U.S. Citizenship and Immigration Services

MATTER OF B-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 20, 2019

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

The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary as a "business systems analyst" under the H-lB nonirnmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position.

The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not establish that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner provides a brief and additional evidence, and asserts that the Director erred in denying the petition.

Upon de nova review, we will dismiss the appeal. 1

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.

1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

Matter of B-, Inc.

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 proffered position must meet one of the following criteria to qualify as a specialty occupation:

(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.

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).

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

II. PROFFERED POSITION

The Petitioner, located in New Jersey, indicated that it will assign the Beneficiary through vendors to work as a "business systems analyst" for an end-client in Delaware, for the duration of the validity period requested. 2 The Petitioner designated the proffered position under the occupational category "Management Analysts" corresponding to the Standard Occupational Classification (SOC) code 13-1111, at a Level II wage on the labor condition application (LCA)3 submitted in support of the H-lB

2 The Petitioner most recently employed the Beneficiary through post-completion optional practical training, and has provided copies of wage statements for his employment with the Petitioner. 8 C.F.R. §§ 274a.12(c)(3)(i)(B), 214.2(t)(l 0)(ii)(A)(3). 3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher of

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petition. Within these proceedings the Petitioner has submitted several iterations of the duties of the proffered position. 4 For the sake of brevity, we include just the Petitioner's description of the Beneficiary's job tasks that were submitted in response to the Director's request for evidence (RFE), as follows:

• Requirement elicitation and transformation of business needs into technical requirement (user story creation). (25% - 120/mins/day)

Conduct interviews/meetings with data scientists, product owner, stakeholders acquiring high level functional and non-functional requirements including file format, header and trailer length, sensitive/high sensitive data, data access ownership, field description, SLAs, jobs/apps to configure and create user stories using rally/confluence/HP QC.

• Facilitating Scrum ceremonies by collaborating with developers and testers of the team. (15.6% - 75 mins/day)

Driving agile transformation with the scrum master and conducting Agile-Scrum ceremonies (sprint planning, daily stand-ups, sprint review, backlog refinement, and sprint retrospective.) Resolve developers/QA clarifications.

• Perform gap analysis by quantitative and qualitative analysis to measure the reliability of the framework. (25% - 120 mins/day)

Perform statistical analysis on the data - creating specification document explaining the type of jobs/apps that needs to be created/modified. Identify how the data is being used by business. Validate the working of the jobs deployed in production by verifying the log files and keep tech leads updated on issues status.

• Work on project implementation plan and coordinate with key stakeholders. (6.25% - 30 mins/day)

Attend progressive elaboration sessions with product owner to provide the cost analysis/effort estimation of the team. Provide data flow information to the business. Employ diplomacy practices and skills to overcome conflicts that could hinder product development.

either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a). 4 We acknowledge that the Petitioner submitted additional information for the job duties, and have closely considered and reviewed this material, as with all evidence in the record. For instance, the Petitioner also included a listing of the Beneficiary's previous coursework for the purpose of correlating the need for the Beneficiary's education with the associated job duties of the position. However, we are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&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 petitioner intends to employ him falls within [ a specialty occupation].").

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• Coordination with job scheduler team, vendors, and file transfer team. (3.125% -15 mins/day)

Coordinate with the file transfer team in setting up the connection to send-receive the file. Provide requirements to the job scheduler team to run the jobs as per schedule. Coordinate with vendors to make sure that the QA team receives the test data as per the specification document on time.

• Sessions with database engineers to perform data analysis and validate data models and data mapping documents. (18.75% - 90 mins/day)

Prepare [] logical data models as per the business requirements. Coordinate with the foundation for development team to create and deploy the views for the business. Support the tech leads in analyzing the existing data models to create the architecture for the new project.

