Degree or an Alien of Exception!ll Ability PurSuant-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.
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.
[ITD'
Ron Rosenberg
Acting Chief, Administrative Appeals Office
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(b)(6)· Page 2
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service Center. The matter is now before the Administrative Appeals Office {AAO) on appeal. The appeal will be dismissed.
The petitioner is an IT Solutions Provider. It seeks to employ the beneficiary permanently in the United States as a computer systems analyst. The petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification {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 equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. 8 C.F.R. § 204.5(k)(4). The director denied the petition accordingly.
On appeal, counsel asserts that the petitioner indicated that it is willing to accept a combination of degrees and/or more than one degree to equate to a U.S. Bachelor's degree; that the beneficiary is eligible for EB2 classification; and that the beneficiary possessed a degree equivalent to the U.S.
Master of Science degree in computer information systems. Counsel further asserts that if the beneficiary is not eligible for EB2 classification, then the petitioner requests an EB3 classification. The record shows that the appeal is properly filed and timely. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary.
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.
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." The regulation at 8 C.F.R. § 204.5(k){2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily, encountered."
Here, the Form 1-140 was filed on August 6, 2007. On Part 2.d. of the Form 1-140, the petitioner indicated that it was flling the petition for a member of the professions holding an advanced degree or an alien of exceptional ability.
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. On appeal, counsel asserts that the evidence in the record shows that the beneficiary posse~~eci :~ ciePTee eouivalent to a U:S. master's degree. Counsel refers to the evaluation prepared by , dated Septem~er 17, 2012. . The evaluation concludes that the; beneficiary completed a Bachelor of Science degree at University in April1995 and a master of computer applications from University in October 1998; and therefore, the beneficiary possesses the equivalent of a U.S. master's degree. Contrary to this claim, 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 perjury, that the highest level of education achieved was a bachelor's degree in computer applications from University in 1998. Furthermore, there is no evidence in the record to demonstrate that the beneficiary obtained a master's degree. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998)(citingMatter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Doubt cast on any aspect ofthe petitioner's proofmay, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice . .Inconsistencies in the record See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). Counsel further asserts that in the alternative, the beneficiary qualifies as a professional h9lding at least a bachelor's degree. · · The regulation at 8 C.F.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 requires a professional holding an ~ advanced degree or the equivalent of an alien of exceptional ability."
In this case, the job offer portion of the ETA Form 9089 indicates that the minimum level of education requiTed for the position is a bachelor's degree in any field and 60 months of work experience. In Part H, item 14, the petitioner explained that it would accept a combination of degrees "to equate to a U.S. bachelor's degree" in lieu of a 4-year degree. As it wou"td be possible to qualify for the job without a bachelor's degree, the ETA Form 9089 does _not require a professional holding an advanced degree. Accordingly, the job offer portion of the ETA Form 9089 does not require a professional holding an advanced degree or the equivalent of an alien of exceptional ability. However, on the Form 1-140, the petitioner requested classification as a member of the ..__. professions holding an advanced degree or an alien of exceptional ability.
I
Although counsel claims that there is no discrepancy in that the beneficiary holds an advanced degree, the petitioner did not list such a requirement on the ETA Form 9089. The requirements listed on the ETA Form 9089 are inconsistent with those listed on the Form I-140. Contrary to counsel's claim, there is 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 petitioner'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. Coinm. 1988). ..-
- The evidence submitted does not establish that the· ETA Form 9089 requires a professional holding an advanced degree or the equivalent of an alien of exceptional. ability, and the appeal must be dismissed.
The burden of prqof 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.