U.S. Citizenship and Immigration Services

MATTER OF F-C-, LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 5, 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a digital business strategy, web design, development, and marketing business, seeks to temporarily employ the Beneficiary as a "Digital Analyst" under the H-1B nonimmigrant classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The Director, California Service Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed.

I. ISSUE

The issue before us 1s whether the Petitioner has specialty occupation work available to the Beneficiary. 1

II. 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.

1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989).

Matter of F-C-, LLC

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following:

Specialty occupation means an occupation which [ ( 1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must meet one of the following criteria:

(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.

As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory language must be construed in harmony with the thrust of the related provisions and with the statute as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction of language which takes into account the design of the statute as a whole is preferred); see also COlT Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this section as stating the necessary and sufficient conditions for meeting the definition of specialty occupation would result in particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty occupation.

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Matter of F-C-, LLC

As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. § 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 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"). Applying this standard, USCIS regularly approves H-1B petitions for qualified individuals who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations. These professions, for which petitioners have regularly been able to establish a minimum entry requirement in the United States of a baccalaureate or higher degree in a specific specialty, or its equivalent, directly related to the duties and responsibilities of the particular position, fairly represent the types of specialty occupations that Congress contemplated when it created the H-lB visa category. ·

To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply rely on a position's title. The specific duties of the proffered position, combined with the nature of the petitioning entity's business operations, are factors to be considered. USCIS must examine the ultimate employment of the individual, and determine whether the position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title of the position or an employer's self-imposed standards, but whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation, as required by the Act. ·

B. The Proffered Position

The Petitioner seeks to employ the Beneficiary in a full-time "Digital Analyst" position for a three­year period from March 15, 2015, to March 14, 2018. The labor condition application submitted to support the visa petition states that the proffered position corresponds to Standard Occupational· Classification (SOC) code and occupation title 11-2021, "Marketing Managers," from the Occupational Information Network (O*NET). The LCA further states that the proffered position is a Level I, entry-level, position.

In a letter dated March 9, 2015, the Petitioner described itself as providing "professional information technology consulting services to clients in a broad range of industries." The Petitioner stated the following about the proffered position:

As Digital Analyst, [the Beneficiary] will be responsible for providing digital and UX design analysis services and project management for client facing projects. [The Beneficiary] will be responsible for the collaboration of design and development of websites for client and internal projects (web apps, e-commerce, marketing I campaign websites, etc). This includes but not limited to the production of W ordPress-based websites (e.g. create themes, custom functionality). [The Beneficiary] will consult on client project goals (best practices, conversion, Usability, UI I UX) and handle multiple

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(b)(6)

Matter of F-C-, LLC

client and internal projects simultaneously. We require a minimum of a Master's and/or Bachelor's degree in business or related field from an accredited university or college. [The Beneficiary] holds a Master's degree in Business Administration in from

(see attached copy of diploma), thus qualifies for the position.2

In a letter dated April 6, 2015, submitted in response to the Director's request for evidence (RFE), the Petitioner provided the following breakdown of the proffered duties:

• Guide core product development projects, serving as an interface between all stakeholders (15%)

• Create and maintain product definition: create a development product roadmap by interviewing market researchers and business leaders and turning their requirements into user stories to guide development (15%)

• Develop and executive product launch plans: scope new releases and iterations based backlog priority and size (5%)

• Establish evaluation criteria to determine product success (5%) • Evaluate and provide feedback throughout the development cycle (5%) • Continuously improve the product development process (5%) • Ensure consistent tracking and tagging across all channels (5%) • Work closely with software development and QA teams to manage product launches

(20%) • Align overall product experience with brand identity and overall brand strategy (15%) • Identify business improvement opportunities, and strategize the best way to affect

them (5%) • Manage new product releases: conduct outbound customer communications, such as

webinars, email notifications, and more, around new releases [no percentage given].

In the same letter, the Petitioner asserted that the proffered position requires at least a bachelor's degree.

In a letter dated April 7, 2015, also submitted in response to the RFE, the Petitioner stated that it has a current job opening for a Digital Analyst position, as it has a Master Services Agreement to provide a Digital Analyst to The Petitioner listed the requirements for the Digital Analyst position as including an "Advanced Graduate degree MBA or Masters in an equivalent discipline (concentration in quantitative marketing or analytics preferred)" and "Bachelor's degrees in computer science, statistics, social sciences, business/marketing related fields." Regarding the required college degree, the Petitioner elaborated that "[a] successful digital analyst draws from a depth of expertise in a technical or creative field, and leverages that knowledge to understand business objectives and propose digital solutions."

