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  • U.S. Citizenship and Immigration Services

    MATTER OF D-S-, INC.

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: APR. 19, 2017

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

    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.

    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.

    On appeal, the Petitioner asserts that the Director erred and the petition should be approved.

    Upon de novo review, we will dismiss the appeal. 1

    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 of Chawathe, 25 I&N Dec. 369, 375-76

    (AAO 2010).

  • ~~~------

    Matter of D-S-, Inc.

    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:

    (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). 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).

    II. PROFFERED POSITION

    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):

    Assist on-site site consultants working at various client locations in MS Business Intelligence application.

    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.

    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.

    Train new associates/interns of [the Petitioner] in building their MS BI consulting skills.

    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.

    2

  • Matter of D-S-, Inc.

    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.

    Test new releases of various Business Intelligence softwares in test systems and report the product defects to the on-site consultants.

    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."

    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 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.

    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.

    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.

    2 While we may not discuss every document submitted, we have reviewed and considered each one.

    3

  • .

    Matter ofD-S-, Inc.

    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.

    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.

    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 supe