The Petitioner, an e-commerce business specializing in musical instruments and supplies, seeks to employ the Beneficiary as an IT project manager. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Beneficiary is qualified for the offered position because she does not meet the experience requirements stated on the labor certification. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproofto demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter denovo. MatterofChrista's,Inc.,26I&NDec.537,537n.2(AAO2015). Upondenovoreview, we will dismiss the appeal.
Law
Section 203(b)(2) ofthe Act grants preference classification to qualified immigrants who are members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(l). An advanced degree is defined, in relevant part, as any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). Profession is defined as of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Id.
Immigration as an advanced degree professional generally follows a three-step process. First, a prospective employer must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. workers able, willing, qualified, and available for an offered position; and (2) p. 2 the employment of a noncitizen in the position would not harm wages and working conditions of U.S. workers with similar jobs. See section 212(a)(5)(A)(i) o f the Act, 8 U.S.C. § 1182(a)(5)(A)(i).
Second, an employer must submit an approved labor certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(k)(3)(i)(B).
Finally, if USCIS approves a petition, a beneficiary may apply for an immigrant visa abroad or, if eligible, "adjustment of status" in the United States. See section 245(a)(l) of the Act, 8 U.S.C. § 1255(a)(l).
Analysis
The sole issue before us on appeal is whether the Petitioner established that the Beneficiary meets the minimum experience requirements for the position specified on the labor certification.
A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). job-offer portion of an accompanying labor certification to determine a position's minimum requirements. USCIS may neither ignore a certification term nor impose unstated requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority of setting the content of the labor certification") (emphasis added).
The Petitioner's labor certification states the primary job requirements of the offered position of IT project manager is a U.S. master's degree or a foreign equivalent degree in computer science or a "related field," plus two years of experience "in the job offered." The Petitioner indicated "No" at section H. l O of the labor certification where asked "is experience in an alternate occupation acceptable?"
With respect to the Beneficiary's qualifications, the Petitioner indicated at section J.18 of the labor certification that she has the experience required for the job opportunity (i.e, two years of experience in the job offered). It stated at section J.21 that she did not gain any of the qualifying experience with thePetitionerinapositionsubstantiallycomparabletotheprofferedposition. Therecordreflectsthat the Beneficiary, prior to assuming the proffered position ofIT project manager in June 2017, worked If a beneficiary already is employed by the petitioning employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the beneficiary at the time of hiring by the employer. The employer cannot require This petition's priority date is August 26, 2021, the date DOL accepted the Petitioner's labor certification application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date).
The Beneficiary's only other work experience was a one-year, part-time research associate position which the Petitioner does not claim as qualifying experience in the job offered.
In assessing a beneficiary's qualifications, USCIS must examine the for the Petitioner as an "intern" for two years, from June 2015 to June 2017. p. 3 domestic worker applicants to possess trammg and/or experience beyond what the beneficiary possessed at the time ofhire. Therefore, experience gained while working for the petitioning employer cannot be used to satisfy the minimum job requirements on the labor certification unless that experience was gained in a position not "substantially comparable" to the proffered position, or the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. 20 C.F.R. § 656.17(i)(3). A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii).
The Director determined that the Beneficiary meets the stated educational requirement for the offered position. The record supports this determination based on the Petitioner's submission of an official academic record demonstrating the Beneficiary's completion of a U.S. master's degree in computer science. See 8 C.F.R. § 204.5(k)(3)(i)(A).
The Director also determined, after reviewing the Petitioner's response to a request for evidence (RFE), that the Beneficiary's two years of prior employment as an intern with the petitioning company The Petitioner provided position descriptions for the "intern" and "IT project manager" positions with the percentage of time spent on the various duties, as well as organization charts depicting their relative positions in the company's hierarchy, the Beneficiary's performance reviews as an intern, and payroll records. We agree with the Director's conclusion that the Beneficiary, during her two-year tenure as an intern, was not required to spend more than 50 percent of her time performing the same duties as the IT project manager position. The Director concluded, however, that the Petitioner did not demonstrate that the Beneficiary has two years of experience "in the job offered," which is the minimum experience requirement stated on the labor certification. The Director emphasized that the Petitioner did not provide evidence that the Beneficiary has two years of experience as an IT project manager and emphasized that it did not indicate on the labor certification that experience in an alternate occupation is acceptable to meet the 24-month experience requirement. The Director noted that the Beneficiary's prior position as an intern was not substantially comparable to the position ofIT project manager and therefore determined that her experience in that position cannot be deemed experience in the job offered.
For the reasons discussed below, we agree that the Petitioner has not met its burden to establish that the Beneficiary meets the experience requirement stated on the labor certification.
In general, if a Petitioner's answer to section J.21 of the labor certification is "no," then the experience with the employer may be used by the beneficiary to qualify for the proffered position, but only if: (1) the prior position was not substantially comparable to the offer position, and (2) the terms of the labor certification at section H.10 provide that applicants can qualify through an alternate occupation. Here, the Petitioner did not indicate that an alternate occupation is acceptable. Rather, it claims that the Beneficiary gained two years of experience "in the job offered" based on her employment in a position that is not substantially comparable to the job offered. Experience "in the job offered" means experience performing an offered position's key duties as stated on a labor certification. E.g., Matter ofSymbioun Techs., Inc., 2010-PER-01422, *3 (BALCA Oct. 24, 2011) (citations omitted).
