U.S. Citizenship Non-Precedent Decision of the and Immigration … · 2017-08-30 · U.S. Citizenship and Immigration Services ' MATTER OF T-S-ITG-LLC Non-Precedent Decision of the

U.S. Citizenship and Immigration Services '

MATTER OF T-S-ITG- LLC

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, an information technology consulting company, seeks to temporarily employ the Beneficiary as a "programmer 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-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 ( 1) that the proffered position is a specialty occupation; and (2) the validity of the labor condition application (LCA) submitted in support of the petition.

On appeal, the Petitioner submits additional evidence and contends that the petition should be approved.

Upon de novo review, we will dismiss the appeal. 1

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

1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 20 I 0). A petitioner must show that what it claims is "more likely than not" or "probably'' true. To determine whether a petitioner has met its burden under the preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. ld at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). However, as we will discuss further below, the Petitioner has not sufficiently demonstrated that its claim is "more likely than not" or "probably" true.

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Matter of T-S-ITG- LLC

(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:

(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 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).

II. PROFFERED POSITION

The Petitioner stated in the H-IB petition that the Beneficiary will serve as a "programmer analyst." The Petitioner, which is located in New Hampshire, explained that the Beneficiary would perform his duties in Montana for an end-client, and the record contains documentation regarding the

project upon which he would work. In its support letter, the Petitioner stated that the Beneficiary would spend 55% of his time performing the following duties:

• Program in C++, C# to manage high volumes of raw data. • Development of C# Web & Console applications with a mix of GUI and server-

side development. • Apply technical expertise to investigate and resolve software issues. • Develop XML web services. • Produce maintainable/extensible software components that operate as part of a

large multi-process system. • Translate processes into WYSIWYG user interfaces.

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Matter ofT-S-ITG- LLC

• Program in C++, C# to perform data analytics and develop real time display dashboards and reports.

• Ensure the code is scalable and meets performance requirements through performance tuning.

• Maintenance, Enhancing, debugging existing architecture to support vanous programming and Web scripting languages.

o Languages: C, C++, MFC, ATL, COM, Win 32 programing. o Web Script Languages: HTML 5.0, JavaScript, PHP, CSS, Ajax, XML

and Web Frameworks • Maintain databases.

o Database/Languages: Oracle 91, lOg, SQL Server, PLSQL and MySQL.

The Petitioner stated that the Beneficiary would spend 25% of his time performing the following duties:

• Perform functional testing of the system on a full installation that replicates real world use.

• Develop simulation tools for testing and validation. • Produce unit tests to verify the behavior and resilience of code. • Provide content for functional and technical documentation.

The Petitioner stated that the Beneficiary would spend 20% of his time performing the following duties:

• Liaise with the team to translate their requirements into elegant solutions.

• Designing and documenting all types of applications consistent with established specifications.

• Identify and define technical, operational and data analysis requirements.

III. ANALYSIS

A. Specialty Occupation

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation .. Specifically, the record does not establish that the proffered position requires an educational background, or its equivalent, commensurate with a specialty occupation? As we will discuss

2 The Petitioner submitted documentation to support the H-1 8 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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below, we find that two factors both independently preclude a determination that the proffered position is a specialty occupation.

First, as was noted by the Director in her notice of intent to deny (NOlO) the petition and in her decision, portions of the end-client's description of project appear to have been plagiarized from m"'i!ltiple online sources. In both notices, the Director provided hyperlinks. On appeal, the Petitioner contends that "the NOID and the denial decision [were] unlawfully limited" because the hyperlinks "do not directly prove the Service's implications of plagiarism." The Petitioner also contends that if any portions of the project documents were plagiarized, those portions were "clearly not about the actual specialty occupation duties but, rather, about the substantive nature of the project that clearly relates to a known social phenomenon."

Upon review, we find that the Petitioner did not sufficiently address the Director's concerns regarding the end-client and plagiarism. Though the Petitioner submitted a letter from the endclient, that letter was written in September 2016- before the NOID was issued- and it does not adequately address the Director's concerns. Nor will we parse the end-client's project documents and attempt to ascertain which portions were plagiarized and which were not, as the Petitioner seems to suggest on appeal.

