non-precedent decision of the and immigration - temporary worker in a specialty... risk assessment,
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U.S. Citizenship and Immigration Services
MATTER OF C-S- INC.
APPEAL OF VERMONT SERVICE CENTER DECISION
Non-Precedent Decision of the Administrative Appeals Office
DATE: JULY 27, 2018
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER
The Petitioner, an information technology business, 1 seeks to temporarily employ the Beneficiary as a "business analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section lOl(a)(lS)(H)(i)(b), 8 U.S.C. § 1 lOI(a)(lS)(H)(i)(b). The H-1 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not established the proffered position is a specialty occupation and had not estabJished it had sufficient specialty occupation work available for the requested employment period.2
On appeal, the Petitioner asserts that the Director did not properly consider the evidence submitted and erred in denying the petition. 3
Upon de novo review, we will dismiss the appeal.
I. LEGAL FRAMEWORK.
Section 214(i)(l) of the Act, 8 U .S.C. § ll 84(i)(l), defines the term "specialty occupation" as an occupation that requires:
1 An Internet search reveals that the Petitioner's corporate status is inactive in both New Jersey and Texas. The Petitioner must address this issue in any future proceedings. · 2 We note that the decision in this matter is incorrectly titled "RFE." However, the body of the document properly sets out the reasons for denial, giving the Petitioner opportunity to address these issues on motion or appeal. The Petitioner expressly requests that we not remand the petition to the Service Center. Accordingly, we have reviewed the entirety of the record and upon our de novo review enter this decision. . 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.
Maller ofC-S- Inc.
(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 non-exhaustive 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 construe 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. Chertojf, 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").
II. PROFFERED POSITION
The Petitioner provides staff augmentation and application development services. The Petitioner identified the proffered position on the Form 1-129, Petition for a Nonimmigrant Worker, as a "business analyst" position. On the labor condition application (LCA)4 submitted in support of the H-18 petition, the Petitioner designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification (SOC) code
4 A petitioner sub~its the LCA to the Department of Labor 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 similar duties, experience, and qualifications. Section 212(n)(I) of the Act; 20 C.F.R. § 655. 731 (a).
. Mauer o/C-S- Inc.
15-1131. 5 In a letter in support of the petition, the Petitioner labeled the position a "Business/Systems Analyst" and stated that the Beneficiary's duties for its client located in Texas include:
• Design and develop software based on Requirement gathering and analysis, IT Risk Assessment, program management, along with SAP, FICO, FICA, AND FSCM Modules[.]
• Identify, analyze, and document IT requirements, manage projects, and implement SAP FICO program function, output, online screen, or content.
• Perform testing and documentation including but not limited to code review, unit testing, GUI testing, and develop scripts accordingly.
The Petitioner stated that these job duties require "a bachelor's degree in related field and/or relevant work experience."
In response to the Director's request for evidence (RFE), the Petitioner provided a letter from its end client outlining the Beneficiary's duties as a business analyst on the Commercial Data Platform (CDP) project as follows:
• Perform demand planning, scope analysis, market analysis, IT/Business risk assessment for financial software procurement and implementation
• Perform functional analysis for implementation of SAP financial modules like G L/ AP/ AR/Procurement/Purchase order planning/T &M besides others
• Design IT project implementation plans based on methodologies
• Plan software implement[ation] for database application involving Tableau, SAP, Access, Excel, Sharepoint, HP ALM
• Maintain and report project implementation status to stake holders and partners • Manage change management and report time and cost overruns
The end client noted that these duties "typically require a person with a Bachelor's Degree in Engineering, MIS/MOT, or other related field in addition to relevant work experience."
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). The "Prevailing Wage Determination Policy Guidance" issued by the Department of Labor describes a Level I wage rate as generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (\) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC_Guidance_Revised_l l_2009.pdf. A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. Id
Matier of C-S- Inc.
In response to a second RFE, the Petitioner stated that the proffered position is a "functional specialist," not a "technical specialist." The Petitioner allocated the Beneficiary's time to the duties set out by the end client, and claimed that the "functional specialist" must possess a bachelor's degree in business administration.6
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record not does not sufficiently describe the position's duties and further does not include a consistent version of the Beneficiary's proposed role within the organization.
First the descriptions of duties are so broad that they appear to include several different technology occupations. The duties do not include sufficient detail to conclude that the position is a "Computer Programmer" which is the occupation designated on the LCA. Instead the duties include tasks that align more closely to a "Computer Systems Analyst" or a '"Software Developer, Applications"7
position. The Petitioner must provide evidence of the actual day-to-day duties so that we may analyze them to determine if the duties are the duties of a specific occupation and further whether the duties described require a bachelor's level degree in a specific discipline, or the equivalent to perform the duties. The Petitioner has not provided this evidence.
Second, as referenced above, the Petitioner designated the proffered position under the occupational category "Computer Programmers"