Non-Precedent Decision of the Administrative Appeals Office … · 2018-02-12 · Non-Precedent...

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Non-Precedent Decision of the Administrative Appeals Office

MATTER OF A-A-T-INC. DATE: JAN.24.2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner seeks to temporarily employ the Beneficiary as a ·'business intelligence analyst" under the H-1 B nonimmigrant classification tor specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(I5)(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 tor entry into the position.

The Director of the California Service Center denied the Form I-129, Petition tor a Nonimmigrant Worker, concluding that the record did not establish that: (l) the proffered position qualities as a specialty occupation; and (2) the Petitioner is a United States employer, as described at 8 C.F.R. § 214.2(h)(4)(ii).

In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition. Upon de novo review, we will dismiss the appeal.

I. PROFFERED POSITION

The Petitioner is a computer consulting company. According to the Petitioner, the Beneficiary will be employed in-house at its office in New Jersey, lor the duration of the requested period.

In response to the Director' s request for evidence, the Petitioner submitted a detailed statement of the Beneficiary's day-to-day duties and responsibilities in the proffered position, as follows:

Category Duties %Time Analysis • Proficient in the use of query and reporting analysis 30%

tools. • Standardize data collection by developing methods

for database design and validation reports. • Provide application analysis and data modeling

design to collect data for centralized data warehouse.

Matter of A-A-T-Inc.

Design and Develop

Reporting

Navigate

Documentation and User Training

• Extract data from databases and data warehouses for reporting and to facilitate sharing between multiple data systems.

• Provide the day-to-day needs for the measurement of the metrics, reports, dashboards and business intelligence to their associated product groups

• Design and develop Extraction, Transformation and 25% Load (ETL) to support data integration needs;

• Design and develop Bl environments to support reporting, analysis and visualizations requirements;

• Develop and tune database applications in Oracle, SQL Server, DB2;

• Perform administrative tasks of the BI and ETL tool (Informatica, Business Objects, Microstrategy, Cognos, etc) and also assist in deployment of the application code;

• Develop and execute reusable test scenarios • Own functional areas of the business and know the 20%

tools and methods to transform the data in internal systems into meaningful reports to support products

• Expert in understanding the business objectives, data questions, and reporting problems and create new BI services offerings and value propositions, collaborating with end users to identify needs and opportunities for improved data management and delivery,

• Translating business needs into analytics/reporting requirements

• Ability to navigate various information systems and 15% be able to extract the relevant reports for their product groups.

• Requires knowledge of SQL, VB Script and the ability to write a SQL query

• Prepare documentation - user manuals, design I 0% documents etc.

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II. SPECIALTY OCCUPATION

A. Legal Framework

Section 214(i)(l) of the Act 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:

(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). We have consistently interpreted the term ''degree'' 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 (I st 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 at 387.

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B. Analysis

For the reasons set out below, we have determined that the proffered position does not qualify as a specialty occupation. Specifically, the record does not establish that the job duties reqmre an educational background, or its equivalent, commensurate with a specialty occupation. 1

I. Position Requirements

As a preliminary matter, the Petitioner has provided inconsistent information regarding the minimum requirements for the proffered position. The table below summarizes the variances in the requirements.

Record of Proceedings Degree Requirements

Petitioner's Letter - • computer science, management information systems, business March 31,2016 (page 3) admin .. electrical engmeenng, electronics engineering,

commerce, economic, a relative analytic or scientific discipline, or the equivalent

Affidavit of Petitioner - • computer science, engmeenng, mathematics, statistics, June 20, 2017 (page 1) management information systems, or related discipline

Ref. Detailed Statement - • computer science, engineering, or related discipline Specialty Occupation-June 20, 2017 (page 1)

Appeal Brief(page 4) • electrical engineering. computer engineering, computer science, electronics engineering or related discipline

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

2. Degree Requirement- General Degree

In addition, the Petitioner's claim that a bachelor's degree in business administration is sufficient for the proffered position is inadequate to establish that it qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely to the position in question. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a general degree, such as business administration, without further specification, does not establish the position

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 reviewed and considered each one.

