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Non-Precedent Decision of the Administrative Appeals Oflice

DATE: JUNE 28, 2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, an electrical design and construction company, seeks to temporarily employ the Beneficiary as a "CAD/Revit-building information modeler" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-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 prereq uisite for entry into the position.

The Director of the California Service Center denied the petition, concluding that the evidence of record did not establish that the proffered position qualifies as a specialty occupation.

On appeal, the Petitioner asserts that the Director erred in the decision. Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U.S.C. § ll84(i)(l ), defines the tern1 "specialty occupation" as an occupation that requires:

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

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

The regulation at 8 C.F.R. ~ 214.2(h)(4)(ii) largbly restates this statutory defini tion, but adds a non­exhaustive list of fields of endeavor. In additiori, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

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

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(2)

(3)

(4)

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;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated wi th 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 ope in a specific specialty that is directl y related to the proposed position. See Royal S iam Corp. v. Chertofj; 484 F.3d 139, 14 7 (1st Cir. 2007) (describing "a degree requirement in a speci fie specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 20"1 F.3d 384, 387 (5th Ci r. 2000).

ll. PROFFERED POSITION

The Petitioner stated that the Beneficiary will serve as a "CAD/Revit-building information modeler." The Petitioner also referenced the proffered position as a "CAD/ Revit draftsman," and " BIM designer/coordinator" throughout the record. The Petitioner initially provided a general, job description for the proffered position. In response to the Director's request for evidence (RFE), the Petitioner provided additional information for the job description, along with the approximate percentage of time the Beneficiary will spend on each duty.

IlL ANALYSIS

For the reasons set out below, we have determined that the Petitioner has not demo nstrated that the proffered position qualifies as a specialty occupation.' Specifically, the record does not establ ish that the job duties require an ed ucational background, or its equivalent, commensurate with a

specialty occupation. 2

As a preliminary matter, we no te that the Petitioner did not state at the time of the petition was filed that the proffered position has any particular academic requirements (or any other requ irements). The Petitioner does not claim that the proffered position requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or

1 Although some aspects of the regulatory criteria may ove·rlap, we will address each o f the cri te ria ind ividually. 2 The Petitioner submilled documentation in support of the H-1 B petition, incl ud ing evidence regarding the proffered position and its business operations. While we may nol discuss every _document submilled, we have reviewed and considered each one.

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higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation, as required by the Act. See section 214(i)(1) of the Act.

Nevertheless, we will review the evidence of record to determine whether the proffered position qualifies as a specialty occupation pursuant to 8 C.~.R . § 214.2(h)(4)(iii)(A).

A. First Criterion

We turn first 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 fo r entry into the particular pos~tion. 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 addrcsses.3

On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner designated the proffered pos ition under the occupational category "Electrical and Electronics Drafters," corresponding to the Standard Occupational Classification (SOC) code 17-3012. The Handbook discusses electrical and electronics drafters in its "Drafters" chapter. We reviewed the Handbook's subchapter entitled "How to Become a Drafter," which states, in pertinent part, that "[d]rafters typically need specialized training, which can be accompJished through a technical program that leads to a certificate or an associate's degree in drafting.".) Therefore, the Handbook does not indicate that a baccalaureate or higher in a specific specialty, or its equivalent, is necessary for entry into this occupation.

In response to the RFE, the Petitioner provided an_ article from the American Society of Civil Engineers entitled "The Competencies of BIM Special_ties: a Comparative Analysis of the Li terature Review and Job Ad Descriptions." The article states that based on the information from 22 job ads and 24 technical papers, a "competent BIM Manager should possess a Bachelor 's degree in an AEC­related area and have at least 5 years of professional experience." However, the article also shows

3 All of our references to the Handbook may be al:cesscd at http ://www.bls.gov/ooh/. We do not, however, maintain tha t the Handbook is the exclusive 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 n:gularly review the Handbook on the duties and edul:ational requirements of the wide variety nf occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to suhmit sufficient evidence to support a· conclusion that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 4 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-113 worker the higher of either the prevailing wage for the occupational classi fication 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 of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). ~ Bureau of Labor Statistics, U.S. Dep' t of Labor, Occupational Owlook Handbook, Drafters, https://www.bls.gov/ooh/architecturc-and-engineeringfdrafters.htm (last visited June 27, 201 8).

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that a high school diploma or technical diploma is acceptable for entry into the position. Thus, the article is also not probative evidence that the proffered position qualifies as a specialty occupation.

In the instant matter, the Petitioner has not provided sufficient docu mentation from a probative, authoritative source to substanti ate its assertion regarding the minimum requ irement for entry into this particular position. T hus, the Petitioner has not satisfied the criterion at t{ C.F.R. ~ 214.2(h)(4)(iii)(A)(l).

