U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office ofA dministraJive Appeals 20 Massachusetts Ave., N.W., MS 2090 (b)(6) Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: JAN 3D 2014 OFFICE: CALIFORNIA SERVICE CENTER FILE: INRE: Petitioner: Beneficiary: PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) ON BEHALF OF PETITIONER: SELF-REPRESENTED INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. Thank you, {\1•7--:;- {.:...·r Ron Rosenberg Chief, Administrative Appeals Office www.uscis.gov (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be denied. On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an IT consulting company established in 2011, with 32 employees. In order to employ the beneficiary in what it designates as a "Business Analyst" position, the petitioner seeks to classify her 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). The director denied the petition on the grounds that the petitioner failed to establish that the proffered position qualifies for classification as a specialty occupation in accordance with the applicable statutory and regulatory provisions. The petitioner filed a timely appeal of the decision. On appeal, the petitioner asserts that the director abused her discretion and erroneously denied the petition. In support of this assertion, the petitioner submits a brief and additional evidence. The record of proceeding before the AAO contains: (1) the petitioner's Form I-129 and supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's notice of decision; and (5) the petitioner's Form I-290B and supporting documentation. The AAO reviewed the record in its entirety before issuing its decision. For the reasons that will be discussed below, the AAO agrees with the director's decision that the petitioner has not established eligibility for the benefit sought. Accordingly, the director's decision will not be disturbed. The appeal will be dismissed, and the petition will be denied. As a preliminary matter, the AAO will also address an additional, independent grounds, not identified by the director's decision, that the AAO finds also precludes approval of this petition. Specifically, the AAO finds that, beyond the decision of the director, the evidence in the record of proceeding does not establish (1) that the petitioner will be a United States employer having an "employer-employee relationship" with the beneficiary as an H-1B temporary employee, (2) the petitioner's eligibility at the time of filing for the benefit sought, and (3) that the petition was filed for non-speculative work for the beneficiary that existed as of the time of the petition's filing for the entire period requested. I. PROCEDURAL AND FACTUAL BACKGROUND In this matter, the petitioner indicated in the Form 1-129 and supporting documentation that it seeks the beneficiary's services in a position that it designates as a business analyst to work on a full-time 1 basis at a salary of $60,000 per year. In addition, the petitioner indicated that the beneficiary 1 In the Form I-129 H-lB Data Collection and Filing Fee Exemption Supplement, the petitioner indicated that the beneficiary's rate of pay would be $58,000 per year. No explanation was provided for the discrepancy. (b)(6) NON-PRECEDENT DECISION Page 3 would be employed at and _ The petitioner stated that the dates ot mtended employment are from October 1, 2013 to August 31, 2016. In a letter of support, dated April 1, 2013, the petitioner stated that the beneficiary will be responsible for the following duties: Gather and analyze business requirements; Conduct business process qualitative and quantitative analysis; be a part of Business team and give regular updates to QA team lead periodically; Analyze user requirements, conduct business/testing process analysis and gap analysis between systems and cover any deficiencies as per the functional changes desired; Prepare functional specifications documents mapping the business requirements to programs; Prepare charts and diagrams to assist in problem analysis; Study work procedures, information flows, production methods; Set operational specifications and formulate and analyze software requirements as assigned; Determine feasibility, cost and time required, compatibility with current system and computer capability; Process documentation of scripts developed and generated for testing applications. Collaborate with development team during all stages of project and provide in process testing results; Coordinate with the QA and other business personnel involved in the project that test, evaluate and validate new functions and applications, and identify issues in software or processes; Participate in conducting unit testing, system integration testing, user acceptance testing applying various business scenarios etc. In the letter of sup_port, the etitioner also stated that the "[b] eneficiary will be providing services at the end client through a contractual arrangement with In addition to the aforementioned letter, the documents filed with the Form I-129 included, inter alia, the following: • A copy of a letter from the petitioner to the beneficiary, dated August 1, 2012, regarding an "[o]ffer of employment with [the petitioner]."2 The letter states that the "employment start date will be August 3rd, 2012." • A copy of four pages of a five-page document entitled "Agreement for Information Systems Services," made on August 21, 2012 between and the petitioner (hereinafter, the Agreement). The Agreement states that provides information systems services . . . to companies either directly or through other consulting firms" and that "[t]he [petitioner] shall provide information systems services as specified in the Statement of Work [(SOW)]." The Agreement states "the 2 The offer of employment letter appears to relate to the beneficiary's Optional Practical Training (OPT) in connection with her F-1 status. (b)(6) NON-PRECEDENT DECISION Page4 Agreement shall continue in effect until either party terminates the I Agreement ... [and] shall remain in effect regarding any [SOW] already in effect until such [SOW] is terminated or performance is completed." The AAO notes that a copy of the SOW was not provided. • A copy of the petitioner's letter to the beneficiary, dated September 10, 2012, regardin the beneficiary's "Project Assignment." The letter states that the client's name is that the position is titled business analyst, that the location is , and that the start date is September 11, 2012.j The letter states that the jo uties w1ll mclude but may not be limited to the following: Designing[,] developing[,] and implementing applications using current information [t]echnology; analyzing systems, [d]evelop [t]est [p]lans, [t]est cases, [t]est [s]cripts and [t]est procedures based on business requirement and documentation for testing; servicing accounting integration and data conversions; Creating requirement [t]raceability [m]atrix with link of [e]ach [t]est [c]ases [sic] with [b]usiness, [t]echnical, and [f]unctional [r]equirement. Developing re-usable manual test cases to adequately test applications; Estimating the testing impact of new requirements; Executing test activities; Preparation and proactive communication of status report to project teams and stake holders including system changes, issues and potential impact analysis. Automation test scripts for pe1forming regression testing on the application; Creating and maintaining automated test cases; Administration of test automation, management and defect tackling tools; Perform extensive backend testing for data validation of applications; Test and debug the system to ensure that it performs as planned; Prepare end user documentation and conduct user training; Deploying the applications developed and provide required level of customer services needed. The letter also states, "[y]ou have been olaced at this project through our contractual arrangement with [the petitioner], and • A copy of a letter from dated March 28, 2013, stating the following: [The beneficiary], an employee of [the petitioner], is currently working as a Business Analyst. This is a contract with our client an implementing artner at The job site is at and [the petitioner], has the exclusive right to hire, fire, supervise and pay [the beneficiary] from its corporate office. [The beneficiary] is responsible for the following[:] 3 This letter appears to relate to the beneficiary's OPT in connection with her F-l status. (b)(6) NON-PRECEDENT DECISION Page 5 o Performing comprehensive business analysis to ensure that all business units under were compliant as per Federal and Corporate standards. o Documentation of existing business system standards in terms of Application Development and Maintenance (ADM) as well as IT Securitv and Risk Comoliance (ITSRC) for and o Analyzing and identifying areas of non-compliance. o Formulating procedures and templates to ensure compliance as per Federal and corporate standards. o Facilitating regular touch point meetings with Business Unit owners of Inc., and --------------~ o Knowledge gathering and artifact collection through scheduled as well as informal meetings with several stake holders. o Working in collaboration with the auditing team from to understand and formulate remediation procedures for areas of non[-]compliance to standards. o Performing extensive documentation including write ups, evidences [sic], and templates. o Facilitating project kick off meetings with all stakeholders - defined the objective, reviewed roles and responsibilities, mapped timelines, milestones and communication processes. o Working in perfect collaboration in a team of five and project due to complete ahead of schedule with desired standards of quality and perfection. The above mentioned duties require at least a bachelor's degree m a directly or closely related field. [The beneficiary's] work at has been arranged through a series of contracts between [the petitioner], and does not have the ability to assign [the beneficiary] to a different employer or client. The director found the initial evidence insufficient to establish eligibility for the benefit sought, and issued an RFE on April 19, 2013. The director noted that the beneficiary's described duties do not appear to match those of a management analyst. The petitioner was asked to submit evidence to establish, among other things, (1) that the proffered position qualifies as a specialty occupation, (2) (b)(6) NON-PRECEDENT DECISION Page 6 that, for the duration of the requested H-lB validity period, a valid employer-employee relationship will exist between the petitioner and the beneficiary, and that the petitioner has the right to control the beneficiary's work, and (3) that there is sufficient specialty occupation work for the beneficiary to perform at the entity ultimately using the alien's services for the duration of the requested H-lB validity period. In response to the director's RFE, the petitioner provided additional supporting evidence, including, among other things, the following: • The petitioner's letter in response to the RFE, dated May 16, 2013, in which the petitioner stated that ' is the only party that can control his work." The petitioner also stated the following: Please note that