MATTER OF D-C-S-, LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 3, 2016

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

The Petitioner, an information technology consulting firm, seeks to temporarily employ the Beneficiary as a software developer under the H-lB 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)(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, Vermont Service Center, denied the petition. The Director concluded that the Petitioner did not establish that a work assignment existed at the time of filing.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the evidence of record was sufficient to establish its claim by a preponderance of the evidence.

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

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(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 H-lB petition states that the Petitioner is a two-employee company established in 2009. The Petitioner indicates that the Beneficiary will work at its location in Kentucky, and the labor condition application (LCA) was certified for employment in that location. When it filed the H-1B petition, the Petitioner stated that the Beneficiary would perform the following duties as a software developer:

• Design software to make good technical decisions that impact positively on adjacent systems or provide useful features. ·

• Review current system/application and present ideas for system improvements, including cost proposals.

• Produce detailed specifications and writing the program codes[.] • Testing the product in controlled, real situations before going live[.] • Maintain the systems once they are up and running[.] • Install new/enhanced software systems, train staff on how to use software and

provide ongoing support. • Generate ideas to improve system design or streamline product delivery, thereby

enhancing customer satisfaction, sales and profits[.] • Interact with other developers within and across teams and document best

practices and review code. • Develop reports to meet business needs.

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The Petitioner also stated, "[m]inimum requirements for this professional position are at least a Bachelor's degree in Computer Science, Engineering, Information Systems, or its equivalent and relevant work experience." It further states, "[a]ll of our 'Software Developers' are required to have at least the minimum of a Bachelor's degree in the specific field of endeavor."

In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary "has been interviewed for several software development projects and has been approved for project assignment to [the Petitioner's] client, The Petitioner also stated that the Beneficiary will "provide services remotely" from its office in Kentucky as listed in the LCA.

In addition, the Petitioner provided a revised list of the duties for the project with as follows: f ·

• Design, develop and maintain multi-tiered applications using legacy 'and advanced technologies.

• Extensive one to one interaction with business analysts to identify needs and requirements, then translate the functional requirement into reporting requirements[.]

• Involve in full Software Development Life Cycle (SDLC) from scoping, analysis, design, implementation, and quality assurance to delivery and support.

• Provide support and maintenance of the application once developed.

Ill. 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. Specifically, the record does not establish that the petition was filed for non-speculative work for the Beneficiary that existed at the time of filing. Further, the record (1) does not describe the position's duties with sufficient detail; and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.

For example, the Petitioner submitted contracts that postdate filing of this petition. As noted above, in response to the RFE, the Petitioner stated for the first time that the Beneficiary will be placed on a project working with The Petitioner provided a professional services agreement, effective on September 10, 2015, which sets out general terms pursuant to which the Petitioner might provide professional services to The Petitioner also provided a work order, ratified on September 10, 2015, showing that agreed to use the Beneficiary's services beginning on October 15, 2015. However, both the consulting . agreement and associated work order postdate the filing of the visa petition; thus, they are not evidence that the Petitioner had secured non-speculative work for the Beneficiary to perform at the time it filed the petition. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication.

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8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978).

On appeal, the Petitioner states that it submitted several contracts and service agreements "as evidence of sufficient software development work for the Beneficiary from the date of filing the petition through the duration of the requested H-1 B validity period, September 15, 2018." Upon review of the contracts and agreements submitted with the RFE and on appeal, we note that most contracts also postdate filing of this petition. Further, some contracts, such as the master service agreement with are not signed by the client; therefore, we are unable to determine if the contracts are valid. Moreover, the contracts do not indicate that the Beneficiary would be assigned to the project. For example, agreement does not name an individual assigned to the project, but indicates that the Petitioner will provide a "technical project manager," which differs from the proffered position as a "software developer."

The Petitioner also states that at the time of filing, it "has had ongoing software development since long before this petition was filed." Specifically, the Petitioner asserts that the Beneficiary would have been assigned to the ' project for at the time of filing the petition. In support, the Petitioner submitted a consulting agreement between the Petitioner and

The agreement commenced on May 10, 2013, and states that will "receive consulting services from [the Petitioner] from time to time." Hqwever, the agreement does not define the length of the contract and it is not clear if the agreement is still valid. Notably, the record also contains a work order for another employee, not the Beneficiary, in Kentucky for

for one year beginning on May 23, 2013. By the terms of that work order, the work was completed almost a year prior to the filing of the instant visa petition. Further, the Petitioner did not provide a work order for the Beneficiary to work on this project and did not submit any information on the work duties that would be performed by the Beneficiary if he was placed on this project.

