MATTER OF T -G- LLP

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 7, 2018

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

The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a "software' engineer" under the H-IB nonimmigrant classification tor specialty occupations. Immigration and Nationality Act (the Act) section I 0 I (a)( IS)(H)(i)(b ), 8 U.S.C. § II 0 I (a)(IS)(H)(i)(b ). The H-IB 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 Vermont Service Center denied the petition, concluding that the Petitioner has not demonstrated the availability of specialty occupation work for the Beneficiary.

On appeal, the Petitioner submits additional evidence and asserts that the record demonstrates the availability of work for the Beneficiary.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U .S.C. § 1184(i)(l), defines the term "specialty occupation" as an occupation that requires:

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

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

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

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

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

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

( 4) The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A). We 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").

II. PROFFERED POSITION

In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a <'software engineer" working onsite at its location in New Jersey. However, the Petitioner did not specify clients, projects, or teams for or with whom the Beneficiary would provide consulting services, or other evidence of an in-house project. In a Jetter submitted in support of the petition the Petitioner provided the following job duties for the position:

• [B]e responsible for designing, developing, and enhancing applications in an agile environment and fixing bugs to stabilize the application.

• [D]esign and implement system, load, and unit testing, work on authentication and authorization in the software application, and design user interface applications.

• [W]ork on software features for transactions, views, and stored procedures. • [A]ccess and assign the sessions using software developing languages. • [D]evelop stored procedures, views and automated scripts for database

maintenance, deployment and installation. • [B]e involved in requirements gathering and functional specification document

preparation, and participate in domain knowledge transfer team meetings.

According to the Petitioner, the position requir~s "a Bachelor's Degree in Information Technology, Computer Science, Computer Applications, Electrical Engineering, Electronics Engineering, Computer Engineering, or other related fields of study."

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III. ANALYSIS

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not sufficiently established the work the Beneficiary would perform during the intended period of employment, which precludes the determination of whether the pro tiered position is a specialty occupation. 1

The record does not contain sufficient information regarding the proffered position. For H-1 8 approval, the Petitioner must demonstrate a legitimate need for an employee exists and demonstrate it has sufficient work to require the services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to perform duties at a level that requires the theoretical and practical application of at least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for the period specified in the petition.

As noted, the Petitioner initially did not submit any documents to establish in-house employment for the Beneficiary during the requested H-18 employment period. In response to the RFE, the Petitioner stated that "[t]he Beneficiary will conduct application development in-house for the software products development project for the Petitioner's client, [G-F-], carried out in-house at the Petitioner's location." The Petitioner submitted a general non-disclosure agreement (NDA) between the Petitioner and G-F- "as a typical software development contract which the Petitioner signs with the customer." However, the Petitioner concedes that the NDA (which it inaccurately describes as a software development contract) "does not specify and require the Petitioner to allocate a particular software developer or software engineer in the software development project." Moreover, the NDA does not establish that, at the time of filing the petition, the Petitioner contracted to provide goods or services to G-F-. Instead, the NDA refers to "ongoing discussions, correspondence and evaluative testing between [G-F-] and [the Petitioner]" preceding a contract for goods or sen,:ices.

The NDA does not further specify the work to be performed, and th~ Petitioner did not submit a supplemental statement of work identifying the work the Petitioner must perform for G-F-, the positions required to perform the work, the qualifications required to work in those positions, and the individuals hired and assigned to perform the positions' work. Instead, the Petitioner submitted a copy of "a brochure for a software development project with [G-F-]" and a copy ofthe' user guide together with [a] detailed explanation of the software application and its features."

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

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The Petitioner also provided copies of invoices sent to other clients such as A-G-L- from July 2016 through April 2017, 0-L-G- from May 2016 through March 2017, and V- from October 2016 through April 2017. However, these invoices do not establish that, at the time of filing the petition, the Petitioner had an existing contract to develop software for G-F- during the intended period of employment.

The Director noted that the NDA and invoices do not sufficiently establish that the Petitioner would develop software for G-F-.

On appeal, the Petitioner submits invoices it sent to G-F- and 1-P-, another customer, in July and August 2017, and bank statements from those months with income corresponding to the invoices. However, this information is insufficient to establish availability of specialty occupation work for the Beneficiary. The documents do not describe the specific services the Petitioner provided to 1-P- and G-F-; whether providing those services required one or more employees of the Petitioner working in the proffered position; whether and how the Beneficiary would perform those services; and whether the Petitioner agreed, as of the time the Petitioner filed the petition, to provide those services. Therefore, like the NDA, these documents do not establish eligibility at the time of filing.

The agency has established that speculative employment is not permitted in the H-1 B program. See. e.g.. 63 Fed. Reg. 30419, 30419-20 (June 4, 1998). A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set of facts. See Malter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg') Comm'r 1978).

Additionally, the Petitioner argues that, although its software "is already developed," it "needs further development" because "the functionality of the software is limited." The Petitioner states that its software "needs upgrading to make it compatible to third party software products as (third] party software products are constantly changing and updating." The Petitioner states that it must develop a new "DVS function [to] complete[] the entire supply chain management circle by order processing and order payment." The Petitioner directs our attention to a graphic which arranges three groups of words in a triangle and connects them with a circle, presumably representing "the entire supply chain management circle." One of those groups reads: "DVS. For vehicle routing, dispatch and digital signatures." The Petitioner briefly elaborates on DVS on two pages from a document that appears to be a 14-page slideshow presentation. In addition to including the initials "DVS," those slides state:

• Delivery Management. Optimize routing and dispatch, prevent yield loss and minimize returns.

• Determine efficient routing. Optimize routing and dispatch. •· • Track Driver Performance. Enhance driver performance and fuel efficiency. • Digital Signature Capture. Get real-time visibility on ·customer drops' and returns.

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The Petitioner also submitted a one-page document titled "Premium Features and Functionality for Additional Fees." This document appears to describe the Petitioner's software and indicates that, in addition to and OMS, DVS provides "Multicurrency support."

The evidence does not satisfactorily establish a specific "upgrad[e]" required to make "compatible to third party software products." The evidence also does not sufficiently establish which aspects of DVS require development, the process of performing that development, or even the meaning of the acronym DVS. Accordingly, the record does not contain adequate documentation regarding the Petitioner's business activities and the actual work that the BenE;ficiary would perform during the intended period of employment.

Because the Petitioner has not sufficiently established the work it would require the Beneficiary to perform or the duties necessary to perform the protTered position's work, we cannot determine whether the proffered position satisfies the requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A).2

IV. CONCLUSION

The Petitioner has not sufficiently established the work the Beneficiary would perform during the intended period of employment, which precludes the determination of whether the proffered position is a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Mauer of T-G- LLP, ID# 1162230 (AAO Mar. 7, 20 18)

2 The Director's decision and the Petitioner's brief on appeal address other issues, such as whether the Petitioner maintains sufficient work space for the Beneficiary and the Petitioner's other employees. However, our conclusion that the Petitioner has not sufficiently established the work it would require the Beneficiary to perform is dispositive. We need not discuss additional issues because that analysis will not affect the outcome of the appeal.

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