U.S. Citizenship and Immigration Services ·

MATTER OF E- CORP.

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 8, 2019

APPEAL OF NEBRASKA SERVICE CENTER DECISION

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

The Petitioner, an information technology company,-seeks to extend the temporary employment of the Beneficiary as a "computer user program analyst/suppo1i" un.der the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section I0I(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-IB 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 Nebraska Service Center Di_rector denied the petition, concluding that the Petitioner had not demonstrated that the proffered position qualifies as a specialty occupation. On motion to reopen, the Director found that the grounds for denial had not been overcome. On appeal, the Petitioner asserts that the Director erred and the evidence supports an approval of the petition. 1

Upon de nova review, we will dismiss the appeal.2 .

I. LEGAL FRAMEWORK

Section 2 l 4(i)(I) of the Act, 8 U .S.C. § l l 84(i)(I), 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 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 follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010).

Matter of E- Corp.

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:

(]) 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. 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").

II. PROFFERED POSITION

On the labor condition application (LCA)3 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer User Support Specialists" corresponding to the Standard Occupational Classification (SOC) code 15-1151 at a level I wage.4 The Petitioner listed the duties to be assigned to the Beneficiary as follows:

3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1B 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(11)( I) of the Act; 20 C.F.R. § 655. 731 (a). 4 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 DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) 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 resuhs. DOL; Emp't & Training Admin., Prevailing Wage Determination PcJ/icy Guidance, Nonagric. Immigration Programs · (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_l 1_2009.pdf. A wage deterrnination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill

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Matter of E- Corp.

• Contribute to the development, testing and deployment of our web-based applications and portals, which· include development, enhancements, troubleshooting, and maintenance.

• Contribute to the development, configuring and deployment, testing, and maintaining J2EE based distributed systems for our in-house environments like Dev, SIT, UAT and.Prod.

• Responsible for computer application programming and developing the · automation architecture in a scalable way to support our suite of web portals/services in an upward-scalable way.

• Primarily code the back-end and the front of the application, fix bugs within the application, followed by unit _testing, integration testing and performance testing.

• Using J2EE based technologies like_ Oracle Weblogic, Jboss, GlassFish, Aqualogic Service Bus, Websphere and Java Messaging Service (JMS).

• Customize and script the operating system server environment for UNIX based OS like Red Hat Linux 5/6, Sun Solaris 9/10, HPUX and Windows based environments like Windows 2003/2008.

• Administration of Application servers such as BEA, Weblogic, IBM Websphere . and other webservers such as Sunone, Microsoft IIS, Apache, etc.

• Read technical manuals, confer with users, or conduct computer diagnostics to investigate and resolve problems or to provide technical assistance and support.

• Maintain records of daily data communication transactions, problems and remedial actions taken, or installation activities.

• Enter commands and observe system functioning to verify correct operations and detect errors. Identify the causes of networking problems, using diagnostic testing software and equipment. Install new hardware or software systems or components, ensuring integration with existing network systems.

In response to a request for evidence (RFE), the Petitioner stated that the position requires at least a U.S. bachelor's degree or its equivalent in computer science, engineering, information systems, or a related field.

III. ANALYSIS

For the reasons set out below, the proffered position does not qualify as a specialty occupation. Specifically, the record does not sufficiently describe the position's duties and does not establish that the job duties requi~e an educational background, or its equivalent, commensurate with a specialty

· occupation ..

requirements of the Petitioner's job opportunity. Id.

Matter of E- Corp.

A. Nature of the Position

On appeal, the Petitioner emphasizes that it selected "the SOC code of Computer User Support Specialist/Computer support specialist which appea~ed to be the closest to the proposed position" and that "[t]here seems to be no other more appropriate code amongst the available options." We have reviewed the duties of the proffered position and the tasks listed in the Department of Labor's (DOL) Occupational Information Network (O*NET) Summary Report for a "Computer User Support Specialist," SOC code 1 ~-1151. The Petitioner lists several of the O*NET's tasks for the · SOC code 15-1151 occupation as duties of the proffered position. 5 O*NET assigns this occupation a Job Zone "Three" rating, indicating that "[ m Jost occupations in this zone require training in vocational schools, related on-the-job experience, or an associate's degree." O*NET Online Summary Report for "15-1151.00 Computer Support User Specialists," https://www.onetcinline.org/link/summary/15-l l 5 l.OO (last visited Feb. 6, 2019). The Petitioner does not address this conflict between its claimed requirements for the proposed position and the O*NET's recognition that most Job Zone Three occupations do not require a bachelor's degree.

