remanded H-1B Case: Systems Analysis

identifyingdata deletedto
pm¥ent clearlyunwarranted
invasionofpersonalpriYac)
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 30 00
Washington, DC 2 0529
u.S.Citizenship
and Immigration
Services
PUBLICOOPV
FILE: WAC 05 10650165 Office: CALIFORNIA SERVICE CENTER Date: Oil; U4 2005
INRE: Petitioner:
Beneficiary :
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(H)(i)(b) of the
Immigrat ion and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF 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 to that office .
Robert P. Wiemann , Chief
Administrati ve Appeals Office
www.uscis.gov
WAC 05 10650165
Page 2,
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now
before the Administrative Appeals Office ,(AAO) on appeal. The director's decision will be withdrawn. The
petition will be remanded for the entry of a new decision.
The petitioner corporation, a wholesaler of garments, filed this H -1B for classification of the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b), in order to employ the beneficiary in what the
petitioner has designated a systems analyst.
Section 2l4(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.
Pursuant to 8 C.F.R. § 2l4.2(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.
§ 2l4.2(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 AAO has considered the evidence of record in its entirety, including: (1) the petitioner's Form 1-129 and the
supporting documentation filed with it; (2) the director's request for additional evidence (RFE); (3) the
materials submitted in response to the RFE; (4) the director's denial letter; and (5) the Form 1-290B and
counsel's brief on appeal.
WAC 05 10650165
Page 3
The director denied the petition on the basis that the petitioner had not established that the proffered position
meets the definition of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(iii)(A). The director's decision reflects
that a material factor in his decision to deny the petition was his perception that the petitioner presented the
proffered position as a management analyst position. The bulk of the decision's narrative and the foundation of
the denial of the petition is an analysis of why the proffered position is not a management analyst job.
On appeal, counsel asserts that the petitioner seeks approval of a petition for a systems analyst, but that the
director denied the petition for failing to substantiate the proffered position as that of a .management analyst.
Counsel also requests attention to the record's advisory opinion, which evaluates the proffered position as a
systems analyst position, that had been submitted in response to·the RFE but neither referenced nor discussed in
the director's decision.
As the basis for his adjudicating the petition as an attempt to classify the proffered position as that of a
management analyst, the director partially quotes the paragraph below from counsel's June 20, 2005 letter of
reply to the RFE. (The AAO has italicized the parts of the paragraph not included in the director's quotation.)
As a Systems Analyst, [the beneficiary] will be responsible for incorporating new technologies
through the planning, design, and development of new hardware and software systems.
Specifically, 60% of [the beneficiary's time] will be allocated in defining the goals and analyzing
comprehensive client management, controlling and executing software packages. [The
beneficiary] must initially meet with management and identify and define company goals andthe
role of emerging technology. She will document project objective, scope boundaries, high-level
requirements, cost-benefit analysis, prioritization, project approach, and proposals. She will then
structure a step[-]by[-]step plan that incorporates the goals of [the petitioner] with specific
technological solutions. This involves working with management to understand their initial
needs, and facilitating communication between all relevant departments. [The beneficiary] will
participate in all phases of the software development process (initiation, analysis, design, and
testing). The petitioner's clients' [sic] like Albertsons, Pamida, Shopko and Walgreeens
electronically communicate through Electronic Data Interchange with the [petitioner] with
regards to invoicing and ordering. With the growing number of data generated, expansion
program ofretail stores of the Petitioner, which uses POS systems and main operations in the
main office, the Systems Analyst position is essential to [thepetitioner's] organization.
.The director makes no reference to the information in the following paragraphs that bracket the above paragraph
from counsel's letter of reply to the RFE:
[The petitioner] wishes to employ [the beneficiary] on a temporary basis to serve as the
company's Systems Analyst. The job duties of the position best resemble the occupation
described in the D.O.T. as "Systems Analyst". and a Computer Hardware
Engineer and a Network Systems and Data Communication's Analyst
since the responsibilities of a Systems Analyst is to analyze user
requirements, proce ures or problems to automate or improve existing system[s] and review
WAC 05 10650165
Page 4
<::
computer systems capabilities, workflow, and scheduling limitations. As a Systems Analyst,
[the beneficiary] will tailor computer technology to meet the technological demands of the
Petitioner. She will be responsible, through the development of complex computer processes,
for maximizing benefits from [the] petitioner's investments in equipment, personnel, and
business processes.
In order to develop an effective system, [the beneficiary] will use her knowledge of structural
analysis, data modeling, information engineering, mathematical model building, sampling and
cost accounting. She will integrate data received by our customer services, sales, and accounting
departments to design a system that allows a multitude of information to be shared internally,
notwithstanding the incompatibility of computer systems, geographical locations, or time
variance. She will plan and coordinate installation and upgrading of hardware and software,
programming and system design, development of the petitioner's computer network and
implementation of [the petitioner's] internet and intranet sites.
Since any computer system requires testing and constant monitoring, [the beneficiary] will be
responsible on an on-going basis for coordinating performance test[s] and analyzing any
additional hardware and software needs. As a problem arise[s], she will utilize her expertise to
diagnose problems and recommend solutions. Problems may be addressed with design or
software updates, but may sometimes require more elaborate research analysis - duties that
require more than programming, but instead call for analysis and modification. In addition to
developing new systems, she will be called on to devise ways to apply existing systems
resources to additional operations. [The beneficiary] will confer with the management to
analyze current operational procedures, identify problems, and learn specific input and output
requirements such as payment schedule[s] and stock information of wholesale products of the
company.
The AAO notes the following facts that together suggest that the director failed to evaluate a substantial body of
material evidence pertaining to the proffered position as primarily a computer and information systems type of
job. The Form 1-129 and the associated Labor Condition Application (LCA) identifies the proffered position as a
system analyst position. The LCA bears the Occupational Code 030, which the instructions at page 8 of Form
ETA 9035CP identify as a "Computer-Related Occupation" and specifically as belonging to "Occupations in
Systems Analysis and Programming." As indicated by the brief on appeal, there is no indication that the director
considered the advisory opinion submitted by the Chair of a U.S. university's Computer Science Dep~ment that
concludes that the proffered position comports with the computer systems analyst occupation as described in the
Department of Labor's (DOL's) Occupational Outlook Handbook section on Computer Systems Analysts,
Database Administrators, and Computer Scientists, and that the proffered position requires a degree in a specific
specialty. The director's decision does not specifically address the petitioner's excerpts from DOL's O*NET
OnLine sections on Network Systems and Data Communications Analysts and on Computer Systems Analysts.
The paragraph of the record upon which the director based his determinationof the type of position here proffered
WAC 05 10650165
PageS
does not reflect the full spectrum of computer-related and computer-system management duties that the petitioner
presented, prior to the director's decision, as representing 60% of the proposed duties.
When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial ; this
duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section
291 of the Act, 8 U .S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i). As indicated by the quantum of evidence in
support of the proffered position as a computer-related specialty occupation that the director did not address,
the director did not fulfill this duty. Also, in light of the totality of discrepancies identified above, it appears that
the director's decision to deny the petition was not based upon an adjudication of the full body of material
evidence that the petitioner had submitted in support of the petition. Accordingly, the director's decision will be
withdrawn, and the petition will be remanded for re-adjudication and entry of a new decision consistent with the
comments herein and based on the on the complete evidence of record as it relates to the regulatory
requirements for eligibility . If adverse to the petitioner, the decision is to be certified to theAAO for review.
As always, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section
291 of the Act, 8 U.S.c. § 1361.
ORDER: The director's August 8, 2005 decision is withdrawn. The petition is remanded to the director
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for
review.