U.S. Citizenship and In1n1igration Services

MATTER OF A-F-, INC.

APPEAL OF VERMONT SER VICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 12, 2019

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

The Petitioner, a restaurant and ethnic grocery store, seeks to temporarily employ the Beneficiary as an "accountant" under the H-lB nonimmigrant classification for specialty occupations. Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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 did not sufficiently establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner submits additional evidence and contends that the petition should be approved.

Upon de nova review, we will dismiss the appeal. 1

I. SPECIAL TY OCCUPATION

A 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

1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).

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(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:

(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 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. § 2 l 4.2(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. Chertoff, 484 F.3d 139, 147 (Pt 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).

B. Analysis

For the reasons set out below, we have determined that the proffered position does not qualify as a specialty occupation. Specifically, the record does not: (1) establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation; and (2) describe the proffered position in sufficient detail. In particular, we find that two separate factors independently bar approval of this petition: ( 1) the Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, or the equivalent; (2) the Petitioner's failure to establish the substantive nature of the position, which precludes a determination that the proffered position qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J)-(4). 2

2 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position and its business operations. Although we may not discuss every document submitted, we have reviewed and considered each one.

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1. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent

The Petitioner's claim that a bachelor's degree in business administration is a sufficient minimum requirement for entry into the proffered position is inadequate to establish that the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely to the position in question. Since there must be a close correlation between the required specialized studies and the position, the requirement of a degree with a generalized title, such as business administration, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988).

To prove that a job requires the theoretical and practical application of a body of highly specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher degree in a specialized field of study or its equivalent. As discussed supra, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed position. Although a general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. 3 See also Irish Help at Home LLC v. Melville, 13-cv-00943-MEJ, 2015 WL 848977 (N.D. Cal. Feb. 24, 2015), ajf'd, 679 F. App'x 634 (9th Cir. 2017).

Again, the Petitioner in this matter claims that the duties of the proffered position can be performed by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business administration. Without more, this assertion alone indicates that the proffered position is not in fact a specialty occupation.

2. Lack of Documentation Establishing the Substantive Nature of the Position

As a preliminary matter, we find that the lack of evidence in the record regarding the Petitioner's day-to-day operations undermines its assertion that the Beneficiary will be working as an accountant, the proffered position. The Petitioner indicated on the Form 1-129 that it employs eight individuals.

3 Specifically, the judge explained in Royal Siam, 484 F .3d at 147, that:

The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, such as a business administration degree, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify the granting of a petition for an H-lB specialty occupation visa. See, e.g., Tapis Int'lv. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf Matter of Michael Hertz As socs., 19 I & &N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in connection with a conceptually similar provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree requirement.

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While the size of a petitioner's business is normally not a factor in determining the nature of a proffered position, both level of income and organizational structure are appropriately reviewed when a petitioner seeks to employ an H-IB worker. It is reasonable to assume that the size of an employer's business has an impact on the duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican Wholesale Grocery v Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). In matters where a petitioner's business is relatively small, we review the record for evidence that its operations, are, nevertheless, of sufficient complexity to indicate that it would employ a beneficiary in a position requiring a level of knowledge that may be obtained only through a baccalaureate degree in a specific field of study.

Despite the Director's request, the Petitioner did not submit an organizational chart demonstrating its hierarchical set-up or the positions of the other employees within its operations. Nor has the Petitioner provided information regarding the duties and responsibilities of the other employees such that we may ascertain how the Beneficiary would be relieved from performing non-qualifying duties. For example, the record does not indicate if the Petitioner employs any clerks, bookkeepers, or individuals in other non-qualifying positions to conduct its business operations. We are thus left with significant questions as to whether the Beneficiary will principally act as an accountant as asserted. The Petitioner has thus not established what work it will actually need the Beneficiary to perform, to establish the existence of specialty occupation work for the Beneficiary for the term of H-IB employment.

Even if we set the issue of speculative employment aside, we would still be unable to ascertain the substantive nature of the proffered position. As we noted above, the Petitioner, self-described as a "restaurant and ethnic grocery store," stated in its initial support letter that the Beneficiary will work in-house as an accountant. However, in response to the Director's Request for Evidence (RFE), where the Director requested additional information to establish that the Beneficiary will be employed with the duties as had been initially set forth by the Petitioner, the Petitioner reframed its offer of employment. Specifically, the Petitioner stated that the Beneficiary will also perform accounting duties for its sister companies, including "two other (new) business concerns which are off-shoots of the growth of our operations." The Petitioner went on to state that when fully operational, all four entities, described as the Petitioner's "restaurant and retail food outlet "+ our

NJ-based restaurant and retail food outlet + the new , NY restaurant and retail food outlet, and the upcoming NJ short-order restaurant" altogether will employ 30 full-time employees. The Petitioner's expansion of the Beneficiary's duties in response to the RFE was not merely an effort to explain the duties in greater detail but rather an attempt to materially alter its original offer, which is not permitted. 4 Further, the Petitioner did not submit

4 The purpose of the RFE is to elicit further information that clarifies whether eli gibili ty for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner cannot offer a new position to the Beneficiary, or materially change a position 's title, its level of authority within the organizational hierarchy, its associated job responsibilities, or the requirements of the position. The Petitioner must establish that the position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978).