The Petitioner also indicates that the Beneficiary will "[ c ]ontribute" to the development, testing and deployment of its web-based applications and portals, and will "[ c ]ontribute" to the development, configuring and deployment testing, and maintai.ning certain systems. The Petitioner does not describe the Beneficiary's actual tasks involved in contributing to these responsibilities. That is, it is not possible to ascertain if the Beneficiary will be the individual developing, testing, and deploying the applications and systems or will provide some sort of assistance to those who are developing, testing, and deploying applications and systems. If the Beneficiary is the individual developing and enhancing the Petitioner's applications, systems, and po11als automation software, it appears these duties may align more closely to a "Software Developer, Applications" occupation, not the occupation designated on the certified LCA. See O*NET Summary Report for "Software Developers, Applications," SOC code 15-1132 at https://www.onetonline.org/link/summary/15-l l 32.00 (last visited Feb. 6, 2019). Further, the Petitioner stated that the Beneficiary will be "[r]esponsible for computer application programming" and will "[p]rimarily code the back-end and the front of the application." These duties appear to fall within the parameters of a "Computer Programmer" occupation. See O*NET Summary Report for "Computer Programmers," SOC code 15-1131 at https://www.onetonline.org/link/summary/15-l 131.00 (last visited Feb. 6, 2019). These occupations require a significantly higher wage than a "Computer User Support Specialist," the occupation designated on the LCA.

We note that for positions involving duties of more than one occupational c~assification, the LCA

5 The duties of the position include: "[r]ead technical manuals, confer with users, or conduct computer diagnostics to investigate and resolve problems or to provide technical assistance and support," "[m]aintain records of daily data communication transactions, problems and remedial actions taken, or installation activities," "[e]nter commands and observe system functioning to verify correct operations and detect errors," and '.'[i]nstall new hardware or software systems or components, ensuring integration with existing network systems.

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Matter of E- Corp.

shall reflect the occupational classification of the most relevant, i.e., highest-paying, occupation. 6

The prevailing wage for a level I "Computer User Support Specialists" position, corresponding to SOC code 15-1151, in the area and time period of intended employment is $32,739 per year. 7 A level I wage for a position that includes the duties of a "Software Developers, Applications" (SOC code 15-1132) occupation, is $60,528 per year in the relevant area and time period of intended employment, a significantly higher wage. 8 A level I wage for a "Computer Programmer" (SOC code 15-1131) occupation, is $57,610 per year in the relevant area and time period of intended employment, also a significantly higher wage. 9 Such a wage disparity highlights the difference among the "Computer User Support Specialists," the "Software Developer, Applications" and the "Computer Programmer" occupational categories generally, and more specific to this case, the significance of the Petitioner's choice of the lowest paying occupational category. The Petitioner does not explain how or why the duties described appear to include duties that are not part of a "Computer User Support Specialists" occupation and y~t the Petitioner has not attested that it will compensate the Beneficiary for the performance of those duties. · ·

Again, the duties listed appear to include a combination of occupations and thus undermine the Petitioner's claim that it has designated the appropriate occupation and occupational wage on the LCA. The Petitioner has not included sufficient detail regarding the proposed duties to conclude that the duties are the duties of a wage level I "Computer User Support Specialists," occupation, the occupation designated on the LCA. The regulation at 20 C.F.R. § 655.705(b) requires that U.S. Citizenship and Immigration Services (USCIS) ensure that an LCA actually supports the H-1 B petition filed on behalf of the Beneficiary. Here, although the described duties include some generic "Computer User Support Specialists" duties, the description also appears to include duties of higher paying occupations. Thus, the petition may not be approved because the certified LCA does not correspond to and support the petition. '0 '

The lack of consistent information in the record regarding the duties, as well as the general nature of

