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U.S. Citizenship and Immigration Services

MATTER OF S-1-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 12. 2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a computer consulting firm, seeks to continue to temporarily employ the Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant 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-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 of the California Service Center denied the petition, concluding that: (1) the Petitioner does not qualify as a United States employer with an "employer-employee relationship'' with the Beneficiary; and, (2) the Petitioner did not establish that the proffered position qualities as a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred m the decision. Upon de novo review, we will dismiss the appeal.

I. PROFFERED POSITION

The Petitioner stated that the Beneficiary will serve as a '"programmer analyst:· In a letter submitted with the initial petition, the Petitioner provided the following description of the Beneficiary's duties:

As a Programmer Analyst, [the Beneficiary] will be assigned to provide software development and programming services for [the Petitioner's] (SSG) or its

During his assignment, [the Beneficiary] will be involved in the analysis, design, development, re-engineering and implementation of software applications. [The Beneficiary] will utilize his technical skills and professional experience on SharePoint, ASP.Net 4.0. C# 4.0. SQL Server 2008, WCF. JavaScript, PowerShell Script, HTML. XML, XSL T. AJAX. JQuery, LINQ. Angular.JS and other Client/Server techniques.

Either independently or as a team member, [the Beneficiary] will be responsible for determining client requirements, performing system analysis and design, program

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coding, implementation, documentation, and maintenance support as required by the client. [The Beneficiary] will prepare technical reports, user and instructional manuals as required by the Project Manager and will also provide on-site/offsite maintenance and support to the client on various customized system packages. including debugging, modification, tine tuning and code organization.

Regarding the educational requirements, the Petitioner stated that the position requires a bachelor" s degree or equivalent to perform the job duties.

The Petitioner also explained that the Beneficiary will be working for the Petitioner's end-client as follows:

II. EMPLOYMENT RELA TIONSHJP

We reviewed the record of proceeding in its entirety. We find that the Petitioner has not established that it meets the regulatory definition of a United States employer. See 8 C.F.R. ~ 214.2(h)(4)(ii). More specifically, the Petitioner has not established that it will have "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." !d.

A. Legal Framework

Section 101 (a)(l5)(H)(i)(b) of the Act defines an H-1 B nonimmigrant, m pertinent part. as an individual:

[S]ubject to section 212(j)(2), who is coming temporarily to the United States to perform services ... in a specialty occupation described in section 214(i)( I) ... , who meets the requirements for the occupation specified in section 214(i)(2) . ... and with respect to whom the Secretary of Labor determines and cetiities to the [Secretary of Homeland Security] that the intending employer has filed with the Secretary [of Labor] an application under section 212(n)(l) ....

The term "United States employer'' is defined at 8 C.F.R. ~ 214.2(h)(4)(ii) as follows:

United States employer means a person, firm, corporation, contractor. or other association, or organization in the United States which:

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( 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 olany such employee: and

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

(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214).

Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii). it is noted that the terms "employee" and "employer-employee relationship" are not defined for purposes of the H-IB visa classification. Section 101(a)(l5)(H)(i)(b) of the Act indicates that an individual coming to the United States to perform services in a specialty occupation will have an ""intending employer'' who will tile a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)( 1) of the Act, 8 U.S.C. § 1182(n)(l ). The intending employer is described as offering full-time or part-time "employment" to the H-IB "employee.'' Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) ofthe Act. 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that ··united States employers" must tile a Form I-129, Petition for a Nonimmigrant Worker. in order to classify individuals as H-1B temporary "employees." 8 C.F.R. § 214.2(h)(l). (2)(i)(A). Finally. the definition of"United States employer'' indicates in its second prong that the Petitioner must have an ""employer-employee relationship" with the "employees under this part, .. i.e .. the H-1 B beneficiary. and that this relationship be evidenced by the employer's ability to "hire, pay, tire, supervise, or otherwise control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term ''United States employer").

Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration Services (USCIS) defined the terms "employee'' or ''employer-employee relationship'' by regulation for purposes of the H-1 B visa classification, even though the regulation describes H-1 B beneficiaries as being "employees" who must have an "employer-employee relationship'' with a "United States employer.'' !d. Therefore, for purposes of the H-lB visa classification, these terms are undefined.

The United States Supreme Court has determined that where federal law tails to clearly define the tem1 "employee,'' courts should conclude that the term was "intended to describe the conventional master­servant relationship as understood by common-law agency doctrine:· Nationwide Mut. Ins. Co. r.

Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). 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 inquiry 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 pmiy has the right to

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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 pat1y'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.''

Jd.; see also Clackamas Gastroenterolozy Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Darden, 503 U.S. at 323). As the common-law test contains .. no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'' Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. ofAm., 390 U.S. 254, 258 (1968)).

In this matter, the Act does not exhibit a legislative intent to extend the definition of .. employer" in section 10l(a)(15)(H)(i)(b) of the Act, ''employment'' in section 212(n)(l)(A)(i) of the Act, or ''employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See generally 136 Cong. Rec. S 17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H 12358 (daily ed. Oct. 27. 1990). On the contrary, in the context of the H-1 B visa classification, the regulations define the term "United States employer" to be even more restrictive than the common law agency definition. 1

Specifically, the regulatory definition of "United States employer" requires H-1 B employers to have a tax identification number, to engage a person to work within the United States, and to have an ''employer-employee relationship" with the H-lB '·employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly. the term "United States employer'' not only requires H-1 B employers and employees to have an "employer-employee relationship'' as understood by common-law agency doctrine, it imposes additional requirements of having a tax identification number and to employ persons in the United States. The lack of an express expansion of the definition regarding the terms .. employee" or "employer-employee relationship'' combined with the agency's otherwise generally circular definition of United States employer in 8 C .F.R. § 214.2(h)( 4 )(ii) indicates that the regulations do not intend to extend the definition beyond .. the traditional common law definition" or. more importantly, that construing these terms in this manner would thwart congressional design or lead to absurd results. C(

1 While the Darden court considered only the definition of·'employee'' under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. ~ 1002(6), and did not address the definition of "employer," courts have generally refused to extend the common law agency definition to ERISA 's use of employer because "the definition of ·employer· in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the traditional common law definition." See. e.g, Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992).

However, in this matter, the Act does not exhibit a legislative intent to extend the definition of ''employer" in section I 0 I (a)( 15)(H)(i)(b) of the Act, "employment" in section 212(n)( I )(A)(i) of the Act, or "employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa classification, the term "United States employer" was defined in the regulations to be even more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See Chevron. U.S.A .. Inc. v. Natural Res. De( Council. Inc., 467 U.S. 837,844-45 (1984).

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Darden, 503 U.S. at 318-19.2

Accordingly, in the absence of an express congressional intent to impose broader definitions. both the "conventional master-servant relationship as understood by common-law agency doctrine" and the Darden construction test apply to the terms ''employee" and "employer-employee relationship" as used in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h):1

Therefore, in considering whether or not one will be an ·'employee'' in an "employer-employee relationship" with a "United States employer'' for purposes of H-1 B petitions. we must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, tire, supervise. or otherwise control the work of any such employee .... " (emphasis added)).

The factors indicating that a worker is or will be an "employee" of an "employer'' are clearly delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24: Clackamas. 538 U.S. at 445; see also Restatement (Second) olAgency § 220(2) (1958). Such indicia of control include when. where, and how a worker performs the job; the continuity of the worker's relationship with the employer; the tax treatment of the worker; the provision of employee benefits; and whether the work performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445: see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384. 388 (5th Cir. 2000) (determining that hospitals, as the recipients of beneficiaries· services. are the "true employers" of H-1 B nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, because the hospitals ultimately hire, pay, tire. supervise. or otherwise control the work of the beneficiaries).

It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties relevant to control may affect the determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must weigh and compare a combination of the factors in analyzing the facts of each individual case. The determination must be based on all of the circumstances in the relationship between the parties. regardless of whether the parties refer to it as an employee or as an independent contractor relationship.

2 To the extent the regulations are ambiguous with regard to the terms ·'employee" or ''employer-employee relationship:· the agency's interpretation of these terms should be found to be controlling unless '"plainly erroneous or inconsistent with the regulation .. ,. A uer v. Robbins, 519 U.S. 452, 461 ( 1997) (citing Robertson v. Methow Valley Citi::ens Council, 490 U.S. 332, 359 ( 1989) (quoting Bowles v. Seminole Rock & Sand Co .. 325 U.S. 410. 414 ( 1945 )). 3 That said. there are instances in the Act where Congress may have intended a broader application of the term "employer'' than what is encompassed in the conventional master-servant relationship. See, e.g .. section 214(c)(2)(F) of the Act, 8 U.S. C. § I 184( c )(2)(F) (referring to ·'unaffiliated employers'' supervising and controlling L-1 B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U .S.C. § 1324a (referring to the employment of unauthorized individuals).

