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<ul><li><p>U.S. Citizenship and Immigration Services </p><p>MATTER OF D-S-, INC. </p><p>Non-Precedent Decision of the Administrative Appeals Office </p><p>DATE: APR. 19, 2017 </p><p>APPEAL OF CALIFORNIA SERVICE CENTER DECISION </p><p>PETITION: FORM l-129, PETITION FOR A NONIMMIGRANT WORKER </p><p>The Petitioner, a computer consulting services company, seeks to temporarily employ the Beneficiary as an "MS BI Developer" 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-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. </p><p>The Director of the California Service Center denied the petition, concluding that the record did not establish that the offered position qualifies as a specialty occupation or that the Petitioner has sufficient work for the requested period of intended employment. </p><p>On appeal, the Petitioner asserts that the Director erred and the petition should be approved. </p><p>Upon de novo review, we will dismiss the appeal. 1 </p><p>I. LEGAL FRAMEWORK </p><p>Section 214(i)(l) of the Act, 8 U .S.C. 1184(i)(l), defines the term "specialty occupation" as an occupation that requires: </p><p>(A) theoretical and practical application of a body of highly specialized knowledge, and </p><p>(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. </p><p>1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&amp;N Dec. 369, 375-76 </p><p>(AAO 2010). </p></li><li><p>~~~------</p><p>Matter of D-S-, Inc. </p><p>The regulation at 8 C.F.R. 214.2(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 proflered position must meet one of the following criteria to qualify as a specialty occupation: </p><p>(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; </p><p>(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; </p><p>(3) The employer normally requires a degree or its equivalent for the position; or </p><p>( 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. </p><p>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_f(, 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). </p><p>II. PROFFERED POSITION </p><p>The Petitioner indicated that the Beneficiary will serve in the position of Microsoft business intelligence (MS BI) developer with the following duties (note: errors in the original have not been changed): </p><p> Assist on-site site consultants working at various client locations in MS Business Intelligence application. </p><p> Build prototypes/proof of concept for different functionalities in MS BJ software to meet the business requirements gathered by our on-site consultants working at various client locations. </p><p> Provide technical assistance in the area of MS BI best practices to other on-site consultants of [the Petitioner] who will be working at various client locations. </p><p> Train new associates/interns of [the Petitioner] in building their MS BI consulting skills. </p><p> Assist associates of [the Petitioner] in preparing documentation and presentation slides to bid for implementation work with different companies in the U.S. Respond to any queries addressed by the prospective clients. </p><p>2 </p></li><li><p>Matter of D-S-, Inc. </p><p> Provide technical assistance related Reports, Interfaces, Conversions, Enhancements, Forms (RICEFs) in software consulting work performed by our on-site consultants working at various client locations. Assist on-site consultants in developing functional specifications for RICEF enhancements. </p><p> Test new releases of various Business Intelligence softwares in test systems and report the product defects to the on-site consultants. </p><p>According to the Petitioner, the position requires a "U.S. or foreign bachelor's degree (or, sometimes, the equivalent through education and experience) in computer science, engineering, management information systems, or a closely related field," in addition to "one or more years of relevant experience in various IT systems and applications." </p><p>III. ANALYSIS </p><p>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 Petitioner has not submitted sufficient, credible evidence to establish that the Beneficiary will be exclusively assigned in-house for the duration of the requested period of employment as claimed, or provided sufficient details about the work to be performed. </p><p>As evident from the job description above, the Petitioner described the duties of the proffered position in relatively general terms. While the Petitioner indicated that the Beneficiary will support "on-site consultants working at various client locations," it did not provide specific, detailed information regarding the actual projects the on-site consultants are working on and to which the Beneficiary will be assigned to provide support. The job description lacks sufficient detail to establish the substantive nature of the work within the context of any project(s) the Beneficiary will work on, and the associated applications of specialized knowledge that their actual performance would require. </p><p>For example, the Petitioner stated that the Beneficiary will "[a]ssist on-site site consultants working at various client locations in MS Business Intelligence application," but did not clarify what js meant by the broad term "assist" or what associated applications of specialized knowledge are required. While a generalized description may be appropriate when defining the range of duties that are performed within an occupation, such generic descriptions 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, the description of the proffered position must include sufficient details to substantiate that the Petitioner has H-1 B caliber work for the Beneficiary. Similarly, it is unclear what theoretical and practical application of a body of highly specialized knowledge is required to "assist associates ... in preparing documentation and presentation slides to bid for implementation work with different companies." Without a meaningful job description, the record lacks evidence sufficiently concrete and informative to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a specific specialty. </p><p>2 While we may not discuss every document submitted, we have reviewed and considered each one. </p><p>3 </p></li><li><p>.