U.S. Citizenship and Immigration Services

MATTER OF V-I-S, INC.

Non-Precedent Decision of the· Administrative Appeals Office

DATE: APR. 26,2018

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

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

The Petitioner, a computer consulting company, seeks to temporarily employ the Beneficiary as a "programmer analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section IOI(a)(l5)(1-l)(i)(b), 8 U.S.C. § II 0 I (a)( 15)(1-l)(i)(b). The 1-1-1 B 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: (I) the proffered position qualifies as a specialty occupation; and (2) the Beneficiary is qualified to perform services in a specialty occupation. The Petitioner appealed the denial, which we summarily dismissed due to the lack of appeal brief in the record.

The matter is before us on a motion to reopen. A motion to reopen is based on factual grounds and must: (I) state the new facts to be provided in the reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. § I 03.5(a)(2). On motion, the Petitioner asserts that it timely submitted its appeal brief, but sent it to a different location. Though the Petitioner clearly selected the box, "I am filing an appeal to the AAO. My brief and/or additional evidence will be submitted to the AAO within 30 calendar days of filing the appeal" we will nonetheless grant the motion to reopen and conduct a de novo review of the record of proceedings taking into account the Petitioner's •ippcllate submission. After conducting that review we find the totality of evidence insufficient to overcome the Director's bases for denying the petition. Consequently, though we have granted the motion to reopen we will nonetheless dismiss the appeal. The petition will therefore remain denied.

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

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(B) attai nment of a bachelor's or higher degree in the specitic specialty (o r its equivalent) as a minimum for entry into the occupation in the United States.

The regulation at 8 C.F.R. § 2 14.2(h)(4)(ii) largely restates thi s statutory definition, but adds a non­exhaustive li st 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 posi tion;

(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 fo r the position; or

(4) T he nature of the specitic 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 14.2(h)(4)(ii i)(A). We have consistently interpreted the term "degree" to mean not just any baccalaureate or higher degree , but one in a specific spec ialty that is directl y related to the proposed pos ition. See Royal Siam C01p. v. Cherf(?ff 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a spec ific specialty" as "one that relates directly to the duties and responsibi li ties of a particular position"); Defensor v. kfeissner, 201 F.3d 384, 387 (5 th Cir. 2000).

II. THE PROFFEgED POSITION

The Petitioner filed the Form 1- 129 on April 5, 2016. On the Form 1-1 29, the Petitioner stated that it is an "IT services and staffing firm" established in 2012 with one current employee in the United States and an approximate gross annual income of $13 7,41 0. The Petitioner listed its mailing address as New Jersey. Although the Petitioner indicated that the Bencticiary will not work off-site at another company or organization, when asked to list the address where the Beneficiary will work, the Petitioner listed

New Jersey.

[n 'response to the Director's request for evidence (RFE), the Petitioner stated that the two addresses listed in its Form 1-129 were no longer inhabited by its company and provided a new address for the Beneficiary's work location at New Jersey . The Petitioner also submitted three di flerent Business Lease agreements for three different propert ies as follows:

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• New Jersey 900 square feet at Lease dated .January I , 20 16. for a term of seven months.

• New Jersey 800 square feet at Lease dated Februarv I. 2016 for a· term of six months. " .

• New Jersey XOO square feet at Lease dated August I , 20 I 6 for a term o f 12 months.

ln response to the 'RFE, the Petitioner provided the following list o f job duties for the pro ffered position as programmer analyst: ·

% Of T ime Duties and Responsibilities per duty/day Design the software programs for the new system' 5% Testing_ software to ensure there are no problems and debugging programs 5% Develop and distribute support documentation for applications and software 8% patches created in-house. Creation ofTables and Listings 5% C DISC SDTM and Implementation like creation of SDTM Mapping 9% specifi cation and metadata specifications like Define.xls for FDA/Sponsor submissions SAS Base Procedures fo r reporting/ Processing/ Validation o f Clinical data 8% like PRfNT, DATASETS, MEANS, UNIVA RIATE, FORMAT, SORT, TRANSPOSE, SQL and COMPARE

The provided list of job duties continued with the fo llowing skill s: 1

% Of Time Duties and Responsibilit ies per duty/day .... Working experience ofSAS on Unix Operating svstem. 10% Experience building Web services enables applications. Strong problem 7% solving skills required

1 The Petitioner included these skills wi thin the duties of the proffered position and allotted the corresponding percentage of time the Beneficiary would devote to each. The Petitioner did not explain how these skills translate to the duties of the position.

