Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
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:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
~kluHlit:c
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as an IT services business. It seeks to permanently employ the beneficiary in the United States as a software engineer, systems. On the Form I-140, Immigrant Petition for Alien Worker, the petitioner requested classification of the beneficiary as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 u.s.c. § 1153(b)(2).
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL).
The director's decision denying the petition concluded that the petition cannot be approved because the labor certification does not require the beneficiary to have obtained at least a master's degree or a baccalaureate degree followed by at least five (5) years of progressive work experience in the specialty or an alternative occupation.Five years of progressive experience not documented The director further determined that because the labor certification in the instant matter would allow for the combination of education, experience, and/or training that is "equivalent" to a bachelor's degree, the labor certification did not meet the classification of an E21, a member of the professions holding an advanced degree or an alien of exceptional ability.
On appeal, counsel for the petitioner asserts that the ETA Form 9089 does not ask for an equivalence of a bachelor's degree based on work experience or a combination of multiple lesser degrees. Counsel asserts that "a bachelor's degree or equivalent to bachelor's" statement means a single source four year degree, and that that was the intent of the petitioner in checking the "other" box on the labor certification at H.8-A. Counsel further asserts that the beneficiary's degree is a single source degree and thus does not rely on work experience alone or any other combination of lesser degrees to be in compliance with the labor certification requirements.
The appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis.1 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal? A petition that fails to comply 1 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004).
with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision?
The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary.
Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees or aliens of exceptional ability, whose services are sought by an employer in the United States. See also 8 C.F.R. § 204.5(k)(1).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current orformer employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the regulation at 8 C.P.R. § 204.5(k)(4)(i) states, in part:
The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.
In summary, a petition for an advanced degree professional must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Specifically, for the offered position, the petitioner must establish that the labor certification requires no less than a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. In the instant case, Part H of the labor certification submitted with the petition states that the offered position has the following minimum requirements:
H.4. Education: Bachelor's degre~ in Computer Science, any Engineering, Information Systems. H.5. Training: None required.
H.6. Months of experience in the job offered: Sixty months of experience is required.
H.7. Alternate field of study: Accepted.
H.7.A Major field of study: Related field.
H.8. Alternate combination of education and experience: Accepted.
H.8-A Alternate level of education required: Other.
H.8-B Alternative level of education required: Equivalent of a Bachelor's.
H.8-C. Number of years of experience acceptable in question H.8: Five (5).
H.9. Foreign educational equivalent: Accepted.
H.lO. Experience in an alternate occupation: Accepted.
H. lO-A Months of experience in alternate occupation: 60.
H.lO-B Job title of acceptable alternative occupation: Experience in software design and development.
H.14. Specific skills or other requirements: Demonstrated experience in SQL Server, DB2, XML, Java/J2EE, Unix is required. Frequent travel to US client sites is required.
Since an individual can qualify for the offered position with less than a degree above a baccalaureate, or less than a baccalaureate followed by five years of progressive experience in the specialty, the petition does not qualify for advanced degree professional classification.
There is no provision in statute or regulation that compels U.S. Citizenship and Immigration Services (USCIS) to readjudicate a petition under a different preference classification once the director has rendered a decision. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988).
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In summary, the offered position does not require an advanced degree. Therefore, the petition cannot be approved for a member of the professions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.