DATE~UG 2 6 2.014 OFFICE: NEBRASKA SERVICE CENTE~.
INRE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citizenship and Immigrat ion Services
Administr ative Appeals Office (AAO)
20 Massa chusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
U.S. Citizenship and Immigration
Services
FILE :
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Deg;-ee or an
Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 2nd Nationality Act , 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITION ER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Offic e (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 ca se 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/forrns for the latest information on fee, filing location, and other requirements. See also B C.F.R . § 103.5. Do not file a motion directly with tbe AAO.
Thank you,
Ron Rosenb erg
Chief, Administrative Appea ls Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Admi nistrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a consulting/ software/ engineering company. It seeks to permanently employ the beneficiary in the United States as a software engineer. The petitioner requests classification of the beneficiary as a member of the professions holding an advanced 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)
The petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The priority date of the petition , which is the date the DOL accepted the labor certification for processing, is September 4, 2012. See 8 C.F.R. § 204.5(d).
The director's decision denying the petition concludes that the beneficiary did not possess the minimum experience required to perform the duties of the offered position by the priority date. The record shows that the appeal is properly filed and makes a specific allegation of error in law or fact. 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. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1
The beneficiar y must meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition. 8 C.P.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm . 1971).
In evaluatin g the labor certification to determine the required qualifications for the position, U.S. Citizenship and Immigra tion Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requiremems . See Madany v . Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massach usetts, Inc. v. Coomey, 661 F .2d 1 (1st Cir. 1981 ).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation , USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary ' s qualifications . Madany, 696 F.2d at 1015 . The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v
. Smith, 595 F. Supp. 829, 833 (D.D .C. 1984)(emphasis added) . USCIS's interpretation of the job ' s requirements, as stated on the labor certification must involve "reading and applying the plain language of the [labor certification]." Id. at 834 (emphasis added). USCIS will not look beyond the plain language of the labor certification to determine the employer ' s claimed intent.
In the instant case, the labor certification states that the offered position has the following minimum requirements:
H.4.
H.5.
H.6.
H.7.
H.8.
H.9.
H.10.
H.14.
Education: Master's degree in Computer Science, CIS , MIS, or a related field.
Training: None required.
Experience in the job offered: 24 months.
Alternate field of study: Yes, Computer Science, CIS, MIS, or a related field.
Alternate combination of education and experience : None accepted .
Forei gn educational equivalent: Accepted.
Experience in an alternate occupation: Yes, 24 months as a Software Developer, Programmer Analyst, or related exp erience.
Specific skills or other requirements: Prior experience with Visual Studio.Net and MEGA Tool required . Will accept and suitable combination of education , training , or experience as per the requi rements contained in items H.4 through H.14.
Section 203(b)(.2) of the Act, 8 U.S.C. § 1153(b)(2) , provides immigrant classification to members of the professions holding advanced degrees . See also 8 C.F.R. § 204.5(k)(1).
The regulation at !5 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession.'' An "advanc ed degre e" is defined as:
[A jny United States academic or professional degree or a foreign equivalent degree above that of baccalameate. A United States baccal aureate degree or a foreign equi valent degree followed by at least five years of progressive experience in the specialty shall be ccnsidered the equivalent of a master's degree. If a doctoral degree is cust omr.rily required by the specialty, the aJien must hcwe a United State s doctorate cr a foreig n equiv alent degree
A "profession" is defined as "one of the occupations listed in section 10l(a)(32) ofthe Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimu m require ment for entry into the occupation." The occupations listed at section 101(a)(32) of p. 4 the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers m elementary or secondary schools, colleges, academies, or seminaries.'' The regulation at 8 C.F.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 a 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 froJ? current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition 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. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degre~) above a baccalaureate, or a U.S. baccalaureate (or a foreign equiva1ent degree) followed by at least five years of progressive experience in the specialty. In the instant case,. the petitioner claims that the beneficiary may be classified as an advanced degree professional based on the beneficiary's l\!laster's Degree.
