The Petitioner, a software development business, seeks to employ the Beneficiary as a senior software engineer. It requests classification o f the Beneficiary as a member o f the professions holding an advanced degree under the second preference immigration classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1152(b)(2). This "EB-2" classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the Beneficiary possessed five years of post-baccalaureate employment experience. This experience is required to meet the terms of the labor certification and to qualify for the requested EB-2 classification.
On appeal, the Petitioner submits additional evidence and contends that the Beneficiary has the required post-baccalaureate experience as the Beneficiary earned his degree before his diploma was formally issued.
Upon de novo review of the record, we will withdraw the Director's decision and remand this matter for further action consistent with this opinion.
Law
Employment-based immigration is generally a three-step process. First, an employer obtains an approved ETA Form 9089, Application for Permanent Employment Certification (labor 1 certification) from the U.S. Department of Labor (DOL).
24,2008.
Matter ofA- Corp. employer files an immigrant visa petitiOn with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
Analysis
A. Date oftlie Beneficiary's Degree
The initial issue in this case is whether the Beneficiary's five years of post-baccalaureate experience required for classification as an advanced degree professional is measured from the date of the Beneficiary's diploma or, as claimed by the Petitioner, the date the Beneficiary completed the requirements for his degree.
The Beneficiary has a bachelor of technology in computer science and engineering from (India), which the record establishes is the foreign equivalent of a U.S. bachelor's degree.
The Director found that the Beneficiary's post-baccalaureate experience did not begin to accrue until the university issued his diploma on February 23, 2012. Con~idering only experience gained from the diploma date onward, the Director found that the Beneficiary did not possess the five years of post-baccalaureate experience by the priority date.
On appeal, the Petitioner maintains that the Beneficiary accrued the requisite five years of post- degree experience because his degree was conferred when he completed all degree requirements on July 24, 2008 and not the issuance of his diploma in 2012.
In support of this claim, the record contains the following evidence: the Beneficiary's diploma, issued by on February 23, 2012, which reflects that he qualified for his degree in 2008; his "grade cards" for the years he attended the which is affiliated with p. 3 whether the Beneficiary completed all substantive requirements to earn the degree and whether the university approved the degree as demonstrated by an official academic record. To do this, we consider the individual nature of the university's requirements for the Beneficiary's program of study and his completion of those requirements. The Petitioner bears the burden to establish that all of the substantive requirements for the degree were met and that the degree was in fact approved by Here, we find the record to demonstrate that, as of July 24, 2008, the Beneficiary had completed all substantive requirements for his bachelor oftechnology degree in computer science and engineering, and that the university had approved the degree. Therefore, for the purposes of calculating the required five-year period of post-graduate experience, we find the Beneficiary to have obtained his degree as of July 24, 2008. Accordingly, we will withdraw the Director's finding that he did not receive his degree until his diploma was issued in 2012.
Nevertheless, for the reasons discussed below, the visa petition cannot be approved because the evidence in the record does not establish that the Beneficiary has the five years of experience required by the labor certification and for classification as an EB-2 professional under section 203(b)(2) ofthe Act.
B. Beneficiary'sExperience
A petition for an advanced degree professional must be accompanied by documentation showing that the Beneficiary is a professional holding an advanced degree. 8 C.F.R. § 204.5(k)(I). 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 o fprogressive experience in the specialty shall be considered the equivalent of a master's degree." 8 C.F.R. § 204.5(k)(2) (emphasis added).
In addition, a petitioner must establish a beneficiary's possession of all the education, training, or experience stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In the present case, the labor certification requires the Beneficiary to have five years of experience in the offered position of senior software engineer or as a project lead,~computer programmer analyst, analyst Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants (March 20, 2000). https://uscis.gov/ilink/docView/AFM/HTMLIAFM/0-0-0-I/0-0-0-26573/0-0-0-311 07.html (last visited July 17, 2017) ("Whether the alien beneficiary possesses the advanced degree should be demonstrated by evidence in theform of a transcript from the institution that granted the advanced degree. An adjudicator must similarly consider the baccalaureate transcript . ...")(emphasis added).
