u.s. citizenship non-precedent decision of the and immigration … · 2019-06-14 · dhs delegation...

U.S. Citizenship and Immigration Services

MATTER OF J-1-T-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 8, 2019

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an information technology consulting business, seeks to temporarily employ the Beneficiary as a "Java, UI and mid-tier developer" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 101(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 California Service Center denied the petition, concluding that the Petitioner did not establish that: (1) an employer-employee relationship exists with the Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 1 On appeal, the Petitioner provides a brief and additional evidence, and asserts that the Director erred in denying the petition.

Upon de novo review, we will dismiss the appeal. 2

I. EMPLOYER-EMPLOYEE RELATIONSHIP

A. Legal Framework

A petitioner seeking to file for an H-IB beneficiaiy must meet the definition of a "United States employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 8

1 The Director also denied the change of status request made on behalf of the Beneficiary. However, there is no provision in the regulations for an appeal from a denial of a change of status request. See 8 C.F.R. §§ 214.l(c)(5), 248.3(g); see also DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003). We therefore have no jurisdiction over this matter and consequently will address neither (1) the Director's determination regarding the Beneficiary's status, nor (2) the claims made on appeal contesting that determination. 2 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 J-1-T-, Inc.

C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, contractor, organization, or other association in the United States which:

(1) Engages a person to work within the United States;

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and

(3) Has an Internal Revenue Service Tax identification number.

(Emphasis added.)

For purposes of the H-lB visa classification, the te1ms "employer-employee relationship" and "employee" are undefined. The United States Supreme Court has determined that where federal law fails to clearly define the term "employee," courts should conclude that the term was "intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship and Immigration Services (USCIS) will apply common law agency principles which focus on the touchstone of control.

The Supreme Court stated:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inqui1y are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."

Darden, 503 U.S. 318, 322-23.3 See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Darden). See also Defensor v. Meissner, 201 F.3d 384, 388 (5 th Cir. 2000) ( even though a medical staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" because they ultimately hire, pay, fire, supervise, or othe1wise control the work of the H-lB beneficiaries). We will assess and weigh all of the incidents of the relationship, with no one factor being decisive.

3 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 323-24.

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B. Analysis

Applying the Darden and Clackamas tests to this matter, we conclude that the Petitioner has not established that it will be a "United States employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary "employee." The Petitioner has not submitted sufficient, consistent, and credible documentation regarding relevant aspects of the Beneficiary's employment. Therefore, as we will further explain, the Petitioner has not substantiated key elements in this matter, to include who exercises control over the Beneficiary. 4

The Petitioner, located in Texas, indicated that it will assign the Beneficiary through a mid-vendor to work as a "Java, UI and mid-tier developer" for an end-client, in Pennsylvania, for the duration of the validity period requested. The claimed contractual chain is as follows:

Petitioner ➔ J-G- (mid-vendor) ➔ V- (end-client).

The Petitioner did not initially provide a statement or itinerary regarding the nature of the Beneficiary's employment. 5 It submitted a letter from the end-client which referenced the contractual relationships amongst the pa1iies, indicated that the Petitioner is the Beneficiary's employer, and stated that the Beneficiary provides services on "an ongoing project with the possibility of extension." The Petitioner also provided a February 2015 sub-vendor agreement (SA) between the Petitioner and the mid-vendor for the Petitioner's provision of the Beneficiary's services at the end-client location, as follows, in relevant part (verbatim):

Article 1. Use of this Agreement. The services to be performed under this Agreement will be defined through Work Orders that are signed [by the Petitioner and the midvendor]. This Agreement provides the basic terms which apply to all Work orders.

Article 2. Services to be performed. [The mid-vendor] hereby retains [the Petitioner] to perform services for [the mid-vendor] or its Client as set forth in the Work Order attached hereto and any additional Work Order that may be entered into in the future prior to the termination of this agreement, and [the Petitioner] agrees to perform such services utilizing [ the Petitioner's] consultant( s) specified in the applicable Work Order.

Article 3. Compensation to [the Petitioner].

3.1.1. [The mid-vendor] will pay [the Petitioner's] mvmces, rendered as provided

4 The Petitioner submitted documentation in support of 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. 5 The Petitioner employed the Beneficiary through STEM-related post-completion optional practical training, and has provided copies of wage statement for his employment with the Petitioner. 8 C.F .R. §§ 274.a.12( c )(3)(i)(C), 214.2(f)(l O)(ii)(C).

