U.S. Citizenship and Immigration Services

MATTER OF 1-. INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 20, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an education service provider, seeks to temporarily employ the Beneficiary as a "human resources manager" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section IOI(a)(IS)(H)(i)(b), 8 U.S.C. § IIOI(a)(IS)(H)(i)(b). The H-I B 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 demonstrated that the proffered position qualifies as a specialty occupation.

On appeal. the Petitioner provides new evidence and a brief, and asserts that the position qualities as a specialty occupation.

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.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­exhaustive list of lields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

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(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 alter~ative, 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 duti es [i s] so special ized 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 construe the tetm "degree" to mean not j ust any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed pos ition. See Royal Siam Corp. v. Cherto,{f; 484 F.3d 139, 147 (1 st Cir. 2007) (describing " a degree requirement in a specific specialty'·' as "one that relates directly to the duties and responsibil ities of a particular position").

II. PROFFERED POSITION

In the H-l B petition, the Petitioner explained that it was founded in 2004 in order to provide college planning and preparatory services "that prepares students for admiss ions to top-tier universities and further education for their career." It operates eight training locations, seven of which are in California, and one in C hina. The Petitioner claims to employ at least 28 ind ividuals in the United States in seven work locations, either full or part time on a fluctuating, seasonally adjusted basis. to include the Beneficiarv in her work location in CA. 1 The Petitioner submitted a labor condition application -(LCA)2 in support of the I-I-1 B peti tion, in which the Petitioner designated the proffered position under the occupational category " Human Resources Manager," corresponding to the Standard Occupational Classification (SOC) code 11-3 12 1.

The Petitioner s~ated that the Beneficiary will serve as a human resources manager, and initially provided a description of the duties of the position in its April 2017 letter. Subsequent ly, the Petitioner submitted an updated position description in its October 2017 response to the Director's request for evidence (RFE), which incorporated the language of the prior description of her duties,

1 The Petitioner employed the Beneficiary through post-completion optional pract ical tra ining. 8 C.F.R. § 274a.l2(c)(3 )(I)( B); 8 CFR 214.2(f)( I O)(ii)(A)(3 ). 2 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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 sim ilar experience and qualifications who are perform ing the same services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15).

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accompanied by the percentage of time that will be devoted to the various job tasks of the position on a weekly basis (bold in the original), as follows:

• Engaging with full time center staff and part time employees to help foster understanding of all lof the l'ctitioner'sl initiatives and processes. (S'Y.•) The company has been taking a lot of initiatives in developing its SOP such as class management procedures, program procedures, sales procedures, etc. The 1-IR manager needs to make sure that these initiatives are understood by hosting meetings and dratting memos, and that the processes are executed by incorporating them into KPI and performance review. This task requires skills such as communication and persuasion, and understanding of KPI and employee incentives.

• Partnering with business leaders to develop plans and strategies to drive and improve performance, in an effort to align HR practices to strategic goals and objectives. Advise on organizational policy matters and help standardize business procedures. (20%) As a member of the support team, the HR manager works with the management' regularly on strategic issues. It understands the company's short term and long-term objectives and establishes companywide policies and procedures accordingly. The clear defined policies and procedures help regularize employee behavior and improve efficiency. This task requires writing, knowledge of labor laws and regulations, understanding of business operations.

• Performing difficult staffing duties, including dealing with understaffing, change of employment status, firing employees, and administering disciplinary procedures. (5%) Need to analyze understaffing situations and make decisions regarding reallocating personnel for urgent needs. Conduct job analysis and see if the incumbent's employment status (Full time vs. Part time) is optimal for business needs. Make adjustment and communicate such adjustment as needed. Take disciplinary actions (reprimand, warning, suspension, tern1ination) to protect the interest of the company as well as its employees.