Absent reliable documentation from the end-client regarding the claimed project upon which the Beneficiary would work, we cannot determine whether a specialty-occupation exists, let alone find that it satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) the normal minimum educational requirement for the particular position, which is the focus of criterion 1; (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. We therefore agree with the Director that the Petitioner did not demonstrate the existence of a specialty occupation positon:

Second, we note that as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other than the petitioner, evidence of the client companies' job requirements is critical. The court held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence must be sufficiently detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is necessary to perform that particular work. Setting our plagiarism concerns as they relate to the end-client's project documents aside, we observe that nowhere does the end-client state that a bachelor's degree in a specific specialty, or the equivalent, is required to perform the duties proposed for the Beneficiary. For this additional reason, the evidence of record does not establish that the proffered position is a specialty occupation.

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Though these factors are dispositive of the specialty-occupation issue, we will nonetheless temporarily set them aside and evaluate the evidence of record under the aforementioned criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) in order to provide the Petitioner with a more complete decision.

1. First Criterion

We tum 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 for entry into the particular position. 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 addresses.3

On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Programmers" corresponding to the Standard Occupational Classification code 15-1131.5 The Handbook states, in pertinent part: "Most computer programmers have a bachelor's degree; however, some employers hire workers who have an associate's degree. Most programmers get a degree in computer science or a related subject." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers (20 16-17 ed. ).

According to the Handbook, this occupational category accommodates a wide spectrum of educational credentials, including ones that require less preparation than a bachelor's degree in a

3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that 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 regularly review the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding 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-1 B worker the higher of either the prevailing wage for the occupational classification 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 Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing 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. /d.

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specific specialty, or the equivalent. For example, the Handbook states that some employers hire workers who have an associate's degree. Moreover, while the Handbook ·s narrative indicates that most computer programmers obtain a degree (either a bachelor's degree or an associate's degree) in computer scienceor a related field, the Handbook does not report that at least a bachelor's degree in this field, or its equivalent, is normally required. The Handbook, therefore, does not establish that the occupational category is one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its equivalent.

In addition, the Petitioner stated on the LCA that it will pay the Beneficiary a Level I wage, which indicates that this is an entry-level position. Given the Handbook's implication that a bachelor's degree in a specific specialty, or the equivalent, is not normally required for positions located within this occupational category, it seems unlikely that an entry-level position possessing these characteristics would have such a requirement. 6

For all of these reasons, the evidence of record does not support a finding that the particular position proffered here, an entry-level position located within the computer programmers occupational category, would normally have such a minimum specialty degree requirement, or the equivalent. The Petitioner therefore has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

2. Second Criterion

The second criterion presents two alternative prongs: "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 perfonned only by an individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

a. 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 specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether letters or affidavits. from firms or individuals in the industry establish that such firms "routinely

6 Recent policy guidance supports this interpretation of the Handbook. USC IS Policy Memorandum PM-602-0 142, Rescission of the December 22, · 2000 "Guidance memo on HI B computer related positions" (Mar. 31, 20 17), https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0 142-H-1 BComputerRelatedPositions Recission.pdf.

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employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)( considering these "factors" to infolll1 the commonality of a degree requirement).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals."7

The record contains five job vacancy announcements for our consideration under this prong. To be relevant for this consideration, the job vacancy announcements must involve "parallel positions," and the announcements must have been placed by organizations that ( 1) conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner. Upon review, we find that none of these job vacancy announcements satisfy that threshold.

We will first consider whether any of the advertised job opportunities could be considered "parallel positions." As noted, the Petitioner attested to DOL that the proffered position is a Level I, entrylevel position. However, all five of the advertised positions require experience - some significant. For example, one of the advertised positions, requires more than eight years of experience, and another requires five. We observe further that one of the advertised position's job title indicates that it is not an entry-level position; it is titled "Systems Analyst If' (emphasis added). Finally we observe that one of the advertised position's offered salary (the only vacancy announcement to state a salary) is $170,000 - a figure substantially higher than the Petitioner's $60,000 proffer to the Beneficiary. Finally, we observe that several of the vacancy announcements contain descriptive phrases that are not consistent with the Petitioner's Level I designation ("ability to mentor junior developers," "will be leading some technical team members," "ability to . . . solve problems independently," "provide leadership," "managing global projects and diverse teams," "working independently," "outstanding leadership skills," "perform daily supervision," etc.). Considered collectively, these factors indicate that the advertised positions are not entry-level positions, and therefore, they are not "parallel positions" to the one proffered here.

