lmmigr1mt Petition fot Alien, W0r~er as a rvt:ember of the Professions Holding an Advanced Degre·e or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § ll53(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~precedeilt decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied curteilt law ot 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 (Form I-290B) within 33 days of the date of this decision. Please review the Form 1•290B instructions ~t http:Uwww.uscis.gov/forlils for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you, on Rosenberg
Chief, Administrative Appeals Office
W'WW;uscis.gov
Page:2
DISCUSSION: The Director, Nebra.skl:l 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 1 describes itself as a manufacturer a.nd distributor of oral and personal care products. It see~s to permanently employ the benefiCiary in the United States as a credit a.nCilyst. On the Form I -140, Jmm.igra.nt Petition for Alien Worker, the petitioner requested Classification of the beneficiary as 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 acco:ropCinied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of ~bor(DOL). . .
The director's decision denying the petition concluded that the petition cannot pe approved because: (1) tbe labor certification does not require a member of the professions holding an advanced degree; a:nd (2) the beneficiary of the petition did not satis.fy the minimum educational req~irements of the . requested visa classification. ·
1 the ·name Of the entity .listed as the employer on the labor certification and the petitioner on the Fonn. I-140, Alien Petition for Alien Worker, is Or. The record indicates that there has been a change in ownership lea.ding to the originaJ employer's acquisition by Dr. a limited liability company (LLC). The petitioner asserts that the assets and liCibilities of Dr. were transferred to Dr. and that the business of the original employer remains unchCinged under the new entity. This transfer of asset~ and obligations to the purported successor in-interest has not been doc\imented in the record. The petitio-ner is a d.if;ferent entity from the employer listed on the labor certification and has a different federal employer tax identification number (FEIN). A labor certification is only valid for the particular job opportunity stated oil the application form. 20 C.P.R. § 656.30(c). If the petitioner is a different entity than the labor certification employer, then it must establish that it is a successor-in-interest to that entity. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 .(Comm'r 1986). A petitioner n1a.y esta.blish a valid successor relationship for immigration purposes if it satisfies thtee conditions. First, the successor must fplly describe and. document the transaction transferring ownership of all, or a relevant part of, the predecessor. ~econd, the successor must demonstrate that the job opportunity is the same as originally offered oil the labor certification. Third, the successor must prove by a preponde.nmce of the evidence that it is eligible for the immigrant visa in all respects. In any future filings, the petitioner must show that these three conditions have been sa.tisfied. An application or petition that fails to ·comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify a.ll of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F3d 683 (91h Cir. 2(103); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). ·
On appeal, the petitioner st~tes that the director erred in concluding that the labor certification did not require a minimum of an advanced degree for the offered position, and contends that the beneficiary satisfies the minimum educational requirements of the requested vis~ classification, because he possesses ~ - U.S, Bachelor's degree, or the foreign equivalent, baSed oi1 a combination of foreign academic degrees, followed by five years of employment experience.
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. 2 The MO considers all pertinent evidence in the record, including n~w evidence properly submitted upon appeal.3 A petition that fails to <,:omply wittl th~ teclmic~ requirements of the law may be denied by the AAO evert if the director d.oes not identify all of the grounds (or denial i:n t_he initial decision.4 The procedural history in this case is documented by the record and incorporated into the decision. Furt.ber elaboratio,n of the procedural history will be made only as necessary.
Section 203(b )(2) of the Act provides immigrant classification to. members· of the profession_s bolcling advMc:ed degrees or aliens of exceptional ability, whose services are Sought by an employer in the United States. See also 8 C.ER. § 204.5(k)(1),
Th~ regul~tion at 8'C.F.R. § 204.5(k)(2) defines the terms "advanced degree'' and ''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 St~te.s 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 tbe speci<y; the alien must have a United States doctorate or a foreign equivalent degree
A "profession " is defined as "one of the occupations listed in section '101(a)(32) of the Act, as well as ~y OCC\lpation for which a United States baccalaureate degree or its foreign equivalent is the 2 See 5 U.S.C. 557(b) ("Oil appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see. also Janka v. U.S. Dept. of T~ansp. , NTSB, 925 F.2d 1147, 1149 (9th Cit. 1991). The AAO's de novo authotity has been long recognized by the federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). . .
