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 non­exhaustive 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.

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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

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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

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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 employees currently working on an off-site project. (Page 3)

I have reviewed the job duties and job descriptions for four positions that exist at [the Petitioner], the[y] include the SAP Basis Engineer II, the SAP Basis Analyst, Sap Business Systems Analyst, and SAP Security Systems Analysts. . . . The job duties listed for each of the above mentioned positions would be carried out in off­site project work, as well as work at [the Petitioner]. (Page 4)

1. [The Petitioner] assigns employees to work site. (Page 1)

7. All of [the Petitioner' s] employees work on more than one project at the same time. (Page 1)

15. Employee can either opt to move to work site with all relocation expenses paid by [the Petitioner] or employer will pay for all weekly travel expenses to and from site. (Page 2)

29. We serve high-end clients, provide the convenience of being on site (like a house-call) and are paid a higher premium for deploying our employees to the site. (Page 4)

[The Beneficiary] may be assigned to this project in New York depending on if he makes it to the U.S. before the job is completed. (Page 3)

PLEASE AMEND THE I-129 TO REFLECT ONE LOCATION AT THIS TIME IN MARYLAND. Worker will be assigned to unknown locations in the future and the H-1B will be amended pursuant to SIMEO, which the proper mechanism for changes to the worker location. We cannot anticipate which cite [the Beneficiary] will be placed until the H-1 B is approved. It is illegal to place/contract labor with our clients for persons not authorized to work in the United States. Once the worker is authorized with a valid social security number, then we can legally place the worker at a work cite. (Page 4)

As stated in the LCA attestations, Form 1-129, Employer Offer Letter and previously submitted itinerary signed by the Director and founder of fthe Petitioner] , [the Beneficiary] will be placed at

MD . ... [The Beneficiary] is expected to work at this ofT-site placement as long as [the Petitionerl requires him to be there. (Page 17)

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Matter of B-C- Inc.

Petitioner's Letter (November 18, 2016)

Petitioner's Job Posting

Appeal Brief

Worker will be assigned to a [Petitioner] project at the client site located at: [No location was listed]

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 April 2017 through June 2017 worker will be reassigned to client site for duration of H-1B 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. (Page 5)

IN-HOUSE EMPLOYMENT: Beneficiary will be assigned to work the Help Desk at the Maryland office and is responsible for resolving technical and software issues for the company headquarters in MD. . . . Beneficiary is expected to work for the main office becoming familiar with all [of the Petitioner's] proprietary services, products, clients and service contracts before being assigned to any long­term off-site supervised placement. . . . If a new client bid is accepted then the [B]eneficiary may be transferred to that location.

Workers are required to work from the main office in Maryland when their on-site client projects are completed to work the help desk (technical support) and assist with project architecture/development on other ongoing projects.

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.

Beneficiary will most likely work for more than one project of [the Petitioner] .... We are asking our employees to stretch themselves over several ofT-site client projects since we are not able to hire enough qualified engineers/analysts due to· a shortage of this rare skill. (Page 6)

TRAVEL REQUIREMENTS: Short-term travel or long-term relocation to unanticipated client sites throughout the U.S. is required. This is not a telecommuting job.

[The Petitioner] has evidenced numerous current ongoing jobs, clients and projects, however, without knowing exactly when the H-lB worker will come on board the employer cannot commit the worker to a specific job site with an exact date. There is an abundance of work available to the H-1B worker, thus the employer's need to hire more workers. Once the worker comes on board and is trained at the main

Matter of B-C- Inc.

office, the worker will be placed in one of the many numerous job sites and current projects. (Page 29)

Once [the Petitioner] knows the exact date the worker will enter the United States then they can give them an existing job assignment. (Page 3 5)

[The Petitioner] cannot honestly assign the worker to a project until they know when the worker is coming. . . . However, they were honest with the fact that they have no idea in March of 2016 where they will assign the worker in 2017 to their many, many ongoing projects. (Page 36)

2. Speculative Employment

Furthermore, we find that, while the Petitioner may be able to eventually locate some type of work for the Beneficiary, it has not established that the petition was filed for non..,speculative work for the Beneficiary that existed as of the time of the petition's filing. 3 In the app.eal brief, the Petitioner states that it had no idea in March 2016 where it would assign the Beneficiary.

Our regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. § 103 .2(b )( 1 ). A visa petition may not be approved based on speculation of future eligibility or after the Pt;titioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978).

3 The agency made clear long ago that speculative employment is not permitted in the H-1 B 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-1 B 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-1 B 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 two-prong analysis and, therefore, is unable to adjudicate properly a request for H-1 B 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).

Matter of B-C- Inc.

3. Job Description

Moreover, although the Petitioner provided information about its current projects and statements of work between itself and various clients, the Petitioner has not specifically explained the duties and role of the proffered position in the context of any of these projects. For example, the Beneficiary's name and job title are not mentioned in these documents. We must review the actual duties the Beneficiary will be expected to perform to ascertain whether those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is expected to provide.

Here, the Petitioner has not provided sufficient details regarding the nature and scope of the Beneficiary's employment or substantive evidence regarding the actual work that the Beneficiary would perform. Without such information, the record lacks evidence sufficiently concrete and informative to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a specific specialty. The tasks as described do not communicate: (1) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness or specialization of the tasks; or (3) the correlation between that work and a need for a particular level of knowledge in a specific specialty.

As the Petitioner has not established the substantive nature of the work 4 to be performed by the Beneficiary, this precludes a finding that the proffered position 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;5 (4) the factual justification for a petitioner normally requmng a degree or its

4 Even if the proffered positiOn had been established as one located within the "Computer Systems Analysts" occupational category (the occupational category selected by the Petitioner on the labor condition application), we note that the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) states that although many computer systems analysts have technical degrees, such a degree is not always a requirement. See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts (20 16-17 ed.). Without more, the Handbook therefore would not support the Petitioner's statements regarding the proffered position qualifying as a specialty occupation. 5 The Petitioner classified the proffered position at a Level 11 wage. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A Level 11 wage rate is for a petitioner who expects its employee to perform moderately complex tasks that require limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience,

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Matter of B-C- Inc.

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.

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.

II. EMPLOYER-EMPLOYEE RELATIONSHIP

Finally, we will briefly address the issue of whether or not the Petitioner qualifies as a United States employer with standing to file the H -1 B petition. ·

As detailed above, the record of proceedings lacks sufficient documentation evidencing what exactly the Beneficiary would do for the period of time requested or where exactly and for whom the Beneficiary would be providing services. Given this specific Jack of evidence, the Petitioner has not established who has or will have actual control over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's services. In other words, the Petitioner has not established whether it has made a bona fide offer of employment to the Beneficiary based on the evidence of record or that the Petitioner, or any other company which it may represent, will have and maintain an employer-employee relationship with the Beneficiary for the duration of the requested employment period. See 8 C.F .R. § 214.2(h)( 4 )(ii) (defining the term "United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it will have and maintain an employer­employee relationship with respect to the sponsored H-1 B nonimmigrant worker).

As previously discussed, there is insufficient evidence detailing where the Beneficiary will work, the specific projects to be performed by the Beneficiary, or for which company the Beneficiary will ultimately perform these services. Therefore, the Director's decision is affirmed, and the appeal is dismissed for this additional reason.

III. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought.

ORDER: The appeal is dismissed. ·

Cite as Matter of B-C- Inc., ID# 576461 (AAO Aug. 14, 2017)

education, and skill requirements ofthe Petitioner's job opportunity. !d.

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