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Excellent proactive communications and planning skill 7% Competence with CDISC SDTM, sponsor specific standards, ICH-GCP, 10% SOP's and 21 CFR part- II Able to scll~manage and required to lead ccrtain]Jroj_ects 5% Strong, hands-on knowledge of Microsoft Windows Service development. 8% Knowledge of Test Driven Development best practices. Maintain the company website and intranet site 9% Migrate current internal and Internet-based applications from legacy 4% platforms to current platforms

On appeaL the Petitioner submits the same list of duties, without the percentage of time devoted to each, and adds tasks assigned to carry out the duties.

Ill. ANAL YSJS

For the reasons set out below, we have determined that the proffered position does not qualify as a specialty occupation. Specifically, the record (I) does not describe the position's duties with sutlicient detail: and (2) docs not establish that the job duties require an educational background, or its equivalent commensurate with a specialty occupation 2

A. Position Requirements

As a preliminary matter, we conclude that the Petitioner has provided inconsistent information regarding the minimum requirements for the proffered position. The table below summarizes these vanances:

Record of Proceedings Degree Requirements Other Requirements

Petitioner's Letter- bachelor's degree 111 sctence, relevant work experience March 31, 2016 (page 5) engineering, or computer science

Petitioner's RFE Response bachelor's degree 111 computer none -December 28, 2016 science, eng111eenng, or (page 5) information systems

Petitioner's Letter - bachelor's degree 111 computer 3+ years application development December 28,2016 (page 3) science or related field expcnence

2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered position and its business operations. While \VC may not discuss every document submitted, we have reviewed and considered each one.

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Same Letter (page 3) bachelor's degree In computer none science, engineering, pharmacy, and information systems

Petitioner's Appeal Brief - bachelor's degree In computer none April 10,2017 sctence, computer information (pages 6, 9, 12) systems, or engineering

The requirements for the position as stated in the record raise a number of issues.

As evident from the above chart, the Petitioner has provided varying accounts regard ing the educational background and work experience necessary tor the performance of the duties of the position. The Petitioner did not provide an explanation tor the variances. The Petitioner must resolve these inconsistencies with independent, objective· evidence pointing to where the truth lies. Maller (~l f-lo, 19 I&N Dec. 582, 59 1-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in suppot1 of the requested immigration benefit. /d.

Further, although the Petitioner stated that the Beneficiary will be working in-house, it li sted a specific project upon which he will be working for its direct client, In a Statement of Work (SOW) executed between the Petitioner and its client, it indicates that the project wi ll be comprised of two teams: a "Core Team" and a "Flex Team."3 At page 12 or the sow; the client specifically states that " [c]ore team members will have minimum of 5 years of functionally relevant industry experience and average of 24 months of product experience," but does not li st any educational requirements for the positions. As the record lacks documentation or information regarding the client's educational requirements for the position it is there tore unclear whether such educational requirements would: ( 1) match the Petitioner's requirements; (2) qualify as a specialty occupation; and (3) meet the wage-level specified on the labor condi tion application (LCA). Where the work is to be performed for enti ties other than the petitioner, such evidence is critical. Defensor 201 F.3d at 387-88. The court in Defensor held that the former Immigration and Naturalization Service had reasonably interpreted the la\v 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. 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 perform that particular work. However, the record of proceedings does not contain such evidence. For this reason alone, the ev idence of record does not demonstrate that the proffered position qualifies as a specialty occupation.

3 The Petitioner docs not clarify the Beneficiary' s role in the project or indicate to which team he will be assigned.

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B. Degree Requirement- Disparate Fields

Further, the Petitioner states that a degree in one of several disparate tie ids (e.g., computer science, engineering, pharmacy, or information systems) is sufficient for the position. This strongly suggests that the proffered position is not a specialty occupation.

In general, provided the specialties are closely related, e.g., finance. and accounting, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same.

Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of degrees in disparate fields (such as computer science and pharmacy), would not meet the statutory requirement that the degree be "in the

specific specialty (or its equivalent)," unless the Petitioner establishes how each lield is directly· related to the duties and responsibilities of the particular position such that the required "body of highly specialized knowledge" is essentially an amalgamation of these ditTcrent specialties: Section 214(i)(l)(l3) of the Act (emphasis added). The Petitioner has not made this showing. The requirements provided by the Petitioner do not demonstrate that the proffered position qualilles as a specialty occupation. Therefore; tor this reason, the petition cannot be approved.

Thus, tor the above reasons, the petition cannot be approved. Nevertheless, we will perform a comprehensive analysis of the evidence provided pursuant to the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 5

C. First Criterion

We turn now to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement lor entry in to the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses 6

..) While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these provisions to exclude positions fl·om qualifying as specialty occupations if they permit, as a minimum entry requirement. degrees in more than one closely related specialty. See section 214(i)(\)(B) of the Act: 8 C.F.R. § 1:14.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position. 5 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 6 All of our references to the Ha11dbook may be accessed at· the Internet site http://www.bls.gov/ooh/. We do not, however. maintain that the Ha/1(/book is the e.xclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisry the !irst criterion, however. the burden of proof.remains on the Petitioner to

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On the LCA7 submitted in support of the 1-1-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131. We reviewed the Handbook's subchapter entitled "How to Become a Computer Programmer," which states, in pertinent part, that "some employers hire workers with an associate's degree." Bureau of Labor Statistics, U.S. Dep't of Labor. Occupational Outlook Handbook, Computer Programmers, on the Internet at https:l/www.bls.gov/ooh/computer­and-infonnation-technology/computer-programmers.htm (last visited Apr. 25, 20 18). Thus, the Handbook does not support the Petitioner's assertion that a bachelor's degree is required for entry into this occupation.

In support of the petition, the Petitioner references DOL's Occupational Information Network (O*NET) summary report for "Computer Programmers" listed as SOC code 15- I I 31.00. The summary report provides general information regarding the occupation; however, it does not support the Petitioner's assertion regarding the educational requirements for these positions.

We will first focus on the Specific Vocational Preparation (SVP) rating. DOL designates the occupation "Computer Programmers" as having an SVP of "7 < 8." This indicates that the occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating provides the total number of years of vocational preparation required tor a particular position, it is important to note that it docs not describe how those years are to be divided among training, formal education, and experience - and it does not specify the particular type of degree, if any, that a position would requirc.s As noted above, the O*NET summary report tor this specific occupation also does not specify that a degree is required, but instead states, "most of these occupations require a tour-year bachelor's degree, but some do not."

Next we will address DOL's designation in the summary report of the occupation as a Job Zone Four. Similar to the SVP rating, the summary report does not indicate that any academic credentials for Job Zone Four occupations must be directly related to the duties performed.

Finally, we note that the O*NET summary report provides the educational requirements of "respondents," but does not account for 100% of the "respondents." The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level).

submit sufficient ev(dcnce to support a finding that its particular position would normally have a minimum. specialty degree requirement, or its equivalent. for entry. 7 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either the prevailing wage tOr the occupational classification in the "area of employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services. See Mauer ofSimeio Solutions. I.LC. 26 I&N Dec. 542, 545-46 (AAO 20 I 5). 8 For additional information. sec the O*NET Online Help webpage available at http://www.onctonline.org/help/ online/svp.

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Additionally , the graph in the O*NET summary report does not indicate that the "education level" for the respondents must be in a specific specialty.

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The record lacks sufficient evidence to support a finding that the proffered position is one for which a baccalaureate or higher degree in a specific spec ialty, or its equivalent, is nom1ally the minimum requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

D. Second Cri terion

The second criterion presents two, alternative prongs: "The degree requ irement is common to the industry in parallel positions among similar organizations or. in the alternative, an employer may show that its pmticular position is so complex or unique that it can be performed only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphas is added). The first prong casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the Petitioner' s speci fi c position.

I. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the ''degree requireme nt" (i.e., a requirement of a bache lor 's or higher degree in a specific specialty, or· its equivalent) is common to the industry in parallel positions among similar organizations.