Nor did the Petitioner submit evidence sufficient to establish that any of these job vacancy announcements were placed by companies that (1) conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner.

For all of these reasons, the Petitioner has not established that any of these job vacancy announcements are relevant. Even if that threshold had been met, we would find that they did not

7 Though acknowledged, the articles submitted by the Petitioner on appeal do not satisfy this criterion. These articles do not discuss or otherwise establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required.

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satisfy this prong of the second criterion, as they do not all indicate that a bachelor's degree in a specific specialty, or the equivalent, is common to the industry in parallel positions among similar organizations.8 To the contrary, one company indicated that a bachelor's degree in any field of study would suffice. Again, we interpret 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., 484 F.3d at 147; Defensor, 201 F.3d 384 at 387. A bachelor's degree in business administration is not a degree in a specific specialty. Royal Siam Corp., 484 F .3d at 14 7.

Consequently, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

b. 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.

We find that the Petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the proffered position. In other words, the Petitioner has not demonstrated how the duties of the proffered position as described in the record require the theoretical and practical application of a body of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. For example, the Petitioner did not submit information relevant to a detailed course of study leading to a specialty degree and establish how such a curriculum would be necessary to perform the duties it believes are so complex and unique. While a few related courses may be beneficial, or even required, in performing certain duties of the position, we find that 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.

8 In addition, the Petitioner does not demonstrate what statistically valid inferences, if any, could be drawn from the job postings with regard to the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even ifthe sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection offers access to the body of probability theory, which provides the basis for estimates of population parameters and estimates of error").

As such, even if the job vacancy announcements supported the finding that the position requires a bachelor's or higher degree in a specific specialty, or its equivalent, it could not be found that such a limited number ofpostings that appear to have been consciously selected could credibly refute the findings of the Handbook published by the Bureau of Labor Statistics that such a position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the. occupation in the United States.

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Moreover, the Petitioner designated the proffered position as an entry-level position within the occupational category (by selecting a Level I wage). This designation, when read in combination with the Petitioner's job description and the Handbook's account of the requirements for this occupation, further suggests that this particular position is not so complex or unique relative to other computer programmers that the duties can only be performed by an individual with a bachelor's degree or higher in a specific specialty, or its equivalent. The Petitioner's implications that the knowledge and associated entry requirements associated with the proffered position exceed those of other positions located within the occupational category are acknowledged. However, the Petitioner's Level I wage designation undercuts any claim that it satisfies this criterion.9 In other words, if typical positions located within the occupational category do not require a bachelor's degree in a specific specialty, or the equivalent, then it is unclear how a position with the Level 1 characteristics described above would, regardless of these assertions.

The Petitioner claims that the Beneficiary is well-qualified for the position, and references his qualifications. However, the test to establish a position as a specialty oc;cupation 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 e_quivalent. We find that Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and that it did not identify any tasks that are so complex or unique that only a specifically 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).

3. 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 preference for high-caliber candidates but is necessitated instead by performance requirements of the position. See Defensor, 201 F.3d at 387-88. If we were limited solely to reviewing the Petitioner's claimed selfimposed requirements, then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the Petitioner 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.

9 The Petitioner's designation of this position as a 'Level I, entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or Its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent That is, a position's wage-level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act

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The record contains information regarding the individuals the Petitioner claims occupy the same position proposed for the Beneficiary. However, this information does not satisfy the third criterion. There is no indication that these individuals possess a bachelor's degree in a specific specialty, or the equivalent. The record does not contain evaluations of their foreign credentials equating them to U.S. bachelor's degrees. Further, there is no evidence establishing the position titles they held or the duties they performed during their employment with the Petitioner. Nor is it apparent that these individuals hold the type of Level I position proffered here.

Nor do the Petitioner's advertisements posted to its website satisfy this ·criterion, as it is not apparent that they advertise the type of Level I, entry-level position proffered here. To the contrary, the "programmer analyst" position requires "5-1 0 years of work experience" and appears to be a more senior positon than the one offere~ to the Beneficiary. In fact, every single position advertised by the Petitioner requires, at minimum, five years of work experience. In addition, we observe that the advertised programmer analyst position requires a degree in engineering or "the sciences." "The sciences" encompass a wide variety of fields that are not directly related to the proffered positon's duties. Thus, a requirement for such a degree does not appear to constitute a requirement for a bachelor's degree in a specific specialty, or the equivalent.

