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SustainedEB-2 · Appeal

Information technology company

Computing, AI & data · decided 2022-08-31 · NSC · AUG312022_02B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

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What the AAO decided

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    Full decision

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    Highlighted: Outcome (1)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services InRe: 18185368 · Appeal of Nebraska Service Center Decision · Non-Precedent Decision of the Administrative Appeals Office · Date: AUG.31,2022 · Form I-140, Immigrant Petition for an Advanced Degree Professional

    The Petitioner, an information technology company, seeks to employ the Beneficiary as a "technical architect." It requests classification of the Beneficiary as a member of the professions holding an advanceddegreeunderthesecondpreferenceimmigrantcategory. ImmigrationandNationalityAct(the Act)section203(b)(2),8U.S.C.§ 1153(b)(2). Thisemployment-based"EB-2"immigrantclassification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.

    The petition was initially approved, but the approval was subsequently revoked by the Director of the Nebraska Service Center. The Director determined that certain language in H.14 of the labor certification exceeded the "Kellogg language" and altered the minimum requirements of the labor certification in a way that could potentially allow a beneficiary to qualify for the job offered with less than a master's degree or a bachelor's degree and five years of postgraduate experience in the On appeal the Petitioner provides supporting evidence and an appeal brief asserting that the language does not alter the minimum requirements specified on its labor certification, which is consistent with the petition's classification request of advanced degree professional.

    Upon de nova review ofthe evidence and arguments made on appeal, we conclude that the Petitioner has overcome the basis for revocation and we will therefore sustain the appeal.

    This regulation was intended to incorporate the Board of Alien Labor Certification Appeals (BALCA) ruling in Francis Kellogg,1994-INA-465and544,1995-INA68(Feb.2,1998)(enbane). Thestatementonthelaborcertificationthatan employer will accept applicants with "any suitable combination ofeducation, trainingorexperience"is commonlyrefened to as "Kellogg language." specialty, and thus did not support the requested classification of advanced degree professional. Theregulationat20 C.F.R. § 656.l 7(h)(4)(ii)states:

    If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

    ORDER: The appeal is sustained.