• Support QA testers on the team to prepare test plans, test cases and user acceptance test scenarios. (6.25% - 30 mins/day)

Perform exploratory analysis of file spec, schema, data mapping document and support the QA test engineers in testing the working hypotheses of frameworks, tables, and views created by the team. Identify technical risks associated with incoming requirements and triaging technical issues that arise during testing. Run SQL and HiveQL queries to make sure that the tables/views are created per the file specifications.

• Reporting and operational. (2 hours/biweekly)

Providing [Petitioner] with biweekly project status updates, including any technical development needs. Participate in technical education coursework and/or professional seminar training as directed by [the Petitioner's management]. Responsible for special projects as assigned by [the Petitioner] in reference to client project site contractual technical specifications.

III. ANALYSIS

For the reasons set out below, we determine that the proffered position does not qualify as a specialty occupation. Specifically, the record provides inconsistent and insufficient information regarding the proffered position, which in tum precludes us from understanding the position's substantive nature and determining whether the proffered position qualifies as a specialty occupation. 5

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

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We conclude that the Petitioner has not sufficiently established the Beneficiary's offsite employment at the end-client location for the period of intended H-1 B employment. The Petitioner intends to assign the Beneficiary through a mid-vendor and a prime-vendor to work for an end-client, in Delaware. The claimed contractual chain is as follows:

Petitioner ➔ M-G-, Inc. (mid-vendor) ➔ J-T-S- (prime-vendor) ➔ B- (end-client).

The Petitioner initially provided documents to substantiate the Beneficiary's work assignment including the April 2017 prime-vendor's independent staffing supplier agreement (SSA) with the Petitioner. The document does not mention the mid-vendor, but instead reflects a direct agreement between the prime-vendor and the Petitioner, specifying that "[the Petitioner] will assign contract labor personnel ("Personnel") through [the prime-vendor] to Customer ("Services")." The SSA further provides:

[The prime-vendor] will contact [the Petitioner] with Customer Requirements. Any resumes that [the prime-vendor] submits to Customer pursuant to this Agreement shall be made at [the prime vendor's] discretion and any assignment from such resumes shall be contingent upon Customer approving resumes. Each customer requirement will identify and/or describe: (i) the Services including any key Deliverables required by [the Petitioner's]; (ii) the Work Site; (iii) the completion date for the Services and any key Deliverables and any other schedule or completion milestones; and (iv) any other project-specific terms and conditions ....

Notably, the Director requested the contractual documentation between the parties for the Beneficiary's employment at the end-client location in the RFE. In response, the Petitioner provided a January 2017 subcontractor agreement (SA) between the Petitioner and the mid-vendor. The SA is a general agreement made "in connection with [the mid-vendor's] performance of its obligations to its clients," in which "[the mid-vendor] wishes to have [the Petitioner] supply consultants directly to [its] Client." The document does not specifically identify the mid-vendor's clients or provide information about particular assignments for the Petitioner's consultants under the agreement, but specifies:

At [mid-vendor's] request from time to time, [the Petitioner] agrees to use its best efforts to supply Consultants for work to be performed for Consultants for work to be performed for Client. The Consultants assigned by [The Petitioner] to Client hereunder shall have the skills, experience, qualifications and capabilities as specified in the request. ...

Consultants will report to a Client location and supervisor specified on each order at the prescribed time indicated. Client will supervise the assigned Consultant in performing the agreed upon duties.

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The mid-vendor provided an "Attachment A" work order which identified the Petitioner as the consulting service provider and the end-client, noting that the Beneficiary would be employed as a business system analyst for a six-month assignment, commencing in February 2017 and ending in August 2017, with a comment that the assignment was a "long term contract renewed every six months." The document does not mention the prime-vendor, the "agreed upon duties" to be performed by the Beneficiary, or "the skills, experience, qualifications and capabilities," that the SA stipulated would be contained in the "[mid-vendor's] request" for the Petitioner's consulting services. Therefore, the SA and the work order are inadequate to establish the terms and conditions of the Beneficiary's proposed employment through the mid-vendor's contractual documentation.