in an error, initially the project assignment letter identified wrong duties for the beneficiary, but was subsequently corrected, and a new letter was issued instead. Due to an administrative error, while filing for the Hlb, the initial letter was attached. We now submit the conect letter, with the correct job duties that match the job duties in the support letter filed with the petition as well as with the duties in the end client's letter. We regret this error in filing. The petitioner also stated the following: [The beneficiary] is placed at the end client, in IL, through a series of contracts. The contractual chain is as follows: [The petitioner] -7 -7 In addition, the petitioner stated that its "minimum requirement for this position is a Baccalaureate Degree in Computer Science, Computer Applications, Information Systems, Business Administration, Engineering or a related quantitative technical or business discipline." The petitioner also included the following revised description of duties and the percentage of time allocated to each duty: o Consult with clients, gather and analyze their business requirements to be implemented to their programs/systems[;] Conduct business process qualitative and quantitative analysis; Prepare functional specifications documents mapping the business requirements to programs; Prepare charts and diagrams to assist in· problem analysis; (15%) o Translate business needs into operational technical requirement. Assist cross functional team in drafting and designing the work flow and business operation procedures customized to client's needs. Set operational specifications and formulate and analyze software requirements as assigned; As a team member work (b)(6) NON-PRECEDENT DECISI01 Page 7 in the various aspects of commercial software analysis and design. Develop end user applications and reports; Study work procedures, information flows, production methods; Document findings and recommend new business and financial systems; (40%) o Determine feasibility, cost and time required, compatibility with current system; Process documentation of scripts developed and generated for testing applications; Conduct gap analysis between the cunent MIS system and the new system and cover any deficiencies as per the functional changes desired in the systems; Study business process workflow in existing systems and suggest alternatives applying various business scenarios, test cases, business principles and concepts to improve them and match new requirements; (25%) o Assist in Conducting UAT's [(User Acceptance Testing)] etc. Collaborate with development team during all stages of project and provide help in process testing results; be a part of the Business team and give regular updates to QA team lead periodically; testing and mapping documents; ensure timely submission of proposals and be responsible for quantitative and qualitative goals of the project/client. Assist in conducting U AT s etc. (20%) The expanded job duties are as follows: o Gather and analyze business requirements; Prepare business requirements documents for the functional changes desired in the systems; Conduct gap analysis between the current MIS system and the new system and cover any deficiencies as per the functional changes desired in the systems; o These duties will also involve the following: Investigate, evaluate, and make purchase recommendations for business development systems, both hardware and software, for cost-benefit and return-on investment analyses to help management decide whether implementing the proposed system will be financially feasible. He will also review current system/program codes, applying clients' business scenarios and test cases, and redesign the system/program to meet business needs. o Translate business needs into operational technical requirement. Study business process workflow in existing systems and suggest alternatives applying various business scenarios, test cases, business principles and concepts to improve them and match new requirements; Document findings and recommend new business and financial systems; Do Business Process Re-engineering and map client specific business transactions and processes; Propose changes in equipment, processes and procedures that would result in overall system enhancement; Give inputs for functionality testing from business perspective and determine technical needs for design and development of the MIS; o These duties will involve gathering and understanding business (b)(6) NON-PRECEDENT DECISION Page 8 requirements, preparing business requirements documentation and systems requirements study for the functional changes desired in IT system; Conducting detailed structured planning and development of error free procedures. Assist in data migration and performing periodic functional testing to ensure data is properly migrated in compliance with business requirements; o Assist in conducting User Acceptance [T]esting (UAT) etc. o These duties will include: Giving inputs for functionality testing from business perspective, preparing business test cases and scenarios and perform user acceptance testing and based on findings, tweak the system operation procedures to increase its operating efficiency to meet business needs etc. • A copy of a letter, dated March 27, 2013, from the Senior Vice President, Chief Information Officer at stating that the beneficiary is responsible for the following duties: o Performing comprehensive business analysis to ensure that all business units under were compliant as per Federal and Corporate standards. o Documentation of existing business system standards in terms of