Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced I
PETITION:
Degree or an Alien of Exceptional Ability P.ursuant 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 ABpeals 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 cas~ 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 mJ a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Noticejof 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 tile any motion I 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 o~ reopen.
Thank you,
CM
- Ron Rosenberg
Acting Chief, AdministrativeAppeals Office
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now befo"re the Administrative ~ppeals Office (AAO) on appeal. The appeal will be dismissed. . . I . · ·
The petitioner is a communications . business. It seeks to employ the beneficiary permanent! y in the United States as a · senior software engineer/IP A software pursuant to section 203(b )(2) of the I
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, an ETA I .
Form 9089, Application for Permanent Employment O::ertification approved by the Department of I
Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that . ·the beneficiary did not meet the job qualifications stated on the labor certification. The labor certification required a bachelor's degree and 84 month~ of experience as a senior software engineer · or in a related position. The director determined th~t the petitioner failed to establish that the beneficiary meets the experience requirements of the po~ition. · The record shows that the appeal is properly filed and tLely and makes a specific allegation of error in law or fact. The procedural history in this case is dorlumented by the record and incorporated into the decision. Further elaboration of the procedural histoty will be made only as necessary. In pertinent part, section 203(b )(2) of the Act provideJ immigrant classification to members of the professions holding advaneed degrees or their equiv.ilent 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 bacdlaureate level. 8 C.P.R. § 204.5(k)(2). The regulation further states: "A United States baccalaurbate degree or . a foreign equivalent degree followed by at least five years of progressive experiehce in the specialty shall be considered the I . 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." Id:
The petitioner has submitted evidence to show that lhe beneficiary ~ossesses a U.S. bachelor's I degree in computer science. The petitioner has also submitted employment letters pertaining to the I , beneficiary's work experience. The issue in this case is whether the petitioner has established that the beneficiary hastheworkexperience required by the,ETAForm 9089.
As noted above, the DOL certified the ETA Form 908~ 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 affed the wages and working conditions of workers in the United States -similarly employed. S~ction 212(a)(S)(A)(i) of the Act; 20 C.F.R. § 656.l(a). It is significant that none of the above inquiries assiJed to the DOL, or the remaining regulations implementing these duties under 20 C.P.R. § 656, involvb a determination as to whether or not the alien is qualified for a specific . immigrant classification or +en 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.l984);Madany v. Smith, 696 F.2d 1b08, 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, "Job Oppo$uruty Information," describes the terms and conditions of the job offered. It is important that the ETrA Form 9089 be read as a whole . . Moreover, when determining whether a b~neficiary ~ eligible for a preference immigrant visa, USCIS may .not ignore a term of the labor certificationl nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the language of the la~or certification job requirements" in order to determine what the job req~i}es. /d. The only rational manner by which USCIS can be expected to interpret the meaning of terrhs used to describe the requirements of a job in labor certification is to examine the certified job offet exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. Skith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the jbb's requirements, as stated on the labor certification must involve reading and applying the plain language of the labor certification application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intentions through sdme sort of reverse engineering of the labor certification.
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).
In this matter, Part H, Line 4, of the labor certification reflects that a bachelor's degree in electrical · engineering, computer engineering, computer science or a related field is the minimum level of education required. Line 10 reflects that 84 months of experience as a senior software engineer or in a related position is required for the job. · On Line 11, ~the petitioner described the job duties of the position.
The beneficiary set forth his credentials on the labor certification and signed his name under a declaration that the contents of the form are true and correct under the penalty of peljury. On the section of the labor certification eliciting informatio~ of the beneficiary's 84 months of work experience, in addition to his experience with the petitiontr, 1 he represented the following:
- That he was employed by _ _ as a "systems analyst" from June 27, 2006 to January 2, 2008, and describe~ his job duties. ' 1 The beneficiary claims to have been employed by je petitioner in the job offered beginning on . I
January 7, 2008. The duties of this position (Part K, Job 1) are identical to the duties of the proffered position (Part 11, item 11). As the petitione~ claimed in J.21 of the ETA Form 9089 that the beneficiary did not gain any of his qualifying exprrience with the petitioner in a substantially comparable position, this experience may not be considered in determining whether the beneficiary has 84 months of experience before the priority date. I .
- That he was employed by as a "QA Engineer" from April 21, 2003 to May 12, 2006, and he described his job duties.
- That he was employed by as an "application developer" from July 2~ 2001 to March 28, 2003, and he described his job duties.
. . I . . -----------------• That he was employed by as a
- . . . I
. "software engmeer" from August 24, 1998 to June28, 2001.
