The Petitioner, a software development and consultancy business, seeks to employ the Beneficiary as a programmer analyst. It requests classification of the Beneficiary as an advanced degree professional under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). This employment-based "EB-2" 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 on the grounds that (I) the Petitioner did not establish that the Beneficiary has the requisite educational degree to qualify for classification as an advanced degree professional and (2) the minimum educational requirement of the labor certification does not support the requested visa classification of advanced degree professional.
On appeal the Petitioner asserts that the Beneficiary has the requisite educational degree to qualify for classification as an advanced degree professional, but does not contest the Director's determination that the minimum educational requirement of the labor certification is less than a bachelor's degree.
Upon de nova review, we conclude that the Petitioner has not established that the labor certification supports the requested visa classification of advanced degree professional. As this is a fundamental element of eligibility which the Petitioner has not satisfied, we will reserve the remaining issue of whether the Beneficiary has the requisite educational degree to qualify for advanced degree professional classification.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the 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 ofU.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) ofthe Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the p. 2 foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
Analysis
A. LaborCertificationRequirementsDoNotSupportAdvancedDegreeProfessionalClassification A petition for an advanced degree professional must generally be accompanied by a valid, individual laborcertification. 8C.F.R.§204.5(k)(4)(1). Theregulationsstatethattobeeligiblefortherequested classification, the job offer portion of the labor certification must demonstrate that the job requires a professional holding an advanced degree or the equivalent. 8 C.F.R. § 204.5(k)(4)(i). The regulation at 8 C.F.R. § 204.5(k)(2) defines "advanced degree" as follows:
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.
I f the labor certification requirements allow for less than a baccalaureate degree, therefore, the position will not qualify for advanced degree professional classification.
In order to determine what a job opportunity requires, USCIS must look to "the language of the labor certification job requirements." Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). USCIS must examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984). Our interpretation of the job's requirements must involve reading and applying the plain language of the labor certification application form. Id. at 834. Moreover, we read the labor certification as a whole to determine its requirements. "The Form ETA 9089 is a legal document and as such the document must be considered in its entirety." MatterofSymbioun Techs., Inc., 2010-PER-10422, 2011 WL 5126284 (BALCA Oct. 24, 2011) (finding that a "comprehensive reading of all of Section H" of the labor certification clarified an employer's minimum job requirements). 1 The education, training, experience, and other requirements for the proffered position are set forth in section Hofthe labor certification. In this case section H states that the proffered position ofprogrammer analyst has the following requirements:
4. Education: Minimum level required: 4-B. Major Field(s) of Study: 5. Is training required in the job opportunity?
6. Is experience in the job offered required?
Bachelor's degree
Computer Science, CIS, MIS No
Yes
6-A. How long?
7. Is an alternate field of study acceptable? 7-A. What field(s) of study? 8. Is an alternate combination of education and experience acceptable? 8-B/C. How much education and experience?
9. Is a foreign educational equivalent acceptable?
10. Is experience in an alternate occupation acceptable?
10-A. How long?
10-B. What job title(s)?
60 months
Yes
Engineering (any), CIS, MIS, Business, or related field Yes
Combination of college level educational degree[s] equivalent to U.S. bachelor of science degree plus 5 years of experience Yes
Yes
60 months
Analyst / Software Engineer or
B. Beneficiary's Eligibility for Advanced Degree Professional Classification As previously indicated, we will reserve the remaining issue of whether the Beneficiary has the requisite educational degree to qualify for advanced degree professional classification. It is unnecessary to address this issue now as the labor certification does not support the petition for an advanced degree professional.
Conclusion
The labor certification does not support the requested classification of advanced degree professional because both the primary and the alternate requirements do not require at least a master's degree or a bachelor's degree followed by five years of qualifying experience. The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.
ORDER: The appeal is dismissed.