Degree or an Alien of Excepti onal Ability Pursuant to Section 203(b )(2) of the Immigration and Nation ality Act , 8 U .S.C. § 1153(b )(2)
ON BEHALF OF PETITIONER :
INSTRUCTIONS:
Enclo sed please find the decision of the Admini strativ e Appe als Office (AAO) in your case . This is a non-preced ent dec ision. The AAO does not announce new constructions of law nor establish agency polic y throu gh non-pr ecedent decisions . If y ou believ e the AAO incorrectly appli ed current law or policy to your cas e or if you seek to prese nt new facts for con sider ation, you may file a motion to reconsider or a motion to reopen, respectiv ely. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 d ays of the date of this decision. Please review the Form I-290B instructions at http:ijwww .uscis.gov /fon u s for the latest information on fee, filing location, and other requirements. See also 8 C.P .R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
Ron Rosenberg
Chief, Admini strativ e App eals 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 a software service provider. It seeks to permanently employ the beneficiary in the United States as a systems analyst. The petitioner requests 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).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification.
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 priority date of the petition is July 23, 2012.Z The director's decision denying the petition states that the beneficiary does not hold a Master's degree as required by the terms of the labor certification and thus the petition may not be approved. On appeal, the petitioner states that the language included in part H.14 of the labor certification , stating that any combination of education, experience, and training would be accepted, means that the beneficiary meets the terms of the labor certification when considering the bachelor degree and ten years ofexperience.
The petitioner's 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? The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appea1.
A petition that fails to comply 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. 5 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2) . 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).
At the outset , it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14). 6 ld. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation , but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so 345 F.3d 683 (9th Cir. 2003).
that it will then be "in a position to meet the requirement of the law," namely the section 212( a )(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U.S.C. § 1154(b ), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor ... pursuant to section 212( a )(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. 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.P.R. § 204.5(k)(l).
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.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 from 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.P.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 degree) above a baccalaureate, or a U.S. baccalaureate p. 6 (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.
The labor certification here requires an advanced degree professional. However, the petitioner must establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by the priority date. 8 C.P.R. § 103.2(b )(1), (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).
Part H of the labor certification states that the offered position has the following mtmmum requirements :
H.4.
H.5.
H.6.
H.7.
H.8.
H.9.
H.lO.
H.14.
Education: Master's degree (Computer Science, Business Administration or related).
Training: None required.
Experience in the job offered: 24 months required .
Alternate field of study: None accepted.
Alternate combination of education and experience: None accepted.
Foreign educational equivalent: Accepted.
Experience in an alternate occupation: 24 months as a Software Engineer , Systems Engine er, Systems Analyst.
Specific skills or other requirements: Require skills in C++ and VC++. Any reasonable combination of training, education and experience is acceptable.
Part J of the labor certification states that the beneficiary possesses a Master's degree from . India, completed in 2006. The
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]." !d. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification . Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006) .
The petitioner submitted evidence to establish that the beneficiary holds the equivalent of two U.S. bachelor's degrees. The terms of the labor certification, however, require a successful applicant or have a U.S. Master's degree or the foreign equivalent thereto . The petitioner checked "No" to H.8 which asks whether there is an alternate combination of education and experience that is acceptable. On appeal, counsel states that the petitioner provided an alternative in part H.14 that should allow the beneficiary to qualify with a bachelor ' s degree. The last sentence of part H.14 appears to be language mandated by the DOL pursuant to Matter of Francis Kellogg, 94 INA 465 (BALCA 1998). The AAO does not interpret the language to mean that the employer would accept lesser qualifications than the stated primary and alternative requirements on the labor certification. See the following Board of Alien Labor Certification Appeals (BALCA) decisions: Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) and Matter of Agma Systems LLC, 2009-PER-00132 (BALCA Aug. 6, 2009). 7
For the reasons explained above, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification. Therefore, the beneficiary does not qualify for classification as 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 addition, beyond the decision of the director, it is unclear whether the beneficiary possesses the experience required for the proffered position. Part K of the labor certification states that the beneficiary began employment with the petitioner on September 30, 2012 as a software engineer and worked for Arntex Enterprises India Pvt. Ltd. as a systems engineer/systems analyst from September 12, 2002 to May 18, 2007. The record contains an experience letter from Chief Manager - Operations on (India) letterhead stating that the company employed the beneficiary as a Systems Analyst /Engineer from September 12, 2002 until May 18, 2007. 7 If the Kellogg language were read to provide for an alternative to the stated requirements on the labor certification, the labor certification would not support the visa category requested as it would require less than a baccalaureate degree for the position.
