U.S. Citizenship and Immigration Services

MATTER OF P-S-. INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 22.2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner. a computer consulting company. seeks to temporarily employ the Beneficiary as a "'senior computer programmer analyse under the l-1-1 B nonimmigrant classification. .'-.'ee Immigration and Nationality Act (the Act) section 101(a)(15)(11)(i)(b). SU.S.C. ~ 1101(a)(15)(H)(i)(b). The H-1B 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. California Service Center. denied the petition. The Director concluded that the evidence of record was insutlicient to establish that the proffered position is a specialty occupation.

On appeal. the Petitioner submits additional evidence and asserts that the Director erred denying the petition. Upon de nom review. we will dismiss the appeal.

I. LAW

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 or 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 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:

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(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 he 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 speci tic duties [is] so specialized and complex that knowledge required to perform the duties is usually associated \Vith the attainment of a baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A). We construe 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 proposed position. See Ro.val Siam Corp. \'. Cherwff; 484 F.3d 139. 147 (1st Cir. 2007) (describing "a degree requirement in a specitic specialty'' as "one that relates directly to the duties and responsibilities of a particular position"): Defi:n.mr F. Mdx.mer. 201 f.3d 384, 387 (5th Cir. 2000).

As recognized by the court in Defensor. 201 F.Jd at 387-88. where the work is to be perf(mned 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. !d. Such evidence must he sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary lo perfonn that particular work.

II. PROFFERED POSITION

The Petitioner identitied the proffered position as a •·senior computer programmer analyst"' on the petition. and indicated that he would be providing services at a client site in The Petitioner initially described the Bene!iciary"s proposed duties in the petitioner as follm.vs:

[T]he Beneficiary will be responsible i(H requirements gathering. analyzing user needs. determining feasibility. technical design. coding reviews. and drafting detailed unit test plans. He \Viii also be responsible t()r creating planning. designing test scenarios and test cases and execute tests cases and test script procedures. Also. he \\'ill be responsible for debugging functions. maintaining logs for bugs raised and tixed during debug operations. He will be responsible for working with quality control team during integration testing and resolving any issues uncovered during the debugging process and also involved with software development life cycle. including designing and coding. He will be responsible for design of modules and sub-systems. deciding and standardizing tools (IDE. profiling.

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CM. defect tracking. and build management) and also in onsite/otTshore coordination for a module or project and deliver intended output.

On appeal, the Petitioner relies on an updated description ofthe duties of the proffered position that was initially submitted in response to the Director· s request lor evidence. accompanied by an analysis of the percentage of relative hours that the Beneficiary would devote to each task category. as follows:

r=~~-,--------------------------~-----~---------------------

Time 'Yo Position Duties 20% Requirement[sJ [g]athering:

• Analyzing and gathering requirements for f client] customer trainings (WTC) applications like Admin. TT CEO and NON CEO which have been deployed to provide online training courses to the [client] customers. As part of maintainability and business continuity. [client] wants to redesign these applications.

• Analyzing new features and/or components in applications as per business requirements.

• Analyzing all the three applications by upgrading to latest WRIA verswns. Accessibility (ADA compl[iantl) and different services/modules.

20% Technical discussions and solutions:

10%

30%

• Discussions with onshore technical architects and solution architects to identify how the requirements can be embedded into the product effectively.

• Identifying and determining solutions as to how the product can be made more scalable and robust.

• Discussions with technical design team to understand the fratne\vork and make the applications user friendlr.:._ ____ , _______________ _

Design and l d Jocumentation: • Working on design and architecture of the overall product considering

the requirement[ s j gathered. • Working on high level estimations ami development road map based on

the requirements. • Providing documentation (FSD) for each developed component[.]

modules[,] scripts to be used for Wholesale Customer Training (WTC). • Preparing design documents such as HLDs (High Level Design) and

LLDs (Low Level Design) with the he I£ of UML diagrams_._._·_. ___ _ Coding and [ d]evelopment:

• Building and developing ne\v features and/or WRIA components in applications as per requirements for the fWTC]

• Lsing WRIA framework to make UI responsive. [ijnteractive. fast and user friendly.

• Developing Ul screens with ditlercnt components by working with

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backend teams for the different services using [J the application. Need to support U I for different services like File upload services ( FTS ), Eloqua Emails. Process Alternate Emails, Auto Invite Jobs. Inversion of control (IOC) etc.

·--------5% Unit and [tlunctional [tJesting:

• Conducting [ u ]nit testing for new features and/or WRIA components of [WTC].

• Visual studio provides IS internal tool for unit testing called test classes, a mm1mum of 75'% of which IS needed to package the application (for deployment).

• Performing basic functional testing for the developed _features_fl·onl_lfl.__ 5% Production Support:

• Support - Troubleshoot and resolve any defects as become evident during system integration (SIT).

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10% Miscellaneous:

• Co-ordination with offshore teams .

• Onshore support for deliverables .

• Technical [h ]elp to onshore teams on implementation of key modules .

• Walkthrough of design and architecture of the HLD and LLDs to offshore team.

• Clarification with offshore team on requirement front.

• Technical [ d]ocumentation . - ---------

Ill. ANALYSIS

As a preliminary matter, we conclude that the Petitioner has provided inconsistent statements regarding the minimum requirements for the proflered position. The table below summarizes the variances in the education and work experience requirements for its senior computer programmer analyst position.

Record of Proceedings Petitioner's Letters of Support

Petitioner's Job Posting

Minimum Requirements At least a bachelor's degree or I ts equivalent m computer sc1ence. engmeenng. information systems. informatio engineering. or a related, quantitatively A master's degree (or foreign equival science. engineering (any). or a relate

management n technology. analytical field. ent) in computer d field. plus two

years of related computer program min g expenence.