• Preparing employees for assignments by establishing and conducting orientation and training programs. (10%) Direct the training programs of both full time and part time employees. Develop training guidelines, assign trainers, and review training materials. Analyze the effectiveness of the training program by interviewing, surveying, testing, and observing. This requires understanding of training and education, communication and tools, individual di!Terences, learning and motivation;

• Assessing and identifying talent for succession planning and assists in establishing individual action plans for future development. Analyze training needs to design employee development programs. (IO'Yo) Need to regularly evaluate and assess the capability and potential of current employees. Identify crucial job skills, knowledge, social relationships and organizational practices and pass them on to prepare the next generation of workers, thereby ensuring the smooth movement of talent within the organization. Understand the principals of adult learning and use a combination of techniques, including men to ring, cross-training, job enlargement or enrichment, job shadowing and case studies, vestibule training, and classroom

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trammg. Establish standards and metrics for determining the effectiveness of succession planning programs. Find methods to gauge employee satisfaction with personal development, management satisfaction with employee performance and job readiness, the extent of goals achieved, and the time to full-function attainment.

• Oversee the classification and evaluation of occupations and job positions. Identify staffvaeancics and recruit, interview and select applicants. (20%) Take charge of the recruiting process which includes establishing recruitment objectives, developing recruitment strategies, carrying out recruitment activities, and measure and analyzing recruitment results.

• Design, analyze, and suggest competitive compensation structures and ensure that they arc in compliance with legal requirements. Administer compensation, benefits and performance management systems. Conduct research on legislation to assess industry trends. (IO'Y.,) Develop benefit and compensation objectives and determine its budget; conduct need assessment which may include an employer's perception of benefits needs, market research on competitor's benefits practices, and tax laws and regulations to determine the best benefits selection and compensation design; formulate · benefits plan design considering employee needs, program utilization, administrative costs, etc.; Create awareness and appreciation of the benefits and improve employee financial security; develop goals and measurements to assess effectiveness of the benefit and compensation and made adjustments as necessary.

• Maintain records and compile statistical reports concerning HR-related data such as hires, turnover, and performance evaluations. (S'Yo) [C]ollecting metrics that measure the cost of providing J-IR programs and processes: benchmarking analytics and measures against data from outside organizations; Measure the specific effects of 1-IR programs such as, learning from training, motivation from rewards or the validity of tests; link and align the business strategy with the human capital performance management system by identifying key performance indicators (KPls)­quantifiable performance measures based on the predetern1ined success factor of the business.

• Guide changes as needed. l'rovide counseling to leaders throughout phases of the change management life cycle. (3"/c•) Involve in change management which is the systemic approach and application of knowledge, tools and resources to deal with change in order to successfully implement new processes, products and business strategies while minimizing negative outcomes. For example, the company wanted to implement a new inforination management system - Salesforce. It is the J-IR manager's responsibility to provide initial employee communications about the new system, to developing training sessions for the use of the system, to assess readiness before the implementation, to analyze potenti~l impact, and to calculate the post­implementation return on investment.

• Work closely with international business partners to prepare expatriates for international assignments. Support the expatriate in the relocation process. (5%) Identify the need for international assignment, select potential expatriates,

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prepare expatriates for assignment. measure _performance of expatriates, facilitate in repatriation.

• Represent organization at HR-related investigations such as reference check requests. (I 'X.) Support the investigation process and provide information in a professional manner that's in compliance with legal regulations and protective of company interests.

• Conduct exit inten·iews to identify reasons for employee termination. {I 'Yo) • Maintain a positive employment environment across !the Petitioner's! learning

centers by implementing all HR programs/processes accurately and timely, ensuring consistency and fairness. (3%) Recognize the importance of fair and consistent employee relations. policies as it relates to management team, HR.strategy, and overall organizational culture; understand the connection between the organization and its overall HR strategy for developing and implementing employee and workplace policies; identify the forms of and apply strategies to prevent harassment, discrimination, and retaliation in the workplace; interpret and apply employment laws based upon workplace incidents.