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below, within 30 days after [the mid-vendor's] receipt of those mv01ces and corresponding Client-approved time card.

3.1.3 Warranty of Services. [The mid-vendor] shall submit [the Petitioner's] technical services personnel to Client according to the qualifications, experience, and project requirements of the Client. It is within [the mid-vendor's] discretion whether to propose such personnel to Client. The work to be performed by the technical services personnel providing services under this agreement shall be set forth by Client and stated in a Work Order (or similar form). If Client chooses to terminate the services of [the Petitioner's] personnel for any reason, including but not limited to unsatisfactory performance, [the Petitioner] will be compensated only for services approved and paid for by Client.

The mid-vendor's work order attached to the SA identifies the Beneficiary, describes the project simply as "Java UI Developer," and identifies the duration of the assignment to commence in June 2016 and terminate in June 2020. 6 The work order fmiher specifies in pe1iinent part:

3. At the end of eve1y week [the Petitioner shall submit an invoice] along with a timecard provided by [the mid-vendor] and signed by an authorized official at the Client.

4. [The Petitioner] will discuss its hours and location where the work is to be performed with the Client, including notification to the Client if [the Petitioner] cannot be present.

5. [The Petitioner] agrees to complete the assignment within the guidelines provided by the Client or within any reasonable changes to the guidelines as provided by the Client.

Notably, the Director requested evidence of the employer-employee relationship and availability of specialty occupation work, which included the end-client's statements of work and work orders in her request for evidence (RFE). However, the record does not contain work orders or other contractual documentation specific to the Beneficiary's assignment between the mid-vendor and the end-client.

Nonetheless, considering the submitted material collectively, we conclude that the contractual documentation does not sufficiently demonstrate how the Petitioner exercises control over the Beneficiary's off-site employment. The documents stipulated that the Beneficiary will perform services as "as set forth" by the end-client at the end-client location, within the "guidelines" provided by the end-client. He will account for his work hours using the mid-vendor's timecard, which must be approved by the end-client prior to their submission by the Petitioner to the mid-vendor for payment. The end-client must be notified if the Beneficiary will not be present at the end-client

6 The work order also indicates that the work order may be extended at a later date.

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location. Moreover, the end-client may terminate the Beneficiary's employment at the end-client location "for any reason, including but not limited to unsatisfactory performance."

Since the end-client must approve the Beneficiary's hours at the end-client location, and the midvendor must verify the Petitioner's invoices based on the Beneficiary's worktime data from its own timecards, it appears that the end-client and the mid-vendor primarily control and supervise the Beneficiary's work. Further, as the end-client will identify the work that the Beneficiary will perform in a work order, will provide the guidelines for the Beneficiary's services, and may terminate his employment for any reason, we conclude that the end-client exercises a substantial level of supervision and control over the Beneficiary's day-to-day employment. This contractual material starkly contrasts with the Petitioner's claimed supervision and control over the Beneficiary's work, and therefore, does not persuasively establish that the Petitioner will in fact actually exercise control over the Beneficiary's employment at the end-client location. 7

Importantly, the Petitioner has not documented a process in which it can actively monitor and evaluate personnel it places with the end-client. The Petitioner claimed in its RFE response that the Petitioner's president supervises the Beneficiaiy and controls his work during his employment at the end-client location, stating that the Beneficiaiy "will telephone or otherwise communicate directly with [the president] regarding his progress on the assigned work." As evidence of this communication, the Petitioner provided a quarterly performance evaluation which indicated that the president was the Beneficiary's "appraiser" for his performance review. However, the Petitioner did not offer sufficient objective evidence to corroborate how the president, who supervises around 250 employees according to the organization chart, came to have sufficient knowledge of the Beneficiary's work performance in order to appraise his work at the end-client location. The Director denied the petition, in part, concluding that the Petitioner's uncorroborated testimony did not satisfy the Petitioner's burden of proof in these proceedings. 8 She determined that the evidence provided was not sufficient to demonstrate that the Petitioner will be a "United States employer" having an "employer-employee relationship" with actual control over the Beneficiary's day-to-day employment at the end-client location. We agree.

