U.S. Citizenship and Immigration Services

Non-Precedent Decision of the Administrative Appeals Office

MATTER OF E- CORP. DATE: NOV. 16, 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an information technology services and consulting company, seeks to temporarily employ the Beneficiary as a "programmer analyst" under the H-1B nonimmigrant classification. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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, California Service Center, denied the petition. The Director concluded that the evidence of record was insufficient to establish that the proffered position is a specialty occupation.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the Director's decision was erroneous.

Upon de novo review, we will dismiss the appeal.

I. LAW

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

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

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

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

Matter of E- Corp.

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

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

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

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

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

II. PROFFERED POSITION

The Petitioner identified the proffered position as a "programmer analyst" on the H-1 B petition. In a letter of support submitted with the petition, the Petitioner explained that it provides "various software solutions for our clients, including development of technological frameworks, proofs of concept, and application and automation tools to support various functions of the organizations and clients' businesses." It further stated that "many of these solutions are developed on behalf of our clients at our offices .... "

In response to the Director's request for evidence (RFE), the Petitioner submitted the followinglist of the Beneficiary's job duties:

• Documenting all phases of the analysis, design, programmmg, implementation, and maintenance of technical projects; create user documentation for the utilization of on-line systems, reports, procedures, and training materials. 10%

• Design, analyze and implement all areas/phases of product development in a Microsoft environment including but not limited to research, design, development, testing, and support of developed software. 5%

• Conduct technical and economic feasibility studies for new software applications[.] 5%

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• · Analyze, design, write, debug, test and implement new software · applications[.] 5%

• Lead the ongoing maintenance of existing software applications[.] 5% • Modify existing code m production according to new software

specifications[.] 5% • Encodes project requirements by converting process work flows into software

code[.] 5% • Create logical and physical database models[.] 5% • Construct complex SQL queries using table joins and subqueries[.] 5% • Follow SDLC (Software Development Life Cycle) and/or 000 (Object

Oriented Design) Methodologies. 3% • Maintains historical records by documenting revisions to software code. 3% • Create software requirements specifications and other technical

documentation[.] 5% • Coding software applications to adhere to designs supporting internal and

external customer needs. 5% • Maintaining and modifying programs; make approved coding changes per

direction of technical architect. 5% • Working with testers and architects to resolve issues[.] 4% • Troubleshooting resolves or escalates project issues in a timely manner[.] 5% • Remains current to developments and issues by researching and analyzing

software trends and technologies[.] 5% • Working on UI design and development. 3% • Using database system design and architecture skills using MS SQL Server,

Oracle, SAP, PeopleSoft[.] 5% • Working with various technologies: Java, Hadoop, Python, PHP, Salesforce,

Amazon WS, MS Azure, .NET, C#, MVC, HTML, JQuery,Angular JS, Node JS, Windows, Linux, iOS, Android etc.

The Petitioner also submitted a master services agreement (MSA) and letter from one of its clients, which indicated that the Beneficiary's services were required on a project through December of 2017, with possible extensions. The letter outlined the specific duties the Beneficiary would perform. The Petitioner submitted an additional agreement for services with another client,

in support of its assertion that specialty occupation work was available for the Beneficiary.

In addition, the Petitioner stated that the minimum requirement for this position is a "Bachelor's degree in Computer Science, Computer Engineering, Information Systems or a closely-related field."

III. ANALYSIS

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.

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Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 1

A. First Criterion

We will first review the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 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.2

The Petitioner attested on the required labor condition application (LCA)3 that the occupational classification for the position is "Computer Systems Analysts," corresponding to the Standard Occupational Classification code 15-1121 at a Level I wage. 4

The Handbook subchapter entitled "How to Become a Computer Systems Analyst" states, in pertinent part: "A bachelor's degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming." U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Computer Systems Analysts,"

1 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 re.viewed and considered each one. 2 All of our references are to the 2016-17 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook 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 USCIS regularly reviews the Handbook 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. 3 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B 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 ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 4 We will consider the Petitioner's classification of the proffered position at a Level I wage (the lowest of four assignable wage levels) in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 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. U.S. Dep't of Labor, Emp't & Training Admin.; Prevailing Wage Determination Policy Guidance, Nonagric.' Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC:_Guidance _Revised_ I 1_ 2009.pdf. A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. /d. A Level I wage should be considered for research fellows, workers in training, or internships. !d.

