MATTER OF W-D-S-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 18, 20i8

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a dental service provider, seeks to temporarily employ the Beneficiary as a "management analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § I 10l(a)(15)(H)(i)(b). The H-1B 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 2 l 4(i)(l) of the Act, 8 U.S.C. § l l 84(i)(l), defines the term "specialty occupation" as an occupation that requires:

{A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non-exhaustive list of fields of- endeavor. In addition, the regulations provide that the offered position must meet one of the following criteria to qualify as a specialty occupation:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

Matter of W-D-S-, Inc.

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may sho'1' that its particular position is so coqiplex·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. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

II. ANALYSIS

For the reasons set out below, we have determined that the proffered position does not qualify as a specialty occupation. Specifically, the record provides inconsistent information regarding the proffered position, which in turn precludes us from understanding the position's substantive riature. 1

When determining whether a position is a specialty occupation, we look at the nature of the business offering the employment and the description of the specific duties of the position as it relates to the particular employer. To ascertain the intent of a petitioner, we look to the Form 1-129, Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. It is only in this manner that we can determine the position offered and other salient aspects of the proposed employment.

Thus, a crucial aspect of this matter is whether the Petitioner has submitted sufficient and consistent evidence describing 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 highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Here, we conclude that the Petitioner has not done so.

Specifically, the Petitioner did not adequately describe the duties of the position. The Petitioner stated that the Beneficiary will serve as a "management analyst." In its letter of support, the Petitioner initially provided a list _of duties for the proffered position as follows:

1 The Petitioner submitted documentation in support of 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.

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Matter of W-D-S-, Inc.

• Analyzing operational requirements with team members and preparing business use case documents and reports ·

• Meet regularly with department managers to determine, design, implement and evaluate methods of improving productivity and results.

• Documenting rules, regulations, and compliance requirements • Prepare detailed technical and functional specifications for specialties • Create, monitor, and maintain mockups such .as CareCredit refund functionality,

and similar programs using tools such as Balsamiq, JustinMind, etc. • Conducts regular meetings with business users SME's and create User Stories in

JAMA • Maintain JIRA to ensure all team members have easy access to all documents as

needed • Serve as liaison between technical and non-technical team members • Ensure timely and accurate communications exchange with project staff

throughout life cycle of the project • Research client and industry related business and technical processes and select

appropriate processes best fitting company and management needs.

In response to the request for evidence (RFE), the Petitioner submitted another list of duties along with the approximate percentage of time the Beneficiary will spend on each group of duties. Specifically, the duties include, in part:

• Gather and analyze business requirements (15% or 6 hours per week) a. Collecting, analyzing, documenting requirements in the form of user stories '

while evaluating their potential and practicality by analyzing business needs; b. Joining requirement gathering sessions and working closely with stakeholders

and Subject Matter Experts (SMEs); c. Facilitating the communication between and among regional and group staff

departments in order to analyze business and technical requirements, and roll out new or revised products, systems and procedures to the regional offices.

• Prepare business requirement document (High Level Design) and system requirement study (Low Level Design) for the functional changes; (15% or 6 hours per week) a. Writing detailed requirement specification for IT solutions delivery with a

significant Business Intelligence focus b. Writing use cases, business rules, and other artifacts such as swim lane

diagrams, activity flow diagrams and data flow diagrams to effectively articulate and represent business processes, desired outcomes and requirements;

c. Developing user stories and technical requirements while evaluating their potential and practicality by analyzing market and customer needs;

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Matter of W-D-S-, Inc.

• Give inputs for functionality testing from business perspective and determine technical staffing needs for design and development of the management information systems; ( 15% or 6 hours per week) a. Analyzing and executing Test Cases and Test Plans based on requirement

specifications and Functional specifications. b. Assisting in executing the test cases manually for various job submissions in

batch processing c. Creating traceability matrix to ensure that the requirements are traced to the

test cases.

• Conduct User Acceptance testing, train users to use programs and provide technical assistance to program users; (15% or 6 hours per ~eek) a. Assisting in preparing UAT test plans and conducting User Acceptance testing

to the quality assurance teams b. Executing the test cases manually for various job submissions in batch

processing c. Creating traceability matrix to ensure that the requirements are traced to the

test cases.