On appeal, the Petitioner references the material furnished in response to the RFE, indicating that the Director erred in not considering this evidence sufficient to establish that it will have an employeremployee relationship with the Beneficiary at the end-client location. However, the Petitioner does not adequately address the Director's concerns with the probative value of the submitted material relating to the Beneficiary's off-site employment, even though these concerns were specifically discussed by the Director in her RFE, and ultimately in her denial of the petition. 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

7 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 8 As previously noted, the Beneficiary has been working at the end-client site through his STEM optional practical training. However, the record did not contain evidence of ongoing communication with the Petitioner's president, other than the Petitioner's statement that the Beneficiary will do so.

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quantity of evidence alone but by its quality. Id. Here, the documentation provided is not probative towards establishing how the Petitioner supervises, controls, and oversees the Beneficiary's work.

On appeal, the Petitioner refers to an employment letter to assert that "USCIS erred in determining that there was insufficient evidence to show who had the power to employ, discharge, and supervise."9

However, the letter does not provide sufficient information relevant to the Petitioner's claimed oversight and control over the Beneficiary's actual work assignment. For instance, the letter did not detail how the Petitioner would be engaged in the day-to-day supervision of the Beneficiary's work at the end-client location. 10 While an employment agreement may provide some insights into the relationship of a petitioner and a beneficiary, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. The employment offer letter does not encompasses the work that the Petitioner, the mid-vendor, and the end-client claim the Beneficiary will perform if the H-lB petition is approved.

The Petitioner also references various means by which it generally monitors and supervises employees at end-client locations, such as communication with employees through "teleconference[s], Skype, scrum meetings, supervisor call 24/7, status reports, performance reviews, and Appraisals." Nonetheless, the Petitioner has not offered persuasive evidence to illustrate how it has and will supervise and guide the Beneficiary's work assignments for the end-client.

The Petitioner also provided its own letters in support of the appeal. In one letter, the Petitioner acknowledges that the Director was "cmrect that it is unreasonable to expect that a single supervisor [the president] could effectively supervise 240 employees." The Petitioner further states that it would be "impracticable" for its president to supervise all of the Petitioner's employees, asserts that the organization "has professional supervisors hired to monitor and supervise [the] employees at each tier of the organizational hierarchy," and references a newly submitted organization chart. The Beneficiary is noted therein as one of around 20 individuals who reports to a person whose job title is identified as "Tech Lead," who in turn reports to the president. The Petitioner explained that:

We have a team of mentors such that no individual mentor is responsible for more than 25 people. Our mentors are contractors to [the Petitioner] and work for our parent company [S-], a public company listed on the Bombay stock market in [India]. In the case of [the Beneficiary] he was actively mentored by [the tech lead].

However, the Petitioner did not provide additional narrative or corroborative documentation to detail specifically how the tech lead has and will supervise the Beneficiary at the end-client location. Notably, even though the Petitioner newly asserts that the tech lead previously "mentored" the

9 While the Petitioner asserts that the employment contract was submitted with the initial petition and in response to the RFE, a careful review of the record shows that the Petitioner did not initially submit the employment contract with the Beneficiary but it was submitted in response to the RFE. For H-lB classification, the Petitioner is required to submit written contracts between itself and the Beneficiary, or ifthere is no written agreement, a summary of the terms of the oral agreement under which the Beneficiary will employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and (B). 10 Similarly, the submitted Petitioner's employee handbook contains general human resource information for the Petitioner's employees, but does not discuss how the organization supervises and manages its employees who are assigned through contracts at end-client locations.

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Beneficiary at the end-client location, the submitted quarterly performance appraisals for the Beneficiary from 2016 - 2018, reflect that the president, not the tech lead, was the "appraiser" of the Beneficiary's performance therein. This inconsistent and insufficient evidence does not persuasively establish who, if anyone, will actually exercise control over the Beneficiary's employment at the endclient location from the Petitioning organization. 11

The Petitioner also refers to unpublished AAO decisions and asserts that:

Although the [P]etitioner may provide consulting services to other firms and [the Beneficiary] will work for another client at the client's work location, it is the [P]etitioner who has hired [the Beneficiary] and will pay the salary and meet all of the LCA requirements and hence they share an employer-employee relationship.