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Matter ofS-1-, Inc.

See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at § 2-III(A)(l ).

Furthermore, 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. For example, while the assignment of additional projects is dependent on who has the riRhl to assign them, it is the actual source of the instrumentalities and tools that must be examined, and not who has the right to provide the tools required to complete an assigned project. See id. at 323.

Lastly, 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. "Rather .... the answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no one factor being decisive.''' ld at 451 (quoting Darden, 503 U.S. at 324).

B. Analysis

Applying the preponderance of the evidence standard, the Petitioner has not established that it will be a "United States employer" having an "employer-employee relationship .. with the Beneficiary as an H-1 B temporary "employee."

1. Offer of Employment Letter

For H-1 B classification, the Petitioner is required to submit written contracts between the Petitioner and the Beneficiary, or if there is no written agreement, a summary of the terms of the oral agreement under which the Beneficiary will be employed. See 8C.F.R. §214.2(h)(4)(iv)(A) and (B). The Petitioner submitted an employment agreement provided to the Beneficiary for the position of programmer analyst to commence employment on June 27. 2016. In the agreement it states that the "EMPLOYEE currently desires to be employed by EMPLOYER in the capacity of Programmer analyst and agrees to perform work on Client's projects, as assigned by EMPLOYER... The agreement also states that "'EMPLOYEE agrees to work at such locations as EMPLOYER directs.'' According to the employment agreement, the Beneficiary may be placed on various projects and at various locations and not necessarily on the project in Washington as indicated on the H-1 B petition.

While an employment agreement may provide some insights into the relationship of a Petitioner and a Beneficiary, it must be noted again that 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. "Rather, ... the answer to whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no one factor being decisive.... !d. at 451 (quoting Darden, 503 U.S. at 324).

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Matter ofS-1-, Inc.

2. Supervision

Further, a key element in this matter is who would have the ability to supervise or otherwise control the work of the Beneficiary for the duration of the H-1 B petition. The Petitioner has not submitted a sufficient explanation, corroborated by credible evidence, detailing the manner in which the Beneficiary's supervisor actually oversees, directs, and otherwise controls the off-site work of the Beneficiary. The Petitioner stated the Beneficiary will report to the human resources director. It is not clear how the Petitioner's human resources director has the knowledge to supervise and direct the work of a programmer analyst.

In addition, in response to the request for evidence (RFE ), the Petitioner stated that it ··supervises the Beneficiary through weekly teleconferences and status updates." It is not clear who is assigning the work and whether the Beneficiary is only providing progress reports. If the Beneficiary is reporting work completed to the Petitioner, it appears that the Petitioner will have general contact but will not be managing the Beneficiary's day-to-day duties at the client site. Moreover. the record indicates that the Beneficiary's workplace would be located in a difTerent state from the Petitioner's office. The Petitioner submitted a labor condition application certified at a Level I wage. The U.S. Department of Labor (DOL) guidance states that a Level I (entry) wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected results.4 A Level I wage should be considered for research fellows, workers in training, or internships. 5 Without more, it would appear that an employee perfom1ing routine tasks that must be closely supervised and monitored would require more supervision than a weekly teleconference and a status update, and it does not appear as though the Petitioner would be in a position to be the one to provide it. Thus, we cannot determine if the Petitioner will assign and control the Beneficiary's work at the client site.

Furthermore, the Petitioner stated that the Beneficiary will be supervised on the client site by the client's employee, Thus, it appears that the end-client will be supervising the Beneficiary's work.

3. Vendor Agreement

The Petitioner explained that it has a contract with (end-client). The agreement states that the Petitioner will provide qualified candidates to indicating that the entire tenor of the agreement is a contract for staff augmentation. The Beneficiary

4 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policv Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/ NPWHC_Guidance_Revised _11_2009.pdf. 5 !d.

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will be assigned to the end-client to support its staff: a role which is indicative of day-to-day control by the end-client, whose staff is normally subject to the end-client's direction.

