Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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 decided 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.P.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.P.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 .
Thank you,
81 t li ~~~t {.c· ... .. . _ /...
~ ::.'\ i:- ~ • f " 1:" .. 4 , , /) . I~ '!.tL·,'Ji• ,.-, I . .../'){_; :Y', _.t , • •. , _ Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (the director). The appeal was summarily dismissed by the Administrative Appeals Office (AAO). The petitioner filed a motion to reopen or reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be granted, and the appeal will be dismissed on its merits. The petition remains denied.
The petitioner is a lady's clothing business. It seeks to employ the beneficiary permanently in the United States as a database administrator. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, which has been approved by the United States Department of Labor (DOL). Upon reviewing the petition, the director determined that the petitioner had failed to respond to the director's Request for Evidence (RFE) dated April21, 2011; and therefore, was not able to establish that the beneficiary is qualified to perform the duties of the proffered position with a minimum of a bachelor's degree in computer science and 60 months (five years) of qualifying employment experience. The director denied the petition accordingly. As set forth in the director's August 30, 2011 denial, the issue in this case is whether the petitioner has established that the beneficiary possessed all the education, training, and experience requirements as of the priority date as required by the labor certification.
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.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." !d.
To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec.l58 (Acting Reg'l Comm'r 1977). The priority date ofthe petition is November 7, 2010, which is the date the labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d).1 The Immigrant Petition for Alien Worker (Form I-140) was filed on December 27, 2010.
To determine whether a beneficiary is eligible for an employment based immigrant visa, United States Citizenship and Immigration Services (USCIS) must examine whether the alien's credentials meet the 1 If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa abroad. Thus, the importance of reviewing the bona fides of a job opportunity as of the priority date is clear. p. 3 requirements set forth in the labor certification. In evaluating the beneficiary's qualifications, US CIS must look to the job offer portion of the labor certification to determine the required qualifications for the position. USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm'r 1986). See also, Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
A review of the AAO's decision reveals that the AAO accurately set forth a legitimate basis for the denial. The AAO determined that the petitioner had indicated on appeal that it would be submitting a brief and evidence within 30 days of the appeal, but that the petitioner had failed to do so. The AAO thereafter summarily dismissed the appeal.
On motion the issue is whether the petitioner has established that the beneficiary possesses all the education, training, and experience requirements indicated on the labor certification, with a minimum of a bachelor's degree in computer science and five years of qualifying employment expenence.
As noted above, the DOL certified the ETA Form 9089 in this matter. The DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified, and available and whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). It is significant that none of the above inquiries assigned to DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (91h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of the application for alien labor certification describes the terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole.
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the alien labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. !d. 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 an alien lapor 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 alien labor certification must involve reading and applying the plain language of the alien labor certification application form. See id. at 834. USCIS cannot and should not reasonably p. 4 be expected to look beyond the plain language of the alien labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the alien labor certification.
According to the plain terms of the labor certification in the instant matter, the applicant must have at a minimum a bachelor's degree in computer science and five years of experience in the job offered or in the alternative, a master's degree and two years of work experience. The petitioner also indicated that no experience in an alternate occupation is acceptable but that it would accept a foreign educational equivalent.
The petitioner submitted ::~ mov of the heneficiarv'~ Bachelor of Science in Computer Science degree issued to her by on March 30, 1993. The petitioner also submitted a copy of the beneficiary's transcripts trom that college. This evidence is sufficient to demonstrate that the beneficiary has met the educational requirement of the labor certification, a bachelor's degree in computer science. Therefore, the remaining issue is whether the petitioner has established that the beneficiary possessed the five years of qualifying work experience as of the priority date in this matter.
Evidence of qualifying experience shall be in the form of letters from former employers which include the name, address, and title of the writer and a specific description of the duties performed. If such evidence is unavailable, other documentation relating to the experience will be considered. 8 C.F.R. § 204.5(g)(1 ).
The beneficiary set forth her credentials on the labor certification and signed her name under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of the labor certification eliciting information of the beneficiary's work experience, she represented that she was employed by as a database administrator from April 1, 1994 through December 31, 2004. The beneficiary does not provide any additional information concerning her employment background on the labor certification. The petitioner has not submitted any independent objective documentation (an employment letter) to substantiate the beneficiary's statements on the ETA Form 9089. Therefore, the petitioner has not demonstrated that the beneficiary is qualified to perform the duties of the proffered position.
To be eligible for approval, a beneficiary must have the education and experience specified on the labor certification as of the petition's filing date, which as noted above, is April 28, 2011. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act.Reg.Comm.1977).
Accordingly, it has not been established that the beneficiary has the requisite five years of experience in the job offered as required by the ETA Form 9089 or that she is qualified to perform the duties of the proffered position. 8 C.F.R § 204.5(g)(1).
Beyond the decision of the director, the petitioner has also failed to establish its ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2).
In determining the petitioner's ability to pay the proffered wage, US CIS first examines whether the petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, users will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage.2 If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, users may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm 'r 1967).
In the instant case, the proffered wage is $33.17 per hour based upon a 40 hour work week ($68,993.60 per year) and the priority date is November 7, 2010. The petitioner submitted a CPA letter and a copy of its 2009 unaudited financial statements. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable assurance that the financial statements of the business are free of material misstatements. The accountant's report that accompanied those financial statements makes clear that they are reviewed statements, as opposed to audited statements. The unaudited financial statements that counsel submitted with the petition are not persuasive evidence. Reviews are governed by the American Institute of Certified Public Accountants' Statement on Standards for Accounting and Review Services (SSARS) No.1., and accountants only express limited assurances in reviews. As the account's report makes clear, the financial statements are the representations of management and the accountant expresses no opinion pertinent to their accuracy. The unsupported representations of management are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage.Claims not backed by documents
The petitioner did not submit its corporate tax return for 2010 or any subsequent years. The petitioner did not submit any evidence to demonstrate that it employed the beneficiary. The petitioner failed to establish that factors similar to Sonegawa existed in the instant case, which would permit a conclusion that the petitioner had the ability to pay the proffered wage despite any shortfalls in wages paid to the beneficiary, net income and net current assets.
Accordingly, the petitioner has failed to establish its continuing ability to pay the proffered wage to the beneficiary since the priority date.
For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,S U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The AAO's prior decision, dated October 25, 2012, is affirmed. The petition remains denied.