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http:l/www.bls.gov/oohlcomputer-and-information-technology/computer-systems-analysts.htm#tab-4 (last visited Nov. 16, 20 16). The Handbook 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." !d.

The Handbook indicates that a bachelor's degree in a computer or information science field may be common, but not that it is a requirement for entry into these jobs. In fact, this chapter reports that "many" computer systems analysts may only have liberal arts degrees and programming or technical experience, but does not further qualify the amount of experience needed. The Handbook also notes that many analysts have technical degrees, but does not specify a degree level (e.g., associate's degree) for these technical degrees. The Handbook further specifies that such a technical degree is not always a requirement. Thus, this passage of the Handbook reports that there are several paths for entry into the occupation.

We have also reviewed the opinion letter authored by submitted on appeal. based his opinion on his education and his professional and academic experience working

in the academic setting and with various companies.

analyzes the Petitioner's overview of the duties of the proffered position and opines that the position "requires a candidate who has obtained an appropriate Bachelor's-level background, comprising concepts and techniques of advanced mathematics and algorithms, engineering, computer applications, computer science, computer information systems, IT, the technical sciences, and/or related areas." concludes that the position "cannot be properly performed without Bachelor' s-level training (or the equivalent) in a relevant technical field, such as Computer Science, Information Systems, or a related field .... "

Upon review of the opinion letter, we find that characterization of the proffered position as a "professional-level" technical occupation involving "senior level duties" that requires a bachelor's degree in a specific specialty appears inconsistent with the Petitioner's designation of the position as a Level I (entry) wage position. As noted above, a Level I position requires only a basic understanding of the occupation and does not include advanced knowledge or experience within the occupation. It is unclear if was informed of the Petitioner's attestation on the LCA that the proffered position was a Level I (entry) wage position. The omission of any discussion of the entry wage designation diminishes the evidentiary value of this opinion as the opinion does not appear to be based on a complete understanding of the proffered position.

5 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 hot 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 qualifies 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 proffer.ed position meets the requirements of section 214(i)( I) of the Act.

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Moreover, the record does not include evidence that has published, conducted research, run surveys, or engaged in any enterprise, pursuit, or employment - academic or otherwise regarding the minimum education requirements for the performance of the duties of the proffered position. While he may have anecdotal information regarding recruitment by employers for students who study computing and information systems, the record does not include any relevant research, studies, surveys, or other authoritative publications as part of his review and/or as a foundation for his opinion.

We may, in our discretion, use as advisory opmwn statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). For the reasons discussed above, we do not find that

opinion letter constitutes probative evidence towards satisfying 8 C.P.R. § 214.2(h)(4)(iii)(A)(l) or any other criterion. For efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion letter into each of the bases in this decision for dismissing the appeal.

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.P.R. § 214.2(h)(4)(iii)(A)(l). ·

B. 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.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

To satisfy this 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.

In determining whether there is such a common degree requirement, factors often considered by USCIS include: 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 attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, 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)).

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As discussed above, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports an industry-wide requirement for at least a bachelor's degree in a specific specialty, or its equivalent. We incorporate by reference our previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits .from similar firms or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals." See id.

In support of this criterion, the Petitioner submitted copies of job announcements placed by other employers. However, upon review of the documents, we find that the Petitioner's reliance on the job announcements is misplaced. First, we note that some of th~ job postings do not appear to involve organizations similar to the Petitioner. For example, the Petitioner is a 23-person IT services and consulting company, whereas the advertising organizations include:

• • • • • • •

- a company in the education industry; -a shipping company with over 300,000 employees;

- a state agency;

- a company in the health care industry; , and

Furthermore, one of the postings appears to be for a staffing agency and provides no information regarding the hiring employer.

When determining whether the Petitioner and the organization share the same general characteristics, such factors may include information regarding the nature. oi type of organization, and, when pertinent, the particular s.cope of operations, as well as the level of revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an organization is similar and in the same industry without providing a legitimate basis for such an assertion. The Petitioner did not supplement ·the record of proceeding to establish that the advertising organizations are similar to it.

Moreover, many of the advertisements do not appear to be for parallel positions. For example, some of the positions appear to be for more senior positions than the proffered position. Furthem1ore, some of the postings do not include the duties and responsibilities for the advertised positions. Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day responsibilities, complexity of the job duties, supervisory dutie,s (if any), independent judgment required or the amount of supervision received. Therefore, the Petitioner has not sufficiently established that the primary duties and responsibilities of the advertised positions are parallel to the proffered position.

