U.S. Citizenship and Immigration Services

MATTER OF C-B-, LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JUNE 19,2017

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

The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "software developer in test" under the H-1B 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-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 Petitioner did not establish that the proffered position is a specialty occupation in accordance with the applicable statutory and regulatory provisions.

On appeal, the Petitioner submits additional evidence and asserts that there is sufficient specialty work available for the Beneficiary.

Upon de novo review, the appeal will be dismissed. 1

I. 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.

1 To the extent that the Director appears to have suggested that a software developer position "is traditionally considered" to be a specialty occupation, we withdraw that statement. The Director does not cite to any authoritative or objective source to support this statement.

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Matter ofC-B-, 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 parti~ular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

The Petitioner stated that the Beneficiary will serve as a "software developer in test" for its client , located at m

Maryland.

In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from the end-client. The end-client letter states that the Beneficiary "has been working on this

project as a Software Development Engineer in Test since 12114/2015. This is an ongoing project with a possibility of further extension."

In addition, the Petitioner submitted a copy of the end-client's Internet job posting that provides the following job duties for the position?

2 We observe that the wording of the duties provided by the end-client for the proffered position is taken almost verbatim from the Occupational Information Network (O*NET) OnLine Summary Report's list of tasks associated with the occupational category "Software Quality Assurance Engineers and Testers." For additional information, see O*NET OnLine, available at https://www.onetonline.org/linklsummary/15-1199.0 I (last visited June 16, 20 17).

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Matter ofC-B-, LLC

Summary: The main function of a Software Development Engineer in Test (SDET) is to develop and execute software test plans in order to identify software problems and their causes. Job Responsibilities: Execute test plans, scenarios, scripts or procedures; test system modifications to prepare for implementation; develop testing programs that address areas such as database impacts, software scenarios, or usability; document software defects, using a bug tracking system, and report defects to software developers; identify, analyze and document problems with program function, output, online screen or content; monitor bug resolution efforts and track successes; create or maintain databases of known test defects; plan test schedules or strategies in accordance with project scope or delivery dates. Qualifications: Bachelor's degree in a technical field such as computer science, computer engineering or related field; required 8+ years of experience; required development and programming experience; and experience with automated testing tools and technologies.

III. ANALYSIS

For the reasons set out below, we have determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.3 Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 4

As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient information regarding the proposed job duties to be performed at its location(s) in order to properly ascertain the minimum educational requirements necessary to perform those duties. In other words, as the employees in that case would provide services to the end-client and not to the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation determination. See id.

Here, we find that the end-client's job description is recited virtually verbatim from O*NET OnLine Summary Report's list of duties associated with a software quality assurance engineer and tester. The description of the Beneficiary's duties, as provided by the Petitioner and the end-client, lack the specificity and detail necessary to support the Petitioner's contention that the position is a specialty occupation. While a general description may be appropriate when defining the range of duties that are performed within an occupation, such a generic description generally cannot be relied upon by the Petitioner when discussing the duties attached to specific employment for H -1 B approval. In establishing such a position as a specialty occupation, especially one that may be classified as a staffing position or labor-for-hire, the description of the proffered position must include sufficient

3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 4 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.

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Matter ofC-B-, LLC

details to substantiate that the Petitioner has H-1B caliber work for the Beneficiary. Here, the job descriptions from the Petitioner and the end-client do not sufficiently communicate: ( 1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a specific specialty.

The Petitioner, thus, has no~ established the substantive nature of the work to be performed by the Beneficiary, which 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 the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and tht!S 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.

Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record would in fact be the duties to be performed by the Beneficiary, we will analyze them and 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).

i. First Criterion

We tum 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 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. 5

On the labor condition application (LCA)6 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Occupations, All Other," corresponding to the Standard Occupational Classification code 15-1199.