• Plan and direct special events in areas such as companywide gathering and holiday show, employee recognition and appreciation, and company retreats. (2%) Understand the elements of employee engagement, know the principals of team building and morale.

According to the Petitioner, the proffered position requires at least a bachelor's degree in human resources or a related field.

Ill. ANALYSIS

Upon review of the record in its totality, and for the reasons set out below, the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary will perform, which precludes a finding that the proffered position satisfies any criteria ·at 8 C.F.R. § 214.2(h)( 4)(iii)(A) 3

A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the proffered position such that we may discern the nature of the position and whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. The determination regarding whether the proffered position qualifies as a specialty occupation is dependent, in large part, on whether the actual duties therein require the attainment of a bachelor's or higher degree in the speciflc'specialty. See Section 214(i)(I)(B) of the Act.

3 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.

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In this case, the position bears the title "human resources manager," and the Petitioner has maintained throughout the proceedings that the proffered position is managerial in nature. A review of the Occupational Information Network (O*NET) summary report for the "Human Resources Manager" occupation corresponding to the SOC code of I I -3121, generally supports the assertion that a human resources manager position is managerial in nature, as the core tasks for the "Human Resources Manager" occupation include "[pjlan, direct, or coordinate human resources activities and staff of an organization," and similarly, "[p]lan, direct, supervise, and coordinate work activities of subordinates and staff relating to employment, compensation, labor relations, and employee relations. ,.t

We acknowledge that these duties are largely consistent with the Petitioner's descriptions of the proffered position. The issue, however, is that the Petitioner has not adequately establ ished that the Beneficiary will actually perform the stated duties within the context of its organizational structure.

For instance, the Petitioner has not explained what the Beneficiary's management role.is in directing the activities of her claimed subordinates relative to other individuals who are employed in positions with job titles that carry executive or managerial titles. The Petitioner initially stated that the Beneficiary's j ob focus would be to provide "full cycle Human Resources support to [the Petitioner]." In contrast, it asserted in its RFE response that the "Beneficiary will be managing all the [Peti tioner's] 35 employees worldwide, which include about 28 employees in the [United States] ." It further explained that the Beneficiary reports to the principal/chief operating officer, who in turn reports to the president of the organization. The Petitioner listed duties such as "[p]artnering \·Vith business leaders" and "[p ]roviding counseling to leaders" but does not identitY who these " leaders" are , and where they arc located.' We note that the LCA refl ec ts that the Beneliciary will be employed solely at the Petitioner's location in California, which is the location of one of the Petitioner's learning centers but not its headquarters (located in California).

As evidence of it s organizational structure, the Petitioner provided three organizational charts. The first chart re tlectcd that individuals employed in the learning centers are subordinate to the Beneficiary, but it did not indicate the job titles of her subordinates, except for a listing of personnel employed as instructors. The second chart indicated that each learning center will prospectively employ at least three individuals in positions with managerial or executive ti tles, but did not clari fy the current management structures therein. The third organizational chart, which included staffing tor the ·entire organization, retlected an alternate management structure than presented in the first organizational chart. For example, the instructors (and tutors) in this chart do not report to the Beneficiary, but rather, report to a senior physics teacher who is shown to report to the principal/chief operating officer, along with the Beneficiary and at least nine other employees identified by name and position. Due to the conflicting material provided regarding the Petitioner's current hierarchal and operational structure, the Petitioner has not established the nature of the

4 See https://www.onetonlinc.org/link/summaryll l-3121 .00, ( last visited April 19, 20 18).

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Beneficiary's claimed managerial role within the organization. The Petitioner must resolve these inconsistencies with independent objective evidence pointing to where the truth lies. Mauer o/Ho, 19 l&N Dec. 582, 591-92 (BlA 1988).

