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  • U.S. Citizenship and Immigration Services

    MATTER OFT- INC.

    APPEAL OF VERMONT SERVICE CENTER DECISION

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: SEPT. 19, 2017

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

    The Petitioner, an information technology solutions provider, seeks to temporarily employ the Beneficiary as an "information technology consultant (software quality assurance analyst)" 1 under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 Vermont Service Center denied the petition, concluding that the Petitioner had not established that the proffered position is a specialty occupation. In its appeal, the Petitioner asserts that the Director erred in her findings.

    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.

    1 The Petitioner indicated on the H-1 B petition that the job title of the proffered position is "IT Consultant," but

    elsewhere identified it as "IT Consultant (Software QA Analyst)."

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    Matter ofT- 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 proffered 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 spec.ialized 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. Chertoff, 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 initially stated that the Beneficiary would be assigned to provide services to its "direct client" S-S-T- related to an ' project. The Petitioner indicated that the Beneficiary would work at its client's "IT Development Center," located in Texas. In response to the Director's request for evidence (RFE), the Petitioner stated that S-S-T- "is a software development company that develops software solutions for its clients." On appeal, the Petitioner submits documentation reflecting that S-S-T- develops the software for two of its clients, S-and H-G-S-, Inc.

    According to the Petitioner and S-S-T-, the duties of the proffered position are as follows: 2

    • Design test plans, scenarios, scripts, or procedures. • Test system modifications to prepare for implementation. • Develop testing programs that address areas such as database impacts, software

    scenarios, regression testing, negative testing or bug retests, or usability.

    2 The Petitioner provided another job description which listed essentially the same job duties as these listed here.

    2

  • Matter ofT- Inc.

    • Document software defects, using a bug tracking system, and report defects to software developers.

    • Identify, analyze, and document problems with program function, output, online screen, or content.

    • Monitor bug resolution efforts and track successes. • Plan test schedules or strategies in accordance with project scope or delivery

    dates. • Participate in product design reviews to provide input on functional requirements,

    product designs, schedules or potential problems. • Review software documentation to ensure technical accuracy, compliance, or

    completeness, or to mitigate risks. • Document test procedures to ensure replicability and compliance with standards. • Develop or specify standards, methods, or procedures to determine product

    quality or release readiness. • Update automated test scripts to ensure currency. • Investigate customer problems referred by technical support • Install, maintain, or use software testing programs • Provide feedback and recommendations to developers on software usability and

    functionality • Monitor program performance to ensure efficient and problem-free operations. • Conduct software compatibility tests with programs, hardware, operating systems,

    or network environments • Install and configure recreations of software production environments to allow

    testing of software performance • Collaborate with field staff or customers to evaluate or diagnose problems and

    recommend possible solutions • Identify program deviation from standards, and suggest modifications to ensure

    compliance • Design or develop automated testing tools. • Coordinate user or third-party testing. • Perform initial debugging procedures by reviewing configuration files, logs, or

    code pieces to determine breakdown source • Visit beta testing sites to evaluate software performance • Evaluate or recommend software for testing or bug tracking. • Conduct historical analyses of test results. • Other related duties as assigned.

    In a support letter provided with the petition, the Petitioner stated that the position required "at least a Bachelor's Degree or its foreign equivalent in a specialized field of study that is directly related to this position." In its RFE response letter, the Petitioner indicated that the position requires "a Bachelor's Degree in Computer Science, Computer Information Systems or a related Engineering discipline."

    3

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    Matter ofT- Inc.

    III. ANALYSIS

    We determine that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. Specifically, the record does not (1) describe the position's duties with sufficient detail, and (2) establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupatiorl.3

    As a preliminary matter and as recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient information regarding the proposed job duties to be performed at its location(s) in order to properly ascertain the minimum educational requirements necessary to perform those duties. In other words, as the nurses in that case would provide services to the end- client hospitals and not to the petitioning staffing company, the Petitioner-provided job duties and alleged requirements to perform those duties were irrelevant to a specialty occupation determination. See id.

    The Petitioner initially stated and provided evidence in support of the petition indicating that the only end-client is its "direct client" S-S-T-. However, on appeal , the· Petitioner submits evidence, including letters, from other end-clients for whom the software development work is ultimately being performed. Despite submitting this new evidence on appeal, the Petitioner does not explain in detail the nature of these relationships, nor does it provide contractual documentation to substantiate and clarify the nature of the Beneficiary's services for these other end-clients. For instance, although the Petitioner provides a purchase order relevant to one of the other apparent end-clients H-G-S-, Inc. , the Petitioner does not submit the underlying "Software Purchase Agreement" under which this purchase order was issued. It is also notable that the submitted purchase order expired in July 2017, and is not accompanied by copies of subsequently issued or renewed purchase orders. The Petitioner provides no contractual documentation specific to the other apparent end-client S-; it only submits invoices to, and payments from, that company dated more than a year before this petition's filing

    In addition, none of the apparent end-client letters or documents reference the Beneficiary, his duties, or the educational requirements of the proffered position. Due to the lack of explanation and evidence related to these other end-clients, the record does not include sufficient information regarding the proposed job duties f

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