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, a.nd teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regUlation at 8 C.P.R. § 204.5(k)(3)(i) states that a. petition for ao. <~:<lvanced degree professional must be accompanied by:
(A) Ail official academic record showing th~t the alien bas an United States advanced degree or a foreign equivalent degree; or
(B) Ail official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degr~e, 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 experie_pce in the specialty.
W. a.d<lition, the regulation at 8 C.P.R.§ 204.5(k)(4)(i) states, in part:
The job offer portion of the individual labor certification, ScheduJ.e A application, or Pilot Program application must demonstrate. that the job requites a professional holding ai1 advanced degree or the equivalent or an alien of exceptional ability.
In summary, a petition for an advanced degree professional must .establish that the beneficiary is a.. member of the professions holding an advanced degree, and that the offered position reqUires, at a minitnU:Ill, a professional boldin.g a.n advanced degree. Specifically, for the offered position, the petitioner must .establish that the labor certification requires no less than a U.S. &cademic or profes~ion.al 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 ofprogressive experience in the specialty. . In evaluating the job offer portion of the labor certifiCation .to determine the required qualifications for the position, l.J.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certifici:ltion, nor may it impose aqdition.al requirements. See Madany, 696 F.2d at 1008; K.R.K. 1tvine, Inc-., 699 F.2d at 1006; Stewart Infra ~Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 {1st Cit. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS must examine "the language of the labor certification job requirements '' in order to determine what the petitioner must demonstrate about the ben.eficiary's qu,ali[lcation.s. Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the m_eao.ing of terms l,Jsed 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." Ros~dg}e linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphaSiS added). USCIS's interpret&tion of the job's requirements, as stated on the labor certification must involve ;;reading and applying the plain language of the [labor certification]." ld. at 834 (emphasis added). . USCIS p. 5 cannot and should not reasonably be expected to look beyonq. the plain larig\lage of the labor certifi~ation or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. Even though the labor certification may be prep3Ied wi$ tb.e benefigary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. SeeSntJ,pnames.com, Inc;. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006). ln. the instant ~se, Part li of the labor certification submitted with the petition states that the offered position has the following minimum requirements:
HA. Education: Master's.
HA"'B. Major Field of Study: Accounting.
H5. Training: None required.
H.6. Experience in the job offered: 12 months.
H.7. Alternate field of study acceptable?: Y.es,
H.7-A. Alternate field Of study: EnttepteneuriaLMartagemertt..
H.8. Alternate combination of education and experience acceptable? Yes.
H,S,.A. Alternate level of education required: Other H.8-B. If Other is indicated in question 8-A, indicate the alternate level of education required: Bachelor's Degree, or any suitable combo. of education, training or exp. (Emphasis added). H.8,C If applicable, indicate the number of years of experience acceptable .in question 8.: 5. H.9. Foreign educational equivalent: Accepted.
H.10. Experience in an alternate p. 6 education requirement to establish the advanced degree equivalency required for the visa classificatio:v sought. This conflicts with 8 C.F.R. § 204.5(k)(2), which speCifically provides that 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." (E_mpl:lilsis added), Additicmally, question H.14 states that the five years of experience "can be" progressive. However, the regulation at 8 C.F.R. § 204.5(k)(2) requires that a Bachelor's degree or . . . foreign equivalent be followed by at least five years of progressive experience. Therefore, both the primciry and altemilt~ education and experience requirements fail to consistently state minimum requirements to qualify the position as an advanced degree professional position.