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, for the proffered position. Consequently, it has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A).

4. 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 specific specialty, or its equivalent.

We acknowledge the Petitioner's assertions regarding the specialization and complexity of the position's duties. However, as above, those claims are undermined by the Petitioner's designation of the proffered position in the LCA as a Level I position (of the lowest of four assignable wage-levels) relative to others within the same occupational category. The Petitioner has not demonstrated in the record that its proffered position is one with specialized and complex duties to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

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.

5. Prior H-IB Approvals

The Petitioner claims that it has received approvals of H-lB filed for similar positions on behalf of other beneficiaries. The Director's decision does not indicate whether the prior approvals of the

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other nonimmigrant petitions were reviewed. However, if the previous nonimmigrant petitions were approved based on records of proceedings similar to this one, they were granted in error. We are not required to approve petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to suggest that [U.S. Citizenship and Immigration Services (USCIS)] or any agency must treat acknowledged errors as binding precedent." Sussex Eng 'g. Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987).

A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient documentation to establish current eligibility for the benefit sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval also does not preclude USCIS from denying an extension of an original visa petition based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999).

These prior H-1B approvals, therefore, do not establish the proffered position as a specialty occupation.

B. LCA

We also find that the Petitioner did not demonstrate that it submitted a valid LCA that corresponds to the petition.

While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, in pertinent part (emphasis added):

For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1 B visa classification.

The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports the H-1B petition filed on behalf of the Beneficiary. Here, the Petitioner has not established that

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specialty occupation work exists for the Beneficiary in the position and work location identified on the LCA. Therefore, the Petitioner has not submitted a valid LCA that corresponds to the petition.

C. Employer-Employee Relationship

As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not fully address other issues evident in the record. That said, we wish to identify an additional issue to inform the Petitioner that the matter should be addressed in any future proceedings.

Specifically, the record does not currently demonstrate that the Petitioner qualifies as an H-1 B employer. The United States Supreme Court determined that where federal law fails to clearly define the term "employee," courts should conclude that the term was "intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative NonViolence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment ofthe hired party."

!d.; see also Clackamas Gastroenterology Assocs .. P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden,. 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254,258 (1968)).

As such, while social security contributions, worker's compensation contributions, unemployment insurance contributions, federal and state income tax withholdings, and other benefits are still relevant factors in determining who will control the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities and tools, where will the work be located, and who has the right or ability to affect the projects to which the Beneficiary is assigned, must also be assessed and weighed in order to· make a determination as to who will be the Beneficiary's employer.

The current record of proceedings does not support the Petitioner's claims of control over the Beneficiary's work. The Petitioner, which is located in New Hampshire, proposes to send the

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Beneficiary to work for the end-client in Montana, and does not indicate that it would send a supervisor to oversee and control the Beneficiary's ofisite work. The Petitioner stated in its December 2016 letter that "there is no fixed schedule for communication [with the Beneficiary]" and that the Beneficiary "is responsible to provide [the Petitioner] a timesheet." The Petitioner's signatory stated that "I am able to contact [the Beneficiary] at any time to verify the performance of work and [the Beneficiary] can contact me with any questions." In other words, there is no fixed schedule for communication between the Petitioner and the Beneficiary. While we acknowledge the Petitioner's availability to answer questions, mere "availability" does not necessarily equate to directing and controlling the Beneficiary's activities as they unfold on a day-to-day basis in Montana. We also note the Petitioner's submission of a sample performance review, but it contains no specific details pertinent to the Beneficiary's assignment with the end-client, and further indicates that performance appraisals are conducted "every 6 months," thereby suggesting that daily, onsite supervision is not exercised at the client location by the Petitioner or its employees.

The evidence, therefore, is insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming in its letters that the Petitioner exercises complete control over the Beneficiary, without evidence supporting the claim, does not establish eligibility in this matter.

IV. CONCLUSION

The Petitioner has not established its eligibility for the benefit sought.

ORDER: The appeal is dismissed.

Cite as Matter ofT-S-ITG- LLC, ID# 457563 (AAO Aug. 14, 2017)

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Documents

U.S. Citizenship Non-Precedent Decision of the and Immigration … · 2017-08-30 · U.S. Citizenship and Immigration Services ' MATTER OF T-S-ITG-LLC Non-Precedent Decision of the