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. U.S. Citizenship and Immigration Services MATTER OF E-T-A-, Non-Precedent Decision of the Administrative Appeals Office DATE: MAR. 15 , 20 18 APPEAL OF CALIFORNIA SERVICE CENTER DECISION PETITION : FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER The Petitione r, an engineering service, consulting and so!tware deve loping fi nn, seeks to temporarily employ the Beneficiary as an "automotive engineer" under the H-1 B nonimmigrant classification tor specialty occupations. See Immigration and Nationality Act (the Act) section I0 I (a)(I 5)(1-l)(i)(b), 8 U.S.C. § 110l(a)(I5)(H)(i)(b). The H-lB program allows a U.S. emplo yer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical app lication 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 positio n. The Direct or of the California Service Center d enie d the petition, concluding that the ev idence of record does not establish that the protTered positi on qualities as a specialty occ upation. 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. LEGAL FRAMEWORK Section 2l4(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "s pecialty occ upation" as an occ upation that requires: (A) theoretical and practical application of a body of highly spe cialized knowledge, and (B) attai nment of a bache lor's or higher degree in the spec ific specialty (o r its equivalent) as a minimum tor entry into the occupation in the United States. The regulation at 8 C.F.R. § 214.2(h)( 4)(ii) largely re states this statutory definition, but adds a non- exhaustive li st of fields of endeavor. In addition , the regulations provide that the protiered position must me et one of the following criteria to qualify as a specialty occupation: (1 ) A baccalaureate or higher degree or its equivalent is normally the mi nimu m requirement for entry into the particular position;

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U.S. Citizenship and Immigration Services

MATTER OF E-T-A-,

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 15, 20 18

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION : FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an engineering service, consulting and so!tware developing finn, seeks to temporarily employ the Beneficiary as an "automotive engineer" under the H-1 B nonimmigrant classification tor specialty occupations. See Immigration and Nationality Act (the Act) section I 0 I (a)(I 5)(1-l)(i)(b), 8 U.S.C. § 110l(a)(I5)(H)(i)(b). The H-lB 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 spec ialty (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 the protTered position qualities as a specialty occupation.

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. LEGAL FRAMEWORK

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 speciali zed knowledge, and

(B) attai nment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum tor 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 li st of fields of endeavor. In addition, the regulations provide that the protiered 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;

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(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 perfom1ed 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 requ ired to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 C.F.R. § 21 4.2(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 directl y related to the proposed position. See Royal Siam Corp. v. Cherll?[(, 484 F.Jd 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.Jd 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

In the H-1 B petttton, the Petitioner stated that the Beneficiary will serve as an "automotive engineer." The Petitioner also referenced the proffered position as a "Project Engineer- Design and Release" in its letter of support, in which it described the job duties for the protTered position, along with the approximate percentage of time the Beneficiary will spend on each duty, as fo llows (verbatim):

The primary functions of this position include the following responsibilities (see example below):

• Responsible tor the engineering, design, development, ti ming and production release automotive components such as Body Interiors, Body Exteriors, Sheet Metal Structures, Closures Systems, Powcrtrain Systems, and/or Chassis Systems. (50% of daily time)

• Performs quality improvements, weight reduction, cost.reduction, and efticiency improvement initiatives including communicating technical product status to management. (40% of daily time)

• Abi lity to interact with the Designers through surface development and feasibility. (5% of daily time)

• Participates in the development and execution of product verification plans, engineering sign-off. (5% of daily time)

• Experience with Design Failure Mode & Effects Analysis (DFMEA), Design Verification Plan & Report (DYP&R), GD&T

• Working knowledge of System Design Specifications.

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Ill. 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. Specifically, the record (I) does not describe the position 's duties with sulTicient detail ; and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 1

A. Minimum Requirements

As a preliminary matter, we f1nd that the Petitioner has provided inconsistent information regarding the minimum requirements for the proffered position. The Petitioner ini tially stated that the proffered position requires a. "bachelor's degree· in Engineering, Manufacturing Engineering, Automotive Engineering, Industrial Engineering, Computer Application, Mathematics, or its U.S Equivalent."2 However, the Petitioner's affidavit, s4bmitted in response to the Director's request for evidence, offered alternate allowed fields of study, stating that "we always require [a] minimum [of a] Bachelor' s degree in lvlechanical Engineering, Technology, Automotive Engineering, Electrical Engineering, Physics or a related field for all position similar to Automotive ·Engineer (emphasis added)." The Petitioner did not provide an explanation for the variances in the requirements.3

B . .lob Description

Moreover, a crucial aspect of this matter is whether the Petitioner has suHiciently described the duties of the proffered position such that we may discern the nature of the position and whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. We find that the Petitioner has not done so.