The record reflects that the beneficiary has the required education for the position.
- Information Systems Specialist/ Architect with the petitio ner from May 27, 2009 until May 24, 2012.
- Programmer Analyst with
April 30, 2009.
- Programmer Analyst with
May 4, 2007. in Illinois from October 1, 2008 until in Texas from November 1, 2006 until
- Programmer/ Analyst with in Florida part-time from January 9, 2.006 until July 7, 2006 and September 5, 2005 until December 16, 2005.
- Software Developer with until August 13, 2004.
The regulation at 8 C.F.R. § 204.5(g)(l) states: in India from May 5, 2003
Specific requirements for initial supporting documents for the various employment based immigrant classifications are set forth in this section. In general, ordinary legible photocopie~ of such documents (except for labor certifications from the Department of Labor) will be acceptable for initial filing and approval. However, at the discretion of the director, original documents may be required in individual cases. Evidence relating to qualifying experience or training shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer , and a specific description of the duties performed by the alien or of the training received. lf such evidence is unavailable, other documentation relating to the alien's experience or training will be considered.
The record contains the following evidence in support ofthe beneficiary's work experience:
- Original letter from Manager, dated November 19, 2010, on letterhead stating that the company employed the beneficiary as a full-time Programinet Analyst from October 1, 2008 until April 30,2009.
NON-PRECEDh!VT DECISION the beneficiary as a full-time Software Developer from May 5, 2003 until August 13, 2004. o Affidavit from the beneficiary dated February 19, 2014, stating that no other experience letters could be obtained from and identifying as his former manager. o Affidavit from beneficiary was employed by dated December 8, 2013, stating that the as a Software
Developer from May 5, 2003 until August 13, 2004. o Second affidavit from stating that he was the manager of the beneficiary and that he wrote a previous experience letter attesting to the beneiiciary's experience with . Mr. fmtner states that the beneficiary provided him a template for the experience ietter. 3
The three letters of experience from
letterhead, dated December 2, 2010. For the netitioner stated it could not locate the original letter, and submitted an affidavit from ,!;;:::::====-- _, dated December 8, 2013, stating that the beneficiary was employed by as a Software Developer from May 5, 2003 until August 13, 2004. The director denied the petition, finding that the evidence did not overcome his concerns raised in the RFE, and that the petitioner had not established the beneficiar y's qualifications for the proffered position as ofthe priority date.
On appeal, the petitioner submitted a new affidavit dated March 19, 2014 from formerly of _ and a second affidavit from dated March 9, 2014, to establish the beneficiary's employment with We do not find this evidence to establish the beneficiary's employment qualifications.
None of the evidence submitted in response to the director's RFE or on appeal addresses the director's primary concern, which is that the authors of the letters did not reliably describe duties specific to the beneficiary's employment with each of the quaJi.t)ri:n.g employers. The regulation at 8 C.F.R. § 204.5(g)(l) states that the specific duties of the qualifying employment must be detailed in the employment verification letter: "[ e ]vidence relating to qualifying experience or training shall be in the form of letter(s) from current or former employer(s) or trainer(SJ and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received." But for rhe dates of the qualifying employment and the names of the respective companies, the letters were identical, and were thus apparently not written by the signatories of the letters. The petitioner did not IJTOvide evidence from each of the companies corroborating the identical job descriptions initially submitted in support of the petition.
Depending on the specificity, detail, and credibility of a ieti:er, USCIS may give the document more or less persuasive weight in a proceeding. The Board of Immigration Appeals (BIA) has held that testimony snould not be disregarded simply bec;ause it is "self-serving." See, e.g., j\;Jatter of S-A-, 22 I&N Dec. J323, 1332 (BIA 2000) (citing cases). The BIA aiso held, however: "We not only encourage, but require the introduction of corroborative te~:timonial and documentary evidence, where available.' ' Id. Iftestimor.t.ial evidence lacks speciticity, detail, or credibility, there is a greater need for the petiLiuner to submit corroborative evidence. lvialter of Y-B-, 21 I&N Dec. 1136 (BIA 1998).
