MATTER OF E-T- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 7, 2018

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

The Petitioner, a software design and consulting company, seeks to temporarily employ the Beneficiary as a "software developer" under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 10l(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 Vermont Service Center denied the petition, concluding that the evidence of record does not demonstrate that the Beneficiary is qualified to perform services in a specialty occupation.

On appeal, the Petitioner submits a brief and additional evidence, and asserts that the Director's decision was erroneous.

We conduct de novo review on appeal, but a threshold matter must be resolved before we may address the merits of the Director's decision and the Petitioner's appeal. Specifically, a beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty occupation. As will be discussed, the record as currently constituted does not establish that the proffered position requires a baccalaureate or higher degree in a specific specialty, or its equivalent. Moreover, it does not appear that the petition is supported by a certified labor condition application (LCA) that corresponds to the petition. Accordingly, the matter will be remanded to the Director for further review of the record and a new decision.

I. LEGAL FRAMEWORK

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

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(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. § 2 l 4.2(h)( 4)(ii) largely restates this statutory definition, but adds a non-exhaustive 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:

(J) 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 construe 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. Cherto.ff, 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 intends to employ the Beneficiary as a "software developer." On the LCA 1

submitted in support of the petition, the Petitioner classified the position under the occupation of "Computer Programmers," corresponding to the Standard Occupational Classification (SOC) code 15-1131.

The Petitioner described the duties of the proffered position as follows:

• Design, develop, and implement client/server distributed software architecture and applications using technologies such as Microsoft .Net, Java SE, Java EE, Web, Mobile, or cloud technologies;

1 A petitioner submits the LCA to DOL 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 duties, experience, and qualifications. Section 2 I 2(n)(I) of the Act; 20 C.F.R. § 655. 731 (a).

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• Design and develop software applications on different levels, including networking, hardware, visualization, operating systems (OS), application, frontend, application programming interface (API), and protocols;

• Apply object oriented methodologies including refactoring and patterns of object oriented design as well as application architecture patterns;

• Perform testing activities and unit test produced code to maintain high quality products and solutions;

• Prepare software application documentation including technical guides for installation, deployment, support, and training of developers and network administrators;

• Follow team development practices and methodologies and tools such as source control systems, bug tracking systems, and continuous integration systems; and

• Utilize technologies, frameworks, and components such as JavaScript, JSON, XML, HTML, CSS, ASP.Net, C#, Entity Framework, jQuery, Angular, TypeScript, Spring, J2EE, SQL, and/or no-SQL databases, web technologies or application servers.

Regarding the educational requirements of the position, the Petitioner stated that it requires at least a bachelor's degree in computer science, information technology, mathematics, or a related field.

III. ANALYSIS

Upon review, it does not appear that the proffered position is a specialty occupation. Specifically, the record as currently constituted does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.2

A. First Criterion

We turn 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 for entry in to 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.3

2 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. 3 All of our references are to the Handbook, which may be accessed at 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 we regularly review 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.

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The subchapter of the Handbook entitled "How to Become a Computer Programmer" states the following: "Most computer programmers have a bachelor's degree in computer science or a related subject; however, some employers hire workers with an associate's degree."4 According to the Handbook, the requirements to perform the duties of the computer programmer occupation incorporate a wide spectrum of educational credentials, including less than a bachelor's degree in a specific specialty. For example, the Handbook states that some employers hire workers who have an associate' s degree. Furthermore, while the Handbook's narrative indicates that most computer programmers obtain a degree (either a bachelor's or associate's degree) in computer science or a related field, the Handbook does not report that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the occupation. The Handbook does not support that a bachelor's degree in a specific specialty is normally the minimum requirement for entry into the occupation. Further, the Petitioner did not provide additional documentation from another probative, authoritative source to substantiate its assertion regarding the minimum requirement for entry into this particular position

The record lacks sufficient evidence to support that the position, as described, is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry as required by 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

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.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong looks to the 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.

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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn.

4 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, on the Internet at https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last visited Nov. 7, 2018).

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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 constituted, the record does not establish that its proffered position is one for which the Handbook (or other independent, authoritative sources) 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. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement.

The Petitioner provided copies of job vacancy announcements for a number of positions it deems akin to the proffered position. Upon review, however, the postings do not appear to be for positions parallel to the one proffered in this matter within similar organizations. Most of the postings provide little to no information regarding the advertising companies, and we note that some postings are confidential advertisements posted by employment recruiters. Therefore, it is unclear whether the advertising entities are similar to the Petitioner, who claims to be a software design and consulting company with 77 employees. Moreover, numerous advertisements do not state a requirement for a bachelor's degree in a specific specialty. One advertisement indicates that a bachelor's degree is acceptable, and another states that a "college" degree is required, without specifying whether such a degree is at an associate's or bachelor's level. 5

The Petitioner has not provided sufficient 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 as required under the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

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.

The record does not demonstrate that the necessary knowledge for the proffered position is attained through an established curriculum of particular courses leading to a baccalaureate or higher degree in

5 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 does not demonstrate what statistically valid inferences, if any, can be drawn from the job postings with regard to the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 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 195-96 (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").

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a specific specialty, or its equivalent. While a few related courses and subjects 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 claims that the Beneficiary is well-qualified for the position, and references his 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. 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, as required under the second alternative prong of 8 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.

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.

In response to the Director's request for evidence, the Petitioner provided a list of employees it claims performed the duties of software developer, along with their resumes and educational credentials. The record, however, contains no evidence that these individuals have or had the same or similar substantive responsibilities, duties, and performance requirements as the proffered pos1t10n. Moreover, there is no documentary evidence confirming their employment with the Petitioner.

Without more, the Petitioner has not provided sufficient evidence to establish that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position as required by the third criterion of 8 C.F .R. § 2 l 4.2(h)( 4 )(iii)(A).

D. 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

6

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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. As discussed, the job description in the record does not give insight into the particular duties of the proffered position as it will be performed for the particular client or in-house projects to which the Beneficiary will be assigned. The Petitioner has not demonstrated that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

IV. NON-CORRESPONDING LCA

Additionally, we note that the LCA provided in support of the instant petition is certified for a computer programmer in at a Level II prevailing wage level. Although the Petitioner asserted in response to the RFE that the proffered position is most akin to this classification, it claims that the proffered position is actually that of a software developer. A review of the Handbook and DOL's Occupational Outlook Network (O*NET) pertaining to the occupational category of software developer demonstrates that many of the claimed duties of the proffered position correspond to those of a software developer. 6

The prevailing wage for the occupational category of "Software Developers, Applications," at a Level II wage in is significantly higher than the prevailing wage for the "Computer Programmer" category selected by the Petitioner. 7 Thus, according to DOL guidance, if the Petitioner believed its position was appropriately described as a software developer, or was a combination of both a computer programmer and software developer, it should have chosen the relevant occupational code for the highest-paying occupation. However, the Petitioner chose the occupational category for the lower paying occupation for the proffered position on the LCA.

While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and Immigration Services (USCIS), DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that petition. The regulations state, in pertinent part:

For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation

6 See http://www.onetonline.org/link/summary/l 5-1132.00 (last visited Nov. 7, 2018). Specifically, this occupational classification indicates that software developers "design, develop, and modify software systems," among other duties, which directly correspond to the Petitioner's claim that the Beneficiary will "design and develop software applications on different levels." 7 The annual prevailing wage for a Level II computer programmer in the Petitioner's Metropolitan Statistical Area (MSA) at the time the LCA was certified was $82,534. In contrast, the annual prevailing wage for a Level II software developer in the Petitioner's MSA at the same time was $90,646.

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named in the [LCA] is a specialty occupation or whether the individual is a fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the statutory requirements of H-1B visa classification.

20 C.F.R. § 655.705(b) (emphasis added).

The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports the H-1 B petition filed on behalf of the Beneficiary. Here, it does not appear that the Petitioner has submitted a certified LCA that corresponds to the claimed duties of the proffered position.

V. CONCLUSION

As the Petitioner was not previously accorded the opportunity to address the deficiencies in the record regarding the specialty occupation nature of the proffered position and whether the certified LCA supports the petition, we will remand the record for further review of these issues. The Director may request any additional evidence considered pertinent to the new determination.

ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.

Cite as Matter of E-T- LLC, ID# 1556905 (AAO Nov. 7, 2018)