U.S. Citizenship and Immigration Services

MATTER OF C-, LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 23, 2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an information technology consulting company, 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)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(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 of the California Service Center denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation.

The matter is now before u~ on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in her findings.

Upon de novo review, we will dismiss the appeal.'

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

(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.

1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

Matter o.fC-, LLC

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. 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

In support of the petition and in response to the Director's request for evidence (RFE), the Petitioner submitted the following description of the Beneficiary's duties:

• Writing robust, manageable code- 50% • Designing and building software architecture for project -10% • Building, managing, and communicating with a small team of junior developers -

10% • Mentoring less experienced colleagues with a small team of junior developers - 10% • Alpha testing and code review- 10% • Project management- 5% • Performing business requirement analysis and system designing using UML system -

5%

The Petitioner indicated that the proffered position requires "at a minimum, a Bachelor's Degree or equivalent to perform the job duties as described."

2

Matter of C-, LLC

III. ANALYSIS

We determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record does not (I) establish specialty occupation work for the entire requested period of employment; (2) describe the position's duties with sufficient detail; and (3) establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.2

The Petitioner did not establish the Beneficiary would have sufficient specialty occupation work available fot the entire requested period of employment. In the letter tiled in support of the petition, the Petitioner indicated that it offers "advanced software development and systems integration services." While the Petitioner stated that the Beneficiary would be employed in-house, the Petitioner provided little detail or evidence related to the work the Beneficiary would perform during the requested period of employment.

In response to the RFE and on appeal, the Petitioner stated that the Beneficiary would work for the three year period on a project to update the company's website. In support of this assertion, the Petitioner submitted supporting documentation; however, the dates and content of the documents contain inconsistencies that undermine the Petitioner's claims regarding the project.

Specifically, in response to the RFE, the Petitioner submitted documents created by an outside contractor to assess performance of its website. However, the document titled "Statement of Work & Proposal" is dated October 2016, after the date of filing the petition. Further, this document states that the contractor had only performed a "brief overview" of the Petitioner's website and that it was proposing a more comprehensive audit of the company's website. This document is submitted with a marketing plan (August 20 16) and invoice (September 20 16) from a consultant providing a general overview of the Petitioner's potential customers, competitors, and its website.

In denying the petition, the Director noted that the documents are dated after the date of filing. On appeal, for the first time, the Petitioner provides documents that predate the filing of the petition, including memorandums between the management sta±I regarding the website project, affidavits from the management, internal statement of work, and technical design specification. However, the Petitioner does not explain why these documents were not previously submitted in response to the RFE when the Director specifically requested additional evidence to establish its in-house project:'

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 The Petitioner must establish that the position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg' I Comm 'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1998).

3

.

Matter of C-, LLC

. Further, the content of the documents submitted on appeal is inconsistent with previously submitted evidence. For example, affidavits from the president and chief operating officer of the company state

"that in 2015, the Petitioner "involved a few web development consultants to review our cmTent website to give advice on implementation of new functionality and technology solutions." However, the Petitioner has provided no documentation to support this statement and this appears to conflict with other evidence on the record demonstrating that investigation of the project had just began to get underway in August 2016, months after the filing of the petition.

Furthermore, on appeal, the Petitioner now submits a statement of work and a technical specification document predating the petition, while in contrast, it previously had only provided documentation indicating that the project was being initially investigated after filing this petition. Moreover, the documentation does not reflect a comprehensive plan for the redevelopment of the Petitioner's website but appears to be instructions or marketing materials for utilizing a portal engine called For example, the document states "the Portal Engine allows you to create dynamic web pages without any programming" and' supports website development using ASP.NET MVC 5 .... [T]his means that you use to store data and manage content ... and generate the entire design of the site using your won MVC controllers and views." The Petitioner has not explained how relates to duties of the proffered position or its claimed project. The discrepancies in the submitted documentation undermine the Petitioner's claim that the Beneficiary would be tasked with completing, as of the date of the petition, a redevelopment of the company's website for three years. The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988).

In total, this conflicting evidence leaves question as to whether the Beneficiary would work on the asserted website update project and that sufficient specialty occupation work related to this project existed as of the date of the petition. Further, these documents to not clearly convey the duties to be performed by the Beneficiary or the knowledge he will apply in the performance of these duties. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012).

Therefore, we find that the Petitioner has not established non-speculative work for the Beneficiary at the time of the petition's filing for the entire period requested. U.S. Citizenship and Immigration Services (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. 248 (Reg'! Comm'r 1978).4

.

4 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-l B classification on the basis of speculative, or undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an

4

.

Matter ofC-, LLC

Furthermore, the duties provided for the Beneficiary are vague and do not convey the actual day-to-day tasks to be performed and the knowledge required to perform them. The Petitioner asserts that the Beneficiary will be assigned to a three-year internal project, located at its office location in Illinois, focused on redesigning the company's website. However, the Petitioner only provided vague duties for the proffered position such as "writing robust, manageable code," "designing and building software architecture for [the] project," and "Alpha testing and code review." The submitted duty description does not reference the specifics of the project or the tasks the Beneficiary will specifically complete over the asserted three year project, nor does it convey the knowledge required to perform these duties.

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), because it is the substantive nature ofthat 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.

Lastly, the Petitioner's claim that a bachelor's degree is a sufficient minimum requirement for entry into the proffered position is inadequate to establish that the proposed position 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 degree, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Corum 'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer

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 classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of 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) ofthe 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).

5

Matter ofC-, LLC

perceives to be a higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's degree 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.

The Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's degree, without further requiring that that degree be in any specific specialty. Without more, the Petitioner's statement alone indicates that the proffered position is not in fact a specialty occupation.

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.

IV. CONCLUSION

The Petitioner has not established that the proffered position is a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter ofC-, LLC, ID# 424863 (AAO Aug. 23, 2017)