We find that the Petitioner has not established that the petition was filed for non-speculative work for the Beneficiary, for the entire period requested, that existed at the time of filing the petition. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 1

·

1 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 from potential business expansions or the expectation of potential new customers or contracts. To determine whether an alien is properly

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However, even if we assume that the Petitioner had shfficiently established that the Beneficiary will be working on a project with we find that the Petitioner did not submit a job description to adequately convey the substantive work to be performed by the Beneficiary.

As reflected in the descriptions of the position as quoted above, the proffered position has been described in terms of generalized and generic functions that do not convey sufficient substantive information to establish the relative complexity, uniqueness and/or specialization of the proffered position or its duties. For example, the letter submitted by indicates that the Beneficiary will "design, develop and maintain multi-tiered applications using legacy and advanced technologies"; "involve in full Software Development Life Cycle (SDLC) from scoping, analysis, design, implementation, and quality assurance to delivery and support"; and, "provide support and maintenance of the application once developed." The job description is generalized and generic in that the Petitioner does not convey the substantive nature of the work that the Beneficiary would actually perform, or any particular body of highly specialized knowledge that would have to be theoretically and practically applied to perform it. The responsibilities for the proffered position contain generalized functions without providing sufficient information regarding the particular work, and associated educational requirements, into which the duties would manifest themselves in their day-to-day performance.

Further, the record contains inconsistent information regarding the requirements for the proffered position. As noted, the Petitioner indicated in its support letter that it requires a Bachelor's degree in computer science, engineering, information systems, or its equivalent and relevant work experience for the proffered position. However, states in its letter that "[the Petitioner] requires, at a minimum a Bachelor of Science degree (or its equivalent) in Electronics, Computer Sciences, Engineering, any of the natural or physical sciences or related field, and working experience of at -least 10 years or more with relevant experience."

In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. ·In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since

classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties o-f the position to be occupied to ascertain whether the duties of the position require the attainment of a specific bachelor' s degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of this two-prong analysis and, therefore, 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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there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as philosophy and engineering, would not meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) ofthe Act (emphasis added).

In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)(l )(B) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii). As just stated, this also includes even seemingly disparate specialties provided the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position.

Here, the record indicates that the proffered position can be performed by an individual with a degree in electronics, computer science, engineering, any of the natural or physical sciences or a related field. The issue here is the Petitioner has not submitted evidence establishing that these fields of study are closely related to each other (e.g., how a degree in natural sciences is related to a degree in computer science), or that these fields are all directly related to the duties and responsibilities of the particular position proffered in this matter. Absent this evidence, it cannot be found that the particular position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher degree in a specific specialty, or its equivalent.

Further, also indicated that the proffered position requires "working experience of at least 10 years or more with relevant experience." However, the Petitioner designated the proffered position as a Level I position on the LCA. In designating the proffered position at a Level I, entry-level wage rate, the Petitioner indicated that the proffered position is a comparatively low, entry-level position relative to others within the occupation, in which the Beneficiary is only required to have a basic understanding of the occupation and perform routine tasks that require limited, if any, exercise of judgment.2 The Petitioner's designation of the proffered position as a Level I, entry-level position further undermines the reliability of the letter submitted by

2 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_ll_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. ld

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since the letter states that the proffered position requires at least 1 0 years or more with relevant experience in addition to a bachelor's degree in various specialties.

We find that there are inconsistencies in the record that undermine the Petitioner's claims regarding the proffered position. Further, the Petitioner has not sufficiently established the substantive nature of the work to be performed by the Beneficiary, which therefore 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 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.

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 proffered position qualifies for classification as a specialty occupation.3

IV. CONCLUSION

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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of D-:-C-S-, LLC, ID# 17940 (AAO Aug. 3, 2016)

3 Since the identified basis for denial is dispositive of the Petitioner' s appeal , we will not address other grounds of ineligibility we observe in the record of proceedings.