the project to the client 's statement about the project.

Initially in support of the petition, the Petitioner submitted two documents as evidence of its contractual relationship with the client: a technical consulting services agreement (TCSA) and a statement of work (SOW). The TCSA is a general agreement for the Petitioner "to provide Client the Services and to furnish to Client the Deliver~bles described in one or more [SOW]." The SOW initially submitted in support of the petition states that the "Time Frame for Completion" is "02/03/20 14 to 07/31/20 14," expiring 32 moriths before the April 14, 2017 filing date of the petition. This SOW does not list the Beneficiary as an assigned resource, and the Petitioner does not state the relevance of this SOW to this petition.

In response to the Director's RFE, the Petitioner submitted three more SOWs. Those three SOWs each indicate that the client contracted the Petitioner to provide the Beneficiary to perform work as a "Sr. Siebel Developer."2 The first SOW submitted in response to the RFE commenced on April 5, 2017. The two other SOWs submitted in response to the RFE were signed and dated in July and October 2017, respectively, and stated the new contract end date as December 31, 2018. Likewise, the client letter (also submitted in response to the RFE) confirmed that the client intends to utilize the Beneficiary's services until December 31, 2018 "with the possibility of extension . . . subject to revision at (client's] discretion." This evidence is insufficient to establish that, at the time of filing, the Petitioner had secured the Beneficiary 's assigrunent on this particular client project for the entire validity period requested (until July 31, 2020).3

2 The SOWs submitted in response to the RFE are for the project code 9017. In contrast, the initially submitted SOW was for a different project code: · . 3 USCJS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed . See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculat ion of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg' l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Malter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm ' r 1998). The agency made clear long ago that speculative employment is not permitted in the H-1 B program. Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214).

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Matter of R-E-T- Inc.

Regardless, the SOWs submitted in response to the RFE do not provide sufficient additional ·information about the project on which the Beneficiary would work. The SOWs do not identify the project as and instead refer to the as abbreviated versions of four of the duty descriptions provided above. There is no additional description of what new products or new product applications may be involved. There is no reference to the initially stated by the Petitioner.

Therefore, based upon our review of the entire record, we conclude that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. This therefore precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)( 4)(iiiXA), because it is the substantive nature of that work that determines (1) the normal minimum educational requirement for entry into the particular position, which is the focus of criterion I ; (2) industry positions which are parallel to the proffered position and thus appropriate for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which is the focus of criterion 4.

III. CONCLUSION

Because the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it cannot be tound that the proffered position qualifies for classification as a specialty occupation.4

ORDER: The appeal is dismissed.

Cite as Matter of R-E-T-Inc., 10# 1275249 (AAO May 22, 2018)

4 We note that the Petitioner submitted an organizational chart, specifically identifying 16 of its 17 employees in the United States. The organizational chart excludes the Beneficiary. Although the Beneficiary could be the unnamed 17th employee, the organizational chart indicates that the Petitioner employs unnamed " [o)thers" as " [s)ystems [a)dmins," not as the Beneficiary's position of "business systems analyst." We further note that the Petitioner's offer letter to the Beneficiary lists her place of employment as at the client' s address "and required to travel/re-location involved to unanticipated client locations within the United States." Although the issue of whether the Petitioner has an employer­employee relationship with the Beneficiary is not a ground for this appeal dismissal, the Petitioner will need to submit sufficient independent objective evidence to address and overcome this additional ground in any future filing. ·

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