U.S. Citizenship and Immigration Services

MATTER OF D-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 22,2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an information technology solutions and consulting firm, seeks to temporarily employ the Beneficiary as a "consultant - database administrator" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Ac~ (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(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 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 California Service Center denied the petition, concluding that the Petitioner did not establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

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.

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:

.

Matter of D-, Inc.

(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 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,[f, 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, 388 (5th Cir. 2000).

II. PROFFERED POSITION

The Petitioner stated that it would employ the Beneficiary in the position of "consultant-database administrator," and that the Beneficiary would work in-house at its offices in Texas. In response to the Director's request for evidence (RFE), the Petitioner described the Beneficiary's duties as follows:

Job Duties % of time spent Specialized knowledge required

• Create shell scripts for 18% Unix/Linux commands task automation;

• Build database schemes, 25% Deep understanding on oracle tables, procedure~ and database creation, storage permissiOns; structure and schema object

management

• Monitor systems and 25% Good understanding on platforms for availability; shell script, Oracle

Enterprise Manager

• Restore and recover 8% Good understanding on corrupted databases; RMAN knowledge

• Install and test database I 10% Deep understanding on applications new version of the

database and applications.

2

.

Matter of D-, Inc.

• Evaluate and recommend 14% Continuous learning on new database new database technologies; technologies

The Petitioner further stated that the position "requires a bachelor's of science degree in computer science, engineering, database administration or a related field ."

III. ANALYSIS

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. Specifically, the record does not: (1) establish that the Petitioner had secured definite, non-speculative work for the Beneficiary to perform prior to the filing of the petition; (2) describe the position's duties with sufficient detail; and (3) establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 1

The Petitioner did not demonstrate that it had secured definite, non-speculative work for the Beneficiary before it filed this 'petition. The Petitioner claims to otTer information technology business solutions to a number of customers, both in-house and onsite at client locations. In support of this assertion, the Petitioner submitted contracts and service agreements with its clients as representative samples of its past business practices and ongoing consulting operations. The Petitioner, however, did not identify any particular project(s) upon which the Beneficiary will work for the duration of the requested validity period at the time of filing.

On appeal, the Petitioner asserts that the Beneficiary will work on a project for (end-client) for the requested validity period. In support of this assertion, the Petitioner submits a copy of its master services agreement (MSAi with the end-client, executed in 2011, as well as a statement of work (SOW) executed by the parties in February 2017. According to the SOW, the Beneficiary, who is identified as the consultant under the SOW, will "support [the end-client's] database remotely from [the Petitioner's] US Office ( TX)." It identifies the start date of the project as March 15, 2017, and indicates that the SOW "is considered continuous and ongoing . . .. " The Petitioner also submitted a letter from the end-client confirming its need for the Beneficiary's services, and that it has been receiving the Beneficiary's services remotely from India since 201 0.

Here, the Petitioner asserts for the first time on appeal that the Beneficiary will work on an in-house project for the end-client. It is further noted that the SOW was executed in February 2017, approximately one month after the petition was denied, and identifies a start date of March 15, 2017, both of which dates fall nearly one year after the filing of the petition. However, the Petitioner must

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 The MSA is not signed by the end-client and we are unable to determine if it was properly executed.

3

Matter of D-, Inc.

establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). U.S. Citizenship and Immigration Services (USCIS) regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998).

On appeal, the Petitioner provides old invoices submitted to the end-client for the Beneficiary's services as evidence of its ongoing relationship, but the invoices do not adequately demonstrate eligibility at the time of filing. For example, the invoices do not cover the date of filing. However, even if the invoices had covered the date of filing, they contain limited information regarding the Beneficiary's services. For example, the invoices only state "Consulting Service: Oracle DBS Service: Remote DB Service" and "Remote Database Support-[Beneficiary]-[date]," and do not provide sufficient information to establish non-speculative, H-1 B caliber work for the Beneficiary. Moreover, while the MSA states for "each project undertaken by [the Petitioner], the parties shall execute a [SOW]," the Petitioner did not submit SOWs that predate the filing of this petition to corroborate these invoices and the work performed by the Beneficiary.