4. Purchase Order

The Petitioner also submitted two purchase orders (PO) between itself and the end-client. The PO submitted with the initial H-1 B petition states that the Beneficiary will provide consulting services from July 25, 2016 for ''6 Months with possible extension.'' The PO submitted in response to the RFE states that the Beneficiary will provide his services from May L 2017 for ''12 Months with possible extension." Both POs did not provide sufficient detail of the type of work the Beneficiary will perform, and they lacked a detailed explanation of how the Petitioner will control the work performed by the Beneficiary.

In addition, the POs stated that the Beneficiary will work for 6 and 12 months with possible extensions. However, the end-client letter states that the project is "expected to last for three years, although all parties reserve the right to cancel the contract consistent with our Agreement:· The Petitioner did not provide an explanation for this inconsistency.

Here, the Petitioner has not provided sufficient evidence to substantiate an ongoing project for the Beneficiary for the requested H-1 B validity period. 6

5. End-Client Letter

The end-client letter also confirms that the Beneficiary will work at the end-client's site. The letter further states that the Beneficiary will be managed by the Petitioner even while at the client site. but did not indicate how the Beneficiary will be supervised/managed by the Petitioner.

6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 1998 proposed rule documented this position as follows:

Historically, the Service has not granted H-1 B classification on the basis of speculative. or undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an alien to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising tl·om potential business expansions or the expectation of potential new customers or contracts. . . . In the case of speculative employment. the Service is unable to ... adjudicate properly a request for H-1 B classification. Moreover. there is no assurance that the alien will engage in a specialty occupation upon arrival in this country.

Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. ~ 214.2(h)(2)(i)(E).

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6. Conclusion

The evidence, therefore, is insufficient to establish that the Petitioner qualities as a United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Beneficiary is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without sufficient, corroborating evidence to support the claim. does not establish eligibility in this matter.

Based on the tests outlined above, the Petitioner has not established that it will be a "United States employer" having an "employer-employee relationship" with the beneficiary as an H-1 B temporary "employee." 8 C.F.R. § 214.2(h)(4)(ii). The appeal is dismissed for this reason.

III. SPECIALTY OCCUPATION

For the reasons set out below, we have determined that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. 7 Specifically. the record does not establish ( 1) the substantive nature of the proffered position, and (2) that the job duties require an educational background. or its equivalent, commensurate with a specialty occupation. 8

A. Position Requirements

As a preliminary matter, the Petitioner has provided inconsistent information regarding the minimum requirements for the proffered position. The Petitioner initially stated that the proffered position requires an individual with a bachelor's degree or equivalent. The Petitioner did not provide any further specifications. We interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed position. However. the Petitioner did not indicate a bachelor's degree in a specific specialty (or its equivalent) was required for the position.

In a letter submitted by the end-client, it states that the position requires a bachelor"s degree in engineering, information technology, business or a similar discipline. The Petitioner did not provide an explanation for the variances in the requirements.

Furthermore. the letter from the end-client stated that a bachelor's degree in business is acceptable. However, the requirement of a bachelor's degree in business is inadequate to establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly to the position in question. Since there must be a close correlation between the required specialized studies and the position. the requirement of a degree with a generalized title, such as business, without further specification. does

7 The Petitioner submitted documentation to support the H-1 B 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. 8 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually.

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not establish the position as a specialty occupation. Cl Matter (?l Michael Hertz Assoc.\·., 19 J&N Dec. 558, 560 (Comm'r 1988). USCIS has consistently stated that, although a general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite tor a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualities for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 14 7.

B. Description of the Duties

A crucial aspect of this matter is whether the Petitioner has described the duties of the proffered position such that we may discern the nature of the position. The Petitioner has not done so here. For example, it did not provide information with regard to the order of importance or frequency of occurrence (e.g., regularly, periodically, or at irregular intervals) with which the Beneficiary will perform the duties. Thus, the record does not specify which tasks are major functions of the proffered position.

Further, the duties themselves are vague. For instance, the Petitioner claims that the Beneficiary will be '"involved" in various aspects of software applications, but the term ··involved·· lacks sufficient information about the Beneficiary's specific role and the complexity of the task. According to the Petitioner, the Beneficiary will also '·utilize'" certain skills and experience: however. the Petitioner does not state how this will translate to specific duties. The Petitioner reports that the Beneficiary will ''[ e ]ither independently or as a team member .. be responsible tor various tasks and '·will prepare" reports and manuals as required by the project manager. Yet these statements lack adequate information to determine how much independent judgement is required fi'om the Beneficiary - and the amount of supervision he will receive.

