The Petitioner, a designer and manufacturer ofmedical devices, seeks to employ the Beneficimy as an TheDirectoroftheNebraskaServiceCenterdeniedthepetition. TheDirectorconcludedthat,contrmy to a requirement of the requested immigrant visa category, the accompanying certification from the U.S. Department of Labor (DOL) didn't demonstrate the offered position's need for a noncitizen of The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also MatterofChawathe , 25 I&N Dec. 369,375 (AAO 2010) (citations omitted) (discussing the standard of proof). Upon de nova review, we will dismiss the appeal.
Employment-Based Immigration
Immigration as a noncitizen of exceptional ability generally follows a three-step process. First, a prospectiveemployermustapplytoDOLforcertificationthat: (1)thereareinsufficientU.S.wmkers Initially, the Director ruled that the Petitioner did not demonstrate the position's need for a member of the professions holdinganadvanceddegree. Therequested,second-preferencecategoryauthorizesimmigrantvisasforbothnoncitizens of exceptional ability and advanced degree professionals. Section 203(6)(2)(A) of the Act. After realizing that the P e t i t i o n e r r e q u e s t e d t h e B e n e f i c i a r y ' s c l a s s i f i c a t i o n a s a n o n c i t i z e n o f e x c e p t i o n a l a b i l i t y r a t h e r t h a n a s a n a d v a n c e d degree professional, the Director reopened the proceedings on his own motion and simultaneously issued a new decision regarding the specified visa subcategory. Because the new decision does not favor the Petitioner, theDirectorshouldhaveafforded the company at least30 days from the motion's service to submit a written brieforto waive the 30-dayperiod. 8 C.F.R. §103.5(a)(5)(ii). Onappeal,however,thePetitionerdoesnotallegethattheproceduralomissionprejudicedthecompany. Wethereforewillnotremandthematteronthisground. SeeAl-Ghorbaniv.Holder,585F.3d980,992(6thCir.2009) (requiring a party in irnmigration proceedings to show prejudice to prevail on a due process claim); see also Bangura v. Hanson, 434 F.3d 487 , 496 (6th Cir. 2006) (explaining that the Court has not decided whether procedural due process tights derive from an immigrant visa petition).
"R&D StaffEngineer - Mechanical." based, second-preference, immigrant visa category ("EB-2") for noncitizens ofexceptional ability in the sciences, arts, or business. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). exceptional ability.
"R&D" appears to stand forresearch and development.
The company requests his classification under the employment- p. 2 able, willing, qualified, and available for an offered position; and (2) the employment of a noncitizen in thepositionwon'tharmwagesandworkingconditionsofU.S.workerswithsimilarjobs. Seesection 212(a)(5) ofthe Act, 8 U.S.C. § l 182(a)(5).
Second, an employer must submit an approved labor certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS determines whether a noncitizenbeneficiary meets the requirements ofa certifiedpositionandarequestedimmigrantvisacategory. 8C.F.R.§204.5(1).
Finally, if USCIS approves a petition, a designated noncitizen may apply for an immigrant visa abroad or,ifeligible,"adjustmentofstatus"intheUnitedStates. Seesection245oftheAct,8U.S.C.§1255.
Exceptional Ability
Noncitizens of exceptional ability are eligible immigrants who, "because of their exceptional ability in thesciences,arts,orbusiness,willsubstantiallybenefitprospectivelythenationaleconomy,cultural oreducationalinterests,orwelfareoftheUnitedStates." Section203(b)(2)(A)oftheAct. Theterm "exceptional ability in the sciences, arts, or business" means "a degree of expertise significantly above that ordinarily encountered" in those fields . 8 C.F.R. § 204.5(k)(2).
Demonstration of exceptional ability requires more than submission of a professional or academic credential, or a license or certificate to practice a profession or occupation. Section 203(b)(2)(C) of theAct. Rather,apetitionermustsubmitatleastthreeofthefollowingsixtypesofevidence:
(A) An official academic record showing that the noncitizen has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the fonn of letter(s) from current or former employer(s) showing that the noncitizen has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation; (D) Evidence that the noncitizen has commanded a salary, or other renumeration for services, demonstrating exceptional ability; (E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professionals or business organizations.
Also, the job-offer portion of a labor certification accompanying an exceptional ability petition "must demonstrate that the job requires .. . an alien of exceptional ability." 8 C.F.R. § 204.5(k)(4)(i). In considering the job-offer portion of a certification, USCIS may neither ignore a term, nor impose additional requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the content ofthe labor certification") (emphasis added).
The accompanying labor certification states the minimum requirements ofthe offered position ofR&D staff engineer- mechanical as a U.S. bachelor's degree, or a foreign equivalent degree, in mechanical engineering or a related field of study, plus four years of experience in the job offered or "related design experience." The labor certification also states the Petitioner's acceptance of alternate combinations of education and experience. Part H.8 of the certification states the company's acceptance ofa doctorate degree with no experience. Part H.14 lists a third alternate requirement: a master's degree with two years of experience.