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Matter of A-A-T- Inc.

as a specialty occupation. Cf Malter (Jl Michael Hertz Assoc.1·., 19 I&N Dec. 558, 560 (Comm 'r 1988) ("'The mere requirement of a college degree for the sake of general education. or to obtain what an employer perceives to be a higher caliber employee. also does not establish eligibility.''). Thus, while a general-purpose bachelor's degree in business administration may be a legitimate prerequisite for a particular position. requiring such a degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147.2

3. Degree Requirement~ Disparate Fields

Further, the Petitioner states that a degree in one of several disparate fields (specifically: computer science, management information systems, business administration, electrical engineering, computer engineering, electronics engineering, commerce. economics, mathematics. or statistics) is sufficient for the position. Notably, in general, provided the specialties are closely related, e.g., finance and accounting, 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 there must be a close correlation between the required ''body of highly specialized knowledge'' and the position, however, a minimum entry requirement of degrees in disparate fields, 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. 3 Section 214(i)( 1 )(B) of the Act (emphasis added). The Petitioner has not made this showing.

The requirements provided by the Petitioner do not demonstrate that the proffered position qualities as a specialty occupation. Thus, for these reasons, the petition cannot be approved.

2 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the proffered position. 1 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)(I)(B) of the Act; 8 C.F.R. ~ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing. again, the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position.


Nevertheless, we will analyze the evidence of record to determine whether the proffered position as described qualifies as a specialty occupation pursuant to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).4

4. First Criterion

We tum first to 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.

On the labor condition application (LCA)5 submitted in support of the H-1 8 petition. the Petitioner designated the proffered position under the occupational category "Computer Occupations. All Other" corresponding to the Standard Occupational Classification (SOC) code 15-1199. We often look to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook). which is an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.6 However. there are some occupations for which detailed profiles have not been developed, such as for the occupational category "Computer Occupations. All Other."

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Therefore, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from objective, authoritative sources) that supports a finding that the particular position qualifies as a specialty occupation.

Here, the Petitioner references DOL's Occupational Information Network (O*NET). We reviewed the O*NET summary report for "Business Intelligence Analysts'' - SOC code 15-1199.08, and note that it provides general information regarding the occupation. It does not. however, support the Petitioner's assertion regarding the educational requirements for these positions.

We will first focus on the Specialized Vocational Preparation (SVP) rating. DOL designates the occupation as having an SVP 7 < 8. This indicates that the occupation requires '·over 2 years up to and including 4 years" of training. While the SVP rating provides 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. 8

'Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 5 The Petitioner is required to submit a certified LCA 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 l&N Dec. 542, 545-546 (AAO 20 15). "We do not, however, maintain that the Handbook is the exclusive source of relevant information. All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. 7

For additional information, see https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm. 8

For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ online/svp.


Next, we will address DOL's designation in the summary report of the occupation as a Job Zone Four. Similar to the SVP rating, the summary report does not indicate that any academic credentials for Job Zone Four occupations must be directly related to the duties performed.

Finally, we note that the summary report provides the educational requirements of ''respondents," but does not account for I 00% of the ''respondents.'' The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate that the "education level" for the respondents must be in a specific specialty.

In the instant matter, the Petitioner has not provided sufficient 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)(/).

5. 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 nanows its focus to the Petitioner's specific position.

a. 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.

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 attest that such firms "routinely employ and recruit only degreed individuals." See ,)hanti. 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 already discussed, the Petitioner has not established that its proffered position is one for which the Handbook (or other independent, authoritative source) reports an industry-wide requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus. we incorporate by reference the previous discussion on the matter. In addition, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

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In support of this criterion, the Petitioner provided 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 the job postings do not appear to involve organizations similar to the Petitioner. For instance, one of the postings is for a company in the confectionery industry, and the other advertisements provide little or no information regarding the hiring employers. The Petitioner did not supplement the record of proceedings to establish that these advertising organizations are similar to it.

When determining whether the Petitioner and the organization share the same general characteristics, such factors may include information regarding the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and starting (to list just a few elements that may be considered). [t is not sufficient for the Petitioner to claim that an organization is similar and in the same industry without providing a basis for such an assertion.

Second, some of the advertisements do not appear to be for parallel positions. For instance, many of the postings appear to be for more senior, experienced employment than the proffered position.9

Moreover, some of the postings do not include sufficient information about 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 duties (if any), and independent judgment required or the amount of supervision received. Here. the Petitioner has not sufficiently established that the primary duties and responsibilities of the advertised positions are parallel to the proffered position.

