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 nf the dm:uments related to this mauer have been returned to the office that originally decided your case. Please he advised th;;: any further inquiry that you might have concerning your case fT!USl be made tO that office. · If you believe the .AAO inappropriately applied the law in reaching its decision, or you have addititl!l;d information that you wish to have considered, you may file a motion to reconsider or a motion 111 reopen in accordance with the instructions on Form 1-2908, Notice of Appeal or Molion, with a fcc of $fi30. The spedfic requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion directly with the ~0. Please be aware that 8 C.F.R. §. 103.5(a)(l)(i) requires any motion tn be filed wilhii! 30 days of the decision that the motion seeks to reconsider or reopen.
Thank you,
.\mD
Ron Rosenberg
Acling Chief, Administrative Appeals Office www.uscis.gov
(b)(6). ;.
DISCUSSION: The employment-based immigrant visa petition was denied ·by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is an investment management company. It seeks to employ the beneficiary permanently in the United States as a senior software engineer. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of experience stated on the labor certification. The director denied the petition accordingly.
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 and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. As set forth in the director's September 3, 2011 denial, the primary issue in this case is whether the beneficiary possessed the minimum level of experience stated on the labor certification and as required by the advanced degree professional visa category.
In pertinent part, section 203(b)(2) of .the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), 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. rr 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. DOl, 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
A beneficiary must have all the education, training~ ~nd experience specified on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
In evaluating the requirements for the offered position, U.S. Citizenship and Immigration Services (USCIS) must look to the job offer portion of the labor certification. USCIS may not ignore a term 1 The submission of additional evidence on 'appeal is allowed by the instructions to the Form l-2l)OB, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(l ). The record in the instant 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 of the labor certification, nor may it impose additional requirements. See Mandany v. Smith, 6% F.2d 1008 (D.C. Cir. 1983); K.R.K. /wine, Inc. v. Landon, 699 F.2d 1006 (9th .Cir. Cal. 19H3); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coorney, 661 F.2d 1 {ls1 Cir. 1981). USC IS 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 . . 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 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 pf reverse engineering of the labor certification.
Here, the DOL certified the ETA Form 9089 OQ November 2, 2010. The DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified, and available and whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). It is :Significant that none of the above inquiries assigned to the DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by federal circuit courtS. See Tongataptt Woodcraft ·Hawaii, Ltd. v. Feldman, 736 F. 2cl 1305, 1309 (9 h Cir. 1984); Madany v. Smith, 696 F2d at 1012~1013.
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published decisions from the circuit court of appeals from whatever circuit that the action arose. See NLR.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9 h Cir. .1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. lnv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), affd, 273 F.3d H74 (9 h Cir. 200 I)
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in private publications or widely circulated).
The required education, training, experience, and special requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a bachelor's degree, or foreign educational equivalent, in computer science, information systems, engineering, or related field and 84 months of experience in the job offered or an alternate occupation. Part H, item 14, also listed special skills required by the position as follows:
Experience using Oracle, Sybase ASE with expert skills in writing complex stored procedures and triggers; experience maintaining, debugging, and analyzing existing stored procedures; extensive experience with query performance and tuning; knowledge on database and table design/norrrialization; and client server, p. 4 web, multi-tier application .environment experience required. Experience with ASE 15; expert skills with PUSQL; experience with ASE to Oracle migration;
-Data Warehousing experience (Oracle, SSAS); and experience with multithreading Unix scripting. EMPLOYER WILL ACCEPT ANY SUITABLE
COMBINATION OF EDUCA TIO, TRAINING OR EXPERIENCE.
The beneficiary set forth his credentials on the .labor certification and signed his name, under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of the labor certification eliciting information of the · beneficiary's education, and elsewhere in the record, he stat~s that he attended the _ _ . in Russia and received a master's degree. On the section of the labor certification eliciting information of the beneficiary's work experience, he represented that he has worked as a senior software engineer for the petitioner from July 2009 through the date that the ETA Form 9089 was signed. He worked as a database administrator for from July 2007 to April 2008 and as a consultant for from January 2006 to November 2006. He additionally worked as a: systems analyst for from June 2005 to January 2006; programmer analyst for from March 2005 to May 2005; systems analyst for · Limited from November 2000 to March 2005; and, senior systems analyst for from November 1999 to November 2000.
The beneficiary's claimed qualifying experience must be supported by letters from employers giving the name, address, and title of the employer, and a description of the beneticiary's experience. Set! t{ C.F.R. § 204.5(g)(l).
· The director denied the petition because the beneficiary's work experience letters did not show that the beneficiary had the sp.ecial reqllirements for the offered position as set forth at Part H of the ETA Form 9089.
On appeal, counsel states that the employment letters "confirmed this experience, whether direct I y by specifically listing the required tools or technologies utilized, or indirectly by describing job functions for which particular required tools or technologies would logically be utilized." No evidence was submitted to support this statement. · The assertions of counsel do not constitute evidence. ·Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Mauer of Ramirez-Sanchez , 17 I&N Dec. 503, 506 (BIA.1980).Claims not backed by documents
The submitted employment letters do not show that the beneficiary had "experience with ASE 15: expert Skills with PUSQL; experience with ASE to Oracle migration; Data Warehousing experience with Oracle; and experi~nce with multithreading Unix scripting." Therefore , the beneficiary's work experience letters do not provide independent, objecti":'e evidence of his prior claimed work experience. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988)(states that the petitioner must . resolve any inconsistencies in the record by independent, obj~ctive evidence). Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of . proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Malter of Treasure Craft iJf California, 14 I&N Dec. 190 (Reg'! Comm'r 1972)). Therefore, the petitioner p. 5 has not established that the beneficiary had th~ required experience by the priority date performing all of the skills listed in the ETA Form 9089.
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 burden.
ORDER: The appeal is dismissed.