On appeal, the petitioner submits an affidavit from dated March 19, 2014 attesting ~o tlv.; i:lc c. ura.~y of his previo•JS statement. This affidavit is detl.cient in that it neither identifies the atliant' sand the beneficiary 's fonner employer, the date of the previous letter, the duties outlined in that Jetter, provide any explanation for the author's initial submission of duties identical to the tvvo other companies' description of duties, and does not outline his former managerial dutie~ at The company's location on i:he letterhead is IL.
The petitioner dicl IH)t explain why it could not obtain information from a United States company; did not submit the beneficiary's Internal Revenue Service (lRS) Fom1s W-2 or 1 099-MISC from p. 8 i a new letter from _ identifying the duties the beneficiary performed while em Joyed at or any independent, objective evidence of the beneficiary's employment with Nor does the record establish the beneficiary's qualifying work experience with In response to the director's RFE, the petitioner submitted the original letter from dated December 2, 2010, but provided no explanation from the company or from Mr. about issuing an employment verification letter in which the duties were not apparently authored by Mr. The company's location identified on its letterhead is Houston, TX. The petitioner did not submit a new letter from IRS Forms W-2 or 1099-MISC establishing the beneficiary's employment, or other objective, independent evidence to corroborate the beneficiary's qualifying employmeril with the company.
Similarly, the copy of the letter from does not establish the beneficiary's employment with The petitioner failed to submit the original as requested by the director. Ihe regulation at 6 C.F.R. § 204 .S{g)(2) states that the director may request additional evidence in appropriate cases. Although sp~cifically and clearly requested by the director,, the petitio"t~ter did not submit the original letter as reque sted by the director, or any evidence from the company to authenticate the ietter fron The failure to submit requested evidence that precludes a mater ial line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § lOJ.2(b)(14).
In lieu of evidence from the petitioner provided two affidavits from Neither affidavit is written on lettahead. The affiant does not state when he was employed at and does not describe his duties as the beneficiary ' s claimed former manager. These two affidavits do not comply with the regulation at 8 C.F.R. § 204.5(g)(l) in that they are not :from lhe beneLciary's fonner employer(s) or iliiiner(s) and do not indude the name and address of If an original letle:r iiom is unavailable, other documeDtai:ion relating to the alien's ex~J~rience or uaining may bo:: considered. The petitioner has not, however, established that is out of business . The petitioner has not explained why the company was not willing to provide evidence of the beneficiary's work experience, or why we should accept secondary evidence in lieu of primary evidence of the beneficiary's employment with The non-existence or other unavailability of required evidence r:Ieates & presumptiort of ineligibility. 8 C.f .R. § 103.2(b)(2)(i). If a required document does no1. exist or c&nnot be obtained, the petitioner must ciemonstrate this and submit secondary evitk ncc petiinent to the facts at issue. Id. Where a ~··;c;cord does not exist, the petitioner must su~1n1it an original written :;tatement from the relevant authority establishing thi:, as fact. The statement musr in,i\ :;ate the reason the record does not e;dst and indicate whether similar records for the time and place 2trf available. g C.F .R. § 103.2(b )~:2)(ii).
The beneficiary's anidavit is self-serving and does not provide independent, objective evidence of his prior work experience. See ivlatter ofHv, 19 l&N Dec. 532 , :591-592 (BIA 1988)(states that the petitioner rnust :resolve any inconsistencies in the record by indt::[1endent, objective evidence). Going on record withl)Ut ~uppmiing docume:mary ev1denGe is not suft1cient for purposes of meeting the p. 9 NON-P RECEDI!,"'NT DECISION burden of proof in these proceedings. Afatter of Sojfici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ojCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)).