The Petitioner has not furnished copies of those unpublished decisions. As the record of proceedings does not contain any evidence of the unpublished decisions, we are not able to determine if the referenced cases support the Petitioner's assertion and the facts of the instant petition are analogous to those in the unpublished decisions. 12

As discussed above, the Petitioner has not demonstrated that it exercises actual control over the Beneficiary's substantive work. It appears that the Petitioner's role and responsibilities are primarily limited to the administration of the Beneficiary's payroll and other related benefits, including the filing of immigration benefits. While social security contributions, worker's compensation contributions, unemployment insurance contributions, federal and state income tax withholdings, and other benefits are still relevant factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the Beneficiary, where the work will be located, and who has the ability to affect the projects to which the Beneficiary is assigned, must also be assessed and weighed in order to make a determination as to who will be the Beneficiary's employer. Without full disclosure of all of the relevant factors, we are unable to conclude that the requisite employer-employee relationship will exist between the Petitioner and the Beneficiary.

Upon complete review of the record of proceedings, we conclude that the evidence in this matter is insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii).

11 Matter ofHo, 19 I&N Dec. at 591-92. 12 Any suggestion that users must review unpublished decisions and possibly request and review each case file relevant to those decisions, while being impractical and inefficient, would also be a shift in the evidentiary burden in these proceedings from the Petitioner to users, which would be contrary to section 291 of the Act, 8 U.S.e. § 1361. Accordingly, this office is not required to request and/or obtain a copy of the unpublished decisions cited by the Petitioner.

If a petitioner wishes to have unpublished decisions considered by users in the adjudication of a petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself through its own legal research and/or received in response to a Freedom of Information Act request filed in accordance with the applicable regulations. In the instant case, the Petitioner did not submit a copy of the unpublished decisions. As the record of proceedings does not contain any evidence of the unpublished decisions, there were no underlying facts to be analyzed and, therefore, no prior, substantive determinations could have been made to determine what facts, if any, were analogous to those in these proceedings. While 8 e.F.R. § 103.3(c) provides that our precedent decisions are binding on all users employees in the administration of the Act, unpublished decisions are not similarly binding.

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II. SPECIAL TY OCCUPATION

A. Legal Framework

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

(A) theoretical and practical application of a body of highly specialized knowledgel 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 1 but adds a non-exhaustive list of fields of endeavor. In addition 1 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 orl in the alternativel 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 1 but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 1391 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"); Defensorl 201 F.3d at 387.

As recognized by the court in Defensor1 201 F.3d at 387-88 1 where the work is to be performed for entities other than the petitioner 1 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

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educational level of highly specialized knowledge in a specific discipline that is necessary to perform that particular work.

B. Proffered Position

The Petitioner indicated that the proffered position is a "Java, UI and mid-tier developer," and submitted a certified labor condition application (LCA) 13 for the "Software Developers, Applications" occupational category corresponding to the Standard Occupational Classification (SOC) code 15-1132, with a level II wage. 14 As previously noted, the initial record indicated that the Beneficiary's work assignment at the end-client's location was for the entire period of employment requested in the petition.

The Petitioner did not initially provide a description of the job duties of the proffered position, other than the description contained in the end-client letter, as follows (verbatim):

• Involving in the developing Angular services to acquire data from API server using Angular resource service in JSON format.

• Developing the front-end components using AngularJS 1.5 and 2.0 framework that leverages classical Model View Control (MVC) architecture.

• Developing Spring and Jersey resources, designed the REST URL's to expose the backend model objects in JSON and XML formats.

• Designing and developing of monitoring systems used for A WS Elastic Environments, including individual component failure cases such as missing ELB, misconfigured Autoscaling Group, misconfigured EC2 Security Group.

• Extensive Developing with IDE's like Eclipse, STS, WebStorm, MySQL Workbench.

• Participating in regular code reviews and developer training for new front-end technologies.

• Working on CSS Pre-processors like LESS and SASS along with JavaScript task runners like Grunt JS.

• Expertise in using source code control systems such as GIT, SVN, JIRA, and Jenkins for maintaining versions across various releases.

• Understanding of document description languages such as JSON and XML, • Participating in regular client meetings and understand the business and technical

requirement and help team convert these requirements into feature files which later will be used during Cucumber Integration testing.

13 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). 14 A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after conside1ing the experience, education, and skill requirements of the Petitioner's job opportunity. 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

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• Using Spring Boot to develop the RESTful API that can be scaled back on the network traffic.