Moreover, according to the Department of Labor's Occupational Outlook Handbook chapter on the "Human Resources Managers" occupation that the Petitioner submitted for the record, and which we recognize as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses, incumbents in this position:

[D]irect[] the administrative functions of human resource departments. Their work involves overseeing employee relations, securing regulatory compliance, and administering employee-related services such as payroll, training, and benetits. They supervise the depa~1ment's specialists and support staff and make sure that tasks are completed accurately and on time.

In this case, though the majority of the Beneficiary's claimed duties involve managerial functions, the Petitioner has not provided evidence to show that it employs support staff who will perform the non-managerial day-to-day tasks inherent in the provision of human resource services discussed in the petition, relating to such functions as compensation, training, hiring, separation, and employee benefits, among other things. The evidence in the record regarding the Petitioner's business undermines the assertion that it employs subordinate employees to relieve the Beneficiary trom performing these non-qualifying duties.

Rather, it appears from the record that the only individual performing any human resources-related functions is the Beneficiary. The record thus indicates that the Beneficiary will be performing these lower level human resources functions, rather than overseeing the work of others who are performing these tasks. See Muller of Church Scientology Jnt'l, 19 I&N Dec. 593, 604 (Comm'r 1988) (concluding that "[a]n employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity").

Considering this material and the other evidence that the Petitioner provided regarding its organizational structure and business activities,' we conclude that the Beneficiary's position will include non-qualifying duties inconsistent with those of a specialty-occupation caliber position. While no provision in the law for specialty occupations permits the perfonnance of non-qualifying duties, we will view the performance of duties that are incidental5 to the primary duties of the proffered position as acceptable when they are unpredictable, intermittent, and of a minor nature. Anything beyond such incidental duties, however, e.g., predictable, recurring, and substantive job responsibilities, must be specialty occupation duties or the proffered position as a

5 The two definitions of ·'incidental'' in Webster's NeH' College Dictionary are "I. Occurring or apt to occur as an unpredictable or minor concomitant ... [and] 2. Of a minor, casual, or subordinate nature .... " Incident of. Webster's New College Diclionwy (Jrd ed. 2008).

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whole cannot be approved as a specialty occupation. In this case, the lack of evidence regarding subordinate human resources support staff available to perform non-qualifying duties of the human resources function supports the conclusion that these non-qualifying duties are not incidental to the Beneficiary's performance of the other duties of the proffered position.

The Petitioner submitted an ''expert opinion letter" prepared by of opines that the pro ffered

posi tion qual ifies as a special ty occupation, stating that the "position does not merely execute functional or administrative routines of employee moni toring and management." However,

docs not indicate whether he was aware of the Petitioner' s organizational structure which, again, appears to lack subordinate human resources support stafl to perform lower level human resources duties and whom the Beneficiary would purportedly manage. opinion does not demonstrate a sufficiently sound factual basis tor his conclusions about the duties of the proffered position and its educational requi rements. Without more, we are not persuaded by

letter. Where an opinion is not in accord with other informatior.1 or is in any way questionable, we are not required to accept or may give less weight to that evidence. Ma!!er of' Caron In! '1, Inc., 19 l&N Dec. 791, 795 (Comm' r 1988).

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Therefo re, upon review of the totality of the record, we cannot ascertain the Beneficiary's actual day-to-day duties, and whether those dut ies comprise specialty occupation work. We conclude that the Petitioner has not establ ished the substantive nature of the work to be performed by the Beneficiary, which therefore precl udes a determination that the proffered position satisfi es any of the criterion at 8 C.F.R. § 21 4.2(h)(4)(iii)(A). It is the substantive nature of that work that detem1incs ( I) the normal minimum educational requirement for entry into the particular position, which is t l~e tocus of cri terion I; (2) industry positions which are parallel to the proffered position and thus appropriate tor

' 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 nom1ally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the speci tic duties, which is the focus of criterion 4.

IV. CONCLUSION

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 has not demonstrated that the proffered position qualifies tor classi ti cation as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Maller (~0-. Inc. , 10# 1244 I 05 (AAO Apr. 20, 20 18)