(b)(6) and Immigration Services - Temporary Worker...and Immigration Services ... that it identifies by the job title Senior Implementation Consultant at a ... With regard to the Client

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  • (b)(6)

    U.S. Department of Homeland Security

    U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

    U.S. Citizenship and Immigration Services

    DATEAUG 2 6 2014 OFFICE: CALIFORNIA SERVICE CENTER FILE:

    INRE: Petitioner: Beneficiary:

    PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(H)(i)(b)

    ON BEHALF OF PETITIONER:

    INSTRUCTIONS:

    Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

    This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R. 103.5. Do not file a motion directly with the AAO.

    Thank you,

    J%c/d r Jf-2 Ron Rosenberg Chief, Administ 1ve Appeals Office

    www.uscis.gov

  • (b)(6)

    NON-PRECEDENT DECISION Page 2

    DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. The petition will be denied.

    On the Form I-129 visa petition, the petitioner describes itself as a 77-employee computer and IT consulting company1 established in 1997. In order to employ the beneficiary in a full-time position that it identifies by the job title "Senior Implementation Consultant" at a minimum salary of $105,000 per year/ the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 110l(a)(15)(H)(i)(b).

    The director denied the petition, concluding that the evidence of record fails to demonstrate that the proffered position qualifies as a specialty occupation.

    The record of proceeding before us contains the following: (1) the Form I-129 and supporting documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's letter denying the petition; and (5) the Form I-290B and supporting documentation.

    Upon review of the entire record of proceeding, we find that the evidence of record does not overcome the director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the petition will be denied.

    I. Factual and Procedural Background

    As noted above, the petitioner described itself on the Form I-129 as a computer and IT consulting company and stated that it has been in business since 1997, that it currently employs 77 individuals, and that it has a gross annual income of approximately $20 million.

    In a letter of support dated March 18, 2013, the petitioner described itself as "a project-centric information technology firm, specializing in web and client/server technologies." It further stated that it provides IT (Information Technology) and business consulting services to clients in a variety of industries, including healthcare, insurance, retail, and transportation.

    1 The petitioner provided a North American Industry Classification System (NAICS) Code of 541511, "Custom Computer Programming Services." U.S. Dep't of Commerce, U.S. Census Bureau, North American Industry Classification System, 2012 NAICS Definition, "541511 Custom Computer Programming Services," http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited June 17, 2014).

    2 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified for use with a job prospect within the occupational classification of "Software Developers, Applications," SOC (O*NET/OES) Code 15-1131, and for which the appropriate prevailing wage level would be Level IV.

  • (b)(6)

    NON-PRECEDENT DECISION Page 3

    Regarding the proffered position, the petitioner claimed that the beneficiary would be serving in the role of senior implementation consultant, and would be assigned to work on the "Oracle Retail v12 Implementation" project for its client, Minnesota. The petitioner further claimed that, while working on this project, the eneficiary would at all times remain under the direct supervision of Partner of the petitioner, who in turn would be directly supervised by the petitioner's Vice President of

    The petitioner provided the following overview of the proffered position:

    The general purpose of the Senior Implementation Consultant position is to perform the necessary analysis to identify the IT solutions to the business needs of our clients and then to deliver and implement the solutions. The specific essential functions of the position include the following:

    Consult with clients about their business/technical needs and analyzing their existing and proposed foundation data, replenishment, pricing and distribution software systems;

    Deliver and implement new & customized Oracle Retail business products according to best practice methodology;

    Demonstrate expertise in current version of chosen technology - Oracle Forms and Reports, PL/SQL, MQ, Java and ProC;

    Prepare project documentation for functional/technical work streams of all implementation phases;

    May coordinate work of Implementation Consultants and provide mentoring in business and technical areas of Oracle Retail business products;

    Develop and execute test/quality assurance plans to ensure client's requirements are met;

    Prepare reports and presentations to keep client informed of project status; and Train client staff to maximize utility of new programs and to ensure that they

    can be supported after implementation is complete.

    As we shall be further discussed later in this decision, based upon our review of the entire record of proceeding, including the submissions on appeal, we have determined that the evidence of record does not provide sufficient information about the substantive nature of the proposed duties for us to reasonably determine that the beneficiary would more likely than not perform the duties that we just quoted above for .any appreciable period for any particular client. Further, the evidence of record lacks sufficient substantive details for us to determine that the beneficiary would actually perform duties that comprise a position within the Software Developer, Applications occupational group - as claimed - and that would require the theoretical and practical application of at least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty.

    The petitioner continued by claiming that the position requires a person with a bachelor's degree in computer science, or electrical or computer or communications engineering, or a related field, or the

  • (b)(6)

    NON-PRECEDENT DECISION Page 4

    equivalent. The petitioner claimed that the beneficiary was qualified to perform the duties of the position by virtue of his foreign degree deemed equivalent to a U.S. bachelor's degree in electrical engineering.

    In further support of the petition, the petitioner submitted: (1) a printout of its website; (2) various financial and tax documents related to its business operations; and (3) various documents pertaining to the beneficiary, including his resume, transcripts, and an evaluation of his foreign academic credentials.

    The director found the evidence submitted insufficient, and issued an RFE on July 1, 2013. Specifically, the director noted that aside from the petitioner's letter of support dated March 18, 2013, there was no evidence in the record corroborating the petitioner's claim that it would employ the beneficiary onsite at its client, and that it would maintain control over his work during the course of that assignment. The director requested additional evidence to support this contention, and outlined the specific documentation to be submitted, including an employment agreement, copies of signed contracts and statements of work with the claimed end-client(s), and a more detailed description of the beneficiary's duties.

    In a response dated September 12, 2013, counsel for the petitioner addressed the director's queries. Counsel provided an overview in list form of the documents submitted in response to the RFE, which included the following:

    1. A copy of the petitioner's Offer of Employment letter to the beneficiary dated March 18, 2013;

    2. A copy of the petitioner's "Employee Non-Confidentiality, Non-Disclosure and Non-Solicitation Agreement;"

    3. A copy of the petitioner's organizational chart; 4. A copy of the petitioner's Employee Handbook; 5. A copy of the Client Services Contract between the petitioner and

    L dated August 21, 2006 (and revised on September 22, 2006); 6. A copy of Addendum #3 to the Client Services Agreement; and 7. Evidence pertaining to employee health benefits.

    With regard to the Client Services Agreement, we note that the agreement manifests the intention of the petitioner to "provide the services of the individual(s) listed in the Addendum, as amended from time to time by mutual written agreement of [the petitioner] and Client, as a Consultant(s) to provide consulting services in the solution of specific tasks and problems within the