WJ:Iere the l(lbor certification allows for a Bachelor's degree (followed by five ·years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. The Joint Explanatory Statement of the Co[llillittee of Conference, published as part of the House of Representatives ConferenCe Report on the Act, provides that "[in] considering equivalency in category~ advanced degrees, it is anticipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions." H.R. Cont .. . . .... ~ ~ . . . . . .
Rep. No. 955, 101 Cong., 2 Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990). ..
(D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary's credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the "equivalent'' of a bachelo(s degree rather than a "foreign equivalent degree. "5 In order to bCJ.ve experience and education equating to an advanced degree under Section 203(b)(2) of the Act, the beneficiary must have· a single degree th~t is . the "foreign equivalent degree" to a United States baccalaureate degree. 8 C.P.R. § 204.5(k)(2). As explained in the preamble to the-final rnle, persons who ~lairn to qualify for an immigrant visa by virtue Of education or experience equating to a bachelor's degree may qualify for a visa pursuap.t to section 203(b )(3)(A)(i) of the Act as a skilled worker with more than two ye·ars of training and experience. 56 Fed. Reg. at 60900.
For this classification, advanced degree professional, the regulation at 8 C.P.R. § 204.5(k)(3)(i)(B) requires the submission of an "official ac""demic :record showing that the alien has a United States baccalal.lteate degree or a foreign equivalent degree." For classification as a member of the professions, the regulation at 8 C.P.R. § 204.5(1)(3)(ii)(C) requires the submission of "ail official college or university :record showing the date the baccalaureate degree was awarded and the area of concentration of study." We cannot conclude that the evidence required to demonstr""te that an a.Jien is an advanced degree professional is any less than the evidence required to show that the alien is a professional. To do so. would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa cla.~sificatioQ, Moreover, the coDiillentary acrompanying the proposed advanced degree professional regulation specifically states that a ''baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 8 C.P.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of"an official academic record showing that the alien has a degree, diploma, certificate ot similar award from a college, university, school or other institf!,tion of learning relating to the area of exceptional ability").
Therefore, since an individual can qualify for the offered position with a degree less than a bc:tCCCllCi:ureate (fo11owed by five years of progressive experie~ce in the specialty), the petition does not qualify for advanced degree professional classification.
However, even if the labor certification ·required li minimum of an advanced degree for the offered position to qualify for the visa classification sought here, which, as discussed above, it does not, the petition must still be denied because the record· fails to establish that the beneficiary satisfies the minimum educeition~.l requirements for clc:tssification as a member of the professions holding an advanced degree.
As discussed, the plain meaning of the Act and the regulations is that the beneficiary of an advanced degree professional petition must possess, at a minimum, a degree from a college or university that is a U.S. baccalaureate degree or a foreign equivalent degree.
In the instl!.nt C(lse, the petitioner relie~ on the beneficiary's Bachelor of Commerce degree obtained in 2002 from the India, in combination with his final examination certification · · and award of Association Membership with the in in 2005, as being equivalent to a U.S. bachelor'~ degree.
The record contains an evaluation of the beneficiary's educational credentials prepared by for on September 6, 2CH1, which concludes that the beneficiary's Bachelor of Commerce degree from the along with the Statement of Marks listing the subjects examined in the third year with the corresponding. marks, are equivalent to thtee years of credit inbusiness and accounting from an accredited U.S. university.6 Mr. further states that these documents, in conjunction with the beneficiary's certificate of membership with the and copies of the Foundation, Intermediate, and Final Examination Certificates and the Statements of Marks, are the equivalent to a bachelor's degre~ in accounting from an accredited college or 11niversity 'in the United States.