Additionally, the Petitioner's reliance on its direct contractual agreement with the prime-vendor seems at odds with the Petitioner's claims that the Beneficiary will be placed at the end-client location through contractual arrangements between the Petitioner and the mid-vendor, the mid-vendor and the prime-vendor, and the prime-vendor and the end-client. For instance, it is not apparent why the Petitioner would contract with the mid-vendor through the January 2017 SA to provide services to the prime-vendor's client, when the Petitioner directly contracted with the prime-vendor through the April 2017 SSA to provide such services. The Petitioner must resolve these inconsistencies and ambiguities with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

Further, while the mid-vendor's letters indicate that the Beneficiary is assigned at the end-client location through the contractual chain described above, the prime-vendor's letters identify the mid­vendor as the "sub-vendor," and omit mention of the Petitioner. The prime-vendor's letters state that the Beneficiary is a "subcontractor" of the mid-vendor who has been working at the end-client site since February 2017. Also, the end-client letters each identify the prime-vendor as the contractual "vendor" for the Beneficiary's employment at the end-client location, and note that the Petitioner is the Beneficiary's employer, but do not mention the mid-vendor. Id.

Considering the evidence in the record, we conclude that the record lacks sufficient consistent, probative evidence of the claimed contractual relationship between the mid-vendor and the prime­vendor, and the prime-vendor and the end-client, that would outline the terms and condition of the Beneficiary's assignment. Though requested in the Director's RFE, the Petitioner did not provide any documents commonly executed to establish such contractual relationships which may include master services agreements, work orders, statements of work, invoices, receipts, or similar evidence. 6

Overall, we conclude there is insufficient evidence of specialty occupation work for the Beneficiary for the requested validity period. In other words, the evidence of record is currently insufficient to establish the terms and conditions of the proffered position at the end-client location. 7

6 As this documentation does not sufficiently establish the substantive nature of the Beneficiary's offsite employment at the end-client location for the reasons discussed, further analysis regarding other deficient aspects of the material presented is not necessary. That is, not every deficit of the contractual material, and the end-client, prime-vendor, and mid-vendor letters of support will be specifically addressed. 7 A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g..63 Fed. Reg. 30,419, 30,419-20 (June 4, 1998).

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It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. Id. Here, the documentation provided is not probative towards establishing the terms and conditions of the Beneficiary's assignment as imposed by the end-client. See 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).

Moreover, a crucial aspect of this matter is whether the duties of the proffered position are described in such a way that we may discern the actual, substantive nature of the position. As noted, the record lacks sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. When determining whether a position is a specialty occupation, we look at the nature of the business offering the employment and the description of the specific duties of the position as it relates to the performance of those duties within the context of that particular employer's business operations.

On a fundamental level, we conclude that the Petitioner has not provided consistent and sufficient material about the end-client's projects that the Beneficiary will provide services for at the end-client location. The Petitioner initially stated that "[the] Beneficiary will be assigned to two projects: Big Data Accelerator" project [big data project] and Consumer Lending. 8 The Director requested an explanation of how the Beneficiary's specific job duties relate to the Petitioner's and the end-client's products and services in the RFE. In response to the RFE, the Petitioner described the big data project, as follows:

The goal of [the big data project] is to extend out the functionality of the Hadoop cluster by ingesting data feeds related to other platforms, migrating historical data from legacy warehouse systems into Hadoop, engineering a framework for where data scientists can perform data mining and exploration work and providing additional machine learning tools.

The August 2018 end-client letter further described its project and the Beneficiary's role therein, as follows:

[The Beneficiary] is part of one of the data warehousing technology teams that creates centralized view in Hadoop where customer data from multiple locations and databases are collated into a single source for business. [The Beneficiary] supports different business departments including Fraud, Finance, Customer Delivery, Credit Risk, Data Science, Strategic Analytics, and Marketing. These centralized views provide a significant benefit that would help [the end-client] meet several Control deadlines and allows responding more quickly to audit queries and requests.