Along with any other evidence, petitioners must also submit a copy of a beneficiary's statement of marks or transcript to demonstrate years of study and coursework completed. See 8 C.F.R § 204.5(k)(3) (requiring the submission of an official academic record as evidence of a beneficiary's possession of an advanced degree or equivalent of an advanced degree). p. 4 programmer or the equivalent, and stipulates that such employment must have included experience with Java, JSP, HTML, Java Script, Shell Script, Spring, Hib,ernate, Oracle, Tomcat, Weblogic, WAS8, JBOSS, Unix, Solaris, Windows, Eclipse, RAD, SSRS, HermsJMS MQ, jQuery, AJAX, Apache POI, Jxls, Xstream, Ant, Maven, Apache, Axis2, and wro4j.
In Section K ofthe labor certification, the Beneficiary claims the following employment experience: Senior software engineer, from November 25, 2015, onward; Computer programmer analyst, from November 29, 2013, to November 24, 2015;
Project lead, from December 10, 2010, to November 29, 2013; and
- Analystprogrammer, fromJuly31,2008,~oDecember9,2010.
To establish a beneficiary's work experience in employment-based immigration proceedings, the regulation at 8 C.F.R. § 204.5(g)(l) requires that:
[E]vidence relating to qualifying experience or trammg shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received. If such evidence 'is unavailable, other documentation relating to the alien's experience or training will be considered.
Here, to establish that the Beneficiary has the required five years of qualifying experience, the Petitioner has submitted the following evidence: a service certificate, issued by the as'sistant manager, human resources at (India) stating the dates of the Beneficiary's employment (July 31, 2008, through November 29, 2013) and position (last designated as a project lead); aletter from this same individual to the Beneficiary terminating his employment; a letter from entitled "Reminder of Obligations," regarding the contractual restrictions placed on the Beneficiary's future employment; a sworn statement signed by the Beneficiary regarding refusal to provide him with a letter describing his roles and responsibilities while working for the company; and two affidavits, one from a former colleague at and the other from a coworker at companies. The Petitioner submits employed by 2015. p. 5 employed by in Michigan from July 31, 2008, to November 29, 2013, as a project lead. As a result, we do not find the record to provide reliable evidence of the identity of the Beneficiary's employer during the July 31, 2008, to December 9, 2010, time period, nor the specific job he performed. The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner has also provided no evidence of any relationship between and Further, the Petitioner has not submitted the experience letters that regulation requires to establish the Beneficiary's qualifying employment experience. 8 C.F.R. § 204.5(g)(l). While we note the Beneficiary's sworn statement in which he claims that , as a matter of corporate policy, does not provide reference or experience letters for prior employees, this assertion, by itself, is not sufficient to establish the company's unwillingness to document his employment. Further, we do not find the record to contain the email requesting verification of this policy, which the Beneficiary's statement indicates is attached. Although we note the submitted statements from the Beneficiary's former coworkers at and they do not meet the regulatory requirements at 8 C.F.R. § 204.5(g)(l) and have not been considered in the absence of evidence establishing unwillingness to provide experience letters. However, we note that even if the record did establish the policy described by the Beneficiary, it would not explain why no experience letter from has been submitted for the record.
In light of the inconsistencies in the Beneficiary's employment history and the absence of any letters from the Beneficiary's prior employers describing the duties he performed for them, the record does not establish that the Beneficiary has the five years of employment experience required by the labor certification and for classification under section 203(b)(2) ofthe Act.
Conclusion
The Petitioner has established that the Beneficiary earned a foreign degree equivalent to a U.S. .baccalaureate degree in computer science in 2008. We will, therefore, withdraw the Director's decision in this matter. However, the record does not demonstrate that the Beneficiary had at least five years of qualifying post-baccalaureate employment experience as of the priority date of the petition. Therefore, the Petitioner has not established that the Beneficiary meets the requirements of the offered position stated on the labor certification or for classification as an EB-2 advanced degree professional. Accordingly, we will remand this matter to the Director for further consideration and the issuance of a new decision.
ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing opinion and for the entry o f a new decision.
Matter ofA- Corp., ID# 287254 (AAO July 18, 2017)