We generally consider the following sources of evidence to determine if there is such a common degree requi rement: whether the Handbook reports that the industry requires a degree; whether the industry' s professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recrui t only degreed individuals." See Shanti. Inc. v. Reno, 36 F. Supp. 2d 115 1, 1165 (D. Minn. 1999) (quoting Hird/B/aker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N. Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)). ·

The Petitioner has not established that its proffered position is one for which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's degree in a spec itic specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit anv letters or affidav its from similar firms or individuals in the Petitioner's industry

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attesting that such firms " routinely employ and recruit only degreed individuals."

The Petitioner submitted a letter from consulting company,

HR Manager of another technology for our consideration under this prong.

9 Nor does it indicate whether these individuals' credentials were prerequisites to their hiring.

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claims that "customarily require[s] a minimum of a baccalaureate degree in a specific field of computer science, infonnation systems or engineering." She further stated that

has 40 employees, 12 of whom are programmer analysts "who possess a mi nimum of a Bachelor Degree in computer sc ience, information systems or engineering." She did not provide, however, information about these individuals' work (e.g., duties), or describe thei r spec ilic credentials. letter is not supported by evidence or the necessary information to determine that her company routinely employs and recruits only spec ifically degreed individuals for programmer analyst positions (or parallel pos itions). Setting these shortcomings aside, we find that the lack of any indication by that would find acceptable an individual with a bachelor's degree in pharmacy raises additional questions as to whether that company employs anyone in a position whose duties parallel those of the one proftered here. For all of these reasons, her letter is not sufficient to satisfy the first prong.

The Petitioner also provided copies of job announcements placed by other employers. However, upon review, we find that the Petitioner's reliance on the job announcements is misplaced.

First, we conclude that whi le all of the organizations appear to be simi lar in size ( 1-50 employees), the advertisements do not provide sufficient infonnation such that we can determine whether they are "similar organ izations," as required by the regulation. When determining whether the Petitioner and another organization share the same general characteristics, such factors may include informat ion regard ing the nature or type of organization, and, when pertinent, the particular scope of operations, as well as the level of revenue and sta lling (to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an organization i.s similar and in the same industry wi thout providing a basis for the assertion.

Next, the ·advertisements do not appear to involve parallel positions. For instance, some of the postings appear to advertise more senior, experienced employment than the proffered pos ition. 10

Moreover, some o f the postings do not include suflicient information about the duties and responsibilities (or the advertised positions. Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day responsibi lities, complexity of the job duties, supervisory duties (if any), degree of independent j udgment ·required, or the amount of superv ision received. Therefore, the Petitioner has not sufficiently established that the primary duties and responsibi lities ofthe advertised positions parallel those ofthe proffered position.

Finally, some of the postings ind icate that at least a bachelor's degree in a directly related specific specialty (or its equ ivalent) is not required.11 For instance, one of the advertisements states that a

1° For instance, requires a degree and five years of experience in a technical leadership role ; requires a degree and four years of verifiable experience; requires a degree and five years

of experience; requires a degree and five years of experience. Some advertisements state a degree without specifying the level of education and, without further information, could represent an associate's degree. 11 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a bachelor's or higher degree. but a bache lor's degree in a spec ific specialty that is directly related to the dut ies of the position. See section 2 14(i)( I }(b) of the Act and 8 C.F. R. § 214.2(h)( 4 )( ii).

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bachelor's degree in computer science, computer engineering, information technology, or related field is preferred. A preference is not an indication of a minimum requirement. Another advertisement seems to allow for a bachelor's degree "or related development experience using Microsoft Technologies" without a specific degree or equivalent.

As the documentation does not establish that the Petitioner has met this prong of the regulations, further analysis regarding the specific information contained in each of the job postings is not necessary. 12 That is, not every deficit of every job posting has been addressed. 13

The Petitioner has not provided sufficient evidence to establish that a bachelor's degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Thus; the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

We have reviewed the Petitioner's statements regarding the proffered position. However, referencing our analysis of those statements and the position duties above, we conclude that the Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. The Petitioner designated the proffered position as an entry-level position within the occupational category (by selecting a Level I wage). 14 This designation, when read in combination with the Handbook's account of the requirements tor this occupation and the record of proceedings. further suggests that this particular position is not so complex or unique relative to

12 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for hire. they arc not evidence of the actual hiring practices of these employers. 13 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbic, The Prac1ice r~lSucial Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly selected. the validity of any such inferences could not be accurately determined even if the sampling unit were sufticiently large. See id. al 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for estimates of population parameters and estin~ates of error''). J.J A prevailing wage determination starts with an entry-level wage (Level I) and progresses to a higher wage level (up to Level IV) after considering Ihe experience, education. and skill requirements of the Petitioner's job oppo11unity. U.S. Dep't of Labor. Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 200?), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf.