On appeal, the Petitioner submits another job description. Specifically, the Petitioner states that the Beneficiary will be "responsible for development and enhancement of the [Petitioner]'s core internal software systems." The Petitioner indicates that the Beneficiary "will be a key team member in all aspects of the software development cycle." Specifically, the Beneficiary will:

[W]ork with the development, Quality Assurance, application delivery, and tech support teams to gather and review requirements document, design documents, set operational specifications, formulate and analyze system requirements. He will also create and present the designs to other technical leaders and managers, identify the functional changes, and provide support after implementation. In addition, he will lead the hardening test phase of the release cycle and identify the test cases needed to ensure the product stability and enhancements. He will execute test cases with team members, ensure all test cases have been performed. He will identify systems gals and report to the supervisor. He will be developing detailed instructions manual and ensure continued support and training for comprehensive implementation of the system enhancement. He will respond to customer's issues from the field, troubleshooi the program, prioritize issues, and provide recommendations and solutions to resolve the issues. He will also participate in scrum meetings, implementing stories, reporting, and work closely with other teams to ensure product integrity.

The record does not sufficiently establish that various job descriptions in the record are consistent. The duties of the position appear to evolve over the course of the proceedings. We note on the labor

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Matter of W-D-S-. Inc.

condition application (LCA) submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Management Analysts" corresponding to the Standard Occupational Classification code 13-1111 at a wage level 1.2 However, we are unable to determine if the Petitioner's descriptions of the duties are consistent with the "Management Analyst" occupational category. 3

For example, the Beneficiary's duties involving software design, development, testing, and delivery of systems duties do not appear consistent with the general responsibilities of "Management Analysts," whose work focuses on improving an organization's efficiency through cost effectiveness and increased revenues. The Occupational Information Network (O*NET) summarizes the "Management Analysts" occupation's responsibilities as to "[c]onduct organizational studies and evaluations, design systems and procedures, conduct work simplification and measurement studies, and prepare operations and procedures manuals to assist management in operating more efficiently and effectively."4 O*NET does not specifically list any duties involving software design, development, testing, and delivery of systems. Similarly, the Occupational Outlook Handbook (Handbook) states that management analysts "propose ways to improve an organization's efficiency. They advise managers on how to make organizations more profitable through reduced costs and increased revenues. "5 -

The Petitioner ·also provided inconsistent degree requirements for the proffered position. First, the Petitioner did not identify a type of degree or any associated specialty for the proffered position prior to the Director's decision. Rather, while making a generalized statement that the management analyst position is a "complex position requitjng a Bachelors Degree at a minimum and a Master's Degree by many employers," the Petitioner suggested in the RFE response that the Director ~hould infer the degree requirement for the position from "the fact that two other employees [ of the Petitioner] in similar positions have a master's degree in business or related." There ·are two issues with this approach: 1) the record does not contain sufficient evidence establishing that these employees' positions have the same or si_milar substantive responsibilities, duties, and performance requirements as the proffered position; and, 2) the requirement of a degree in business is inadequate to establish that a position qualifies as a specialty occupation. 6 The Petitioner should clearly

2 A wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. Id. U.S. Dep't of Labor, Emp't & Training Adm in., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ I I_ 2009. pdf. 3 On appeal, 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, the 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 l&N Dec. 248, 249 (Reg'I Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition confonn to USCIS requirements. See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 4 See https://www.onetonline.org/link/summary/ 13-1111.00 (last visited Sept. 18, 2018). 5 See https://www.bls.gov/ooh/business-and-financial/management-analysts.htm {last visited Sept. 18, 2018). 6 A requirement for a bachelor's degree in business is inadequate to establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that

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Mauer of W-D-S-, Inc.

articulate its degree requirement for the proffered position to enable the Director to evaluate the position properly.

On appeal, the Petitioner indicates that the position "would be filled by a graduate with a minimum of a Bachelor's Degree in Business Administration, Management Information Systems, or a related area, or the equivalent." However, again USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 8 C.F.R. §103.2(b)(l). The Petitioner must establish that the position offered to the Beneficiary when the petition was filed merits classification for the benefit sought. See Michelin Tire Corp., 17 l&N Dec. at 249. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. at I 76.