In addition, as recognized in Defensor. 201 F.3d at 387-88, It IS necessary for the end-client to provide sufficient information regarding the proposed job duties to be performed at its location(s) in order to properly ascertain the minimum educational requirements necessary to perform those duties. In other words, as the employees in that case would provide services to the end-client and not to the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation determination. See id.

The record of proceedings does not provide sutlicient information from the end-client regarding the specific job duties to be performed by the Beneficiary. The Petitioner submitted a letter from the end-client confirming that the Beneficiary will be working on a project. The letter describes the Beneficiary's job duties in brief, generalized terms that do not convey the substantive nature of the proffered position and its constituent duties. The record of proceedings does not contain a more detailed description explaining what particular duties the Beneficiary will perform on a day-to-day basis for the end-client. Nor is there a detailed explanation regarding the demands, level of responsibilities, complexity, or requirements necessary for the performance of these duties (e.g., explain what specific systems and applications are involved, and what body of knowledge is required to perform the duties).

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Accordingly, upon review of the totality of the record, the Petitioner has not sufficiently established the Beneficiary's duties for the duration of the requested employment period. As the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. it precludes a finding 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 nonnal minimum educational requirement for entry into the particular position, which is the focus of criterion 1: (2) industry positions which are parallel to the profiered 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 ten· 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 t()cus of criterion 4. Accordingly, 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 cannot be found that the protiered position qualifies tor classification as a specialty occupation.

Nevertheless, assuming, tor the sake of argument. that the proffered duties as described in the record would in fact be the duties to be performed by the Beneficiary. we will analyze them and the evidence of record to determine whether the proffered position as described qualities as a specialty occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).

C. First Criterion

We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement tor entry into the particular position. To inform this inquiry. we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.9

On the labor condition application (LCA) 10 submitted in support of the H-1 B petition. the Petitioner designated the proffered position under the occupational category ··computer Systems Analysts .. corresponding to the Standard Occupational Classification code 15-1121 at a Level I wage. 11

9 All of our references are to the 2016-2017 edition of the Handhook. which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Ham/hook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Ham/hook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion. however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement. or its equivalent, for entry. 10 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 qualifications who are performing the same services. See Matter r~(Simeio Solutions. LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 11 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The ''Prevailing Wage Determination Policy Guidance" issued by

Matter ofS-1-, Inc.

The Handbook's subchapter entitled '·How to Become a Computer Systems Analyst'" states. in pertinent part, that a bachelor's degree is not always a requirement and that ··[s]ome firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming." 12 It also states: ''Although many computer systems analysts have technical degrees. such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere." 13

According to the Handbook, a bachelor's degree in a directly related discipline not required for entry into the occupation. While the Handbook further reports that many analysts have technical degrees. it does not specify the degree level for these technical degrees (e.g., associate's degree). Further. the Handbook states that business and liberal arts degrees may be acceptable. 14 Thus, the Handbook does not support the claim that the occupational category of "Computer Systems Analysts" is one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent.

In support of the petition, the Petitioner references DOL ·s Occupational Information Network (O*NET) summary report for "Computer Systems Analysts ... The summary report provides general information regarding the occupation; however. it does not support the Petitioner's assertion regarding the educational requirements for these positions. For example, the Specialized Vocational Preparation (SVP) rating cited within ()*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.':;

the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy: and (3) that he will receive specific instructions on required tasks and expected results. DOL, Emp't & Training Admin., Premi/ing '"'·age Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009). available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_ll_2009.pdf A 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. !d. 12 Bureau of Labor Statistics ,U.S. Dep't of Labor, Occupational Outlook Ham/hook. Computer Systems Analysts (20 16-17 ed.). 13 !d. 14 As discussed supra, we interpret the term ''degree" to mean a degree in a specific specialty that is directly related to the proposed position. Since there must be a close correlation between the required specialized studies and the position. the acceptance of general and wide-ranging degrees (such as business and liberal arts degrees) strongly suggests that such positions are not specialty occupations. See Royal Siam Corp .. 484 F.3d at 147. Cf. Matter o( Michael Hert:: Assocs., 19 I&N Dec. 558,560 (Comm·r 1988). 15 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ online/svp.

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Matter ofS-I-, Inc.