Third, 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. 10 For instance, one of the advertisements states that a bachelor's degree in business, information systems, or computer science is preferred, one states that a bachelor's degree in business, computer information systems, or statistics is preferred, and a third advertisement states that a bachelor's degree in computer science, finance. stati stics, or mathematics is preferred. A preference is not an indication of a minimum requirement. Further.

9 For instance: requires a degree and three years of speci fic experience; requires a degree and three years of specific experience; and requires a degree and four to six years of experience in different areas. However, the Petitioner indicated that the proffered position is an entry level (Level I) position on the LCA. A prevai ling 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. U.S. Dep't of Labor, Emp' t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_ll __ 2009.pdf Since the advertised positions require prior experience, they appear to be more senior positions than the proffered position. · 10

As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not j ust a bachelor's or higher degree, but a bachelor' s degree in a specific specialty that is directly related to the duties of the pos ition. See section 2 14(i)( I )(b) of the Act and 8 C.F.R. § 214.2(h)(4 )(i i).


some of the postings report that a bachelor's degree is required, but they do not specify any particular discipline is required. Therefore, it appears that a degree in any field (or a general degree) is sufficient for these positions. OveralL the job postings suggest, at best. that although a bachelor's degree is sometimes required for these positions, a bachelor's degree in a .1peci(ic specialty (or its equivalent) is not. 11

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. 12 That is, not every deficit of every job posting has been addressed.

The Petitioner has not provided sutlicient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

b. 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.

Although the Petitioner submitted a list of job duties, including the percentage of time the Beneficiary would devote to each, the record does not include sufficient information relevant to a detailed course of study leading to a specialty degree and the Petitioner has not established how such a curriculum is necessary to perform the duties it claims are so complex. Further, the Petitioner has designated the proffered position as a Level I position on the LCA. 13 This designation, when read in

11 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 genera/tv Earl Babbie. lhe Practice of' Social Research 186-228 ( 1995). 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 otTers access to the body of probability theory. which provides the basis for estimates of population parameters and estimates of error''). " 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 tor hire. they are not evidence of the actual hiring practices of these employers. " The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless. a low wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Levell position would still require a minimum of an advanced degree in a specific specialty, or its equivalent. for entry. Similarly, however. a Level IV wage-designation would not reflect that an occupation

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Malter of A-A-T- Inc.

combination with the Petitioner's statements and the evidence presented, suggests that the particular position is not so complex or unique to establish the position as a specialty occupation.

The Petitioner claims that the Beneficiary is well qualified for the position, and references her qualifications. 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. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

6. 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 record must establish that a petitioner's stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self· imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. Id. Evidence provided in support of this criterion may include. but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

On appeaL the Petitioner provides a printout of its job postings from its website, which lists a posting for a business intelligence analyst position. However, the job posting does not state the minimum educational requirements for the business intelligence analyst position. In addition, the Petitioner submits a list of its employees with their salary information. Notably. the document docs not state these individuals' job titles and the record lacks evidence establishing that their work has the same or similar substantive responsibilities, duties, and performance requirements as the proffered position.

Without more, the Petitioner has not persuasively established that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

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 proffered position meets the requirements ofsection214(i)( I) of the Act.

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7. 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.

The Petitioner asserts that the job duties of the proffered position are specialized and complex. We again refer to our earlier comments and findings with regard to the implication of the Petitioner's designation of the proffered position in the LCA as a Level I wage, and hence one not likely distinguishable by relatively specialized and complex duties. We have also reviewed the job descriptions tor the protlered position. While we understand that the Beneficiary must have some skills and technical knowledge in order to perform these duties, the Petitioner has not sufticiently explained how these tasks require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum tor entry into the occupation. The record does not include probative evidence that the duties require more than technical proficiency in the field.

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).

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

III. UNITED STATES EMPLOYER

The Director denied the petition on two separate grounds, one of which concluded that the Petitioner is not a United States employer, as described at 8 C.F.R. § 214.2(h)(4)(ii). However, we will reserve this issue as we have concluded that the proffered position is not a specialty occupation.

IV. CONCLUSION

The Petitioner did not establish that the proffered position is a specialty occupation. 14

14 Because this issue precludes approval of the petition, we will not address any of the additional issues we have observed in our de novo review of this matter.

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ORDER: The appeal is dismissed.

Cite as Matter of A-A-T-Inc., ID# 839381 (AAO Jan. 24, 2018)

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