In response to the RFE, the Petitioner submitted a description of the proffered position's duties that reflected duties described by the end-client, but also introduced duties not mentioned by the end-client, such as "playing the role of Technical Lead in developing a front-end computational intensive tool for the internal application that assists the developers to validate their work by doing automating the testing process." 15 On appeal, the submitted new letter from the mid-vendor also mentioned new position responsibilities which were not noted in the end-client letter, such as "deploying systems on Amazon Web Services through S3, DynamoDB, kinesis, Cloud Formation services."

C. Analysis

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

A crncial aspect of this matter is whether the record includes sufficiently described duties of the proffered position such that we may discern the nature of the position and whether the position actually requires the theoretical and practical application of a body of a highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. The Petitioner has not done so here.

Notably, the material provided does not communicate the actual work that the Beneficiary will perform on a day-to-day basis within the context of the end-client's project(s), and the correlation between that work and a need for a particular education level of highly specialized knowledge in a specific specialty. The record includes the previously discussed contractual documentation between the mid-vendor and the Petitioner, the Petitioner's overview of the Beneficiary's proposed duties, the mid-vendor's position descriptions provided in its two letters, and the end-client job duties described above from the initially submitted end-client letter. The Petitioner indicated the end-client's project involves the development of an end-client application which provides "an interface to the [end-client's customers] for accessing [the customers'] financial data." The Petitioner also stated that the Beneficiary would play the role of a "technical lead" assisting other developers. However, these vague descriptions do not sufficiently identify what products or services are actually being developed, or maintained, at the end-client location, and the substantive nature of the Beneficiary's role therein.

15 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in the record. For instance, the Petitioner also submitted a different position description describing various information technology job functions which included a listing of the Beneficiary's previous coursework for the purpose of cmTelating the need for the Beneficiary's master's and bachelor's degree 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 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 petitioner intends to employ him falls within [a specialty occupation].").

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Similarly, the end-client indicates that the Beneficiary will be "[p ]aiiicipating in regular client meetings and understand the business and technical requirement and help team convert these requirements into feature files which later will be used during Cucumber Integration testing," and will be "[i]nvolv[ed] in developing Angular services to acquire data from API server using Angular resource service in JSON format." The Petitioner further states that the Beneficiary will be "[t]aking part in the Agile Scrum development process to develop Web application and involved in setting up applications with various frameworks." These descriptions identify the use of several software development languages, hardware, and data formats to perform generic information technology job functions which do not give context to the specific tasks that the Beneficiary will perform. Importantly, while the Petitioner provided the brief explanation of the project discussed above, the record contains insufficient material from the end-client that would identify the scope, duration, and magnitude of the projects that are being developed, or maintained, at the end-client location.

As recognized by the court inDefensor, 201 F.3d at 387-88, where a beneficiary will perform the work for entities other than the petitioner, evidence of the client companies' job requirements is critical. 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. Here, the lack of con-o borative supporting detailed evidence about the proffered position from the end-client, and the generic job descriptions in the record do not illustrate the substantive nature of the proffered position.

Additionally, the material in the record is insufficient to establish the minimum requirements for the Beneficiary's position at the end-client location. The Petitioner stated that a "bachelor's degree in computer science or equivalent combination of education or experience" was needed for entry in to the proffered position. However, based on the provisions of the mid-vendor's SA, the selection of the Petitioner's personnel for hire would be made by the mid-vendor and end-client through a refen-al process managed by the mid-vendor. The Petitioner's personnel would provide services to the endclient in accordance with the SA and underlying work orders, executed between the mid-vendor and the Petitioner, and between the mid-vendor and the end-client. The mid-vendor's letter submitted in the RFE response indicated minimum requirements of a "bachelor's degree or Foreign or Experiential Equivalent, while its letter submitted on appeal stated that a minimum of a "bachelor's degree in computer science or a related field" was required. The Petitioner did not offer an explanation for the changes in the mid-vendor's position requirements. The end-client letter provided that a minimum of "a bachelor's degree (or the equivalent) in a closely related field or related work experience would suffice for entry in to the position. The end-client did not identify the degrees that would be "closely related," nor did it explain the amount and type of work experience that would be acceptable in lieu of a bachelor's degree. Considering the end-client's vague position requirements in the letter, the inconsistencies in the record regarding the minimum requirements for the position in the record, and the insufficient contractual documentation between the parties in the record; without more, the Petitioner has not established the end-client's minimum requirements of the proffered position. Id.