</p><p>Matter ofD-S-, Inc. </p><p>The tasks as described do not communicate the actual work that the Beneficiary would perform, the complexity, uniqueness or specialization of the tasks, or the correlation between that work and a need for a particular level education of highly specialized knowledge in a specific specialty. </p><p>In addition, the Petitioner repeatedly referenced that the Beneficiary \viii support on-site consultants working at "various client locations," but has not provided specific information about the projects, such as their duration or work required by these projects. Altho.ugh the Petitioner asserts that the provided list of invoices "demonstrates that [it] has had a consistent history of contracts and projects with customers," the Petitioner must still establish that it will have H-1 B caliber work for the Beneficiary for the duration of the requested employment. Without additional information regarding the projects to which the Beneficiary will provide support, we cannot determine \vhether the Petitioner has sufficient work for the Beneficiary for the duration of the requested H-1 B period. </p><p>Moreover, contrary to the Petitioner's assertions that the Beneficiary will be exclusively assigned to work in-house for the duration of the requested employment, the record contains a number of documents that undermine its claims. According to the Petitioner's letter of support, it "can assign or reassign an employee as needed to in-house or customer projects in various locations" and the Beneficiary "is expected to send bi-weekly status reports to the supervisor at [the Petitioner] via email or phone" and "will have a regular status call with his supervisor at [the Petitioner] via (online meeting software)." This information is confirmed in the Beneficiary's offer letter and the "Job Duties and Project Confirmation" letter. The Petitioner does not explain why the Beneficiary would need to contact his supervisor via email, phone or if he is working in-house. </p><p>Further, the organization chart indicates that the Beneficiary will be supervised by a sales manager. The Petitioner has not explained how a sales manager can meaningfully oversee the Beneficiary's substantive work as an MS BI developer. Moreover, while the organization chart lists names of employees and some job titles for lead positions, the chart does not identity job titles for other employees and their locations. For example, the Beneficiary's supervisor has 9 other direct reports, but the record does not indicate what their positions are and whether they are on-site or off-site. Other listed positions for the company include "SD/LE Systems Analyst," "SAP SD/LE Lead," "SAP HCM Lead," "CRM Consultant," and "Solutions Architect." Without further intonnation regarding other employees, \Ve are unable to determine if the Beneficiary's position as an MS BI developer can assist or support the work of onsite consultants. </p><p>Finally, we must also note that the evidence does not establish whether or not the Petitioner has sufficient work space to support the employment of the Beneficiary, as well as an unspecified number of other in-house employees. According to the provided intommtion for its current location. the Petitioner's 2,166 square foot suite consists of only four offices, a conference room, a kitchen, and a reception area. As discussed, because the organization chart does not include job titles or locations for all employees, it is not clear how many additional employees there may be in-house, such as administrative staff or executives, or how many individuals work at the Petitioner's premises. Without additional information, we cannot determine if there is sufficient work space to support the employment of the Beneficiary. </p><p>4 </p></li><li><p>Matter of D-S-, Inc. </p><p>For all of the reasons above, we conclude that the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary. This 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 of that 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 tor 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. </p><p>We must also address the stated minimum educational requirement for the proffered position of a bachelor's degree in "computer science, engineering, management intonnation systems, or a closely related field." In general, provided the specialties are closely related, e.g., chemistry and biochemistry, 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 a degree in two disparate fields, such as philosophy and engineering, 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 knO\vledge" is essentially an amalgamation ofthese different specialties. Section 214(i)(l)(B) ofthe Act (emphasis added). </p><p>In other words, 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)(l)(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. </p><p>The issue here is that the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics, e.g., nuclear engineering and aerospace engineering. Therefore, besides a degree in electrical engineering, it is not readily apparent that a general degree in engineering or one of its other sub-specialties, such as chemical engineering or nuclear engineering, is closely related to computer science or that all engineering specialties are directly related to the duties and responsib...</p></li></ul>

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