The . AAO has reviewed the Electronic
Database for Global Education (EDGE) created by the
American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to 6 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
r~ge 9 its Website, AACRAO is "a nonprofit, voluntary; professional ~ssociation of"more than 11,000 higher education admissions and registration professionals who represent more than 2,600 i_nstitl1tions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/About-AACRAO.aspx. Its mission ''is to serve and advance higher education by providing leadership in academic and enrollment services." /d. EDGE is "a web-based resource for -the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. Authors for EDGE m-ust. work witl1 ~ publication consultant and a CounCil Liaison with AACRAO's National Council oil the Evaluation of Foreign Educational Credentials? If placement recommendations are included, the Council Liaison workS with the author to give feedback and the publication is S\lbject to final review by th.e entire Council. /d. USCIS considers EDGE to be a reliable, peer-reviewed souree of information about foreign credentials equivalencies. 8 ACCQrding to EDGE, ~he beneficiary's Bachelor of Commer~e degree from India represents attainment of a level of educ~tion comparable to two to three years of study in the United States, but is not the foreign equivalent of a U.S. Bachelor's degtee. Further, .it indicates that the final ex.~ ceqification and award of Association Membership with the represents attainrrtent of a level Of education comparable to a Bachelor's degree in the United States.
However, as is explained above, for classification as an advanced degree professional, the })eneficiary must possess a foreign degree from a college or university that is equivalent to a U.S. bachelor's degree. ·While EDGE concludes th~t the beneficiary's final examination certification and Association Membership award is "comparable to" a U.S. bachelor's degree, it is Q.ot a degree from a college or university. The is not an institution of higher education that can confer a degree, but instead, is a "statutory body" established "for the regulation of the profession of in lndia." 9 See http://icai.org/new_yost.html?post_id=165&c_id=l95 (last 7 See An Author's Guide to Creating AACRAO International Publications available at httpl//WWW.aacrao.org!Libraries/Publications_Documents/GUIDE_TO_CREATING_I_NTERNATIO NAL_)lUBLICATIONS .._l.sflb.ashx~
8 in Confluence International, Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court det~rmined that the AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. AUgust 30, 2010), the court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the beneficiary's three-year foreign "baccalaureate;' and foreign '!Master's'' degree were only comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a USCIS determination that the beneficiary's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's degree. Specifically, the. court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse ·its discretion in reaching its . conClusion. The court also noted that the labor certification required a degree and did not allow for t.be cornbh:Iatiou of edqc;:1tion and experience. · · · 9 See Snapnames.com, Inc. v. Michael Chettoff, 2006 WL 3491005 *11 (D. Ore, Nov. 30, 2006) (finding tJSCIS was justified in concluding that Institute of Chartered Accountants of India p. 10 accessed August 27, 2013). Therefore, although the beneficiary possesses the "equivalent" of a bachelor's degree, he does not possess a "foreign equivalent degree" within the meaning of 8 C.P.R. § 2Q4.5(k)(2) as required for classification as a member of the professions holding an advanced degtee. 1b · ·Degree not shown to be a U.S. advanced degree equivalent
Counsel c.tsserts on appeal that there -is no requirement of a singular degree for the minimum · requirement of a Bachelor's degree for classificc.ttion as a member of the professions holding an advanced degree, and contends that the Bachelor's degree equivalency cun be satisfied by a combination of academics, such as that possessed by the beneficiary. Counsel refers to a decision issued by the AAO on Februc.try 2, 2010, which concluded that based on EDGE's confirmation that the beneficiary's ICAI final examination certification and Association Mernl:>ership award represents. attainment of a level of education comparable to a U.S. Bachelor's degree, the beneficiary held the equivalent of a U.S. bc.tchelor's degree and met the educational requirements set forth in the labor certification for the offered position seeking ~lc.tssi(lcatioll as a member of the professions.n However, while 8 C.P.R.§ 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and published ffi. bou.nd volumes or as interim decisions. 8 C.P.R. § 103.9(a). Thus, the eited decision is not binding on the AAO. Furthermore, the decision referenced was
beneficiary in that case held the foreign equivalent of a U.S. Bachelor's degree in order to qualify ~sa m~m.ber of the professions. See http://www.uscis.gov/etr/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Alien s%20of%20Exceptional%20Ability/Decisions_Issued_in_2011/Nov232011_02B5203.pdf (last accessed August 27, 2013).