As the Director found, the job-offer portion of the labor certification does not demonstrate the position'sneedforanoncitizenofexceptionalability. Thelaborcertificationindicatesthejob'sneed for a degree in mechanical engineering, meeting an evidentiary requirement for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(A). But none of the additional job requirements listed on the labor certification satisfy any of the remaining five acceptable types of evidence listed in the regulations. See 8 C.F.R. §§ 204.5(k)(3)(ii)(B)-(F). Contrary to 8 C.F.R. § 204.5(k)(3)(ii)(B), the labor certification states the position's need for less than 10 years ofexperience. The certification also does not indicate the job's need for a license or certification, membership in a professional association, or achievementsorsignificantcontributionstotheindustryorfield. See8C.F.R.§§204.5(k)(3)(ii)(C), (E), (F). In addition, the record does not demonstrate that the position's annual proffered wage of $85,426 reflects a need for exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(D). Thus, the record does not establish that the offered position requires "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." See 8 C.F.R. § 204.5(k)(2) (defining the term "exceptional ability in the sciences, arts, and business"). Therefore, contrary to 8 C.F.R. § 204.5(k)(4)(i), the labor certification does not demonstrate the offered position's need for a noncitizen of exceptional ability.
On appeal, the Petitioner argues that the regulation requiring a labor certification to demonstrate a job's need for exceptional ability conflicts with DOL labor certificationrules and frustrates Congress's intent to make immigrant visas available for noncitizens ofexceptional ability. The record, however, lacks sufficient evidence to demonstrate the offered position's need for a noncitizen of exceptional ability.
Although an administrative agency must generally follow the plain language of its regulations, an agency's rule cannot interfere with Congress' stated or intended purposes. See, Chevron, U.S.A., Inc. v. Natural Res. Def Council,Inc., 467 U.S. 837, 842-43 (1984);Kentucky Waterways Alliance v. Johnson, 540 F.3d 466,474 (6th Cir. 2008). Congress intended to make immigrant visas available to noncitizensofexceptionalability. Section203(b)(2)(A)oftheAct. ThePetitioner,however,argues that, by requiringjob-offerportions oflabor certifications for these beneficiaries to require exceptional ability, the regulation at 8 C.F.R. § 204.5(k)(4)(i) frustrates Congress's intent.
DOL designed its regulations to prevent certifications of offered positions requiring exceptional abilities. DOLregulationsseektobarlaborcertificationemployersfrom"tailoring"jobrequirements to individual qualifications ofnoncitizens, stating that the job requirements "must be those normally required for the occupation." 20 C.F.R. § 656.17(h)(l); see also Matter ofDhanasar, 26 I&N Dec.
884, 885 (AAO 2016) (explaining that a labor certification employer "may not tailor the position requirements to the foreign worker's qualifications; it may only list the position's minimum requirements, regardless of the foreign worker's additional skills that go beyond what is normally required for the occupation"). Job requirements on a labor certification can exceed the minimums "normallyrequired"forofferedoccupations. Todoso,however,employersmustdocumentthatsuch, excessive requirements arise from "business necessity," meaning that they "bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." Id. The Petitioner argues that these inherent, regulatory obstacles in the labor certification process "could not have been the legislative intent for the [exceptional ability] classification."
Congress, however, is presumed to know existing law when it passes legislation. See, e.g., Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 169-70 (2014). At the time Congress created the EB-2 category in 1990, labor certifications were subject to the same limitations on job requirements as now. DOL regulations and case law required job requirements, unless arising from business necessity, to reflect the normal, minimum requirements oftheir respective occupations. See 20 C.F.R § 656.2l(b)(2)(l 989);seealsoMatteroflnformationlnds.,Inc., 1988-INA-82(BALCAFeb. 9, 1989) (en bane) (setting the standard of prooffor demonstrating business necessity).
Also, in the same act that created the EB-2 category, Congress specified that EB-2 petitioners must obtain labor certifications. Congress stated that "[t]he grounds of inadmissibility of aliens under subparagraph (A) . . . [o f section 212(a)(5) o f the Act] shall apply to immigrants seeking admission or adjustment of status under paragraph (2) ... of section 203(b)." Section 212(a)(5)(D) ofthe Act.3 In addition, the precursor to the requested classification - the third-preference category for noncitizens of exceptional ability in the sciences or arts under former section 203 (a)(3) ofthe Act - required petitions to include labor certifications. See former section212(a)(14) of the Act.
Thus, the Act and its legislative history indicate that Congress, despite knowing the regulatory obstacles that prospective employers of noncitizens of exceptional ability would face in labor certification proceedings, generally intended the employers to obtain DOL certifications of their offered positions. The Petitioner's argument therefore does not persuade us that 8 C.F.R. § 204.5(k)(4)(i) frustrates Congressional intent.
Conclusion
The Petitioner has not established the labor certification's demonstration ofthe offered position's need for a noncitizen of exceptional ability. The Petitioner bears the burden of establishing eligibility for the benefit sought. Section 291 ofthe Act. The Petitioner has not met that burden. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.
Congress granted an exception to the EB-2, labor-certification requirement, allowing the requirement's "waiver" if deemedtobe"inthenationalinterest." Seesection203(6)(2)(B)oftheAct. ThePetitioner,however,doesnotrequesta na tional-interestwaiver. See MattcrofDhanasar, 26 I&NDec. at889-91 (discussingtherequirements to obtain a national interest waiver).