dismissed H-1B Case: Computer Engineering

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PUBLICCOpy
Il.S, Department of Homeland Security
20 Mass. Ave., N.W., Rm.A3042
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 04 002 51453 Office: CALIFORNIA SERVICE CENTER Date: JUL 312006
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALFOF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made ro that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 002 51453
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before
the Administrative Appeals Office (AAO) on appeaL The appeal will be dismissed. The petition will be denied.
The petitioner is an employee staffing business that seeks to employ the beneficiary at its corporate office as a
computer engineer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to § lOl(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition because the petitioner has not demonstrated that the proffered position is a
specialty occupation or that it has a bona fide position for the beneficiary. On appeal, the petitioner's
president submits a letter.
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), 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.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the 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.
Citizenship and Immigration Services (CIS) 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.
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the
director's denial letter; and (5) Form 1-290B and supporting documentation. The AAO reviewed the record in
its entirety before issuing its decision.
WAC 04 00251453
Page 3
The petitioner is seeking the beneficiary's services as a computer engineer. Evidence of the beneficiary's
duties includes: the 1-129 petition; the petitioner's September 27, 2003 letter in support of the petition; and the
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would
perform duties that entail: determining compatibility between computer terminals; evaluating hardware
configuration, software application, and recommending hardware upgrades; troubleshooting and providing
solutions; recommending referral to outside services when necessary; evaluating new technology; acting as
liaison between vendors and administration; and providing hardware maintenance. The petitioner indicated
that a qualified candidate for the job would possess a bachelor's degree in computer engineering.
The director found that the proffered position was not a specialty occupation because the job is not a
computer engineering position; it is a systems analyst position. Citing to the Department of Labor's
Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the minimum
requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific specialty.
The director found further that the petitioner failed to establish any of the criteria found at
8 C.F.R. § 214.2(h)(4)(iii)(A).
On appeal, the petitioner's president states, in part, that the proffered position is that of a computer engineer.
He states further that the director has previously approved similar petitions.
Upon review of the record, the petitioner has established none of the four criteria outlined In
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
The AAO turns first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree
requirement is common to the industry in parallel positions among similar organizations; or a particular
position is so complex or unique that it can be performed only by an individual with a degree.
Factors often considered by CIS when determining these criteria include: 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 fmns or individuals in the industry attest that such firms
"routinely 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».
The AAO routinely consults the Handbook for its information about the duties and educational requirements of
particular occupations. A review of the proposed duties finds that the proffered position has some similarities to a
computer systems analyst position. While a review of the Handbook, 2006-2007 edition, finds that a computer
systems analyst job may qualify as a specialty occupation, the AAO does not concur with the petitioner that the
proffered position is a specialty occupation, or that the petitioner will employ the beneficiary in a specialty
occupation. In this case, information on the petitioner that was signed by the petitioner's president on September
27, 2003, reflects that the petitioner has four employees, ten contractors, and a gross annual income of $378,000.
The petitioner's federal income tax return for 2003 reflects only $186,642 in gross receipts or sales, no
compensation of officers paid, and only $19,485 paid in salaries and wages. Simply going on record without
supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972». No evidence in the Handbook indicates that a baccalaureate
or higher degree, or its equivalent, is required for a systems analyst of the nature described in the instant petition.
WAC 04 002 51453
Page 4
The petitioner asserts that CIS has already determined that the proffered position is a specialty occupation
since CIS has approved other, similar petitions in the past. This record of proceeding does not, however,
contain all of the supporting evidence submitted to the service center in the prior cases. In the absence of all
of the corroborating evidence contained in those records of proceeding, the information submitted by the
petitioner is not sufficient to enable the AAO to determine whether the positions offered in the prior cases
were similar to the position in the instant petition.
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. § l03.8(d). In
making a determination of statutory eligibility, CIS is limited to the information contained in the record of
proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the
prior cases were similar to the proffered position or were approved in error, no such determination may be
made without review of the original records in their entirety. If the prior petitions were approved based on
evidence that was substantially similar to the evidence contained in this record of proceeding, however, the
approval of the prior petitions would have been erroneous. CIS is not required to approve petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See,
e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor any
other agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825
F.2d 1084, 1090 (6th Cir. 1987), cert denied, 485 U.S. 1008 (1988).
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for
computer systems engineers. There is no evidence, however, to show that the employers issuing those
postings are similar to the petitioner, or that the advertised positions are parallel to the instant position. The
advertisers include a variety of businesses, such as Exult Recruiting, which is a provider of HR business
Process Outsourcing to Global 500 companies, Time Warner Communications, and Rockwell Scientific
Company. The petitioner also has not demonstrated that the proposed duties of the proffered position are as
complex as the duties described for the advertised positions. Thus, the advertisements are not probative.
The record also does not include any evidence from firms, individuals, or professional associations regarding
an industry standard, or documentation to support the complexity or uniqueness of the proffered position.
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) or (2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. On appeal, the petitioner states that CIS approved its previous H-1B
petitions. The record, however, does not contain any evidence of the petitioner's past hiring practices and,
therefore, the petitioner has not met its burden of proof in this regard. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)). Further, the petitioner's creation of a position with a perfunctory
bachelor's degree requirement will not mask the fact that the position is not a specialty occupation. CIS must
examine the ultimate employment of the alien, and determine whether the position qualifies as a specialty
occupation. Cf. Defensor v. Meissner, 201 F. 3d 384 (5 th Cir. 2000). 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
WAC 04 002 51453
Page 5
higher degree in the specific specialty as the minimum for entry into the occupation as required by the Act 1
To interpret the regulations any other way would lead to absurd results: if CIS were limited to reviewing a
petitioner's self-imposed employment requirements, then any alien with a bachelor's degree could be brought
into the United States to perform a menial, non-professional, or an otherwise non-specialty occupation, so
long as the employer required all such employees to have baccalaureate or higher degrees. See ida at 388.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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.
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent,
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
As related in the discussion above, the petitioner has failed to establish that the proffered position is a
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition.
Beyond the decision of the director, the record does not contain an evaluation of the beneficiary's credentials from
a service that specializes in evaluating foreign educational credentials as required by
8 C.F.R. § 214.2(h)(4)(iii)(D)(3). Thus, the record does not establish that the beneficiary is qualified to perform
the services of a specialty occupation. For this additional reason , the petition may not be approved.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F .R. 214.2(h)( 4)(iii)(A) present
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional
requirement that a position must meet, in addition to the statutory and regulatory definition." See ida at 387.