Aceordingly, as set forth above, to qualify as a professional, or member of the professions, the beneficiary is required to have a Bachelor's degree from a college or university. While a combination of education might be accepted. in the sl<:illed worker context depending on the terms of the labor certification and a beneficiary's qualifications, there is no provision in statute or regulation that compels USCIS to readjudicate a petition under a different preference classification once the director has rendered a decision. A petitioner m~y not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988).
In summary, the offered position does not require an advanced degree, as both the primary and alternate education and experience requirements fail to state requirements for an advance d.egree professional. Furthermore, the beneficiary does not possess, at a minimum, a degree from a college or university that is a U.S. baccalaureate degree or a foreign equivalent degree, as required for visa clas-sification as a member of the professions holding an advanced degree. Therefore, the petition cannot be approved under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed. ·
An applicatiOii or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. ·2004) (noting that the AAO conducts appellate review on a de novo basiS).
Thus, beyond the decision of the director, th,e petitioner has also not established that the beneficiary has the requisite employment experience to qualify for the offered position. The petitioner fl1\1St establish that the beneficiary possesSed all the education, training, and experience Specified on the labor certification as of the August 21, 2011 priority date. 8 C.P.R. § 103.2(b )(1), (12). See Matter of Wing's Tea Hous~. 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). In evaluating the beneficiary's qualifications, USCIS must look to 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 Madany v. Smith, 696 F.2d 1008 (D.C. Cir.. 1983); K.R~K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary pf Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
BaSed on the primary requirements, the labor certification in this case requites a Master's degree and a II1inirnum of twelve months of work experience in the offered position to qualify for the proffered p. 12 position. Alternatively, tbe beneficiary may qualify through a Bachelor's degree and five years of experience. If relying on the alternative requirements for the offered position, the beneficiary must show five years of progressive experience. The beneficiary claims on the ETA Form 9089 to have gained tb_is experiep~- jn India while employed in a full-time capacity as a credit analyst with: from July 14, 2006 to Februruy 7, 2007; Ms.
. from May 16, 2005 to June 30, 2006~ Ms. ~ from May 1, 2002 to April30, ZOOS; ~nd Ms. from August 2, 2000 to April1, 2002.
The beneficiary's claimed qUalifying experience must be supported by lette.rs from employers giving the p~me, address, and titleof the employer, and a description of the beneficiary's experience. See 8 C.P.R. § 204.5(1)(3)(ii)(A). Her~, tbe record contains letters from only three of the beneficiary's former emplo ers, namely . _ _
However, the beneficiary's employment experience with these three employers total less than the fiv~ years of employment experience required by the terms of the labor certification for the proffered position.
The record co:ntain.s a letter from the petitioner, dated September 5, 2012, certifying the beneficiary's employment with the organiZation since October 1, 2007 as an accountant. However, it is unclear whether this experience can be used to qualify the beneficiary for the offered position. Representations mC!de 011 the certified :ETA Form 9089, which is signed by both the petitioner and the beneficiary under penalty of perjury, clearly indicate that the beneficiary's experience with the petitioner or experience in an alternate occupation cannot be used to qualify the beneficiary fot the certified position_. See ZO C._f.&. § 656.17. Specifically, the petitioner indicates ''no'' in response to question J.19, which inquires whether the beneficiary possesses the alternate combination of education and experience, if permitted by the teriDs of the labor certification. In response to question J.20, the petitioner indic(lted "not applicable'' to the question whether the beneficiary possesses experience in an alternate occupation, as such experience is not pennitted in question H.lO. The petitioner responded "no'' to question 1.21, which asks, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?" In general, if the answer to question J.21 is no, then the experience with the employer may be used by the beneficiary to qualify for the proffered position if the position was not substantially comparable, as defined in 20 C.F.R. § 656.17, and the terms of the ETA Form 9089 at H.lO provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates. in response to question K .. l that the beneficiary was employed as a credit analyst with the petitioner beginning April 1, 2011, and in question K.2., states that his position with the petitioner was as an accountant from October 1, 2007 until March 30, 2011. The job duties of both positions indicated are the same or similar to those of the position offered as a credit analyst. Therefore, it appears that the experience gained with the petitioner was either in the position of_fered or is substantially comparable as he was performing the saiDe job duties more than 50 percent of the time. According to DOL regulations, therefore, the petitioner cannot rely on this experience for the beneficiary to qualify for the proffered position. Additionally, as the terms of the labor .certification supporting the instant 1-140 petition do not permit consideration of experience in an alternate occupation, . and the beneficiary's experience with the petitioner was either in the position offered or a position substantially comparable, it does not appear the experience ·may be p. 13 used to qualify the beneficiary for the proffered position. Thus, the evidence in the record does not establish that the beneficiary possessed either the required education or the requited experience set forth on the labor certification by the priority date.