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In addition, some of the postings do not indicate that at least a bachelor's degree in a directly related specific specialty (or its equivalent) is required.6 The job postings suggest, at best, that although a bachelor's degree is sometimes required for computer system analyst positions, a bachelor's degree in a specific specialty (or its equivalent) is not.7

As the documentation does not establish that the Petitioner has met this prong of the regulations, further analysis regarding the specific information contained in each of the job postings is not necessary. 8 That is, not every deficit of every job posting has been addressed. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

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.

Upon review, we find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. For instance, the Petitioner did not submit information relevant to a detailed course of study leading to a specialty degree and did not establish how such a curriculum is necessary to perform the duties it may believe are so complex and unique. While a few related courses 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 general descriptions of the proffered duties do not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Rather, the duties the

6 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the position. See section 214(i)(l)(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). Further, a preference for a degree in a field is not necessarily an indication of a minimum requirement. 7 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (I 995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for estimates of population parameters and estimates of error"). 8 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire, they are not evidence of the actual hiring practices of these employers.

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Petitioner ascribed to the proffered position indicate a need for a range of technical knowledge in the computer/IT field, but do not establish any particular level of formal, postsecondary education leading to a bachelor's or higher degree in a specific specialty (or its equivalent) as minimally necessary to attain such knowledge.

Further, the LCA submitted by the Petitioner indicates that the proffered position is a Level I (entry) wage, which, as noted above, is the lowest of four assignable wage levels. Without additional evidence, the record of proceeding does not indicate that the proffered position is so complex or unique, as such a position would likely be classified at a higher-level, which requires a significantly higher prevailing wage. For all of the above reasons, the Petitioner has not satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

C. 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.

Here, the Petitioner submits documentation for a number of individuals it claims are "similar hires." The Petitioner submits copies of their diplomas and/or transcripts, their foreign academic credentials evaluations, and copies of paystubs.

However, without additional evidence regarding these individuals' job duties and positions, it is not possible to discern if these individuals perform (or pyrformed) the same or similar duties with similar levels of responsibilities as the proffered position. For instance, the Petitioner does not identify the positions held by these individuals, and instead simply categorizes them as "similar hires" as noted above. Although an organizational chart is submitted, the chart does not individually list programmer analysts by name, but rather collectively groups them without identify the number of individuals occupying this position.

The Petitioner states that it was established in 2004 and currently employs 23 employees. The Petitioner has not specified how many of its 23 employees hold a programmer analyst position, and how many programmer analysts the company has employed in the past. Thus, it is not possible to determine how representative this list of employees is of the Petitioner's employment practices for the proffered position.

Finally, we note the Petitioner's ·assertion in response to the RFE that our "internal records" regarding the Petitioner's H-lB employees should demonstrates that the Petitioner "always hired individuals with relevant degrees into this position in the past." However, we do not have sufficient information to compare the proffered position to the positions previously approved for H-1 B employment. A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient documentation to establish current eligibility for the

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benefit sought.9 Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.P.R. pt. 214).

Here, the record of proceedings is insufficient to establish that the Petitioner normally requires a bachelor's or higher degree in the specific specialty, or its equivalent, for the proffered position. The Petitioner has not satisfied the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(3).

D. Fourth Criterion

The fourth criterion at 8 C.P.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.

In the instant case, relative specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered position. The Petitioner does not establish how the generally described duties of its ·programmer analyst elevate the proffered position to a specialty occupation. We again refer to our comments regarding the insufficient evidence of the Beneficiary's job duties and assignment, as well as to the implications of the Petitioner's designation of the proffered position at a Level I (entry) wage level.

Upon review of the totality of the record, the Petitioner has not established that the nature of the specific duties is so specialized and complex that the knowledge· required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A).

IV. CONCLUSION

Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

9 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a specific specialty, that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements; then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the employer artificially created a token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty or its equivalent. See Defensor v. Meissner, 20 I F. 3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation would nof meet the statutory or regulatory definition of a specialty occupation. See section 2 I 4(i)(l) of the Act; 8 C.F.R. § 2 I 4.2(h)( 4)(ii) (defining the term "specialty occupation").

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The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofE- Corp., ID# 32269 (AAO Nov. 16, 2016)

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