Will accept a bachelor's degree pi us five years of r·s degree. Any n. training. or

described experience in lieu of maste suitable combination of educatio experience is acceptable.

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------------------------~--------------------------------------·------1 Petitioner's Other Job Posting A bache.· lor's degree (or fore. ign equivalent) in comp. uter t--:------:;-----=====::;---t-s-;cience. engineering (any). ~~r a related tiel d.

Letter from I A bachelor's degree in computer science. computer information systems, and related fields. !

Tile Petitioner did not provide an explanation for the variances in the education requirements.

Further, in this matter the Petitioner has not provided sufticient evidence of the Belleficimf s assignment for the end-client. The statement of work (SO\V) provided shows that an unidentified. undetermined number of the Petitioner's personnel will be assigned to work on the end-client project, ''CEO Cash Services... The Petitioner's descriptions of the Beneficiary's duties do not specit1cally mention the '"CEO Cash Services" project. The SOW does not list anyone under "'Key Vendor Personner· in subsection 5. L though a consultant and a project manager are identified in appendix C: L-1 Visa Personnel. The SOW docs not specifically Jist the Beneficiary or any other senior computer programmer analyst as one of the assigned personnel on the project.

In fact, we observe that the SOW. dated December 19, 2016. only retlects work to be performed for the client through December 3 L 2017: thus, it only documents work at the client site for the first three months of the nearly three-year H-1 B period of employment requested in the petition (October L 2017 through August 2L 2020). The SOW's dcliverables timelinc does not appear to comport with the Petitioner's descriptions of the Beneficiary's job duties. According to the SOW, the deliverables of requirement analysis and review. functional design documentation. development. and unit testing were all due before September 30, 2017 - betore the start of the Beneticiary's 11-1 B visa. According to the Petitioner, however, 80(~/o ofthe Beneficiary's time would be spent on requirements gathering. design and documentation, and coding and development duties. The record docs not adequately demonstrate what the Beneficiary \Vould be doing for the entire validity period requested.

Moreover. the Petitioner has submitted insufficient evidence of its personnel and their relative positions of responsibility lor the client" s project. Though the Petitioner indicates that the Benef1ciary will be employed as a ,1;enior computer programmer analyst, it does not explain how his responsibilities differ from other computer programmer analysts it employs. The Petitioner did submit an organization chart which indicates that the Beneliciary will report to a Ul development project lead. who in turn reports to a senior technical specialist. a senior account manager. an associate vice president, and finally, a delivery manager. However. it did not explain \vhethcr this reporting chain relates to the specitic client project. or ho'.v this reporting hierarchy demonstrates the nature and level of the Beneficiary·s day-to-day activities while at the client sitc. 1 Notably. on the labor condition application (LC.I\i submitted in support ofthe H-lB petition, the Petitioner designated

~The Petitioner's organization chart does not list the same consultant and project manager listed on the SOW. - The Petitioner is required to submit a certified LCA with the H-1 B petition demonstrate that it will pay the worker the higher of either the prevailing wage for the occupational classification in the "area of employment'" or the actual wage paid by the employer to other employees with similar experience and qualificat ions who are performing the same services. Set: Afatler r!fSimeio Solutions. LLC. 26 I& N Dec. 542. 545-546 (AAO 2015 ).

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the proffered position under the occupational category ··computer Systems Analysts" (corresponding to the Standard Occupational Classification code 15-1121) at a Levell wage. 3 The Levell wage rate indicates that this position. despite its "senior" title. is an entry-/ere/ computer systems analyst position compared to other positions within the same occupation.4 This inconsistency raises additional questions about the protlered position's duties and level of responsibility within the project team.

Therefore. upon review of the totality of the record. we cannot ascertain the Beneficiary's assignment for the entire validity period requested. actual day-to-day duties. and whether those duties comprise specialty occupation work. Again, where the work is to be performed for entities other than the Petitioner. evidence of the client companies· job requirements is critical. Defensor. 201 F.3d at 387-88. We conclude that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary at the client site. or that sut1icient work is available at the client site for the requested period of stay. which therefore precludes a determination that the proffered position satisfies any of the criterion at 8 C.F.R. * 214.2(h)( 4 )(iii)(A). It is the substantive nature of that work that detem1ines (I) the normal minimum educational requirement for entry into the particular position. which is the focus of criterion I: (2) industry positions which arc parallel to the proffered position and thus appropriate for review for a common degree requirement. under the lirst alternate prong of criterion 2: (3) the level of complexity or uniqueness of the proffered position. which is the locus 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.

IV. CONCLUSION

As 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 has not demonstrated that the proffered position qualities tor classi lication as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter o(P-,)'-. Inc.. ID# 1166836 (AAO Feb. 22. 2018)

'A prevailing wage determination starts with an entry level wage (Levell) and progresses to a higher wage level (up to Level IV) after considering the experience. education, and skill requirements of the Petitioner's job opportunity. U.S. Dep't of Labor. Emp't & Training Admin .. Prevailing Wage Delamination !'olic1· Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http:!iflcdatacenter.com/downloadl NPWHCGuidance Revised .II 2009.pdf ' IJ. The Petitioner's designation of this position as a Level I, entry-level position undermines th~ claim that the proffered position is a senior-level computer systems analyst. Nevertheless. a Level I wage-designation does not preclude a proffered position trom classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. That is. a position's wage level designation may be a relevant factor but is not itself conclusive evidence that a protTered position meets the requirements of section 214(i )( 1) of the Act.