Beyond the d~ision of the director, the record also does fails to establish the petitioner's ability to pay the proffered wage as of the priority date and. continuing until the beneficiary obtains lawful permanent residence. See 8 C.P.R. § 204.5(g)(2).
The regulation at 8 C.F.R_. § 204.5(g)(2) states:
Ability of prospective employer to pay wage. - Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accoii1pa11ied by evidence-that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is est~blished and CQntinu,ing unti_l the beneficiary obtains lawful penilanent residence. Evidence of this ability shall be either in t_be form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective UQited States employer employs 100 or more workers, the director may accept a statement from 11 fina11ciai officer of the organization which establishes the prospective etnployet's ability to pay the proffered wage. Jn c,1ppropriate cases, additional evidence, such as profit/loss statements, bank account records, or perso®el records, may be submitted by the petitioner or requested by the ServiCe.
In general, 8 C.P.R. § 204.5(g)(2) requires annual reports, federal t(lx retQ.rn_s, or a1,1qited financial statements as evidence of a petitioner's ability to pay the proffered wage.
Here, the petitioner has submitted its 2010 corporate tax return and a requ,est for an extension to file its 2011 tax return, as well as the beneficiary's 2011 IRS W-2 Form and several wage statetnent_s from, 2012. The 2010 return and 2011 W-2 Form do not cover the June 8, 2012 priority date as required. Moreover, the 2012 wage statements only establish payment of a portion qf the proffered Wage. Accordingly, the record does not establish the petitioner's ability to pay the proffered wage from the priority date onwards. At the time of the filing of the labor certification and the subseq\leQ.t appeal to the AAO, the petitioner's 2012 annual report, audited financial tetufh, or tax return, wbicb would cover the priority date in this case, were not yet available. In any future filings, the petitioner m\lst submit one of the three referenced records, in compliance with 8 C.P.R. § 204.5(g)(2), for each year from the 2012 priority date onward. ·
Further, according to l,JSCIS records, the petitioner has filed numerous Form I-140 and noninn'nigtailt petitions (Form I-129; Petition for a Nonimmigrant Worker) on behalf of other beneficiaries. Accordingly, the petitioner must establish that it has had the continuing ability to pay the combined proffered wages to each beneficiary from the priority date of the instant petition. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l CoiDtn't 1977). The evidence in the record does not document the priority date, proffered wage or wages paid to each beneficiary, whether any of the other p. 14 petitions have been withdrawn, revoked, or denied, or whether any of the other beneficiaries have . . obtained lawful permanent residence. Thus, the tecotd before the AAO does not establish the petitiQner's ability to pay the proffered wage to the beneficiary as required. This isSue must be resolved in any future filingS. · ·
In. visa petjtion proceedings, it is the petitioner's burden to establish eligibility fot the immigration benefit sought Section 291 of the Act, 8 U.S.C. § l361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been inet. ·. • . ORDER: The appeal is dismissed.