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other programmer analysts that the duties can only be performed by an individual with a bachelor's degree or higher in a specitic specialty, or its equivalent. While a few related courses may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered position.

Further, the Petitioner's description of the Beneficiary's duties in the proffered position falls short in explaining what he will actually do on a day-to-day basis. While the Petitioner provided a list of claimed duties for the proffered position, only 40% of the Beneficiary 's time would be devoted to those claimed tasks. The Petitioner has allotted the remaining 60% of the Beneficiary's time to skills it claims are required for the position. This lack of information pertaining to what the Benetlciary would actually do for the remaining 60% of his time in the profTered pos ition raises additional concerns as to whether the position qualifies as a specialty occupation. The Petitioner must resolve this discrepancy in the record with independent, objective evidence pointing to where the truth lies. Maller (~f Ho, 19 J&N Dec. 582, 591-92 (BIA 198.8) . Additionally, as .the end-client has not specified any educational requirements, we cannot determine the relative complexity or the position and whether it would qualify as a specialty occupation.

In response to the RFE, the Petitioner submitted an expert opinion letter authored by Associate Professor of Computer Applications and Information Systems at the School of

Business, University of In his letter, (l) describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) lists the duties proposed for the Bene ficiary; and (3) states that these duties require at least a bachelor's degree in computer science, information systems, or the equivalent. We carefully evaluated assertions in support of the instant petition but, for the following reasons, determined his letter is insufficient to satisfy the Petitioner's burden.

First, expertise, regarding current industry degree requirements for programmer analyst positions is not established in the record. His supporting documentation indicates that his experience over the past 30 years has been in an academic setting as a faculty member within a university . His most recent publication was in 2005 and he does not provide any dates or specific information to indicate any recent relevant consulting work in the Petitioner's area of business.

Moreover, has not provided sufficient information to establish his expertise on the practices of organizations seek ing to hire programmer analysts. Without further claritication, it is unclear how his education, training, skills, or experience would translate to expertise regarding the current recruiting and hiring practices of an enterprise engaged in "employment placement" (as designated by the Petitioner in the petition) or similar organizations for programmer analysts (or parallel positions). 15

15 The Petitioner designated its business operations under the North American Industry Classification System code 561311 , which is for "Employment Placement Agencies·· and is described as an industry that "comprises establishments primarily engaged in listing employment vacancies and in referring or placing applicants for employment. The

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states that his assessment is based upon a description provided by the Petitioner of the company and the offered position. While provides a briet: general description of the Petitioner's business activities,16 he does not demonstrate in-depth knowledge of its operations or how the duties o f the position would actually be performed in the context of its business enterpri se.

Further, opinion letter does not substantiate his conclusions, such that we can conclude that the Petitioner has met its burden of proof. First, does not reference, cite, or discuss any studies, surveys, industry publications, authori tative publications, or other sources of empirical information which he may have consulted to complete his evaluation. Second , the record does not indicate whether was aware that, as indicated by the Level I wage on the LCA, the Petitioner considered the proffered position to be for an employee who is expected to have a bas ic understanding of the occupation that requires limited, if any, exerc ise of judgment, close supervi sion, c lose monitoring of work for accuracy, and specific instructions on required tasks and expected results. Rather, states that "the duties described ... are not those of a lower level employee ... but rather those of a professional employee with a strong background in computer science and infomtation system concepts and principles and a great level of responsibi lity within the company." As a result of thi s di screpancy, the Petitioner has not demonstrated that possessed the requisite information to adequately assess the nature of the position and appropriately detem1ine parallel positions based upon the job·duties and level of responsibilities.

