Non-Precedent Decision of the Administrative Appeals Office MATTER OF 8-G-S-U- DATE: AUG. 30, 2018 APPEAL OF NEBRASKA SERVICE CENTER DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a public university, seeks to employ the Beneficiary as an assistant professor of architecture. It requests her classification under the second-preference immigrant category as a member of the professions holding an advanced degree. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § l l 53(b)(2)(A). This employment-based, "EB-2" category allows a U.S. organization to sponsor a foreign national for lawful permanent resident status to work in a position requiring at least a master's degree, or a bachelor's degree followed by five years of expenence.
The Acting Director ofthe Nebraska Service Center denied the petition. Noting its stated acceptanc·e of a bachelor's degree without five years of following experience, the Director concluded that the accompanying certification from the U.S. Department of Labor (DOL) did not demonstrate the job's need for an advanced-degree professional.
On appeal, the Petitioner submits copies of advertisements indicating that the position requires at least a master's degree and asserts that the labor certification inadvertently misstated the job's alternate requirements.
Upon de novo review, we will dismiss the appeal.
Employment-Based Immigration
Employment-based immigration generally follows a three-step process. To permanently fill a position in the United States with a foreign worker, an employer must first obtain DOL certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position, and that employment of a foreign national will not harm wages and wor~ing conditions of U.S. workers with similarjobs. Id If the DOL approves a position, an employer must next submit the 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 considers whether a certified position meets the requirements of a requested immigrant classification. If USCIS approves a petition, a foreign p. 2 Matter ofB-G-S-U- national may finally apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
IL THE LABOR CERTIFICATION REQUIREMENTS Unless accompanied by an application for Schc.=;dule A designation or documentation of a beneficiary's qualifications for a shortage occupation, a petition for an advanced-degree professional must include a valid, individual labor certification. 8 C.F.R. § 204.5(k)(4)(i). The job-offer portion of the labor certification "must demonstrate that the job requires a professional holding an advanced degree or the equivalent." Id The term "advanced degree" means: any 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.
. Matter ofB-G-S-U-
The Petitioner asserts that its employee who prepared the la~or application inadvertently omitted the above-emphasized clause from ~he alternate job requirements listed on the application form. As proof that the position requires at least a master's degree, the Petitioner submits a letter from a school director and copies of the university's advertisements for the offered position. The Petitioner states:
We acknowledge that the non-attorney staff member . . . who completed the [labor certification application] did make a mistake in transferring the alternate minimum requirements properly to the form. However, we believe this should be deemed to be a harmless technical error that should not serve as a basis for the denial ofthe EB-2 1-140 Petition.
Because of the claimed misstatement of the position's alternate requirements, the labor certification v~olates 8 C.F.R. § 204.5(k)(4)(i)'s mandate to demonstrate the job's need for an advanced-degree professional. We therefore disagree with the Petitioner's characterization of the purported misstatement as "a harmless technical error."
On appeal, the Petitioner seeks to change the terms of the labor certification in order to cure the deficient filing. However, the Petitioner's request to amend the labor certification's terms is barred by DOL regulations. See 20 CFR § 656.1 l(b) (barring modifications to labor certification applications submitted after July 16, 2007). We therefore decline to consider evidence of the Petitioner's intended requirements or allow modification to the minimum requirements stated on the labor certification. The plain language of the labor certification clearly states the Petitioner's acceptance of a "Bachelor of Science degree in architecture plus professional registration." See, e.g.. SnapNames.com, Inc. v. Chertoff, No. CV 06-65-MO, 2006 WL 3491005, *7 (D. Or. Nov. 30, 2006) (holding that "where the plain language of [the labor certification] requirements does not support the petitioner's asserted intent, [USCIS] does not err in applying the requirements as written"). As such, the labor certification does not support the requested classification.
Moreover, the record does not establish that the ads submitted by the Petitioner describe the offered position. The ads, which were placed in 2014, identify the position's start date as "August 2015." The labor certification, however, states the Beneficiary's selection for the offered position almost a year later, on July 7, 2016. Thus, the record does not demonstrate that the ads and the labor certification describe the same position.
For the foregoing reasons, the labor certification does not establish the offered position's need for an advanced degree professional. We will therefore affirm the Director's decision.
Ill. THE BENEFICIARY'S QUALIFICATIONS Although unaddressed by the Director, the record also does not demonstrate the Beneficiary's qualifications for the offered position. A petitioner must establish a beneficiary's possession of all p. 4 Matter ~fB-G-S-U-
. DO L-certified job requir~ments by a petition's priority date. 1 Matter o f Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977).
Here, as previously discussed, the labor certification states the minimum requirements of the offered positionofassistantprofessoras: adoctorateinarchitectureorarelatedfield;oramasterofscience or bachelor of science degree in architecture and professional registration. On the labor certification, the Beneficiary attested that, by the petition's priority date, she earned a U.S. doctorate· in architecture.
Consistent with the Beneficiary's claim, the Petitioner submitted a copy of a doctor of philosophy diploma in her name from a U.S. university. The diploma, however, does not state her field o f study. The record lacks other academic records. Thus, contrary to the requirements of the offered position, the record does not establish the Beneficiary's possession.of: a doctorate in architecture or a related field; or a master of science or bachelor of science degree in architecture_ and professional registration.
Conclusion
The record on appeal does not establish the labor certification's support for the requested classification of advanced degree professional, nor does •it demonstrate the Beneficiary's qualifications for the offered position.
ORDER: The appeal is dismissed.
Cite as Matter ofB-G-S-U-, ID# 1649384 (AAO Aug. 30, 2018) This petition's pri_ority date is November 15, 2016, the date the DOL accepted the accompanying labor certification _ application for processing. See 8 C.F.R. § 204.S(d) (explaining how to detennine a petition's priority date).