The Petitioner emphasizes that the Beneficiary is well qualified for the position, and references his qualifications. However, the test to establish a position as a specialty 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 its equivalent. Here, the Petitioner did not provide consistent information regarding the proffered position to establish that only a specifically degreed individual could perform them.

Furthermore, on appeal, the Petitioner submits a document stating that it contains "the job announcement for this position dated in 20 IS and 20 I 7." This document contains an excerpt consisting of a table that lists four job announcements for the "Business Analyst" position including, among others, the number of applicants, the location of the positions, and whether the position was filled. This document states neither the duties nor the educational requirements of the positions. Nor does it give any information about the qualifications of the individuals who may have been hired through these announcements. We disagree with the Petitioner that this document exhibits its hiring history demonstrating a requirement of a bachelor's degree in a specific specialty for the proffered position.

For the reasons discussed above, we conclude that the Petitioner has not demonstrated that the proffered position requires an educational background, or its equivalent, commensurate with a speciaJty occupation.

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" 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). These requirements do not satisfy the statutory and regulatory framework of the H-1 B program. The requirement is not just a bachelor's or higher degree, but a bachelor'_s degree in a specific specialty that directly relates to the position duties. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). Although a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam, 484 F.3d at 147.

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Matter of W-D-S-, Inc.

Further, the record contains other evidence that contradicts the Petitioner's claims regarding the proffered position. For example, the Petitioner also submitted a letter from a professor at , in which he stated that the Beneficiary "would be working with requirements already developed by more experienced individuals." further stated that the position is an "entry-level" position and the Beneficiary "would be handling job duties at the lowest level of the technology ladder," and "would exercise limited independent judgment." Contrary to opinion, the Petitioner stated that "the position offered is not an entry-level position" because the ottered salary to the Beneficiary is closer to a wage level III. The Petitioner's characterization of the duties is inconsistent with --~ depiction of the duties.

Furthermore, stated that "it is appropriate and customary for an Information Science & Engineering firm ... [to] require that a person hired as a Management Analyst possess bachelor's­level training in Business Management, Information Systems or a closely related field." It is unclear which business was referring to as the Petitioner is a dental care provider and not an information science and engineering firm. We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'/, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any way questionable, we are.not required to accept or may give less weight to that evidence. Id.

On appeal, the Petitioner submits a letter from , an associate dean at the states that he reviewed "several documents" including the

business flow charts and an organizational chart, and concludes that the Beneficiary's duties are "not" lower level duties. does not identify the each document he may have reviewed and it is unclear if he was mtormect ot the Petitioner's attestation on the LCA that the proffered position was a Level I wage position. It is not clear if possessed the requisite information to adequately assess the nature of the position. Moreover, while concluded that the duties of the proffered position were "at the lowest level," concluded that the duties were not lower level. The contrasting conclusions reached by and regarding the level of the proffered position's duties raise doubts about the true nature of the duties submitted.

Again, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Caron Int'/, Inc., 19 I&N Dec. at 795. For the reasons discussed above, we do not find that and opm10n letters constitute probative evidence towards establishing that the proffered position is a specialty occupation.

In addition, it is unclear whether the Petitioner submitted an LCA consistent with the proffered position's duties. As noted, the position's software design, development, testing, and delivery of systems duties do not appear consistent with the general responsibilities of "Management Analysts."

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Matier ofW-D-S-, Inc.

For purposes of the LCA, the Petitioner is required_ to select the occupational category and code that best represent the nature of the job offer, which in turn determines the appropriate prevailing wage.7

Further, if the proffered position is a combination of different occupational categories, then the Petitioner should select the occupation category with the highest paying occupation. 8

Given the generalized description of the duties and the inconsistencies contained in the evidence submitted, it remains unclear whether the position is accurately described in the record. As the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, this 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 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.

III. CONCLUSION

For the r~asons outlined above, the Petitioner has not established eligibility for the benefit sought.

ORDER: -The appeal is dismissed.

Cite as Matter of W-D-S-, Inc., ID# 1501781 (AAO Sept. 18, 2018)

7 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.foreignJaborcert.doleta.gov/pdf/NPWHC_ Guidance_Revised_l 1_2009.pdf. 8 Id.

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