For the reasons discussed, we lind that opinion letter is not sufficient to carry the Petitioner's burden. Matter (?l Caron lnt 'I, 19 I&N Dec. 791, 795 (Comm ' r 1988) (The service is not required to accept or may give Jess weight to an advisory opinion whe n it is "not in accord with other information or is in any way questionable."). 17

The Petit ioner claims that the Beneficiary is well qualified to r the postuon, and references his. qualifications. However, the test to establish a posi tion as a specialt y occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor' s degree in a specific specialty, or it s equivalent. The Petitioner did not sufficiently deve lop relative complexity or uniqueness as an aspect of the duti es of the position, and it did not identify any ta~ks that are so complex or unique that only a spec if'ically degreed individual could perform them. Accordingly, the Petitioner has not satistied the second alternative prong o r 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

individuals referred or placed are not employees of the employment agencies." For additional information, see hnps:l/www.census.gov/cgi-bin/sssd/naics/naicsrch. 16 The record does not contain sufficient information to determine the full nature and scope of the Petitioner's activi ties. 17 We hereby incorporate our discussion of letter into our discussion of the other 8 C.F.R. § 2 14.2(h)(4)(i ii)(A) criteria.

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E. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

The Petitioner submitted evidence of employment for three . of its employees and education credentials for two; however, while the Petitioner stated that they were also programmer analysts, it did not provide the job duties or day-to-day responsibilities for these individuals. The Petitioner also did not submit sufficient information regardin-g the complexity of the job duties, supervisory duties (if any), independent judgment required or the amount of supervision received. Accordingly, it is unclear whether the duties and responsibilities of these individuals were the same or similar to the proffered position. 18

Further, on the f-orm 1-129, the Petitioner claimed· to employ one ind ividual and listed its gross annual income as $137,410. The Business Lease for its office locations listed on the Form 1-129 and in response to the RFE indicated that the Petitioner only had 800-900 square feet of space. However, the Petitioner's website li sts a different address of m

New Jersey, which reflects that the Petitioner may have moved to a space that appears to be a two story office condo of I ,200 square feet. 19 The Petitioner should be prepared to resolve these inconsistencies in any future tilings.

The record must establish that a petitioner' s stated degree requirement is not a matter of preference for high-caliber candidates but is necessitated instead by performance requ irements of the position. See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self­imposed requirements, an organization could bring any individual with a bachelor' s degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the posi tion.

We conclude that the Petitioner did not provide sufficient documentary evidence to support the assertion that it normally requires at least a bachelor's degree in a specific specialty,· or its equivalent, directly related to the duties of the position. The Petitioner has not satisfied the third criterion of 8 C.F.R. ~ 214.2(h)(4)(iii)(A).

1 R Again , the Petitioner stated on the LCA that this is a Level l, entry-level position.

19 http://· (last visited Apr. 25, 20 18).

The agency made clear long ago that speculative employment is not permiued in the H-I B program. See, e.g .. 63 Fed. Reg. 304 I 9, 304 19 - 30420 (June 4, 1998).

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Malter of V-1-S-. Inc.

F. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specitic duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent.

In the instant case, relative specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered position. We again refer to our earlier comments and findings with regard to the implication of the Petitioner's allocation of 60% of the Beneficiary's time to claimed required skills and not actual assigned duties or tasks in the proffered position. The Petitioner does not establish how the generally described duties elevate the proffered position to a specialty occupation. While the position may require that the Beneficiary possess some skills and technical knowledge in order to perfonn these duties, the Petitioner has not sufticiently explained how these tasks require the theoretical and practical application of a.body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The record does not include sufticient probative evidence that the duties require more than technical proliciency in the lie! d. Thus, the Petitioner has not demonstrated that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

IV. BENEFICIARY QUALIFICATIONS

The Director also found that the Beneficiary would not be qualilied to perform the duties of the proffered position if the job had been determined to be a specialty occupation, as the Beneficiary possesses a bachelor's degree in pharmacy. However, a beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty occupation. As discussed in this decision, the proffered position does not require a baccalaureate or higher degree in a specific specialty, or its equivalent. Therefore, we will not address the Beneficiary's qualifications further, but note that further information may be required to establish any equivalency in any further filings.

Y. CONCLUSION

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. s 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation. Though the motion to reopen was granted we have dismissed the appeal, and the petition therefore remains denied.

ORDER: The motion to reopen is granted and the appeal is dismissed. The petition is denied.

Cite as Maller ofV-1-S-. Inc., ID# 1066197 (AAO Apr. 26, 2018)

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