u.s. citizenship non-precedent decision of the and immigration 2017-09-15آ  u.s. citizenship and...

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  • U.S. Citizenship and Immigration Services



    Non-Precedent Decision of the Administrative Appeals Office

    DATE: AUG. 31,2017


    The Petitioner, a three-employee software developer and consulting company, seeks to temporarily employ the Beneficiary as a "programmer analyst" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(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 the.oretical 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 record did not establish that there is sufficient work available for the entire validity period requested; and as such, that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner submits additional evidence and asserts that it has demonstrated eligibility.

    Upon de novo review, we will dismiss the appeal.


    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 non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered 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;

  • .

    Matter of A-S-, Inc.

    (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.P.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. Cherto_ff, 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).


    In response to the Director's request for evidence, the Petitioner indicated that it would provide services to a number of different clients, listing the duties the Beneficiary may provide on each project as follows:

    a. Software Development for [B-, Inc. 7

    [B-, Inc.] contracted for the Software Development· with [the Petitioner]. The Beneficiary's job duties include: Coding & Unit testing, system testing, deployment in productions for a project developing a SaaS, Web Application to provide Appointment reminders via email, text (sms) and automated voice calls and design, develop and deploy the SaaS web application to a production server provided by Customer. '

    b. Consulting Services (or [H-D-, Inc. 7

    [H-D-, Inc.] contracted for the Consulting Services with [Petitioner] via two statements of work. The Beneficiary's job duties include: Coding & Unit testing, Deployment to sandbox/production, HHS development for approved enhancements, Testing support while UAT in progress, Fix issues reported from testing, Change to unit Workflow and work order, and Support Integration and Data Migration.


  • .

    Matter of A-S-, Inc.

    c. Dedicated Resource Assignment (or [N-7

    [N-] contracted for the Dedicated Resource Assignment with [the Petitioner]. The Beneficiary's job duties include: Customer Support, Requirement Discussion, Coding & Unit testing, Systems testing, Deployment to sandbox/production, and Production support.

    d. Tasks & Feature Enhancements (or [V-, Inc.!

    [V-, Inc.] contracted for the Tasks & Features Enhancements with [the Petitioner]. The Beneficiary's job duties include: Understanding the requirements, Coding & Unit testing, Testing and Deployment, and Production Support.

    e. Implementation (or [F-C-&F-C-, Inc.!

    [F-C-&F-C-, Inc.] contracted for the Implementation with [the Petitioner]. Phase 1 includes: SF Setup Users, Configuration, Integration of Emails with

    Activities, Test Data Import for Custom Objects, Integration of FCF website and Social Media with and Telephony Integration, Testing & QA, UAT Sign-off, Production Deployment and User Training. Phase 2 includes: SYSPRO Integration with SFDC Platform, Click2Dial Integration with VoiP Platform, UAT Sign-off, Production Deployment, and User Training .

    .f Implementation (or [S-F-L-, LLCZ

    [S-F-L-, LLC] contracted for the Implementation with [the Petitioner]. Phase 1 includes: SF Setup of Users, Configuration, Integration of Platform with A200, Test S- Customer Data into SF Platform, Implementation of

    3.x Custom Objects, Testing & QA, UAT Sign-off, Production Deployment and User Training. Phase 2 includes: S- Mobile Device Integration with SF Platform, S- DocuSign Implementation, UA T Sign-oft~ Production Deployment, and User Training.

    g. Software Development (or [G-7

    [G-] contracted for the Software Development and Support Services with [the Petitioner]. The Beneficiary's job duties: Coding & Unit testing, Data Loading, Design discussion and changes, Deployment to sandbox/production, Development Tasks (POS Development on top of and

    Configuration, 1 Mobile, Scribe integration support, Quotation process support, Pardot integration support, Telephony integration, Dispatch Module, and Ongoing support).


  • .

    Matter of A-S-, Inc.

    Further, the Petitioner described the Beneficiary's duties as a programmer analyst as follows:

    • Coding & Unit testing; • Data Loading; • Design discussion and changes; • Deployment to sandbox/production; • Development Tasks from scope including:

    0 POS Development on top of and 0 Configuration, 0 1 Mobile, 0 Scribe integration support, 0 Quotation process support, 0 Pardot integration support, 0 Telephony integration, 0 Dispatch Module, and 0 Ongoing support

    • Participate in scope discussions; and • Review incremental deliverables .

    The Petitioner stated that "a qualified applicant must possess a minimum [of] a bachelor's degree or equivalent in computers, engineering, or a related degree."


    Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1

    Specifically, the record (1) does not describe the position's duties with sufficient detail; (2) does not demonstrate that non-speculative work has been secured; and (3) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty

    . 2 occupatiOn.

    As a preliminary matter, the duties provided for the Beneficiary are vague and do not convey the actual day-to-day tasks to be performed and the knowledge required to perform them. First, the Petitioner does not indicate, at minimum, the initial project(s) and client(s) to which the Beneficiary would be assigned, but instead submitted documentation "as an example of the projects that the Beneficiary would work on" and the type of work he may perform. Further, the provided duties are general and

    1 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. 2 We withdraw the Director's comments that "the position of Programmer Analyst is traditionally considered a specialty occupation." The Director has not provided any persuasive reasoning nor cited to any authoritative sources to support such a conclusion.


  • .

    Matter of A-S-, Inc.

    only reference technology and technical aspects of these projects without explaining the demands, level of responsibility, complexity, or requirements necessary for their performance. For instance, the duties make reference to numerous types of technology and processes without explanation, such as "deployment to sandbox/production," "POS Development on top of and

    "Scribe Integration Support," "Pardot Integration Support," "Telephony integration," amongst many others. Beyon


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