Date:
NAR 1 2 2013
INRE: Petitioner:
Beneficiary:
Office: NEBRASKA SERrE CENTER
I
U!~; Qepa$elit of Homeland SeCurity
U . S ~ Citizenship and Immigration Services
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washington, .DC 20529-2090
U.S. Citizenship and Immigration
Services
FILE:
PETITION: Immigrant petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an· Alien of Exceptibnal Ability Rursuant to Section 203(b )(2) of the 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 decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. . . . . I . . 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 file1 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 foulld 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 ot reopen.
·aDD'
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The preference visa--petition was denied by the Director, Nebraska Service Center. The petitioner appealed to the Administrative Appeal~ Office (AAO). The AAO dismissed the appeal. Counsel to the petitioner filed a motion to rebpen and a motion to reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. The mbtion will be granted, and the appeal will be dismissed on its merits. The petition remains denied.
The petitioner is a school district. It seeks to emploY. the beneficiary permanently in the United States as a speech language pathologist pursuant to I section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The petition is accompanied by an ETA Form 9089, Application for Permanent Employment CertifiJation (labor certification), approved by the 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 or the equiv~lent of an alien· of exceptional ability and, therefore, the beneficiary cannot be found qualified for blassificatioii as a member of the professions holding an advanced degree or an alien of exceptional ~bility. 8 C.F.R: § 204.5(k)(4). The director denied the petition accordingly. The AAO affmried the,diredor's decision and-dismissed the appeal. The issue on motion is whether the petitioner has est~blished that the job requires a professional holding an advanced degree such that the beneficiary ntay be found qualified for classification as an advanced degree professimial.
On motion, counsel asserts that the Form I-140 requirerent is that the beneficiary has an advanced degree and that the evidence in the record shows that s1ie has such a degree. Counsel further asserts that the Form 1-140 is completed based upon qualificatibns of the beneficiary, not the job or position. Counsel also asserts that the Form 1-140 instructions !indicate that the petitioner checked the box based upon the best description of the category of the person for whom the petition is being submitted. Contrary to counsel's claims, the job offer !portion of the ETA Form 9089 indicates that the minimum level of education required for _the positibn is a Bachelor of Science degree in speech and language impairments. It is the job requirements of the ETA Form 9089 which drive the proper category for which to seek classification. 8 C.F.R. § 204.5(k)(4). The beneficiary must then meet the requirements of the labor certification by the priority date. See Matter ofWing,s Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). Accordingly, the jbb offer portion of the ETA Form 9089 does no~ .require a professional. ~olding an advanced .d~gr~e~ or the equivalent of an aiie~ of exce~tional abthty. However, the petitioner requested classificatiOn as a member ofthe professiOns holdmg an advanced degree or an alien of exceptional ability on the Form 1-140. Although counsel claims that there is no discrepancy in that the beneficiary holds ab advanced degree, the· petitioner did not list such a requirement on the ETA Form 9089.Inconsistencies in the record There jis no provision in statute or regulation that compels United States Citizenship and Immigration Services (USCIS) to re-adjudicate a petition under a different visa classification in response to a ~titioner's request to do so. A petitioner may not make material changes to a petition in an effort to,make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988).
Counsel further asserts on motion that USCIS violated 8 C.P.R.. § 103.2(b )(S) by failing to request further evidence before denying the petition. Counsel contends that USCIS could have requested additional information from the petitioner or that it coulCI have issued a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) based upon the di~crepancy in the boxes checked on the ETA . I Form 9089 and Form I-140, respectively. Counsel asserts that the request would have allowed the petiti~ner an opportunity to correct Part 2 of Form I-1~0 and to select the correct box (e), allowing the petitioner to cure the deficiency. Contrary to counsel's contentions, the cited regulation permits the director to deny petitions when the evidence does n<?t ·demonstrate eligibility. /d. In this matter, as the accompanying labor certification indicates that the job does not require an advanced degree . ' I professional, the director correctly denied the petition wrhout first requesting additional evidence. The minimum requirement found in the ETA Form 9089 falls below the minimum permitted for an advanced degree professional. 8 C.P.R. § 204.5(k)(2).j To the extent the petitioner is requesting a change to the professional category; a petitioner may not make material changes to a petition in an effort to make a deficient ·petition ronform to USCIS re~uite:i:nents. See Matter of Izummi at 176. I The evidence submitted does not establish that the ETA Form 9089 requires a professional holding an advanced degree or the equivalent of an alie~ of Jxceptional ability, and the motion must be dismissed. . . , ·' . . I .
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 burdenl . . . I .
ORDER:·· The AAO's prior decision, dated April 20, 2012, is affirmed. The petition remains denied.