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sufficient evidence to establish this newly-described position, including the existence of the "sister companies" that it referenced, the functions and capacities of each company, the individuals in the companies along with their job titles and duties, the specific duties the Beneficiary would have to perform for these companies, and that said duties will continue while the Petitioner employs the Beneficiary. 5 The lack of documentation in the record detracts from the overall reliability of the petition.

Further, we find that the duties themselves are vague. For example, while the Petitioner's job description contains numerous action verbs such as "analyze," "develop," "study," and "assist," the record is not sufficiently developed so as to allow us to understand what the Beneficiary would actually do as he carries out these undefined tasks.

We also question the Beneficiary's proposed tasks to "study feasibility of entry into and viability of business ventures" and "develop strategic planning techniques." The Petitioner did not provide any examples of the types of business ventures the Beneficiary would be studying, what strategic planning techniques he would be developing, or explain how these tasks relate to accounting. Finally, the claimed duty to "assist external accountant in the review of financial records" contains no substantive detail, and it is unclear what the Beneficiary will actually be doing as he carries out this task.

The duties and responsibilities of the proffered position provided by the Petitioner are insufficient to demonstrate that the proposed job encompasses a higher degree of knowledge and skill than would normally be required of employees-including those bearing the title "accountant"-who engage in some accounting duties and employ some accounting principles, but not at a level of an accountant

5 The agency made clear long ago that speculative employment is not permitted in the H-lB program. For example, a 1998 proposed rule documented this position as follows:

Historically, the Service has not granted H-lB classification on the basis of speculative, or undetermined, prospective employment. The H-lB classification is not intended as a vehicle for an alien to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential business expansions or the expectation of potential new customers or contracts. To determine whether an alien is properly classifiable as an H-lB nonimmigrant under the statute, the Service must first examine the duties of the position to be occupied to ascertain whether the duties of the position require the attainment of a specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of this two-prong analysis and, therefore, is unable to adjudicate properly a request for H-lB classification. Moreover, there is no assurance that the alien will engage in a specialty occupation upon arrival in this country.

Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E).

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applying theoretical and practical knowledge of accounting that is usually associated with at least a bachelor's degree in accounting or a closely related specialty or its equivalent.

The generalized information described above does not establish a necessary correlation between the proffered position and a need for a particular level of education, or educational equivalency, in a body of highly specialized knowledge in a specific specialty. It is not evident that the proposed duties as described in this record of proceeding, and the position that they comprise, merit recognition of the proffered position as a specialty occupation. To the extent that they were described, the proposed duties did not provide a sufficient factual basis for conveying the substantive matters that would engage the Beneficiary in the actual performance of the proffered position, so as to persuasively support the claim that the position's actual work would require the theoretical and practical application of any particular educational level of highly specialized knowledge in a specific specialty directly related to the duties and responsibilities of the proffered position.

The Petitioner's supporting evidence is not sufficient to fill these gaps. For example, though we acknowledge the letters from and they are not sufficient to establish the substantive nature of the proffered position, as they do not discuss the duties of the proffered position in substantive detail beyond those presented by the Petitioner. There is no information regarding the complexity of the job duties, supervisory duties (if any), independent judgment required, or the amount of supervision received. There is no indication that and

possess any knowledge of the Petitioner's proffered position beyond this job description, e.g., visited the Petitioner's business, observed the Petitioner's employees, interviewed them about the nature of their work, or documented the knowledge that these workers apply on the job prior to documenting their opinions regarding the proffered position. 6

When considered collectively, we conclude that these inconsistencies, discrepancies, unanswered questions, and lack of documentation raise questions as to the actual, substantive nature of the proffered position. As the Petitioner has not established the substantive and non-speculative nature of the work to be performed by the Beneficiary, we cannot reach a conclusion as to whether 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 (I) 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

6 We also note that states that the Petitioner "has restaurants and retail food outlets in New York and New Jersey" and "employs 30 full-time employees." This information contradicts the information provided by the Petitioner on the Form I-129. As we previously noted, the Petitioner stated that it had eight employees and is a "restaurant and ethnic grocery store" in New Jersey. The record does not establish that at the time of evaluation, in June 2018, the Petitioner was in fact operating in New York and New Jersey with 30 full -time employees. This inconsistency with respect to the Petitioner 's business operations further diminishes the probative value of

evaluation. The Petitioner must resolve this inconsistency with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591 -92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id.

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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.

Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a specialty occupation for this reason as well.

II. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here, and the petition will remain denied.

ORDER: The appeal is dismissed.

Cite as Matter of A-F-, Inc., ID# 2270315 (AAO Mar. 12, 2019)