Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the lmmigration and Nationality Act, 8 U.S.C § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the documents related to thi~ matter have been returned to the office that originally decided · your case. Please be advised that any further inquiry that you q~ight have concerning your case must be made io that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions oil Form I-290B, Notice of Appeal or .Motion, with a fee of $630. The specific requirements for fi1ing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Ron Rosenberg
Acting Chief, Administrative Appeals Of!ice _ p. 2 i
. Page 2
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is an IT solutions and services company. It seeks to employ the· beneficiary permanently in the United States as a programmer analyst pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification, certified by the United States Department of Labor. ·
The director determined that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. 8 C.ER. § 204.5(k)(4). The <;lirector denied the petition accordingly. ·
On appeal, counsel asserts that the director has misinterpreted the language in part H, item 14 of the ETA Form 9089, and that counsel would submitadditional evidence.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 l&N Dec. 190 (Reg'l Comm'r 1972)).
The record shows that the appeal is properly filed and timely. 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.
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States ad1demic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The < ·· regulation further states: "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." Jd.
Section 203(b)(2) of the Act also includes ali~ns "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." The regulation at 8 C.F .R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered." · ·
Here, the Form 1-140 was filed on March .27, 2012. On Part 2.d. of the Form 1-140, the petitioner indicated that it was filing the petition for a member of the professions holding an advanced degree or an alien of exceptional ability.
(b)(6)'i' . . .•
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. · ·
The regulation at 8 C.F.R. § 204.5{k)(4) states in pertinent part that "[t]he job offer portion of an individual labor certification, Schedule A application, or Pilot Program application must,demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability." ·
In this case, the job · offer portion of the ETA Form 9089 indicates that the minimum level of education required for the position is·a master's degree in engineering or related field and that thirty six months of work experience is required. Alternatively, the petitioner will accept a bachelor's degree and five years of work experience. However,· in Part H, Item 14, ·the petitioner indicated that it "will accept Bachelors+ 5 years experience or any suitable combmation .of academic study and experience deemed equivalent." Accordingly, the job offer portion ofthe ETA Form 9089 does not require a professional holding an advanced degree or the equivalent of an alien of exceptional ability. It is,possible to qua)ify for the position without having earned a bachelor's degree. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U .S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.