Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 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:
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.
Thank you,
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Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The Director, Nebraska Service Center, denied the employment..:based immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a provider of networking services and solutions. It seeks to employ the beneficiary permanently in the United States as a software engineer pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The petition is accompanied by ETA Form 9089, J\pplication for Permanent Employment Certification, certified by the United States Department of Labor (the DOL). Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. Specifically, the director determined that the beneficiary did not possess the required sixty months of experience between the date he was issued his foreign equivalent bachelor's degree and the priority date of the Form I-140, Immigrant Petition for Alien Worker.Degree not shown to be a U.S. advanced degree equivalent
On appeal, counsel asserts that the fact the petitioner chose the EB-2 visa classification on the Form I-140 petition is not material in that the beneficiary meets the minimal education and experience requirements as tested in the United States labor market and approved by the DOL on the ETA Form 9089.
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or fact. 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 Act 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.
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. 1
The issue in the instant case is whether the beneficiary possessed the required sixty months of experience from the date he was issued his foreign equivalent bachelor's degree and the priority date of the ETA Form 9089.
Relying in part on Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983), the U.S. Federal Court of Appeals for the Ninth Circuit (Ninth Circuit) stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
KR.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from DOL that stated the following:
The labor certification made by the Secretary of Labor . .. pursuant to section 212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment ·of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) Id at 1009. The Ninth Circuit, citing KR.K Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu Woodcraft Hawaii, Ltd v. Feldman, 736 F.2d 1305, at 1309 (9th Cir. 1984).
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 Opportunity Information," describes the terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. In evaluating the beneficiary's qualifications, U.S. Citizenship and Immigration Services (USCIS) must look to the job offer portion of the labor certification to determine the required qualifications for the position. US CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d at 1015; See also KR.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 (181 Cir. 1981). USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. See Madany v. Smith, 696 F.2d at 1015. The only rational manner by which US CIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Companyv. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, p. 4 as stated ,on the labor certification must involve reading and applying the plain language of the alien employment 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 some sort of reverse engineering of the labor certification.
A petitioner must establish that the beneficiary possessed all the education, training, and experience specified on the labor certification as of the priority date. 8 C.F.R. §§ 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977). See also Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971).
In the instant case, the petition has a priority date of March 27, 2009, which is the date the labor certification was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). The required education, training, experience and skills for the offered position are set forth at Part H of the labor certification. Part H of ETA Form 9089 states in pertinent part that the offered position has the following minimum requirements:
H.4. Education: Bachelor's degree in Electronics Engineering.
H.5. Training: None required.
H.6. Experience in the job offered: 60 months.
H.7. Alternate field of study: "Comp. Info. Systems, Comp. Sci., Comp. Engineering, Elec. Engineering, Inf'
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.1 0. Experience in an alternate occupation: "software engineer, software programmer, assistant software engineer, or." [sic]
Part J of the labor. certification states that the beneficiary's highest level of education related to the offered position is a bachelor's degree in Information Technology from the India, completed in 2004.
A review of the record reveals that the beneficiary successfully completed an undergraduate program at India, in April 2002, resulting in a Bachelor of Computer Applications. The beneficiary subsequently completed a postgraduate program at the India, on April 11, 2004, resulting in a postgraduate diploma for a Masters Program in Information Technology in Software Development.
The record also contains an evaluation of the beneficiary's credentials prepared by _ for the Trustforte Corporation on July 28, 2005. This evaluation concludes that the three-year degree from is equivalent to three years of "academic studies toward a Bachelor of Science Degree in Computer Information Systems" in the United States. This evaluation further concludes that the beneficiary's three-year Indian degree combined with his postgraduate diploma for a Masters Program in Information Technology in Software Development p. 5 from the is equivalent to a U.S. "Bachelor of Science Degree in Computer Information Systems."
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien's eligibility. See id. at 795. USCIS may give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. !d. at 795. See also, Matter ofSoffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)).
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRA0). 3 According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries."
According to EDGE, it appears reasonable to conclude that the beneficiary's three-year Bachelor of Computer Applications from India combined with his postgraduate diploma for a Masters Program in Information Technology in Software Development from the _, ________ _ are the foreign equivalent to a U.S. bachelor's degree.
The pertinent regulations at 8 C.F.R. § 103.2(b)(l), and 8 C.F.R. § 103.2(b)(12), and the precedent decisions in Matter of Wing's Tea House, 16 I&N Dec. at 159, and Matter of Katigbak, 14 I&N Dec. at 49, all require that the beneficiary possess all the education, training, and experience specified on the labor certification as of the priority date. The beneficiary obtained his foreign equivalent degree when he completed a postgraduate program at the in
India, on April11, 2004. The priority date of the petition is March 27, 2009, the date the DOL accepted the ETA Form 9089 for processing. The beneficiary could have only accrued fifty-nine months and sixteen day of experience in that period from April 11, 2004 to March 27, 2009, and cannot have completed the sixty months of experience required by the ETA Form 9089.
On appeal, counsel asserts that the fact the petitioner chose the EB-2 visa classification on the Form 1-140 petition is not material in that the beneficiary meets the minimal education and experience requirements as tested in the United States labor market and approved by the DOL on the ETA Form 9089. However, counsel's assertion is without merit as USCIS may not ignore a term of the labor certification, nor may it impose additional requirements in determining whether a beneficiary is eligible for a preference immigrant visa,. 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 a labor 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. at 833 (emphasis added).
The beneficiary does not meet the job requirements on the labor certification. Specifically, the beneficiary did not possess the sixty months of experience required by the ETA From 9089 as of the priority date. For this reason, the petition may not be approved.
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