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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090
U.S. Citizenship and Immigration Services
DATE: AUG 0 1 2013 OFFICE: CALIFORNIA SERVICE CENTER FILE:
INRE: Petitioner: Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
~~ Ron Rosenberg Acting Chief, Administrative Appeals Office
NON-PRECEDENT DECISION Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner submitted a Petition for Nonimmigrant Worker (Form I-129) to the California Service Center on April10, 2012. In the Form I-129 visa petition, the petitioner describes itself as a "[c]onsumer mobile app and website" business established in 2011. In order to employ the beneficiary in what it designates as a lead software engineer position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition on December 14, 2012, finding that the petitioner failed to submit a Labor Condition Application (LCA) that corresponds to the petition in accordance with the applicable regulatory provisions. On appeal, the petitioner asserts that the director's basis for denial of the petition was erroneous and contends that it satisfied all evidentiary requirements.
The record of proceeding before the AAO contains: (1) the petitioner's Form I-129 and supporting documentation; (2) the director's request for evidence (RFE); (3) the response to the RFE; (4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed the record in its entirety before issuing its decision.
For the reasons that will be discussed below, the AAO agrees with the director that the petitioner has not established eligibility for the benefit sought. Accordingly, the director's decision will not be disturbed. The appeal will be dismissed, and the petition will be denied.
Later in this decision, the AAO will also address an additional, independent ground not identified by the director's decision, that the AAO finds also precludes approval of this petition. Specifically, beyond the decision of the director, the AAO finds that the petitioner failed to establish that it would pay the beneficiary an adequate salary for his work if the petition were granted. For this additional reason, the petition may not be approved, and is considered an independent and alternative basis for denial. 1
In this matter, the petitioner stated in the Form I-129 that it seeks the beneficiary's services as a lead software engineer to work on a full-time basis at a rate of pay of $60,000 per year. In a support letter dated April 9, 2012, the petitioner stated the proffered position includes the following responsibilities:
• Managing and overseeing development of [the petitioner's] mobile and web products
1 The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
Page 3 NON-PRECEDENT DECISION
• Developing and maintaining supporting systems for mobile and web applications, using Amazon Web Services, Heroku, and MySQL
• Creating and maintaining a detailed product development timeline with milestones
• Contributing to [the petitioner's] product vision and identifying innovative ways to integrate technology into the product
• Contributing to UX design and usability of applications • Contributing to the sourcing and hiring of exceptional candidates to join [the
In its letter of support accompanying the initial I-129 petition, the petitioner indicated that the minimum education requirement for the proffered position is a bachelor's degree in computer science, engineering, or a related field, or its equivalent. The petitioner stated that the beneficiary is qualified to perform the duties of the proffered position by virtue of his U.S. Bachelor of Science in electrical engineering and computer science and Master of Engineering degree in electrical engineering and computer science. In support of this assertion, the petitioner rovided, inter alia, a copy of a transcript in the beneficiary's name from indicating that the beneficiary was awarded both degrees.
In support of the instant H-1B petition, the petitioner submitted an LCA designating the proffered position as corresponding to the occupational classification "Web Developers" - SOC (ONET/OES) code 15-1099.04 at a Level I (entry level) wage.
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and issued an RFE on August 15, 2012. The director outlined the evidence to be submitted. The AAO notes that the director notified the petitioner that the LCA did not appear to correspond to the proffered position, and requested that the petitioner either submit an LCA that was certified prior to the date of filing of the instant petition that corresponds to the duties of the proffered position, or probative evidence to establish that the LCA provided indeed corresponds to the proffered position.
On November 2, 2012, the petitioner and counsel responded to the director's RFE by providing letters and additional evidence. Counsel and the petitioner asserted in their respective letters that the LCA filed in support of the Form I-129 petition corresponds to the proffered lead software engineer position.
In a letter dated October 24, 2012, the petitioner provided the following revised description of the duties of the proffered position: '
• Managing and overseeing development of mobile and web products (20% of time)
o The Lead Software Engineer will be the highest-ranking software engineer/developer in the company, reporting to the CEO as indicated in the attached Organizational Chart. We currently employ three university-educated software engineers/developers working from abroad, and [the beneficiary] as Lead Software Engineer directly
Page 4 NON-PRECEDENT DECISION
supervises them and will continue to do so in this H-lB position. As [the petitioner] grows (we anticipate hiring ten additional software engineers/developers in the next two years), [the beneficiary's] role in this leadership position as Lead Software Engineer will continue to be critical to our company's success.
o As Lead Software Engineer, [the beneficiary's] technical responsibilities in overseeing product development will include:
• Carrying out code reviews to certify and maintain high code quality (focusing on scalability, maintainability, clarity, and application of best software practices).
• Making decisions on which software libraries and platforms to use, using knowledge and understanding of computer systems engineering.
• Using knowledge of API design principles to oversee and design RESTful APis that are backwards compatible.
• Creating and maintaining a detailed product development timeline with milestones (10% of time)
o The Lead Software Engineer is responsible for creating a detailed product development timeline over the next three years, which will include the following major milestones: Year 1:
Year 2: •
Developing [the petitioner's] mobile app for iOS . Integrating 3rd party social media platforms such as Facebook, Twitter, and Open Social with [the petitioner's] technologies and content platform. Planning conversations using Split (Bucket) Testing, Multi Variant Testing, and choice modeling. Adopting user QA testing processes like Hall Intercept Testing, Remote User Testing, and focus groups. Experimenting with social viral growth by encouraging Facebook sharing of particular pictures and movies. Expanding the software engineering team by 1-3 people .
Expanding [the petitioner's] market by developing a mobile version for Android. Designing and developing a tablet version of [the petitioner's application] for iOS. Creating a digital version photo books to encourag