The petitioner submitted the following employment Jette,:
- A letter dated August 5,.2010 from a claime~ pro~am man~ger of who stated that the company employed the 9enefic1ary full-tune through .... as a technical. lead/supervisor from June 27, 2006 to January 2, 2008. The declarant described the benefici~'s job duties. The declarant stated that he was the beneficiary's technicallead/tperviSQr.
- A letter dated August 5, 201~ from an offi9e manager of who stated that the beneficiary worked ~t through
---:--- as asystems analyst from June 27, 2006 through January 2, 2008.
The declarant does not provide a description of the beneficiary's joh duties.
- A letter dated October 11, 2006 from the Sri HR Consultant of who stated that ' was currentl>y employed by the company and that his initial start date was November 11,2002. The beneficiary is not named as an employee in this letter. The declarant fails tb describe the job duties or to specify the length of employme11t. The start date jdiffers from that noted by the other declarant in the letter dated November 11, 2009. _ · -.- . I - -
- A letter dated November 11~ 2009 from a co-worker who stated that he was the beneficiary's colleague and that the benefici~ was employed by as I a quality assurance engineer from April21, 2003 to May 12, 2006. The declarant described the _job duties. The declarant I does not indicate that he was the beneficiary's supervisor or manager or tlie source of his knowledge of the beneficiary's employment.
- A letter dated June· 28, 2011 from who stated that employed the beneficiary full-tuhe as an application developer from I .
July 2, 2001 to March 28,2003 and that during that time he was the beneficiary's manager. The declarant described the benefiCiary's job duties. The letter is not on company letterhead, and the declarant describes his position as "systems analyst," not as a manager.
Page 5.
- A letter dated November 10,.2009 from a senior software engineer of ' who stated that the company employed the beneficiary full-time as a member of tethnical services from August 24, 1998 through June 28, 2001. The! declarant stated that he was the beneficiary's colleague during this time. The .declarant described the beneficiary's job duties. The declarant tloes not indicate that he was the beneficiary's supervisor or manager or tHe source of his knowledge of the beneficiary's employment. I.
-----• A letter . Dated October 27, 2000 from of the HR . I department who stated that the beneficiary was employed by as a softwark engineer. The declarant fails to specify the beneficiary~s job duties. The d~clarant also fails to specify the dates during which the beneficiary was employed by the company and whether he was employed full-time.
- A letter dated June 16, 2011 from a human resources specialist from _ . who stated I that the company employed the beneficiary as a member of its technical staff t in the business unit full-time from S~pte~ber 1, 1998 to April 13, 2001.
The declarant fails to specify the beneficiary is job duties.
- A letter dated June 23, 2011 from a co-worker who stated that the beneficiary . was employed by _ from
September 1, 1998 to April 13, 2001 as a fuember of the technical staff l , and that during this tune the declarant wJs the beneficiary's ·colleague. The I declarant also stated that in his previous ~etter dated November 10, 2009, he misstated the. beneficiary's employment I dates and th~t the beneficiary's employment dates have now been confirme'd by the company's HR department.
The declarant furtherstated that the benefibiary's duties remain the same. The declarant does not indicate that he was the bbneficiary's supervisor or manager or the length of time he worked with the benefibiary.
The letters submitted as eVidence of the beneficiary's ~ork experience are not sufficient to establish that he had at least 84 months of experience performing the duties of the job offered. As noted above, evidence of qualifying experience shall be in I 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. 8 C.F.R. ·§ 204.5(g)(l). If such evidence isl unavailable, other documentation relating to the experience will be considered. /d. In this matter, the beneficiary claims to be qualified for the offered job because he had 84 months of work experienfe with _ - -~==--and Although the petitioner submitted two letters from office managersjpertaining to the beneficiary's employment with confirmiilg the benefici~'s employment at . the letters p. 6 1 • • .•• failed to specifically describe the beneficiary's job duties. The employment letter from the beneficiary) co-worker at is insufficient to establish that the beneficiary is qualified for the job offered in that the letter is not from a former employer as required by 8 C.F.R. § 204.5(g)(l ). In addition, the employment letter from the Senior HR!: Consultant of described , not the beneficiary, as a former employeri of the company and the employment dates are inconsistent with those dated noted by the beneficliary's alleged co-worker in his letter dated .Inconsistencies in the record Novemb~r 11, 2009. · Three of the five employment! letters indicating that the beneficiary was· employed by were written by co-workers.
Although other documentation will be considered ~hen a letter from the former employ is unavailable, the fact of unavailability has not .been estaplished in this matter. Furthermore, the two employment letters written by members of HR department fail to specifically describe the bem:ficiary'sljob duties.
Accordingly, it has not been established that the beneficiary has· the requisite 84 months of work experience or that he is qualified to perform the duties of the proffered position. .8 C.F.R § 204.5(g)(l). 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 burdent · · . · ORDER: The appeal is dismissed.