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 (AAO) in your case. This is a non-precedentdedsion. the AAO does not announce new constructions oflaw nor establish agency policy through non-precedent decisions. If you believe the MO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 'motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Forni I-29013) within 33 days of the da:te of this deci!;ion. Please review the Form J.,.l90B .instructions at http://www.uscis.gov/forms for the latest information on ft:e, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly witb the AAO. · n Rosenberg
Chief, Administrative Appeals Office wW\v.uscis.gov
Page 2.
·DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a "[p ]rofessional consulting and technical placement services" company. It seeks to permanently employ the beneficiary in the' United States as a ''Test Specialist Senior." On the Form I ... 140, Immigrant Petition for Alien Work~~-. tbe petit_ioner requested Classification of the beneficiary a.s an advanced degree professional pursuant to section 203 (b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Depart:Inent of L;,tbor (DOL), .
The director's decision denying the petition concluded that the petition cannot be approved because the labor certification does not require a member of the professions holding an advanced degree.
On appeal, the petitioner states that the position requires a minimum of a b;,tchelor's degree plus five years of experience and that the director erred in stating that the position did not require a member of the professions holding an advanced degree.
The appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis.1 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.2 A petition that fails to comply' with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision. 3 The procequral 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.
Section 203(b )(2) of the Act provides immigrant classification to members of the professions holdi.I)g advanced degrees or aliens of exceptional ability, whose services are sought by an employer in the United States. See also
8 C.F.R. § 204.5(k)(l).
The reg\llation at 8 C.F.R. § 204.5(k)(2) defines the terms "ad~anced degree" artd "profession:." An "advanced degree" is defined as:
[A]ny 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 jn 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. · ~
A "profession" is defined as "one of the occupatio~ listed in section 10l(a)(32) ofthe Act, a,s weU as @Y occupation for which a United States baccalaureate 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 ·ate "architects, engineers, lawyers, physicians, surgeons, and teachers in ele111entary or . secondary schools, colleges, academies, or seminaries."
· The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) Ail official a~denric record sll:owing that the alien has an United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien .has a United States baccalaureate degree or a foreign eq\livalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post,. baccalaureate experience in the specialty.
In addition, the regulation at 8 C.F.R. § 204.5(k)(4)(i) states, in part:
The job offer portion of the individl@ labor certification, Schedule A application, or Pilot Program application must demonsu-ate thai the job requires a profes.sional holding an advanced degree or the equivalent or art alien of exceptional ability.
In summary, a petition for an advanced degree professiotial must establish that the beneficiary is a member of the professions holding art advanced degree, and that the offered position requires, at a minimUlll, a profession!ll holding an advanced degree. Specifically, for the offered position, the petitioner must establish that the hlbor certification requires no less ,than a tJ .s. academic or professional degree (or a foreign equivalent degree} above a baccalaureate, or a u.s. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. p. 4 NON-PRECEDENT ifECISION
In the instant case, Part H of the labor certification submitted with the petition states that the offered position has the following minimum requirements:
H.4. Education: Bachelor's degree.
H.S. Training: Norte requited.
H.6. Experience in the job offered: 60 months.
H:. 7. Altern_at~ field of study: Engineering or a related field of study.
H.8. Alternate combination of education and experience; Yes H.8-A If Yes, specify the alternate level of education required: The petitioner checked "Other." R8-B If Other is indicated in question 8-A, indicate the alternate level of .education required: H.8-C
'H.9.
H.IO.,
H.l4.
"Will accept any equiv. combo of relevant educ., train, and/or work exp" If applicable, indicate the nUii:J.bet of yeats experience acceptable in question 8: "0.'' Foreign educational equivalent: Accepted.
E~penence in an alternate occupation: 60 months.
Specific skills or other requirements:
Experience must include: Testing (SDLC) ort the NASCO processing system (NPS);-5 yeats of He~lthcare Payer experience; Leading small to medium sized testing project in the healthcate industry. ·
Will al~o accept any equivalent combination of relevant education, training, and/or work expenence .
The labor certification clearly states in H.8 above, that ail individual could qUalify for the petitioned position with ''other" qualifications than a bachelor's degree and five years of experience. The petitioner states th~t applicants may qualify with an equivalent combination of relevant education, training and/or work experience and "0" years of experience rather than ~ b~chelor's degree and five years of experience. Since an individual can qualify for the offered position With les~ than a degree above a baccalaureate, or a baccalaureate followed by five years of progressive experience in the specialty, the petit_ion does not qualify for advanced degree professional classification.Five years of progressive experience not documented Counsel asserts that the petitioner stated, "Will .accept any equiv. combo of relevant educ., train, and/or work exp" as a prior case that the petitioner filed for another beneficiary was denied for failure to state the foregoing language in H.8. The AAO is not required to approve applications or petitions where eligibility has not been d.emonstrate'd, merely because of prior decisions that may h~ve been erro11eous, See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Cortlrtl'r 1988). USCIS is not required to treat acknowledged errors as binding precedent, . Su.sse~ Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cit. 1987); ceft. denied, 485 U.S. 1008 (1988). In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See·Mctdany,696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006~ Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 {lst Cir. 1981).
NON~PRECE_DENT DECISION
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, lJSCIS must examine ''the language of the labor certification job requirements'' in ord~r to detefll1i_ne what the petitioner m11st demonstrate about tbe beneficiary's qualifications. Madatty, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of tetrns used to describe the requirements of a job in a labor certification is to "examine tbe certified job offer ex_actly as it is completed by the. prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve "reading and applying the plain language of the [labor certification]." Id. at 834 (emphasis added), Here, the labor certification allows for "other" combined education and experience and 0 years of experience i:n H.8.C as the alternate requirements in H.8.
20 C.F .R. § 656.17(h)( 4)(ii) states, "if the alien beneficiary already is employed by the employer, and the alien does not meet the primary job req11irements and only potentially qualifies for the job by virtue of the employer's alternate requirements; certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable." This regulation was intended to· incorporate the Board of Alien Labor Certification Appeals (BALCA) ruling in Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en bane), that "where the alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job req11iremc.mts, the employer's alternative requirements are unlawfully tailored to· the alien's qualifications ... unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable.'' The statement that an employer will accept applicants with ;'any suitable combination of education, training or ex:perience" is commonly referred to as "Kellogg language."
However, two BALCA decisions have significantly weakened this requirement. In Federal Inswancf! Co, 2008-PER-00037 (Feb. 20, 2009), BALCA held that the ETA Fofll1 9089 failed to provide a reasonable means for an employer to include the Kellogg langu.age on the labor certification. Therefore, BALCA concluded that the denial of the labor certification for failure to write the Kellogg language on the labor certification application violated due process. Also, in Matter of Agma Systems LLC, 2009-PER-00132 (BALCA Aug. 6, 2009), BALCA held that the requirement to include Kellogg language did not apply when the alternative requirements were "substl:lntially equivalent" to the primary
NON-PRECEDENTDECISJON
There i.~ no provision in statute or regulation that compels U.S. Citizenship and Immigration Services· (USCIS) to readjudicate a petition under a different preferen~e classification once the director has rendered a decision. A petitioner may hot make material changes to a petition in an effort to make ~· deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N De.c. 169, J 7 6 (Assoc. Cortun' r 1988).
In Stunmary; the offered position does not require an advanced degree. Therefore, the petition cannot be approved for a member of the profes~ions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
·In vis~ petition proceedings, it· is the petitioner's burden to establish eligibility for the irtrmigtation benefit sought. Section291 of the Act, 8 U.S.C. § 1361; Mat-ter ofOtiende, 26 I&N Dec. 1~1, 128 (BiA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.