The Petitioner. a school district, seeks to employ the Beneficiary as an SAP functional analyst. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. Immigration and Nationality Act (the Act) section 203(b)(2). 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification aiiO\vs a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Nebraska Service Center initially approved the petition, but subsequently revoked approval of the petition after concluding that the Petitioner had not established that the Beneficiary possessed the minimum experience required on the labor certification for the proffered 1 position. The Director also invalidated the labor ce11itication. The Petitioner filed a motion to reopen and reconsider. and the Director determined that approval of the petition should remain revoked.
On appeaL the Petitioner submits a brief and additional evidence. The Petitioner asserts that the evidentiary issues cited by the Director have been resolved. that the evidence establishes the Beneficiary"s qualifying experience. and that it refutes the Director's willful misrepresentation finding and invalidation of the labor certification. The Petitioner requests that we reinstate the validity of the labor certification and the approval of the petition.
Upon de novo review. we will sustain the appeal.
The Director revoked the petition's approval after concluding that the record did not establish the Beneficiary has the 60 months of experience required by the terms of the lahor certification. Specifically, the Director found that only experience gained after the Beneficiary was awarded his formal baccalaureate degree certificate could be considered qualifying. The Director also declined to accept experience that the Beneficiary gained with one former employer.
Section 205 of the Act, 8 U.S.C. § 1155. provides that the Secretary of Homeland Securily may ·'for good and sufficient cause, revoke the approval of any petition." The realization by the director that the petilion was approved in error may be good and sufficient cause for revoking the approval. Alalia ofHo. 19 I&N Dec. 582. 590 (BIA 198X).
Maller o f L-A-U-S-
On appeaL the Petitioner maintains that the Beneficiary accrued the requisite post-degree experience if we recognize that his degree was conferred on the earlier date of his provisional certificate rather than from the date his formal degree was issued. We may consider the provisional certificate to constitute the official academic record of the beneficiary"s ''degree·· for purposes of calculating the five-year period of post-graduate experience. if a petitioner establishes that all of the substantive requirements for the degree were met and that the degree was in fact approved hy the responsible university hody at the time a provisional certificate was issued. Matter o( 0-A-. Inc.. Adopted Decision 2017-03 (AAO Apr. 17, 2017). Here, the record demonstrates that by issuance of the provisional certificate the Beneficiary had completed all substantive requirements of his degree and the university had in tact approved the degree. As such, we will consider experience gained after the date the provisional certificate was awarded as post-baccalaureate experience.
Regarding the Director's concern with the Bcneticiary"s experience with one prior employer. we find that the record. including additional documentary evidence submitted on appeal. establishes that the Beneficiary. more likely than not, has the claimed experience. Considering this experience as qualifying experience. in conjunction with calculating the Bcneiicim-y's experience from the date of his provisional certificate, we find that the record demonstrates the Bcncticiary's possession orthe 60 months of qualifying post-baccalaureate experience required hy the labor ccrtitication.
We also find that the Director's finding of ''fraud and/or material misrepresentation" and invalidation of the labor certification is not supported by the record. ln this case the Director stated in the revocation decision that he tound fraud ·'and/or" willful misrepresentation of a material fact. However. he did not specify whether he found fraud or whether he found willful misrepresentation of a material fact or both. whether the finding applied to the petition. the labor certilication. or hoth. and whether it applied to the Petitioner, the Beneficiary. or both. After reviewing and discussing evidence submitted in this proceeding with respect to the Beneficiary's employment history. we do not tind that they rise to the level of fraud or willful misrepresentation of any material fact in these proceedings, and moreover. the Petitioner has overcome the noted inconsistencies on appeal.Inconsistencies in the record Accordingly. we will withdraw the Director's finding that the labor certification must he invalidated based on "fraud and/or material misrepresentation:· The Petitioner has established by a preponderance of the evidence that the Beneficiary has the requisite experience to quality for the joh opportunity under the terms of the labor certification. Therefore. we will sustain the appeal. We vvill also withdraw the Director's finding of fraud and/or willful misrepresentation ofa material fact and reinstate the validity of the labor certification.
ORDER: The appeal is sustained.
FURTHER ORDER: The Fft\ Form 9089. case number is reinstated.
Cite as Matter o(L-A-U-S- ID# 550782 (AAO Feb. 22, 2018)