The Petitioner also submitted a letter from Professor.__ _______ __.University, Florida, who determined that the duties of the position require a "bachelor's degree in computer science or in a related field, or its equivalent in work and experience." After careful consideration, we conclude that the opinion letter is not persuasive. The professor, indicated that he had reviewed the material

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submitted in support of the petition, and "evaluated the individual pages" on the Petitioner's website. He also stated that he assessed the work product produced by the Beneficiary, to include "Project Reports, Project Design, Project Architecture, [and] Data Requirements." However, he did not specifically discuss this material, nor was this documentation provided in support of the petition. He also indicated that he had interviewed the Beneficiary as part of his research, but did not describe the substance of the topics that were covered therein.

Importantly, the professor did not discuss the duties of the position within the specific context of the end-client project upon which the Beneficiary would work. Rather, he quoted the position descriptions present in the record, which as we stated previously were insufficient for determining what the Beneficiary would be actually doing at the end-client location. Therefore, his level of familiarity with the actual job duties as they would be performed in the context of the end-client's business has not been substantiated. 16

We acknowledge that the professor provided excerpts from the DOL's Occupational Information Network (O*NET) summary repmi for the "Software Developers, Applications" occupational category, listed as SOC code 15-1132. 17 The professor opined"[ a ]s per DOL, the proffered position . . . designates a Job Zone 4 ... [and] an SVP of7.0 to 8.0, which typically indicates a Bachelor's degree + 2 years or 4 years of experience. Under SVP, a Bachelor's degree indicates 2 years preparation, Master degree 4 years preparation and a Ph.D 7 years preparation."

While the O*Net summary report provides general information regarding the occupation, it does not support the professor's assertion regarding the educational requirements for the proffered position. For example, the Specialized Vocational Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An SVP rating of 7 to less than("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating indicates the total number of years of vocational preparation required for a particular position, it is important to note that 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. 18

Further, the O*NET summary report provides the educational requirements of "respondents," but does not account for 100% of the "respondents." The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate that the "education level" for the respondents must be in a specific specialty.

Moreover, even assuming that the professor possessed expertise on the degree requirements for the position, the opinion letter does not substantiate the conclusions, such that we can determine that the

16 The professor quoted the brief narrative that the Petitioner provided regarding the end-client's project, as well as the Beneficiary's statements in the record regarding his role therein. 17 The DOL's O*Net summary report for the "Software Developers, Applications" occupational category may be viewed at https://www.onetonline.org/link/summary/15-l 132.00. (Last visited May 7, 2019.) 18 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ online/svp.

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Petitioner has met its burden of proof. For example, the professor does not reference, cite, or discuss studies, surveys, industry publications, authoritative publications, or other sources of empirical information, which he may have consulted to complete his evaluation, beyond his brief discussion of the O*NET summary report.

For the reasons discussed, we find that the opinion letter provided lends little probative value to the matter here. As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or give it less weight if it is not in accord with other information in the record or if it is in any way questionable. Id.

Lastly, we observe that the Petitioner, the mid-vendor, and the end-client collectively referenced the proffered position as a Java UI mid-tier developer position in material presented in the initial submission and in response to the RFE. On appeal, the Petitioner alternatively identifies the proffered position as a "DevOps Engineer" position, and states the occupational category for the position is the "Network and Computer Systems Administrators" category. 19 As previously mentioned, the LCA submitted with the petition was for the "Software Developers, Applications" occupational category corresponding to SOC code 15-1132. The Petitioner did not provide narrative or documentation to further explain how this newly raised position title and occupational category relates to the proffered position of Java UI mid-tier developer as initially presented in the petition. 20

Upon review of the totality of the record, including the Petitioner's assertions on appeal, the record does not include sufficient detailed information regarding the duties of the proffered position to establish the substantive nature of the proffered position. This lack of probative evidence 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 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. As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not established that the proffered position qualifies as a specialty occupation.

III. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered 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. The Petitioner has not met that burden.

19 The O*NET position summary for the "Network and Computer Systems Administrators" occupational category may be viewed at https://www.onetonline.org/link/summary/15-l 142.00. (Last visited May 7, 2019.) 20 Matter of Ho, 19 I&N Dec. at 591-92.

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ORDER: The appeal is dismissed.

Cite as Matter of J-1-T-, Inc., ID# 3516988 (AAO May 8, 2019)

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u.s. citizenship non-precedent decision of the and immigration … · 2019-06-14 · dhs delegation...

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