The Petitioner clarified in response to the RFE that the Beneficiary's formal job title during her initial period of employment from June 2015 to June 201 7 was "junior business systems analyst." was not in a substantially comparable position.
On appeal, the Petitioner asserts that "DOL already reviewed the underlying labor certification and certified it" and that "by doing so acknowledged that the beneficiary fulfills the requirements of the position." The Petitioner notes that "there are numerous examples of the DOL denying a labor certification based on a finding that the beneficiary did not meet the experience requirements," and provides a copy of a BALeA decision affirming one such denial. The Petitioner resubmits a copy of the labor certification "as evidence the beneficiary qualifies for the proffered position."
The Petitioner's assertion that users should defer to the DOL's certification ofthe labor certification as evidence that the Beneficiary meets the minimum requirements for the position is not persuasive. By approving a labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. Seesection212(a)(5)(A)(i)(I)-(II)oftheAct.
The regulation at 20 e.F.R. § 656.17(i) indicates that DOL should evaluate an employer's actual minimum requirements for a given position and review the training and experience possessed by a beneficiary at the time of hiring by the employer as part of its authority over the labor certification process. Nevertheless, u s e r s maintains the authority to determine whether the beneficiary and the offered position meet the requirements of the requested employment-based preference category and whether the beneficiary meets the minimum requirements of the offered position based on the terms ofthe labor certification. See, e.g., Madany v. Smith, 696 F.2d at 1012 (noting that all matters relating to preference classification eligibility not expressly delegated to DOL remain with the authority of the former Immigration and Naturalization Service).
The Petitioner also objects to the Directors specific conclusions. The Petitioner contends that a position that is not substantially comparable to the offered position may still be within the same occupation. The Petitioner further notes that "intern" is not typically used as an occupational title and that it therefore would not have been appropriate or correct to enter "intern" as an alternate occupational title at section H.10 of the labor certification. intern position encompassed all of the duties of the IT project manager, even if it required the Beneficiary to perform those duties less than 50% of the time. The Petitioner cites Matter ofBel Air Country Club, 1988-INA-233 (BALeA Dec. 23, 1988) in support of its claim that it is appropriate for an employer to limit the minimum work experience requirement to experience "in the job offered" in cases where only job applicants who have performed the same or similar duties would be able to perform the job duties of the offered job with minimal training.
The Petitioner maintains that the duties of the positions are the controlling factors and asserts that, while the intern and IT project manager positions are not "substantially comparable" the record reflects that the Beneficiary gained the experience with the job duties ofthe proffered position while employed as an intern.
The Petitioner's claim is not persuasive. Although the labor certification indicates that the Beneficiary spent a portion of her time performing the duties of the position offered during her tenure as an The Petitioner does not address why it would have been inappropriate or incorrect to indicate the Beneficiary's formal job title of "junior business systems analyst" as an alternate occupation on the labor ce1tification.
It further maintains that the Beneficiary's p. 5 intern/junior business systems analyst, the Petitioner's response to the RFE emphasized that all her duties as an intern were performed under direct supervision. The Petitioner also stated that "the focus of the two positions oflntern and IT Project Manager are very different" such that, "[w]hile some of the job duties may appear to be similar they are by no means the same." The Petitioner further distinguished the positions by citing an article published by the Society for Human Resources Management which characterizes an internship as "an expanded job interview." The Petitioner contrasted this role with the DOL Occupational Outlook Handbook's description of an "IT Project Manager (15-1299.09)" which indicates that these workers "plan, coordinate and direct computer- related activities in an organization," among other higher-level duties. The Petitioner made considerable efforts to demonstrate that an intern within its company does not leave the position with the same experience as an IT project manager, even if the intern role provides exposure to similar duties, performed under close supervision, for a portion of the time.
In addition, the Petitioner provided a letter from its hiring manager indicating that the company "no longer implement[s] the program used to train [the Beneficiary]" which further supports a determination that the Beneficiary's initial period of employment involved supervised on-the-job training in the duties of the offered position, rather than full performance of those duties over a 24- month period. This evidence also undermines the Petitioner's claim that the Beneficiary's experience as an intern constituted two years of experience "in the job offered" as opposed to partial performance of similar duties in a lower-level position with a different occupational title (junior business systems analyst as opposed to IT project manager) While it appears that the Petitioner may have been attempting to demonstrate it is no longer feasible to train a worker to qualify for the position under 20 C.F.R. § 656.17(i)(3)(ii), it has not pursued this claim on appeal and the letter from the hiring manager alone did not satisfy the requirements of this provision.
Based on the foregoing discussion, we agree that the Beneficiary's 24 months of experience as an intern does not meet the stated minimum requirement of 24 months of experience in the job offered.
Conclusion
The Petitioner has not demonstrated that the Beneficiary is qualified for the offered position because she does not meet the experience requirements stated on the labor certification. Accordingly, we will dismiss the appeal.
ORDER: The appeal is dismissed.