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).

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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

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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

III. ANALYSIS

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" corresponding to the SOC code 15-1131. Neither the Petitioner's initial description of duties nor the end client's description of duties includes sufficient detail to conclude that the duties are the duties of a "Computer Programmer." The end client's general description and the Petitioner's reiteration of that description on appeal include duties that correspond with the Occupational Information Network's (O*NET) Summary Report for "Computer Systems Analysts," SOC code 15-1121.8 These descriptions concentrate the Beneficiary's work on analysis, not programming.

The record also includes the opinion of who states that the job duties of the Petitioner's business analyst position show that the business analyst is involved in developing technical solutions to business proble'ms which begins with defining, analyzing, and documenting requirements. Thus,

6 The Petitioner noted that these duties require knowledge of the use of industry specific calculation models, mapping business processes, business process modeling, project planning methodologies, and project planning and mapping methodologies, and costing models. The Petitioner asserted that this knowledge is obtained through a business administration curriculum. 7 The Petitioner's initial description refers to developing software. The record does not include sufficient detail regarding the actual tasks involved in this duty so that we may exclude those duties that appear on the surface to be those of a <;Software Developer, Applications" occupational category. We do not have sufficient infonnation regarding the proffered position to determine the actual proposed occupation in this matter.

O*NET Summary Report for "Computer Systems Analysts," available at https://www.onetonline.org/link/summary/15-1121.00 (last visited Jul. 27, 2018). See also Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, "Computer Systems Analysts," https://www.bls.gov/ooh/computer-and-infonnation-technology/computer­systems-analysts.htm#tab-2 (last visited Jul. 27, 2018).

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opm1on also reflects that the proffered pos1t1on corresponds most closely to a "Computer Systems Analyst" occupation. Upon review of the totality of the record, the duties described are not the duties of a wage Level I "Computer Programmer."

A crucial aspect of this matter is whether the Petitioner has sufficiently and consistently 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 a highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Here the Petitioner has provided a vague description that incorporates the duties of different technology occupations and does not include the duties of a computer programmer.

As the record does not include sufficient, consistent detail regarding the nature of the position, the record is insufficient to establish the substantive nature of the work to be performed by the Beneficiary, which therefore precludes a conclusion 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 I; (2) industry positions which are parallel to the proffered position and thus appropriate for 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 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. The Petitioner has not established the proffered position is a specialty occupation.

With respect to the LCA, the Department of Labor provides clear guidance for selecting the most relevant O*NET occupational code classification.9 The "Prevailing Wage Determination Policy Guidance" states the following:

In determining the nature of the job offer, the first order is to review the requirements of the employer's job offer and determine the appropriate occupational classification. The O*NET description that corresponds to the employer's job offer shall be used to identify the appropriate occupational classification . . . . If the employer' s job opportunity has worker requirements described in a combination of O*NET occupations, the NPWHC should default directly to the relevant O*NET-SOC occupational code for the highest paying occupation. For example, if the employer's job offer is for an engineer-pilot, the NPWHC shall use the ed_ucation, skill and experience levels for the higher paying occupation when making the wage level determination.

9 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), · available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf

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Matter of C-S- Inc.

In this matter, the Petitioner designated the proffered position on the LCA as a "Computer Programmer" occupation. The relevant prevailing wage for a Level I, "Computer Programmer" position for the pertinent time period and location is $52,478 annually. This wage is significantly lower than the relevant annual prevailing wage for a Level I "Computer Systems Analyst" position which is $63,274 in the same location and for the same time period. 10 Such a wage disparity highlights the differences between a "Computer Programmer" occupation and a "Computer Systems Analyst" occupation generally, and more specific to this case, the significance of the Petitioner's choice of the lowest paying occupational category.

That is, the Petitioner has vaguely described the duties of a "Computer Systems Analyst" at best, but has designated the proffered position as the lower paying occupation of a "Computer Programmer" on the LCA. The regulation at 20 C.F.R. § 6SS.70S(b) requires that U.S. Citizenship and Immigration Services ensure that an LCA actually supports the H-1 B petition filed on behalf of the Beneficiary. Here, the occupational classification designated on the LCA does not correspond to the duties listed in the petition. In other words, even if it were determined that the proffered position requires at least a bachelor's degree in a specific specialty, or its equivalent, such that it would qualify as a specialty occupation, the petition could still not be approved because the record lacks an LCA that is certified for the proper job classification.

IV. CONCLUSION

The Petitioner has not established the proffered position is a specialty occupation and has not submitted a certified LCA that corresponds to the proffered position.

ORDER: The appeal is dismissed.

Cite as Matter ofC-S- Inc., ID# 1274870 (AAO July 27, 2018)

10 The Level I wage for a Software Developer, Applications, for the pertinent time period in the same location is $69,472, an even higher wage than a Computer Systems Analyst wage.

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