2 Please note that errors in the original text, as quoted above and in other parts of this decision, have not been changed.

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(b)(6)

Matter of F-C-, LLC

On appeal, the Petitioner submits an affidavit by its director of human resources and recruitment attesting that the proffered position is an "internal staff position" which "works on multiple projects and for multiple clients at one time." The director of human resources and recruitment attests that "[b ]ased on our forecasted needs, including, but not limited to, the contract we have with client

we plan to employ the Digitial Analyst indefinitely. Other clients we anticipate servicing include

'' She further attested that "[i]f, for some reason, there are no clie1;1t projects to service, [the Petitioner] will employ the Digital Analyst on internal projects at [the Petitioner's] offices in WA."

C. Analysis

As a preliminary matter, we find that the evidence of record is unclear regarding the Petitioner's minimum educational requirement for the proffered position.

For instance, the Petitioner stated in its March 9, 2015, letter that it "require[s] a minimum of a Master's and/or Bachelor's degree in business or related field from an accredited university or college." In the Petitioner's April 7, 2015, letter, the Petitioner listed the requirements for the proffered position as including an "Advanced Graduate degree MBA or Masters in an equivalent discipline (concentration in quantitative marketing or analytics preferred)" and "Bachelor's degrees in computer science, statistics, social sciences, business/marketing related fields." The Petitioner attested in its April 6, 2015, letter, and submitted industry letters attesting to the same, that a Digital Analyst position requires "a minimum of a Bachelor's degree in Computer Science, engineering, mathematics, statistics, econometrics, social sciences or business/marketing or related fields." It is therefore unclear whether the Petitioner requires both a master's and a bachelor's degree, or just a bachelor's degree. More importantly, it is unclear whether the required degree(s) must be in business or a related field, or whether it can also be in computer science, statistics, engineering, any field in the social sciences, and marketing.

"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92.

If the Petitioner's entry requirement can be satisfied by degrees in computer science, statistics, mathematics, econometrics, any of the social sciences, marketing, and business, this requirement does not establish that the propo·sed position qualifies as a specialty occupation. In general, provided the specialties are closely related, e.g., mathematics and statistics, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(1)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as philosophy and engineering, would not meet the statutory requirement that the degree be "in the specific specialty

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Matter of F-C-, LLC

(or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position such that the required "body of highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the Act (emphasis added).3

Again, the Petitioner claims that the duties of the proffered position can be performed by an individual with a degree in computer science, statistics, mathematics, econometrics, any of the social sciences, marketing, and business. The issue here is that the Petitioner has not submitted evidence establishing that these fields of study are closely related to each other (e.g., how a degree in mathematics is related to a degree in the social sciences), or that these fields are all directly related to the duties and responsibilities of the particular position proffered in this matter. Absent this evidence, it cannot be found that the particular position proffered in this matter has a normal minimum entry requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, under the Petitioner's own standards.

The conclusion that the proffered position does not have a normal minimum entry requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is further supported by the Petitioner's statementthat "[a] successful digital analyst draws from a depth of expertise in a technical or creative field." A "technical or creative field" could refer to a wide variety and number of fields that are not all closely related to each other or directly related to the duties and responsibilities of the proffered position. We also note that in the Petitioner's vacancy announcement for a Director of Business Development position which the Petitioner attested is ."similar to Digital Analyst," the Petitioner requires only "a Bachelor's degree; all majors considered." Thus, based on all of the above factors, we cannot find the proffered position requires anything more than a general bachelor's degree.

The claim that a general bachelor's degree is a sufficient minimum requirement for entry into the proffered position is inadequate to establish that the proposed position qualifies as a specialty occupation. As explained above, USCIS interprets the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 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").

Even if it is the Petitioner's claim that a bachelor's degree in the social sciences or business is a sufficient minimum .requirement for entry into the proffered position, this claim is still insufficient to establish that the proposed position qualifies as a specialty occupation.

3 While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)(l)(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position.