For instance, the Petitioner described the proposed duties in terms of generic functions, which it noted were "example[s]" of the responsibi lities to which the Beneficiary might be assigned. The description provided did not convey sutlicient substantive information to establish the relative complexity, uniqueness, and/or specialization of the proffered position or its duties. The abstract level of information provided about the proffered position and its constituent duties is exemplified by the Petitioner's assertion that the Beneficiary must have "(e]xperience with Design Failure Mode & Effects Analysis (DFMEA), Design Verification Plan & Report (DVP&R), GD&T," and "[w]orking knowledge of System Design Specifications." It does not explain the significance ofthis

1 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. . ~ The Petitioner did not further articulate what factors would make a degree a "U.S. Equiva lent." , The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies. !\latter ofHo, 19l&N Dec. 582. 591-92 (BI A 1988).

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"experience" and "working knowledge" as it applies to the Benefic iary's actual duties, nor did it include further details rega rding the specific tasks that the Beneficiary will perform.

Likewise, the Petiti oner claimed in pertinent part that the Beneficiary wi ll "[p ]erform[] qual ity improvements, weight reduction, cost reduction, and efficiency improve ment initiatives including communicating technical product status to management" for 40% of hi s worktime. He is also to be "[r]esponsible for the engineering, design, deve lopment, timing and production release [for] automotive components" for 50% of his worktime. Notably, the Peti tioner did not explain what level of responsibil ity the Beneficiary will have, the specific duties he wi ll perform, or how these vaguely described activities would requ ire the attainment o f a bachelor's or higher degree in a specific specialty, or its equivalent.

The Petitioner also claimed the Beneficiary " [p)articipates in the development and execution of product verification plans, engineering sign-off." The Petitioner's statements do not convey sufficient pertinent details as to the actual work and level of participation involved in these tasks. The Peti tioner did not convey how a baccalaureate level o f education (or higher) in a specific specialty, or its equivalent, would be required to pertorm these tasks. Thus, the overall responsibilities for the pro ffered position contained general functions without providi ng sunicient information regarding the particular work and the associated educational req uirements into which the duties would manifest themselves in their day-to-day performance within the Petitioner's business operations.

Such genera lized information does not in itself establish a necessary correlation between any dimension of the proffered position and a need for a particular leve l of education, or educational equivalency, in a body of highly specialized knowledge in a specific spec ialty. It is not evident that the proposed duties as described in this record of proceedings, and the pos ition that they compri se, merit recognition of the proffered position as a specialty occupation. To the extent that they were described, the proposed duties did not provide a sufficient factual basis for conveying the substantive matters that would engage the Beneficiary in the actual performance of the pro tiered position for the enti re three-year period requested, so as to persuasively support the claim that the position's actual work would require the theoretical and practical application of any particular educational level o f highly spec iali zed knowledge in a specific specialty directly related to the duties and responsibilities ofthe proffered position.

Moreover, on appeal, the Petitioner states there "are numerous purchase orders and projects that this beneficiary will be eligi ble to be assigned to if the petition is approved." Although the Peti tioner provides a number o f purchase orders 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. That is, the job duties that would be performed to fultill the purchase orders are unclear, and 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 requ ire at least a bacca laureate degree in a specific specialty, or its equivalent, as required tor classification as a specialty occupation. To accomplish that task in this matter, we must analyze the actual duties in

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conjunction with the specitic project(s) to which the Beneficiary will be ass igned. To allow otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to compri se the duties of a specialty occupation, are not related to any actual services the Beneficiary is expected to provide.

Furthermore, the purchase orders indicate that the services will end prior to the end of the requested I-I-I B validity period. A petition must be tiled for non-speculative work for the Beneficiary, for the entire period requested, that ex isted as of the time of the petition's filing. Our regulations affirmatively require a petitioner to establish el igibility for the benefit it is seeking at the time the petition is fi led. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibili ty or after the Petitioner or Beneficiary becomes eligible undera new set of facts. See Matter (?/Michelin Tire Cmp., 17 l&N Dec. 248, 249 (Re~' l Comm'r 1978).

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 Beneticiary would perform. Without a meaningful job description, the record lacks evidence sufficiently concrete and informative to demonstrate that the proffered position requires a specialty occupation's level of knowledge in a spec ific specialty. The tasks as described do not communicate: (I) the actual work that the Beneficiary would perform; (2) the complexity, uniqueness, and/or specialization of the tasks; and/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 to be performed by the Beneficiary, thi s precludes a fi nding that the proffered position sati sfies any criterion at 8 C.F.R. § ~ 14.2(h)( 4)(iii)(A), because it is the substantive nature of that work that determines ( I) the normal minimum educational requirement for the particular position, which is the focus of criterion I; (2) industry positions w·hich 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 (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 o f the specific duties, which is the tocus of criterion 4.

4 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). The "Prevni ling Wage Determinat ion Policy Guidance'' issued by the U.S. Department of Labor provides a description or the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneticiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary wi ll 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 Delermination Policy Guidance, Nonagric. Imm igration Programs (rev. Nov. 2009), available at http://flcdatncenter.com/download/NPWHC_ Guidance_Revised_ll_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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IV. CONCLUSION

Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(ii i)(A), it has not demonstrated that the proflered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as A1atter cJjE-T-A-. ID# 1151395 (AAO Mar. 15, 2018)

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