However, collectively considering this material, we determine that the record contains insufficient supporting documentation that identifies the scope, duration, and magnitude of the big data project,

8 Thereafter, the Petitioner only discussed the Beneficiary's assignment to the big data project.

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to establish the substantive nature of the Beneficiary's role therein. For example, the Petitioner emphasized throughout the proceedings that the Beneficiary will liaise or interact with various end­client personnel and stakeholder groups, to include:

• Conduct interviews/meetings with data scientists, product owner, stakeholders acquiring high level functional and non-functional requirements ...

• Facilitating Scrum ceremonies by collaborating with developers and testers of the team.

• Driving agile transformation with the scrum master and conducting Agile-Scrum ceremonies (sprint planning, daily stand-ups, sprint review, backlog refinement, and sprint retrospective.)

• Work on project implementation plan and coordinate with key stakeholders. • Attend progressive elaboration sessions with product owner to provide the cost

analysis/effort estimation of the team. • Coordination with job scheduler team, vendors, and file transfer team. • Coordinate with the foundation for development team to create and deploy the

views for the business. • Support the tech leads in analyzing the existing data models to create the

architecture for the new project. • Support QA testers on the team to prepare test plans, test cases and user acceptance

test scenarios.

Though the Petitioner described the job duties of the position, the evidence does not show the operational structure within this initiative in a manner that would establish the Beneficiary's role. While the Director requested evidence in her RFE, such as organization charts that would delineate the Petitioner's and the end-client's organization, and staffing hierarchy (including the job titles of the positions that the Beneficiary will manage in the proffered position, and the job title of the individual he will report to), the Petitioner did not sufficiently address this aspect. In its RFE response, the Petitioner provided material which indicates that the Beneficiary reports to its vice president of training and development. The organization chart shows various positions, including this vice president's position with a downward arrow pointing to a box entitled "employees," which lends little insight into the proffered position's placement within the Petitioner's organizational hierarchy. Further, the Petitioner did not provide evidence of the end-client's project staffing hierarchy, and sufficient information about what the big data project actually entails in order to establish the substantive nature of the Beneficiary's role as a "business systems analyst."

Moreover, as noted, in determining the nature of a proffered position, the critical element is not the title of the position, but the duties of the underlying position. As part of our analysis, we review the duties of the proffered position to assess the duties and determine whether the described duties correspond to the duties and tasks listed in the O*NET Summary Report for the occupation designated in the LCA. 9 Here, the Petitioner submitted an LCA for the "Management Analysts" occupational category corresponding to the Standard Occupational Classification (SOC) code 13-1111. 10 The U.S.

9 20 C.F.R. § 655.705(6) requires that USCTS ensure that an LCA supports the H-1 B petition filed on behalfofthe Beneficiary. 10 The O*NET Summary Report for positions located within the "Management Analysts" occupational category lists the

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Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) states that "Management Analysts" typically: 11

• Gather and organize information about the problem to be solved or the procedure to be improved

• Interview personnel and conduct onsite observations to determine the methods, equipment, and personnel that will be needed

• Analyze financial and other data, including revenue, expenditure, and employment reports

• Develop solutions or alternative practices • Recommend new systems, procedures, or organizational changes • Make recommendations to management through presentations or written reports • Confer with managers to ensure changes are working

The Petitioner job descriptions for the proffered position may comport, in part, with the typical tasks performed by individuals employed in the "Management Analysts" occupational category. However, despite the Petitioner's categorization of the proffered position as a "Management Analyst," the petition also contains considerable narrative that references a position that substantially entails system design, development, and testing functions. For example, the material in the record indicates that the Beneficiary will be involved in "[r]equirement elicitation and transformation of business needs into technical requirement (user story creation),""[ v ]alidate the working of the jobs deployed in production

following duties:

• Document findings of study and prepare recommendations for implementation of new systems, procedures, or organizational changes.