5 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/. 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. 6 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 8 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

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Matter ofC-B-, LLC

We note that there are occupational categories which are not covered in detail by the Handbook. 7 ·The Handbook suggests that for at least some of the occupations, little meaningful information could be developed. When the Handbook does not support the proposition that a proffered position is a specialty occupation, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, authoritative sources) that indicates whether the particular position in question qualifies as a specialty occupation. We will consider and weigh all of the evidence presented.

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

2. 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 narrows 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.

In determining whether there is such a common degree requirement, factors often considered by us 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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quotingHird/BlakerCorp. v. Sava. 712F. Supp.l095, 1102(S.D.N.Y.l989)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in

Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 7 We note that occupational categories for which the Handbook only includes summary data includes a range of occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, performers, and athletes; farm and home management advisors; audio-visual and multimedia collections specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; crossing guards; travel guides; agricultural inspectors, as well as others.

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Matter ofC-B-, LLC

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. 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." Nor is there any other evidence relevant to this prong. Thus, based upon a complete review of the record of proceeding, we find that 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.

In support of its assertion that the proffered position qualifies as a specialty occupation, the Petitioner described its business operations and the duties of the profiered position. The Petitioner asserted that because of "the complexities of the duties, [the Petitioner] expects that a qualified applicant for the position must possess at least a Bachelor's degree or equivalent in computer Science, Information Technology, or a related field." The Petitioner's stated expectations do not establish that the proffered position requires a bachelor's degree. While related courses may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of 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. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

3. 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 Petitioner's evidence shows that it already employs the Beneficiary. However, the Petitioner does not otherwise claim to have previously employed any other person in this position, nor does it submit evidence relating to this criterion. Therefor~ the Petitioner has not established that it has satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J) based on its normal hiring practices.

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Matter ofC-B-, LLC

4. Fourth Criterion

The fourth criterion at 8 CF.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 elevate the proffered position to a specialty occupation.

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 qualifies as a specialty occupation.

IV. EMPLOYER-EMPLOYEE RELATIONSHIP

Finally, we will briefly address the issue of whether or not the Petitioner will have a valid employer­employee relationship with the Beneficiary. Upon review, we find that the record of proceedings lacks sufficient documentation evidencing what exactly the Beneficiary would do for the period of time requested or where exactly and for whom the Beneficiary would be providing services.

Specifically, the Petitioner has not established the duration of the relationship between the parties. The Petitioner provided a Personal Services Agreement (PSA) between itself and Notably, the PSA is not signed by the end-client. The PSA states, in pertinent part, that " may engage Provider [the Petitioner] on one or more occasions to perform certain services, for and/or its Affiliates, in accordance with one or more written task orders or work orders .... " The Petitioner submitted a printout of a work order for the Beneficiary. The work order states that the Beneficiary's services will be needed from December 2015, to June 2016 (approximately four months prior to the Petitioner's requested start date for H-1B employment).

In response to the RFE, the Petitioner submitted a letter from the end-client. The letter states that the Beneficiary "has been working on this [ ] project as a Software Development Engineer in Test since 12/14/2015. This is an ongoing project with a possibility of further extension." However, the end-client's statement is not corroborated by documentation indicating that an ongoing project exists that will generate employment for the Beneficiary's services until August 2019.

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Matter ofC-B-, LLC

On appeal, the Petitioner submits another work order for the Beneficiary. However, the work order states that the Beneficiary's services will cover the period from June 2016, to December 2016 (approximately two months after the Petition~r's requested start date for H-lB employment).

Here, the Petitioner requested the Beneficiary be granted H-1B classification from October 2016, to August 2019. However, the record of proceedings does not establish that the project will continue through August 2019 - and it is the only project claimed by the Petitioner in this filing. Thus, without more, the record does not demonstrate that the Petitioner will have sufficient work and that jt will maintain an employer-employee relationship for the duration of the validity of the requested period.

A petition must be filed for non-speculative work forthe Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. Our 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. § I 03 .2(b )(1 ). 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. Therefore, the appeal is dismissed for this additional reason.

V. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought.

ORDER: The appeal is dismissed.

Cite as Matter o.fC-B-, LLC, ID# 379471 (AAO June 19, 2017)

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