Representations 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 beneficiary ' s experience with the petitioner cannot be used to qualify the beneficiary for the certified position. 8 In response to 8 20 C.F.R. § 656.17 states:
(h) Job duties and requirements. (1) The job opportunity 's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occup ation
(4)(i) Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and (i) 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.
(ii) Actual minimum requirements. DOL will evaluate the employer 's actual minimum requirements in accordance with this paragraph (i).
(1) The job requirements, as described , must represent the employer's actual minimum requirements for the job opportunity.
(2) The employer must not have hired workers with less training or experience for jobs subst antially comp arable to that involved in the job opportunity.
(3) If the alien beneficiary already is employed by the employer , in considering whether the job requirements represent the employer's actual minimums , DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless:
(i) The alien gained the experience while working for the employer, including as a contract employee , in a position not substantially comparable to the position for which certification is being sought, or (ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. p. 9 question J.21, which asks, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?," the petitioner answered "no." In general, if the answer to question J.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 9 and the terms of the ETA Form 9089 at H.lO provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates in response to question K.l. that his position with the petitioner was as a software engineer, which contain virtually identical job duties as the job requirements for the proffered position. 10 According to DOL regulations, therefore, the ( 4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants.
(5) For purposes of this paragraph (i):
(i) The term "employer" means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at§ 656.3.
(ii) A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions , the percentage of time spent on the various duties, organization charts, and payroll records.
petitioner cannot rely on this experience for the beneficiary to qualify for the proffered position. As the beneficiary's experience with the petitioner was in the position offered, the experience may not be used to qualify the beneficiary for the proffered position.
The other company listed by the beneficiary as a previous employer which provided necessary experience is _ It is noted that the name of this employer is virtually identical to that of the petitioner 's and appears to be an overseas affiliate of the petitioner. As a result, the beneficiary's work as a systems engineer I systems analyst may not be used to demonstrate that the beneficiary has the 24 months of experience required by the terms of the labor certification.
In addition, the letter submitted from does not indicate whether the beneficiary was working in a full-time or part-time position for It is noted that the beneficiary received a Master of Business Administration from 'in 2006, while working for It is unclear how the beneficiary could have pursued a degree from that institution in a full-time capacity while also working for in a full-time capacity. If the beneficiary worked part-time for he may not have a total of 24 months of full-time work experience as required by the terms of the labor certification. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.Inconsistencies in the record Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In any further filings, the petitioner should submit evidence to resolve the noted discrepancy.
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must be denied.
The job details for the beneficiary's position currently with the petitioner are:
1. Involved in Systems study, design, analysis, coding, testing, maintenance and enhancement.
2. Involved in Requirement analysis, Database design, Data modeling and complete software lifecycle.
3. Responsible for developing the facial recognition software using Microsoft Visual Basic and VC++.
4. Designing and implementing algorithm for Eye Detection.
5. Configured automatic camera movement with detection and tracking of objects.
6. , Designed user interface for a camera using VC++ and MFC and implemented the camera control protocol.
7. Researched and designed algorithms for detection and tracking of objects.
8. Designed and implemented data compression software using C++ and VC++ and provided technical support for the software.
9. Involved in applications installation and maintenance of systems and networks.
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.