• Interview personnel and conduct on-site observation to ascertain unit functions, work performed. and methods, equipment, and personnel used.

• Analyze data gathered and develop solutions or alternative methods of proceeding. • Plan study of work problems and procedures, such as organizational change, communications,

information flow, integrated production methods, inventory control, or cost analysis. • Confer with personnel concerned to ensure successful functioning of newly implemented systems or

procedures. • Gather and organize information on problems or procedures. • Prepare manuals and train workers in use of new forms, reports, procedures or equipment, according to

organizational policy. • Review forms and reports and confer with management and users about format, distribution, and

purpose, identifying problems and improvements. • Develop and implement records management program for filing, protection, and retrieval of records, and

assure compliance with program. • Design, evaluate, recommend, and approve changes of forms and reports.

The O*NET Summary Report for "Management Analysts," may be viewed at https://www.onetonline.org /link/summary/13-1111 (last visited Aug. 19, 2019). 11 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts, https://www.bls.gov/ooh/business-and-financial/management-analysts.htm#tab-2 (last visited Aug. 19, 2019). All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We do not maintain that the Handbook is the exclusive source of relevant information.

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by verifying the log files and keep tech leads updated on issues status," "[p ]erform exploratory analysis of file spec, schema, data mapping document," and "support the QA test engineers in testing the working hypotheses of frameworks, tables, and views created by the team," and will also be responsible for "[i]dentify[ing] technical risks associated with incoming requirements and triaging technical issues that arise during testing."

Additionally, the Petitioner provided copies of the Beneficiary's project status reports, which indicate that he routinely performs duties, such as "[ c ]reate[] Ishikawa Fishbone diagram for the production issue of the jobs that failed during the middle of the week," "assist developers in validating the script for latest version of the calendar app the team is working on," "performed negative testing by ingesting wrong data and made sure the outcomes were displayed as expected," and "create new user stories explaining the technical specifications of the new file that should be ingested." While the Petitioner submitted an LCA designating the "Management Analysts" occupational category for the proffered position, the Petitioner has not sufficiently established that these position duties and responsibilities are consistent with the occupational category.

Here, the Petitioner has not adequately explained how the design, development and testing of system software are closely related to the O*NET tasks and the Handbook's duties for the "Management Analysts" occupation. 12 The Petitioner must also resolve these inconsistencies and ambiguities with independent, objective evidence pointing to where the truth lies. Matter of Ho, Dec. 591-92.

The Petitioner maintains on appeal that it "correctly used the [Management Analysts] SOC Code 13-1111 based on the job duties for the proffered position." However, we are not persuaded by the Petitioner's submission. Notably, the O*NET Summary Report for a "Computer Systems Analysts" occupational category, corresponding to SOC 15-1121, shows that someone in this position will, among other things, "[ a ]nalyze [b ]usiness, and other data processing problems to implement and improve computer systems. Analyze user requirements, procedures, and problems to automate or improve existing systems and review computer system capabilities, workflow, and scheduling limitations ... " We observe that many of the software development and design, and systems testing duties of the proffered position appear to be closely related to the "Computer Systems Analysts" tasks described in the O*NET Summary Report for the occupation. 13 Based on the material presented in

12 See 20 C.F.R. § 655.705(b). 13 For instance, the O*NET Summary report indicate that "Computer Systems Analysts" perform tasks, to include:

• Test, maintain, and monitor computer programs and systems, including coordinating the installation of computer programs and systems.

• Troubleshoot program and system malfunctions to restore normal functioning. • Develop, document and revise system design procedures, test procedures, and quality standards. • Analyze information processing or computation needs and plan and design computer systems, using

techniques such as structured analysis, data modeling and information engineering. • Expand or modify system to serve new purposes or improve work flow. • Consult with management to ensure agreement on system principles. • Use the computer in the analysis and solution ofbusiness problems, such as development of integrated

production and inventory control and cost analysis systems. • Confer with clients regarding the nature of the information processing or computation needs a computer

program is to address.

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the record of proceedings, we are unable to conclude that the proffered position properly falls solely within the "Management Analyst" occupational category corresponding to SOC code 13-1111, which raises additional questions regarding the substantive nature of the proffered position.

In general, if the duties of a proffered position involve more than one occupational category (i.e., "Management Analysts" and "Computer Systems Analysts"), the D0L's "Prevailing Wage Determination Policy Guidance" states that the employer "should default directly to the relevant 0*NET-S0C occupational code for the highest paying occupation." 14 At the time the Petitioner's LCA was certified, the Level II prevailing wage for "Computer Systems Analysts" in the area of intended employment was $81,723 per year, which is significantly higher than the prevailing wage for "Management Analysts" of $69,784 per year. 15 Thus, if the Petitioner's duties for the position fall under more than one occupational category, it should have chosen the relevant occupational code for the highest paying occupation, which was not "Management Analysts." As the Petitioner indicates that it will pay the Beneficiary $69,800, a rate significantly less than the prevailing wage for the "Computer Systems Analysts," the Petitioner has not established that LCA corresponds to the petition, including the occupational category certified therein. 16

In response to the Director's RFE, the Petitioner also submitted an opinion letter authored byO I I Associate Professor of Computer Applications and Information Systems, School of Business, University ofl I In his letter, the professor (1) describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) describes the previously discussed job duties; and (3) states that these duties require at least a bachelor's degree in computer science, information systems, or a related area. We carefully evaluated the professor's assertions in support of the instant petition but find them insufficient. The professor states:

I have had the opportunity to review several documents that give me a greater understanding of both [the Petitioner] itself and the Business Systems Analyst position that it seeks to fill. Amongst them are company website pages, an organizational chart, and promotional material. The company website pages outline the consulting, business, and data analytics, and training services as well as the marketing and sales, recruitment, and employee recordkeeping software that [the Petitioner] provides to its

• Coordinate and link the computer systems within an organization to increase compatibility and so information can be shared.

• Define the goals of the system and devise flow charts and diagrams describing logical operational steps of programs.

• Provide staff and users with assistance solving computer related problems, such as malfunctions and program problems.

• Prepare cost-benefit and return-on-investment analyses to aid in decisions on system implementation.

See https://www.onetonline.org/link/summary/15-1121.00. (Last visited Aug. 19, 2019.) 14 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance_Revised_11_2009.pdf. 15 For more information on the prevailing wages, see https://flcdatacenter.com/OESWizardStart.aspx. (Last visited Aug. 19, 2019). 16 See Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a).

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clients. The organizational chart in tum gave me in-depth knowledge of the inner workings of the company and where the Business Systems Analyst position fits in the company's hierarchy. Lastly, the promotional material granted me an intimate knowledge of the complex technical operations and procedures as well as comprehensive product research and development that support each of the services and products that [the Petitioner] offers to clients in the banking, healthcare, retail, and analytics industries.

First, while the professor references the Petitioner's business operations in analyzing the duties of the position, he does not mention that the Beneficiary will be assigned offsite working for an end-client, nor does he identify or discuss the end-client's big data project. Importantly, he does not explain how the duties of the position would actually be performed in the context of the end-client's business enterprise. While we appreciate the professor's discussion of the duties provided by the Petitioner, his analyses falls short of providing a meaningful discussion of what the Beneficiary will actually do in the proffered position at the end-client location, and how those duties require the theoretical and practical application of a body of highly specialized knowledge. 17

Further, the Professor's reference to the Petitioner's organization chart, for the proposition that the document "gave [him] in-depth knowledge of the inner workings of the company and where the Business Systems Analyst position fits in the company's hierarchy," seems incongruent with the information provided. As previously discussed, the record contains an organization chart which identifies a vice president's position (the Beneficiary's claimed supervisor) with a downward arrow pointing to a box entitled "employees" as the illustration of the proffered position's placement within the Petitioner's organizational hierarchy. In contrast to the professor's statements, the organization chart does not specifically identify business systems analyst positions within the Petitioner's staffing structure. While we recognize that the professor may have relied on documents not included in the record, given the vague material that we have reviewed, we conclude that the basis for his analysis in this regard has not been substantiated.