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Matter of F-C-, LLC

A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely to the position in question. Since there must be a close correlation between the required specialized studies and the position, the requirement of a degree with a generalized title, such as business, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). Although a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring a general degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).4

Based on the Petitioner's. claims that the duties of the proffered position can be performed by an individual with a degree in a wide variety and number of fields (e.g., mathematics and any field in the social sciences), or an individual with only a general-purpose bachelor's degree (e.g., a bachelor's degree in business and the social sciences), we find that the proffered position does not qualify as a specialty occupation. The appeal must be dismissed on this basis alone. 5

We further agree with the Director that the Petitioner has not established that it has specialty occupation work available to the Beneficiary for the entire validity period requested as of the time of filing.

4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that:

I d.

The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, such as a business administration degree, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify the granting of a petition for an H -lB specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in connection with a conceptually similar provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree requirement.

5 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147.

It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties of the proffered position requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the occupation. See section 214(i)(l) ofthe Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation").

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(b)(6)

Matter of F-C-, LLC

According to the Petitioner's March 9, 2015, letter, the Beneficiary will "handle multiple client and internal projects simultaneously." On appeal, the Petitioner attested that the Beneficiary will work with multiple contracted clients, and "[i]f, for some reason, there are no client projects to service, [the Petitioner] will employ the Digital Analyst on internal projects at [the Petitioner's] offices in

W A." However, the Petitioner has not specifically identified which internal projects the Beneficiary will be assigned to during his employment with the Petitioner, nor has the Petitioner submitted sufficient documentary evidence regarding these internal projects.

In addition to the lack of sufficient evidence regarding the Petitioner's claimed internal projects, the Petitioner has not submitted sufficient evidence regarding the "multiple clients" assigned to the Beneficiary.

While the Petitioner submitted the statement of work between itself and this SOW was for work to be completed within a short period of time, i.e., from April 8, 2015, to July 31, 2015. Besides the Petitioner has not specifically identified what other non-speculative, definitive clients to which the Beneficiary will be assigned for the duration of the validity period requested (until March 14, 2018). Instead, the Petitioner listed

and as "forecasted" clients whom the Petitioner "anticipate[d] servicing." The Petitioner similarly characterized its contracts with these above clients as "representative" of the contracts under which the Beneficiary will perform, as opposed to the actual contracts under which the Beneficiary will be working.

Notably, the Petitioner did not submit the statements of work or other equivalent evidence regarding the specific contracted work to be performed for

and Furthermore, although the Petitioner submitted the master agreements for several of these

companies, the master agreements do not provide sufficient details regarding the contracted work, including the dates and timelines for the work to be completed. We also note, for example, that the master agreements with have "Meet the Team" pages in which the Beneficiary or a Digital Analyst position is not listed, while the other master agreements do not specifically identify the Petitioner's personnel assigned to the contracts.

We thus fmd that the Petitioner has not established that the petition was filed for non-speculative work for the Beneficiary, for the entire period requested, that existed as of the time of the petition's filing. For this additional reason, the appeal must be dismissed.

USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.P.R. 103.2(b)(1). A visa petition rpay not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Eligibility for the benefit sought must be assessed and weighed based on the facts as they existed at the time the instant petition was filed and not based on what were merely speculative facts not then in existence.

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Matter of F-C-, LLC.

The agency made clear long ago that speculative employment is not permitted m the H-1B program. For example, a 1998 proposed rule documented this position as follows:

Historically, the Service has not granted H -1 B classification on the basis of speculative, or undetermined, prospective employment. The H-lB classification is not intended as a vehicle for an alien to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential business expansions or the expectation of potential new customers or contracts. To determine whether an alien is properly classifiable as an H-1B nonimmigrant under the statute, the Service must first examine the duties of the position to be occupied to ascertain whether the duties of the position require the attainment of a specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "Act"). The Service must then determine whether the alien has the appropriate degree for the occupation. In the case of speculative employment, the Service is unable to perform either part of this two­prong analysis and, therefore, is unable to adjudicate properly a request for H-1B classification. Moreover, there is no assurance that the alien will engage in a specialty occupation upon arrival in this country.

Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419'-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214).

III. CONCLUSION

Based upon a complete review of the record of proceeding, we find that the evidence does not establish that the proffered position more likely than not constitutes a specialty occupation. We further find that the evidence of record is insufficient to establish that, as of the time of filing, the Petitioner has specialty occupation work available to the Beneficiary for the entire validity period requested.

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 136i; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofF-C-, LLC, ID# 15191 (AAO Jan. 5, 2016)

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