We acknowledge the Petitioner's submission of letters from other companies in the industry that discuss the manner in which contracts govern the nature of in-house employment. We note the claims by the Petitioner and similar organizations that formal documents outlining in detail the scope of work to be performed by consultants for in-house projects is uncommon. However, the lack of specific detail regarding the nature, scope, and duration of the project(s) upon which the Beneficiary will work precludes us from determining that specialty occupation work is available for the Beneficiary. Despite the Petitioner's assertions that such documentation is unnecessary and not standard practice, we are not able to ascertain what the Beneficiary will do, where the Beneficiary will work, as well as how this will impact circumstances of his relationship with the Petitioner without additional, reliable information regarding the specific project to which the Beneficiary will be assigned that covers the duration of the period of employment requested.3 It is the Petitioner's

n

3 Speculative employment is not permitted in the H-1 B program. For example, a 1998 proposed rule documented this

position as follows:

Historically, the Service has not granted H-1 B classification on the basis of speculative, or undetermined, prospective employment. The H-1 B 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-1 B nonimmigrant under the statute, the Service must first examine the duties ofthe 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) ofthe Immigration and Nationality Act (the "Act"). The

4

Matter of D-, Inc.

burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). In this matter, although the Petitioner submitted contracts and agreements to demonstrate its ongoing contractual obligations to its clients, it did not substantiaJe the record with evidence that non-speculative, specialty occupation work was available at the time of filing for the Beneficiary from the requested start date of October 1, 2016, through August 8, 2019.

Even if we assume that the Petitioner had established non-speculative employment with the end-client at the time of filing, 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. As recognized by the court in Defensor, where the work is to be performed for entities other than the petitioner, evidence of the client companies' job requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered position qualities as a specialty occupation on the basis of the requirements imposed by the entities using the beneficiary's services. /d. at 384. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary to perfonn that particular work.

The end-client's letter on appeal does not specify requirements tor the position and only reiterates the Petitioner's job description. The letter does not adequately describe the duties that the Beneficiary would perform such that we can ascertain whether they would actually require a bachelor's degree in a specific specialty, or the equivalent. While the record also contains a list of duties provided by the Petitioner in response to the RFE, simply stating that the Beneficiary will "build database schemes, tables, procedures, and permissions" and "restore and recover corrupted databases," which are not project specific, does little to support the Petitioner's claim that the proffered position is a specialty occupation.

To establish eligibility, the record must establish the specific duties and responsibilities to be performed by the Beneficiary in the context of the Petitioner's business operations, demonstrate that a legitimate need for an employee exists, and substantiate that it has H-lB caliber work for the Beneficiary for the duration of the employment period requested in the petition. See Defensor, 201 F.3d at 387 (A "common sense reading" of the regulations indicates an intention to fully implement the definition of"specialty occupation"); see generally 8 C.F.R. §§ 214.2(h)(4)(i)(A)(l), (iii)(B)(2), and (iv)(A). Here, the job description does not communicate: ( 1) the tasks that the Beneficiary would perform on a day-to-day basis; (2) the complexity, uniqueness and/or specialization of those

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-1 B 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).

5

Matter of D-, Inc.

responsibilities;' and (3) the correlation between that work and a need for highly specialized knowledge and a particular level of education in a specific specialty. See generally section 214(i)(1) of the Act; 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(2)-(4).

Consequently, we find that the evidence of record does not demonstrate the substantive nature of the proffered position and its constituent duties.4 The Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, which therefore precludes a finding 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.

IV. CONCLUSION

The Petitioner has not established that the proffered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter of D-, Inc., ID# 547715 (AAO Sept. 22, 2017)

4 Further, without full disclosure, we are unable to determine whether the requisite employer-employee relationship with

exist between the Petitioner and Beneficiary.

6