Application Development and Maintenance (ADM) as well as IT Security and Risk Compliance (ITSRC) for and o Analyzing and identifying areas of non-compliance. o Formulating procedures and templates to ensure compliance as per Federal and corporate standards. o Facilitating regular touch point meetings with Business Unit owners of , and o Knowledge gathering and artifact collection through scheduled as well as informal meetings with several stake holders. o Working in collaboration with the auditing team from to understand and formulate remediation procedures for areas of non[-]compliance to standards. o Performing extensive documentation including write ups, evidences [sic], and templates. o Facilitating project kick off meetings with all stakeholders - defined the (b)(6) NON-PRECEDENT DECISION Page 9 objective, reviewed roles and responsibilities, mapped timelines, milestones and communication processes. o Working in perfect collaboration in a team of five and project due to complete ahead of schedule with desired standards of quality and perfection. • A copy of the revised letter from the petitioner to the beneficiary, dated September 11, 2012, regarding the beneficiary's "Project Assignment."4 The letter states that the client's name is that the QOSition is titled business analyst, that the location is and that the start date is September 11, 2012.=> The letter states that the job duties w1ll mclude but may not be limited to the following: Gather and analyze business requirements; Conduct business process qualitative and quantitative analysis; be a part of Business team and give regular updates to QA team lead periodically; Analyze user requirements, conduct business/testing process analysis and gap analysis between systems and cover any deficiencies as per the functional changes desired; Prepare functional specifications documents mapping the business requirements to programs; Prepare charts and diagrams to assist in problem analysis; Study work procedures, information flows, production methods; Set operational specifications and formulate and analyze software requirements as assigned; Determine feasibility, cost and time required, compatibility with current system and computer capability; Process documentation of scripts developed and generated for testing applications. Collaborate with development team during all stages of project and provide in process testing results; Coordinate with the QA and other business personnel involved in the project that test, evaluate and validate new functions and applications, and identify issues in software or processes; Participate in conducting unit testing, system integration testing, user acceptance testing applying various business scenarios[,] etc. The letter also states, "[y]ou have been placed at this project through our contractual arrangement with [the petitioner], • A copy of an affidavit by the beneficiary, dated April 26, 2013, stating, among other things, that she is an employee of the petitioner working as a business analyst at and that her job duties are as follows: Gather and analyze business requirements; Conduct business process qualitative and quantitative analysis; formulate procedures and templates to ensure compliance per 4 The "Project Assignment" letter that was previously submitted is dated September 10, 2012. 5 The AAO notes that this letter relates to the beneficiary's Optional Practical Training (OPT) in connection with her F-1 status and not to the H-lB petition. (b)(6) NON-PRECEDENT DECISION .Page LU federal and standards; Analyze user requirements, conduct business/testing process analysis and gap analysis between systems and cover any deficiencies as per the functional changes desired; Prepare functional specifications documents mapping the business requirements to programs; Prepare charts and diagrams to assist in problem analysis; Study work procedures, information flows, production methods; Set operational specifications and formulate and analyze software requirements as assigned; Process documentation of scripts developed and generated for testing applications. Collaborate with development team during all stages of project and provide in process testing results; facilitating project kick off meetings with all stakeholders and working in collaboration with the team members, and other duties as assigned by my managers. • Copies of the petitioner's "Weekly Review Reports" of the beneficiary from March 4, 2013 to April 26, 2013. • Copies of various job vacancy postings. • A copy of the petitioner's organizational chart. On appeal, the petitioner indicates that the "preponderance of the evidence" standard is relevant to this matter, and that the petitioner clearly established that the proffered position is a specialty occupation. The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is "probably true," where the determination of "truth'' is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. /d. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. II. LAW AND ANALYSIS A. Inconsistencies in the Petition Applying the preponderance of the evidence standard, upon review of the entire record of proceeding and the totality of the evidence presented, the AAO notes, as a preliminary matter, that there are numerous inconsistencies and discrepancies in the petition and supporting documents, which undermine the petitioner's credibility. When a petition includes numerous errors and discrepancies, those inconsistencies raise serious concerns about the veracity of the petitioner's assertions. Accordingly, the AAO will discuss some of these issues first before· addressing the grounds of ineligibility.