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SustainedEB-2 · Appeal

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Engineering · decided 2013-11-14 · TSC · NOV142013_01B5203

Official PDF on uscis.gov

Decided under the old NYSDOT test, replaced by Matter of Dhanasar on Dec 27, 2016. Useful for background only.

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

What the AAO decided

  • The petition is approved. See in text
  • Accordingly, the petition is approved under section 203(b )(2) of the Act. See in text
  • ORDER: The appeal is sustained. See in text

Main reasons given

  • Upon review of the entire record, including evidence submitted on appeal and in response to a Request fot Evidence (RFE) issued by the AAO on August l, 2013, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all · the education, tr~injng, and e~perience to meet the minimum requirements of the labor certification as of October 14; 2011. See in text
Read the full decision (4 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • The record in the inst'!,nt case provides no reason to preclude consideration of any of the documents newly submitted on appeaL See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). See in text (p. 2)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (5) AAO finding (1) Tagged objection (1)Matter of X citation
Decision header
DATE: NOV 1 4 2013 OFFICE: TEXAS SERVICE CENTER · INRE: Petitioner: · Beneficiary: .u:s_; oep_art~~nt o.f.IJoiDelll~4 S~c:~ U.S. Citizen5hip and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave. , N.w ., MS 2o9<> Washington, DC 20529-2090 U.S. Citizenship and Iiiliiligration Services FlLE: · PETITION: 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 ttie Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administtatjve Appeals Office in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish . agency policy tbtough non­ precedent decisions.

All of the documents r¢lated 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 you_r case must be made to that office~

Thank you,

- M~.,

Ron Rosenberg

Chief, Administrative Appeals

Office www;u_Sds.go'V

DISCUSSION: The Director, Texas Service Center (the director), denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition is approved.

The petitioner is a power communication line construction company. It seeks to employ the beneficiary permanently in the United States as an international field office engineer (construction manager) pin'Suant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, an ETA Form 9089, Application for Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that the beneficiary did not meet the job qu!Uifications stated on the labor certification. ·

The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact The procedural history in this case is documented by the record &lld incorporated into the decision. Further elaboration of the procedural history will be made only as necessary.

The MO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cit. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1 On appeal, counsel submits a brief and copies of documentation already in the record.

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 ot 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 yeats of progressive experience in the specialty shall be considered the eqqivalent of a master's degree. If a doctoral degree is customarily requited by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.

The regulation at 8 C.F.R. § 204.5(k)(2) defines the tenns "advanced degree'~_and "profession.'' An "advanced degree" is defined as:

[A]ny United States academic or professional degree ot a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree fol~owed by &t least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree 1 The submission of additional evidence on appeal is allowed by the instructions to the Fonn I-290B, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). The record in the inst'!,nt case provides no reason to preclude consideration of any of the documents newly submitted on appeaL See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). p. 3 is custo~arily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree ·Evidence submitted too late

A ,;profession;' is defined as ;;one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for wpich a.. United St.a..tes baccalatlreate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32)of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies~ or sem_inaries."

The regulation at 8 C.P.R. § 204.S(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:

{A) An official academic record showing that the alien ha8 an United States advanced degree or a foreign equivalent degree; or

{B) An official academic record showing that the alien has a United States ba.~a1,1reate degree or a foreign equivalent degree, and evidence in the form of letters from current or former ernployer(s) showing tb.at tbe alien has at least five · years of progressive post-baccalaureate experience in the specialty.

In Summary, a petition for an advanced degree professional mtiSt establish. that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a IJliuimum, a professional holding an advanced. degree. Specifically, for the offered position, the petitioner must establish that the labor certification requires no less than a u.s. academic or professional degree (or a foreign equiValent degree) above a baccalaureate, or a U.S. ba~aureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. In the instant case, Part H' of the labor certification submitted with the petition states that the offered position has the minimum requirements of a Bachelor's degree in business administration, engineering or a related field, plus 60 months (5 yeats) of experience in tbe alten;1ate occupation of construction manager, project manager, project control and administrative manager.

To be eligible for approval, a.. beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority Qate. See Ma_tter of Wing's Tea House, 16 I&N 158. (Act. Reg. Comm. 1977). The priority date of the petition is October 14, 2011,which is the date the labor cei:tification was accepted for processing by the DOL. See 8 C.F.R. § 204.S(d}. The Immigrant Petition for Alien Worker (Foqp I-140) was filed on February 27, 2012.

The labor certification state~ that the beneficiary qualifies for the offered position based on education in the foilfi of a Titulo de Electronic and Communications Engineer from the completed on May 30, 1995, and experience as a project manager/estimatot with

2004 until December 18, 2005; a planner with

Mexico from May 17,

California from January

NON-PRECEDENT DECISION .

5, 2006 until Aug11~t 18 2006; ~n ~stitn~tor, project manager, field officer with _ California, Mexico from A~gust 21, 2006 until July 13, 2008; and as an estimator, project manager, field officer with the petitioner in Okl~boroa from July 14, 2008 u.IJtil_February 20, 2012, the date on which the E.TA Form 9089 was signed. No other experienee is listed. The beneficiary signed the labor certification under a declaration that the contents are true and correct under penalty of peijury.

The regulation at 8 C.F.R. § 204.5(g)(1) states:

Evidence relatipg to qualifying experience· or training shall be in the foim of letter(s) from current or former employer(s) or tra.iner(s) ()Dd shall include the name, address, and title of the writer, and a specific description of the duties perforined by the alien or of the t_rainjng received.

Upon review of the entire record, including evidence submitted on appeal and in response to a Request fot Evidence (RFE) issued by the AAO on August l, 2013, the AAO concludes that the petitioner has established that it is more likely than not that the beneficiary had all · the education, tr~injng, and e~perience to meet the minimum requirements of the labor certification as of October 14; 2011. Accordingly, the petition is approved under section 203(b )(2) of the Act.

The burden of proof in these proceedings · rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has met that burden.

ORDER: The appeal is sustained. The petition is approved.