In light of the above, we conclude that the Petitioner has not demonstrated that the professor possessed the requisite information to adequately assess the nature of the position and appropriately determine the educational requirements of the position, based upon the job duties and level ofresponsibilities.

Notably, the professor also does not address the variances between the minimum requirements for the position as stipulated by the Petitioner, end-client, and mid-vendor relative to his own conclusions regarding the position requirements. The Petitioner initially stated that a candidate for the proffered position must simply possess a "bachelor's degree." It also provided a March 2018 mid-vendor letter which specified requirements of "at least a Bachelor Degree in Industrial engineering, management, Computers Engineering, or related field (STEM), and possesses skills regarding ETL, Statistics, Data Mapping, Modeling, Simulation, Supply Chain, and Data Analytics." Contemporaneous with the submission of the professor's opinion letter, the Petitioner also submitted other material that provided a diverse and inconsistent range of requirements for the proffered position, including:

17 Defensor, 201 F.3d at 387-88.

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• August 2018 end-client letter that specified minimum position requirements of "a Bachelor's degree in Information Systems or a closely related field," along with "a comprehensive understanding of SQL, ETL, Hadoop, Management Information Systems, Statistical Data Analysis, Quality Assurance, Project Management, Data Mapping, and Data Modeling," which the Petitioner asserted "confirms the educational requirement of the position."

• The Petitioner's June 2017 Business Systems Analyst job announcement which required "a minimum of a Bachelor's Degree in Computer Science, Computer Engineering, Computer Information Systems or a closely related field. The job notice further indicated extensive experience requirements, to include "3+ years' system implementation required," and "2+ years' Microsoft Dynamics AX" and "3+ years' experience [ with various technologies]" preferred.

• The Petitioner's August 2018 letter which stated a minimum requirement of a bachelor's degree in "Computer Science or a closely related field," plus a lengthy list of information technology "skill sets" beyond those collectively identified by the mid­vendor and end-client, including among other things, knowledge of "Linux/Unix, [various Windows operating systems], C, C++, JavaScript, Python, and Shell Scripting."

On appeal, the Petitioner restated the professor's requirements (e.g., a bachelor's degree in computer science, information systems, or a related area) and asserted "[t]he record of this proceeding does not include anything to contradict I I [ I position requirements] to successfully perform the duties [ of the proffered position]."18 However, the Petitioner does not explain whyl Is position requirements differ from the wide array of position requirements that the Petitioner, mid-vendor, and end­client contemporaneously put forth, nor does it otherwise discuss the reasons for the variances in the position requirements within the material in the record. 19

For the reasons discussed, we find that the professor's opinion letter lends little probative value to the matter here. Matter of Caron Int 'I, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory opinion when it is "not in accord with other information or is in any way questionable."). For the sake of brevity, we will not address other deficiencies within his analyses of the proffered position.

Due to inconsistencies and lack of sufficient information in the record, we conclude that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. This precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), 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 1; (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

18 The record does not contain mate1ial from an individual named l l" However, the position requirements identified by the Petitioner in this statement provided on appeal are those put tenth byl I 19 Matter of Ho, Dec. 591-92.

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Matter of B-, Inc.

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. 20

IV. CONCLUSION

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. The Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofB-, Inc., ID# 4582210 (AAO Aug. 20, 2019)

20 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a specialty occupation and is dispositive of the appeal, we will not fiuiher discuss the Petitioner's assertions on appeal regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A).

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