Further, the summary report provides the educational requirements of "respondents." Notably. the total percentage of respondents does not equal 100%. The report indicates that 36% of the respondents possess a bachelor's or higher degree, and all of the other individuals have less than a baccalaureate. The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-leveL senior-level). Moreover, the graph in the summary report does not indicate that the '"education level'' for the respondents must be in a specific specialty.

In the instant matter, the Petitioner has not provided documentation from a probative source to substantiate its assertion regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

D. Second Criterion

The second criterion presents two alternative prongs: '"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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon the common industry practice. while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

To satisfy the first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree: whether the industry's professional association has made a degree a minimum entry requirement: and whether letters or affidavits from firms or individuals in the industry establish that such firms ··routinely employ and recruit only degreed individuals.'' See ,%anti. Inc. v. Reno. 36 F. Supp. 2d 1151. 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095. 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source. reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the matter. Furthermore, the Petitioner has not offered evidence from an industry professional association, or from firms or individuals in the industry, indicating such a degree is a minimum requirement for entry into the position. Consequently, the Petitioner has not met the first prong.

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Matter ofS-1-, Inc.

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty. or its equivalent.

In support of the petition, the Petitioner provided information regarding the proffered position and its business operations. When discussing H-1 B employment, the Petitioner's description must be comprehensive enough to properly ascertain the minimum educational requirements necessary to perform those duties. While a few related skills and techniques may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered position. The Petitioner's job description lacks sufficient details establishing, for instance, the complexity or uniqueness of the job duties. supervisory duties (if any), independent judgment required. or the amount of supervision received. The Petitioner has not distinguished the proffered position as more complex or unique from other positions that can be performed by persons without such a degree.

Further, the Petitioner designated the proffered position as an entry-level positiOn within the occupational category by selecting a Level I wage. 16 This designation, when read in combination with the evidence presented and the Handbook's account of the requirements for this occupation. suggests that the particular position is not so complex or unique that the duties can only be performed an individual with bachelor's degree or higher in a specific specialty, or its equivalent. This designation, when read in combination with the evidence presented and the Hanclhook ·s account of the requirements for this occupation. suggests that the pmiicular position is not so complex or unique that the duties can only be performed by an individual with bachelor's degree or higher in a specific specialty, or its equivalent. 17

The Petitioner claims that the Beneficiary is well-qualified for the positiOn, and references the Beneficiary's education and experience as evidence that the proffered position is a specialty

16 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex. specialized, or unique compared to other positions within the same occupation. Nevertheless. a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty. or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualities as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 17 The evidence of record does not establish that this position is significantly different from other positions within the occupational category such that it refutes the Handhook 's information to the effect that some courses are advantageous to obtaining such a position, but not specifying that a bachelor's degree or higher in a specific specialty (or its equivalent) is required.

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Matter ofS-1-, Inc.

occupation. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty. or its equivalent. Here, the Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position. and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Thus, it cannot be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

E. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent. for the position. The Petitioner does not offer arguments or evidence to establish that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Therefore. it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A).

F. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent.

Although the Petitioner generally refers to the Beneficiary's duties as ''specialized." we find that the Petitioner has not sufficiently developed relative specialization and complexity as an aspect of the proffered position. The proposed duties have not been described with enough detail to show that they are more specialized and complex than other computer systems analyst positions that are not usually associated with at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner does not establish how the generally described duties elevate the proffered position to a specialty occupation. We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, and the designation of the proffered position in the LC A as a Level I position (of the lowest of four assignable wage-levels) relative to others within the occupational category. For the reasons discussed above, the evidence of record does not meet 8 C.F.R. § 214.2(h)( 4 )(iii)(A)( ..f).

IV. CONCLUSION

The Petitioner has not demonstrated eligibility for the benefit sought. 18

18 In the appeal, the Petitioner repeatedly references Residential Finance Corp. v. USC/S, 839 F. Supp. 2d 985 (S.D. Ohio 20 12). The record, however, lacks evidence establishing that the facts of the instant petition are analogous to those in Residential Finance. Moreover, we agree with the proposition that "'[t]he knowledge and not the title of the degree is what is important" as long as a petitioner satisfies all of the statutory and regulatory provisions for a specialty

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Matter qfS-1-, Inc.

ORDER: The appeal is dismissed.

Cite as Matter ofS-1-. Inc., ID# 774277 (AAO Oct. 12, 2017)

occupation.

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