B. Second Criterion

The second criterion presents two, al ternative prongs: "The degree requirement is common to the industry in paral le l positions among similar organizations or, in tlze alternative, an employer may show that its particular position is so complex or unique that it can be performed onl y by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphas is added). The first prong looks to the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

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

We generally consider the fo llowing sources of evidence to determine if there is such a commo n degree requirement: whether the Handbook reports that the industry requires a degree; whether the industry' s professional association has made a degree a minim um entry requirement; and whether letters or affidavits from firms or indi viduals in the industry attest that such f·irms " routinely employ and recruit only degreed.individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 , 1165 (0. Minn . 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1'102 (S.O.N.Y. 1989) (conside ring these "factors" to inform the commonality of a degree requirement)).

In support of this criterion, the Petitioner submitted a letter from , principal and project manager for In the letter, states that "[t]hc following discussion is meant to highlight the changing design and construction landscape and provide insight as to how a successful employee may integrate into the construction workforce of tomorrow." However, does not state that at least a bachelor's degree in a specific specialty, or its equiva lent, is requ ired for the position. · For instance, he states that the training for the incoming workforce in the constructi on industry "often comes in the form of post-secondary education and collegiate degree programs related to the field of Architecture/Engineering a~d Construction Management." does not specify the degree level (e.g., associate 's, vocational degree, or baccalaureate).

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

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misplaced. Although the Petitioner submitted job postings that appear to be for positions in the Petitioner's industry, the advertisements do not appear to involve parallel posi tions. For example, some of the positions appear to be for more senior, experienced employment than the proffered position.6 Further, some of the postings do nof include sufficient information about the tasks and responsibilities fo r the advertised positions. Thus, the Petitioner has not sufficientl y established that the primary duties and responsibilities of the advertised positions are parallel to the proffered position.

In addition, one of the postings does not indicate that at least a bachelor's degree in a directly related specific specialty (or its equivalent) is required.7 For instance, the posting placed by

. states that a "Technology (associates degree) or BS in appropriate engineering field" is required for the position. The job postings suggest, at best, that although a bachelor's degree is sometimes required for these positions, a bache lor's degree in a specific specialty (or its equivalent) is not.8

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.9 That is, not every deficit of every job posting has been addressed.

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

r, For instance, the posting placed by states a requirement of a bachelor's degree in electrical, mechanical, civil or industrial engineering, or construction management and five years or more of experience. In addition, the advertisement placed by Final Drafl CAD states a requirement of a bachelor's degree in architecture or engineering or related field and four years of experience. 7 As discussed , the degree requirement set by the statutory <tnd regulatory fr<tmework of the H-1 B program is not just a bachelor's or higher degree, but a bachelor' s degree in a specific specia lty that is di rectly related to the dut ies of the position. See section 2 14(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). x It must be noted that 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 Pet ition~r

has not demonstrated what statistically valid infen:nces, 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 Practice of Social Research 186-228 (1995). Moreover, given that there is no indication tha t the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andorn selection is the key to [the] process [of probabi lity sampling]" and that "random selection offers access to the body of probabil ity theory, which provides the basis for estimates of population parameters and estimates of error"). 9 The Petitioner did not provide any independent evidence of how represcntalive the job postings arc of the particular advertising employers' recruiting history for the type of job advertised. As the advertisements arc only solicitations for hire, they are not evidence of the actual hiring practices of these employers.

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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.

To begin with and as discussed previously, the Petitioner itself does not require a baccalaureate or higher degree in a specific specialty, or its equivalent. The Petitioner submitted a list of job duties and the percentage of time the Beneficiary would devote to certain tasks, along w ith the technical skills required to perform each duty. However, the record does not demonstrate how the duties of the proffered position as described require the. theoretical and practical application of a body of highl y specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. For instance, the Petitioner did not submit information relevant to a detailed course of study leading to a specialty degree and did not establish how such a curriculum is necessary to perform the duties of the proffered position. While a few related courses and skills may be beneficial in performing certain duties 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 perform the duties of the proffered position.

The Petitioner claims that the Beneficiary is well qualified for the pos111on, and references his qual ifications. However, the test to establish a position as a specialty occupation is not the credentials of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. He re, the Peti tioner did not sufficiently develop rela ti ve complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specificall y degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). '

C. 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 record must establish that a petitioner's stated degree requirement is not a matter of prefe rence for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. Were we limited solely to rev iewing 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 e ntit y 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 position.

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In support of this criterion, ~he Petitioner provided one of its own advertisements for the proffered position. Notably, the advertisement does not provide any academic requirements for the position. Without more, the Petitioner has not provided sufficient evidence to establish that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, fo r the proffered position. Therefore, it has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A).

D. 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 specific 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 speci fie 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. While the position may require that the Beneficiary possess some skills and technical: knowledge in order to perform these duties, the Petitioner has not sufficiently 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 sufficient probative. evidence that the duties require more than technical proficiency in the field. 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)(i ii)(A)(4).

IV. CONCLUSION

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter of ID# 1386168 (AAO June 28, 2018)