For the reasons outlined, we do not find that the record establishes the beneficiary's claimed work experience with 1 As noted by the director, the letters verifying the beneficiary's employment do not appear to be authored by any of the signatories of the letters , thus diminishing their probative value. Although notified of USCIS concerns, the petitioner has not submitted reliable corroborating evidence to bolster the authenticity of the statements of the beneficiary's duties outlined in each identical letter. Therefore, we find that the beneficiary does not possess 24 months of experience in the job offered or in an alternative occupation as a Software Developer, Programmer Analyst, or related occupation.
We further note that the record contains no evidence of the beneficiary's part-time work experience with in Florida from September 5, 2005 until December 16, 2005 and January 9, 2006 unti1 July"/ , 2006.)
Represemations made on the certified ETA Form 9089, which is signed by both the petitioner and the beneficiary under penalty of perjury, clearly indicate that the beneficia:ry's experience with the petitioner cannot be used to quali1y the beneficiary for the certified position.
Specifically, in response
NON-PRECEDENTDEC~ION to question 1.21, 'Nhich asks, "Did the alien gain any of the qualifying experience with the employer in a position substantis11y comparable to the job opportunity requested?," the petitioner answered "no." The petitioner specifically indicates in response to question H.6 that 24 months of experience in the job offered is required and in response to question H.l 0 that experience as a software developer, programmer analyst or related experience is acceptable. In general, if the answer to question 1.21 is no, then the experience with the employer may be used by the beneficiary to qualifY for the proffered position if the position was not substantially comparable 7 arKl the terms of the ETA Form 9089 at H.l 0 provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates in response to questions K.l. and K.2 that his positions with the petitioner were as a mega architect and information systems specialist/architect, and the job duties are the same duties as the position oiiered. lhc,rti()re, the experie11ce gained with the petib..:mer was in the position offered and is substantially cur::.tparab1e as the beneiiciary was perform iag the same job duties more than 50 percent of the ti111e. Accmding to DOL regd::ttions, therefore, the petitioner cannot rely on this experience ii:>t the :Jeneficiary to qualify for ·.:he proffered position.
--------------------·-·--------------------------------------· -·-·----·-----------------------(3) if ~he &. ;i.~n beneficiary already i~: employed hy the employe '·, in L•Jnr.idering whether the job requ;rementf, r'::'pre:;~nt the emr:loyer':; m:tucd minimul'"ls, DOL will rf!vie'~' the training and experience possessed by the alien beneficiary at the time of h'ring by the emplo: 1er, including as a contract employee. The employer can not require domestic worker appli cants to possess training and/or experience beyund what the aJ'1en possessed at tne time of hire unles~:
(i) 1~h·~ aliGn gai•1cd tlle tX\Jf;' i~nce while worki ug for tho ~ onplc;y:r, including a~ a contract or:pl c·yee, in a ~Jositi< J r not ~-ubstan:i .'1:ly ::o.r.'lparnb!c tc th :; positi on fo;- which certification is l:fin ;~ sn u!!.ht, or
(ii) The employer can demonstrate that it is no longer feasibl·~ to train a worker to qualify for the position.
( 4) 11! eviiluaciJlg whether the alien belleficiary satisfies the employer's actuai minimum requirements, DOL wili nut onsidet· aLy education ur tra ining obtained by the at:en beneficiary at the employer's .::xpeme •j.l1 less tbe employer offers similar training to domestic wvrkc'; r applicams. (5 :. for purp u~s of this par agraph (i) :
(i) 'I !11: ielfCJ "ea1ployer" means an entity with the same Federal Employer Identification 1-J~~no \;J (rE iN), provided 1t rneets the t.!etitll"Lion of an emp:oyer at § 656.3 .
1>;:, ,q "substantial!) comparable" job o,- position means a job or position requiring performance of the same job duties more than 50 percent o ~ tl1e time. This requirement can be ctoc e~ mented by furnishing position descriptions, the perce ;1 tage of time spent on the various dutie~ , organization charts, and nayroll records.
Thus, we affirm rhe director's decision that the petitioner failed to establish that the beneficiary meets the minimum requirements of the offered position set forth on the labor certification as of the priority date. Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b)(2) ofthe Act.
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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed .