MATTER OF M-P- LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 19, 2017

APPEAL OF CALIFORNIA s'ERVICE CENTER DECISION

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

The Petitioner, a mobile device application development, company with 33 employees, seeks to temporarily employ the Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. ·

The Director, California Service Center, denied the petition. The Director concluded the Petitioner did not establish that the proffered position qualifies as a specialty occupation.

The matter is now before. us on appeal. 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. 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:

Matter of M-P- LLC

(I) 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

In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "Programmer Analyst." In response to the Director's request for evidence (RFE), the Petitioner provided the following job duties for the position:

The listed actual day-to-day duties are an approximation of percentages and are based on an 8 hour work day ( 40 hours per week)

Analysis 10%

Prepare jlmv charts and diagrams outlining systems capabilities and processes I 0%

Design & consistent layout (Gross Design and ]vfodifications) I 0% . '

Technical Architecture Design 20%

Write Code and Develop Programs 40%

Code Management using various source controls 5%

Unit and System Test 5%

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TotallOO%

The proposed job duties and responsibilities as a Programmer Analyst are including, but not limited to: Analyzing requirements; develop continual updated for mobile applications based on data of with iPhone SDK, Objective C, C++, COCOA, SQL Server, HTML5, and CSS.

[The Beneficiary] will deploy the app on all platforms like iPad, iPhone, iPod and Apple Watch. He'll maintain and update existing code per new OS releases from Apple platform. Perform analysis to support platforms; such as MOW. Maintain the functional specification requirements and technical architecture document of the project. Perform full range of application analysis, design, and programming functions. He'll be involved with all stages of software development lifecycle. He will assist with the development and implementation of iPhone/iPad App; iPhone 3GS, 4.0, 4S, 5.0, 5S iPad 1.0 and 2.0, 3.0 and Apple watch SDK.

He will also be responsible for implementing programming components, develop custom coding for different mobile devices. He will also develop databases and data access methods along with web services implementation on mobile devices, create and implement test plans, and configure the complete application.

The beneficiary has deep theoretical and practical application of a body of highly specialized knowledge that was acquired in his undergraduate and graduate degrees. He has extensive hands on expertise in requirement analysis, Technical Architecture Design, development, implementation, and testing and deployment of mobile applications among other applicable skills. The language and technologies he uses are extensive such as: knowledge of Object Oriented Programming such as Objective C that is baseline coding language to develop IOS applications, C++, using integrated development environments like XCode, SQL, designs UI screens and implement application logic with Objective C, Interface builder, Visual Studio, and performs full range of application analysis, design, and programming functions.

The Petitioner indicated that the Beneficiary would be "working on the in-house project and that he would be performing the duties of the position at its office in CA. In the Labor Condition Application (LCA), the Petitioner also listed two other potential work sites for the Beneficiary, including its office locations in CA and NY. The Petitioner submitted an itinerary in support of the petition which listed the California as the "principal location," and the other two mentioned locations as "possible additional locations."

In a support letter provided on appeal, the Petitioner notes that the timeline of the' project would no longer work due to the denial of the H-IB petition for the Beneficiary and that he would be assigned to one or more other projects working out of its California office. The Petitioner provides a list of five projects to which the Beneficiary could be assigned under the

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(b)(6)

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requested validity period, including supporting agreements and statements of work related to these client engagements.

According to the Petitioner, the position requires a bachelor's degree in "a specialty directly related to this position, or experience equivalent to a U.S. bachelor's degree."

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

As a preliminary matter, the Petitioner has not 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). As noted, the Petitioner first indicated that the Beneficiary would be assigned to the '' project, but indicates on appeal that this expectation has been modified due to the denial of the current petition. The Petitioner states that the Beneficiary could be assigned to one or more of five different projects. Further, the Petitioner indicates that the Beneficiary will principally work at its location in California, but that it could also work at locations in California, or New York.2 The Petitioner also stated in a support letter provided with the petition that "if we are unable to continue to employ the Beneficiary as a Programmer Analyst, we will terminate his employment and notify your office immediately," leaving question as to whether Beneficiary's position is defined for the entire requested validity period. The Petitioner submits an organizational chart that does not include the Beneficiary, leaving his place within the organization and his proposed role unclear. Furthermore, the Petitioner does not submit

1 The Petitioner submitted documentation in support of 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. 2 Additionally, we note that the regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) provides as follows:

Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Fonn 1-1'29 shall be where the petitioner is located for purposes of this paragraph.

As noted above, the Petitioner indicated on the Form 1-129 that the Beneficiary could be working at three separate locations. The petition must list the locations where the Beneficiary would be employed and be accompanied by an itinerary with the dates the Beneficiary will provide services at each location. Both conditions were not satisfied in this proceeding. A petitioner must establish eligibility at the time of filing a nonimmigrant visa petition. 8 C.F.R. § l03.2(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 (Reg'l Comm'r 1978).

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documentation from the end clients specifying the day-to-day work to be performed by the Beneficiary on his proposed projects.

In sum, this lack of clarity as to the Beneficiary's proffered position leaves question as to whether the Beneficiary's proffered position has been definitively established as of the date of the petition. Accordingly, as the evidence of record does not satisfy any of the criteria at 8 C.P.R. § 214~2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a specialty occupation. We will nevertheless perform a complete specialty occupation analysis under each of the four alternative criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A).

A. First Criterion

We will first review the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), \vhich 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?

On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Systems Analysts" corresponding to the Standard Occupational Classification code 15-1121.4 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," http://wvvw.bls.gov/ooh/computer-and-information­technology/computer-systems-analysts.htm#tab-4 (last visited Jan. 13, 20 17). The Handbook also

3 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 p~offered position, and USC IS 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. 4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 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 an~ 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. !d.

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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." Id

Upon review of the educational requirements tor a computer systems analyst as reported in the Handbook, the Handbook indicates at most that a bachelor's or higher degree in a computer or information science field may be a common preference, but not a standard occupational entry requirement. In fact, this chapter notes that many computer systems analysts only have liberal arts degrees and programming or technical experience. See id Thus, the Handbook's report is insufficient to conclude that the computer systems analyst occupational classification qualifies as a specialty occupation.

When the Handbook does not support the proposition that a proffered position is one that meets the statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to provide persuasive evidence that the proffered position more likely than not satisfies this or one of the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, authoritative sources) that supports a finding that the particular position in question qualifies as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will consider and weigh all of the evidence presented to determine whether the particular position qualifies as a specialty occupation.

Further, we note that the Petitioner states directly that the position requires a degree "in a specialty directly related to this position," but does not specifically articulate a bachelor;s degree in a specific specialty required for the position. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a degree, without further specification, does not establish the position as a specialty occupation. C.f }vfatter of Michael Hertz Assocs., 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, the Petitioner's acceptance of a 4-year degree as sufficient to perform the duties of the proffered position undermines its assertion that the proffered position is a specialty occupation.

Otherwise, the. Petitioner submits no documentation from probative sources to substantiate that a bachelor's degree in a specific specialty is a minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.P.R.§ 2l4.2(h)(4)(iii)(A)(l).

B. Second Criterion

The second criterion presents two aitemative 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

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Matter of M-P- LLC

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 Shanli, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

I

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 industry professional associations indicating that they have 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. Nor is there any other evidence relevant to this prong. Thus, based upon a complete review of the record of proceedings, we find that the Petitioner has not satisfied 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.

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 complex and unique duties. 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.

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Matter of M-P- LLC

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 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. Indeed, the Handbook states that a master's degree in computer science "may be appropriate" for "more technically complex jobs." However, the Petitioner has not articulated this level of education as a minimum requirement for the position, leaving question as to whether its duties are complex or unique.

I 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 proceedings 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. 5 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) requires an employer to demonstrate that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

To satisfy this criterion, the record must establish that the specific performance requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory declaration of a particular educational requirement will not mask the fact that the position is not a specialty occupation. users must examine the actual employment requirements and, on the basis of that examination, determine whether the position qualifies as a specialty occupation. See generally Defensor, supra, 201 F .3d 384. In this pursuit, the critical element is not the title of the position, or the fact that an employer has routinely insisted on certain educational standards, but whether performance of the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)( I) of the Act. According to the Court in Defensor, "To interpret the regulations any other

5 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation 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 of section 2 14(i)( I) of the Act.

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way would lead to an absurd result." Id. at 388. If USCIS were constrained to recognize a specialty occupation merely because the petitioner has an established practice of demanding certain educational requirements for the proffered position - and without consideration of how· a beneficiary is to be specifically employed- then any beneficiary with a bachelor's degree in a specific specialty could be brought into the United States to perform non-specialty occupations, so long as the employer required all such employees to have baccalaureate or higher degrees. See id.

The Petitioner states that it was established in 2009 and currently employs 33 individuals. The Petitioner submitted an organizational chart indicating that it employs eleven other programmer analysts. However, it does not articulate the minimum educational or experience requirements for these positions, nor did it provide documentary evidence, such as job postings or the resumes of these other programmer analysts to substantiate that it requires a bachelor's degree in a specific specialty, or its equivalent, for these positions. Indeed, as discussed earlier, the Petitioner does not state a specific bachelor's degree requirement for the position, only vaguely noting that it requires "in a specialty directly related to this position." Thus, it is not possible to determine with the evidence provided whether the Petitioner normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. As such, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3).

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 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).

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IV. CONCLUSION

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 qualifies as a specialty occupation. The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of M-P- LLC, ID# 198379 (AAO Jan. 19, 2017)

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