6 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_l 1_2009.pdf. , 7 Foreign Labor Certification. Data Center Online Wage Library, http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-1 151 &area= l 2060&year= l S&source= I. 8 Foreign Labor Certification . Data Center Online Wage Library, http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-1 I 32&area= I 2060&year= I S&source= I. 9 Foreign Labor Certification Data Center Online Wage Library, http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-1 13 I &area= I 2060&year= 1 S&source= I. 10 The Petitioner reiterates throughout the record that it has always used this occupational classification for prior HI B petitions submitted on behalf of the Beneficiary and that those petitions have been approved. However, we are not required to approve applications or petitions. where eligibility has not been demonstrated, merely because of prior approvals that· may have been erroneous. See Matter qf Church Scientology int'/, 19 l&N'Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g. ltd.Montgomery, 825 F.2d 1084, 1090 (6th Cir: 1987). Furthermore, prior approvals do not preclude USC IS from denying an extension of the original visa based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x. 556 (5th Cir. 2004). Further still, the Petitioner does not explain why the Beneficiary, who has been· employed by the Petitioner ·for the previous three years in the same position, would not gamer an increase in wage level at the very least. ·

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Matter of E- Corp.

the description does not sufficiently establish what the Petitioner expects the Beneficiary to do on a day-to-day basis. The Petitioner here has not sufficiently 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. Without this detailed evidence, the Petitioner has not established the substantive nature of the proffered position and· thus has not established the proffered position is a specialty occupation. Because the Petitioner has not established th{? substantive nature of the work to be performed by the Beneficiary, it has not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 2 l 4(i)(l) of the Act.· Therefore, discussion of the assertions made on appeal regarding whether the Petitioner has established any of the supplementary criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) is unnecessary. We will, however, briefly address the assertions to assist the Petitioner's understanding of the requirements to establish a position as a specialty occupation.

B. Petitioner's Assertions on Appeal

, First, the Petitioner asserts that the Director did not properly consider the advertisements it previously submitted to establish that a degree requirement is common to the industry in parallel positions among similar organizations. 11 We disagree. For the advertisements to be relevant for consideration, the job vacancy announcements must advertise "parallel positions," and the announcements must have b.een placed by organizations that (l) conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner. Upon review of the job announcements submitted, we find the Petitioner's reliance on the job announcements is misplaced.

We note that the majority of the advertisements submitted do not provide sufficient information regarding the advertising organizations to establish that they are similar to the Petitioner. To establish that· the advertising organizations are similar to the Petitioner, we look at definitive characteristics, such as the number of employees, level of revenue, and scope of the organization. The Petitioner does not identify shared characteristics amongst the advertising organizations and itself sufficient to support its claims that the advertisers are tangibly similar organizations. The Petitioner has not rriet its burden in this regard. Upon review, the information provided is insufficient to demonstrate that these advertising organizations are similar in type, scope, and size to the Petitioner's claimed five-employee information technology business.

Additionally, the advertised positions differ in both title and duties from the proffered position of "computer user program analyst/support." Although the Petitioner asserts that these postings demonstrate that the same and other siri1ilar specialized IT positions from the industry normally require a baccalaureate degree in a related field, we do not find the. similarity of duties the Petitioner refers to in the wide variety of duties and responsibilities listed in the advertisements. Here, the issue is whether the Peti,tioner has demonstrated that a specialty degree requirement is common to

11 The Petitioner also submits additional advertisements on appeal for our review.

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Matter of E- Corp.

the industry in positions parallel to that of the position proffered here among similar organizations. As these postings are for dissimilar positions, 12 we find them to be of minimal evidentiary value.

Further, the requirements to perform the duties of the advertised positions vary widely. Thus, the large number of advertisements confirms that a bachelor's degree in a specific specialty is not a common requirement for a large number of information technology occupations. Notably a majority of the advertisements submitted requires two to ten years of experience in addition to requiring a bachelor's degree. However, the Petitioner, in this matter, designated the proffered position as an entry-level position that requires zero to two years of experience at most. 13 The Petitioner itself does not claim any experience requirement for this particular position. Thus, these advertised positions are for more senior positions than the position proffered here and are not parallel to the proffered position. Even if all of the job postings indicated that a bachelor's or higher degree in a specific specialty, or its equivalent, were required, which they do not, again the Petitioner has not established that the submitted advertisements are relevant in that the posted job announcements are not for parallel positions.

Second, the Petitioner asserts that the duties of the proffered position are complex and specialized or are unique. The Petitioner re-submits the Beneficiary's affidavit on appeal which paraphrases the duties initially submitted. The Petitioner assert~ that the duties are complex and that the Beneficiary will provide technical skills and expertise on its internal projects, including application development. The Petitioner claims that these duties require the individual in the proffered position to have expertise in network architecture and hardware, computer/network security, technical operations management and network engineering. Although the position proffered here may require some technical knowledge and skills in pertinent third party technology, the Petitioner does· not establish why the duties cannot be performed with certifications or a lesser degree thari a bachelor's degree in a specific specialty.

