U.S. Citizenship and Immigration Services - Temporary Worker...U.S. Citizenship and Immigration Services ... in MD. Training and familiarity with [the ... include the SAP Basis Engineer II, the SAP Basis Analyst,

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  • U.S. Citizenship and Immigration Services

    MATTER OF B-C- INC.

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: AUG. 14,2017

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

    The Petitioner, a consulting firm, seeks to temporarily employ the Beneficiary as a "SAP FSCM analyst" under the H-1 B nonimmigrant Classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 1101(a)(l5)(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 California Service Center denied the petition, concluding that the evidence of record does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) the Petitioner will engage the Beneficiary in an employer-employee relationship.

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

    I. SPECIALTY OCCUPATION

    We will first determine whether the record of proceedings establishes that the proffered position qualifies as a specialty occupation.

    A. 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.

  • Matter of B-C- Inc.

    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 protlered position must meet one of the following criteria to qualify as a specialty occupation:.

    (J) 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 have consistently interpreted 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. Cherto.ff, 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).

    B. Proffered Position

    In the H -1 B petition, the Petitioner stated that the Beneficiary will serve as a "SAP FSCM analyst." In response to the Director's request for evidence (RFE), 1 the Petitioner provided the Beneficiary's job duties for the position, along with the approximate percentage of time he will spend on each duty. According to the Petitioner, the position requires a bachelor's degree in electronics engmeenng.

    C. Analysis

    For the reasons set out below, we have determined that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation?

    1 In the response to the RFE, the Petitioner repeatedly referred to the proffered position as a "senior" SAP FSCM analyst. No explanation for the variance was provided. 2

    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.

    2

  • .

    Matter of B-C- Inc.

    1. Inconsistencies in the Beneficiary's Place of Employment

    First, we find that the Petitioner has provided inconsistent information regarding the Beneficiary's place of employment. The table below summarizes the variances in the Petitioner's statements.

    Record of Proceedings

    Form I-129

    Labor Condition Application (LCA)

    Letter of Support (March 21,

    Employment Information

    I ~!lft 5~~ Basiclnformation About the Proposed Employment and Employer (continued)

    3. Adrlress where the beneticimy(ies) will work if different tlom address in Part l. Street Nmnber and Name , .~t ~ 8

    1,N_m_ul_)e_r ------,~ '-------~-----'

    City or Town Stare ZIP Code

    ~~~~~~-'----'-'~~~~---'-"-----~----'11====-:ll_~-~ 4. Did you include an itinerary with the petition'

    5. Will the beneficiary(ies) work for you oft:site at another company or organization's location'

    Page 5

    rsection 4. - Off-Site Assignment of H-lB Beneficiaries

    1. The beneficiary of this petition will be assigned to work at an otT-site location hw all or part of the period for which H-JB classificmion sought.

    If no. do not complete Item Numbns 2. and 3.

    No

    [8] Yes No

    IX Yes !No

    2. Placement of the beneticrmy off-site dnring the period of employ1uent will comply with the statutory and regulatOiy requirements of the H-lB noninmugrant classification.

    [:>(_Yes D No

    3. The beneficimy will be paid the higher of the prevailing or actual wage at any and all ofk;ite locations.

    Page 21

    a. Place of Employment 1

    1_ Address 1 * L J - .- --:-

    2_ Address 2 .

    3_ City 4. County*

    ' . l l 5. St~~e/Distncu1 ermor

    ryll I .. 6. Postal code *

    Page 3

    Our analysts need to report to client sites to work on their systems and analyze their needs to design new processes and applications, or modify and transform existing outdated systems. But after the initial contract is fulfilled, the SAP analysts return to

    3

  • .

    Matter of B-C- Inc.

    2016)

    Itinerary of Services

    Declaration of

    Opinion

    [the Petitioner] to continue supporting, maintaining and promoting [the Petitioner's] products and services. (Page 3)

    Upon approval of the H-1 B petition, [the B]eneficiary will be assigned to work for the company headquarters, in MD. Training and familiarity with [the Petitioner's] services and products may take 3 - 6 months.

    Once training is complete, anytime between January 2017 through April 2017 worker will be reassigned to client site for duration of H-1 B period. . . . Long-term off-site placement assignment scheduled to last the entire H-1 B validity period. However, H-1B worker may be re-assigned to more urgent end-client matters.

    2. [O]ur SAP analysts and employees are defined as: LONG TERM PLACEMENT AT A THIRD PARTY WORK SITES. (Page 1)

    4. The [P]etitioner is a company specializing in delivering automated process solutions with an Enterprise software known as SAP. The [P]etitioner maintains standing contracts through long-term business relationships with another, unrelated company to develop automated processes, using the [P]etitioner's proprietary "SPECIALIZED software design, know how and expertise" for a Leading Enterprise software product known as SAP [www.sap.com]. (Page 1)

    5. In order to complete this project, [P]etitioner has contracted to place SAP Analysts at the client's main warehouse/facility where they will develop the automated processed for the client using the [P]etitioner's "SPECIALIZED software design, know how and expertise." [The Petitioner] sends in a team of SAP Analysts and Engineers to analyze the client's needs, requirements and objectives, [the Petitioner] then formulates SAP solutions which its employees then carry out under the careful supervision and direct management of [the Petitioner]. (Page 1)

    6. The [B]eneficiary is a SAP FSCM Analyst who has been offered employment to fulfill the needs of the contract in place between the [P]etitioner and the third-party client, a contract where the [Petitioner] is required to upgrade or create a SAP process for the third-party client. The [B]eneficiary performs his duties at the client company's facility using [the Petitioner's] specialized financial software designs, know how and expertise. (Pages 1-2)

    16. Our analysts may need to report to client sites to work on their systems and analyze their needs to design new processes and applications. But after the initial contract IS fulfilled, the SAP analysts return to [the Petitioner] to continue supporting, maintaining and promoting [the Petitioner's] products and services. (Page 3) When [the Petitioner] wins a contract they send their employees to begin working on

    4

  • .

    Matter of B-C- Inc.

    Letter from

    (July 18, 2013)

    Right to Control

    Response to request for evidence (RFE)

    the project. .. _. [T]hey only provide work based on the agreement between [the Petitioner] and the customer. (Page 3)

    Once the project is completed, the employees return to [the Petitioner] for their next assignment. . . . If there is no project work, the employees provide support to other