Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2) ·
ON BEHALF OF PETITIONER : ·
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decide.d your case. Please be advised that any further inquiry that you might have concerning your case must be made to 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 on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing 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 Office lVlVW~uscis~gov
DISCUSSION: The Director, Texas Service Center (TSC), denied the immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a software development and IT company. It seeks to employ the beneficiary permanently in the . United States as a software engineer. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The director determined that the ETA Form 9089 failed to demonstrate that the job requires a professional · holding an advanced degree and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree. The director denied the petition accordingly.
The record shows that the appeal is properly filed and timely. Theprocedural history in this case is documented by the record and incorporated into the decisio!J.. Further elaboration of the procedural history will be made only as necessary.
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. ·
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), 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 academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.P.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." /d.
The regulation at 8 C.P.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 r:equires a professional holding an advanced degree or the equivalent of an alien of exceptional ability." ·
U.S. Citizenship and Immigration Services (USCIS) must exainine "the language of the labor certification job requirements" in order to deteimine what the job requires. Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 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 ~abor certification is to examine the certified job offer exactly as it is· completed by the prospective employer. See 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 alien employment certification application form. See id. at 834. p. 3 (b)(6)Page3
The instant Form 1-140 was filed on July 20, 2011. 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. The required education, training, experience, and special requirements for · the offered position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a bachelor's degree, or foreign educational equivalent, in engineering, computers, science, mathematics, or "Associate Membership equivalent to Engineering Degree" and 60 months of experience in the job offered. The petitioner will also accept a master's degree and two years of experience. Alternatively, the petitioner indicated that, in lieu of a 4 year bachelor's degree, it "will accept a three year foreign degree in Computer Science or Engineering and a one-year post graduate diploma, also accept Associate Membership equivalent to Engineering Degree." This alternative requirement would allow a beneficiary to qualify with less than a master's degree or a bachelor's degree and 5 years of experience. The labor certification perniits one without a bachelor's degree to qualify for the job.
Since the minimum requirements, as stated on the ETA Form 9089, do not require the beneficiary to have either a master's degree or a bachelor's degree and 5 years of experience, the petitioner has not established that the ETA Form 9089 requires a professional holding an advanced degree; and the appeal must be .dismissed. ·
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.