We recognize that the Petitioner in this matter generally associated some coursework and experience to concepts the Beneficiary m~y encounter performing the proffered position, however, it did not sufficiently develop relative complexity and specialization, or uniqueness as an aspect of the proffered position. For example, the Petitioner did not submit information relevant to a detailed course of study leading to a bachelor's level specialty degree and did not establish how such a curriculum is necessary to carry out the complexities, specialization, or uniqueness of the position. Although a few related courses may be beneficial, or even required, in performing certain elements of the position, the Petitioner has not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to successfully execute the duties of the proffered position. The Petitioner does not explain how its Job Zone Three occupation which is usually associated with only vocational training or an associate's

12 The Petitioner appears to claim that any information technology position, regardless of title or duties, should be considered parallel to its information technology position. This is not the case. The Petitioner has not met its burden in establishing how the advertised positions are parallel to the proffered position. ' · 13 If the Petitioner requires two or more years of experience, the wage level on the LCA must be increased.

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Matter of E- Corp.

degree is elevated to a position that requires a bachelor's degree in a specific specialty. The Petitioner has not established that the position, as inconsistently designated in the record, 1s a specialty occupation.

We also reviewed the letter from , who offers his opinion on the requirements of the proffered position. In his letter, (1) describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) lists the duties proposed for the Beneficiary; and (3) states that these duties require at least a bachelor's level educational training or equivalent in information technology, computer science, or related field.

assertions in support of the instant petition are not persuasive.

· We observe that does not discuss the duties of the proffered position in any substantive detail. He does not discuss the duties in the specific context of the Petitioner's business, and any particular project to which the Beneficiary will be assigned. Thus, his level of familiarity with the actual job duties as they will be performed in the context of the Petitioner's business is questionable. Moreover, does not appear aware that the Petitioner designated the position as a "Computer User Support Specialists" occupation on the LCA. He does not discuss authoritative sources reporting on this occupation or distinguish this occupation, which requires only vocational training or an associate's degree, from the proposed position. Therefore, we question the basis of his ultimate conclusion about tµe minimum educational requirement for this particular position. The. record does not include any relevant research; studies, surveys, or other authoritative publications as part of his review or as a foundation for his opinion. The opinion letter from

is insufficient to establish the nature of the actual positon and thus assist in establishing the position as a specialty occupation. Matter ol Caron Int 'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to accept or may give less weight to an advisory opinion when it is "not in accord with other information or is in any way questionable.").

Lastly, the Petitioner asse11s that it normally requires a minimum of a ba~calaureate degree to perform the duties of this position and submits the foreign degrees of the individuals who have held this position. However, the record does. not include academic evaluations of the foreign degrees demonstrating that these individuals all hold the equivalent of a bachelor's degree in a specific specialty. While the record includes some of the descriptions of duties for these individuals, the record does not include sufficient unambiguous evidence demonstrating the actual minimum requirements to perform the duties generally 1described. The record also includes the Petitioner's partial organizational chart which raises questions regarding the number of the Petitioner's actual employees who perform or have performed the duties of the proffered position. 14 The record does not include sufficient evidence to establish that the Petitioner normally employs only individuals

14 The Petitioner does not explain, for example, why it stated it employed only five employees on the Form 1-129, but its organizational· chart appears to include a significantly higher number of employees. The Petitioner must resolve this incongruity in the record with independent, objective evidence pointing to where the truth lies. Matier of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

Matter of E- Corp.

who possess a bachelor's degree m a specific specialty to perform the duties of the proffered position.

Further, as determined above, the record does not establish that the performance of the position proffered here actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)(l) of the Act. As discussed, the Petitioner describes a general technology position that appears to incorporate the duties of several different occupations. As also discussed, we do not have sufficient information regarding the Beneficiary's proposed duties in relation to specific work to determine that the duties as described require a bachelor's level degree in a specific discipline, or the equivalent, to perform the duties. The Petitioner has not satisfied the statutory definition of or the supplementary criteria for a specialty occupation.

IV. CONCLUSION

The record does not demonstrate that the proffered position qualifies for classification as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter of E Corp., ID# 2025571 (AAO Feb. 8, 2019)

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