Immigrant Petition· for Alien Worker as a Member of the Professions Holding an Advl_lnced Degree ot an Alien of Exceptional Abi_lity Pursuant to Section 203(b)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non~ptecedeht qecision. The AAO does not arHtounce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO 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 fjled on a Notice of Appeal· or Motion (Fotm I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. Seealso 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
~ Thank you,
J~r f<'~'-
Ron Rosenberg
Chief, Administrative Appeals Office www.u~is.gov
DISCUSSION: The Director, Nebraska Service Center (director), denied the immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeaL The appeal will be dismissed.
The petitioner provides software consulting services. It seeks to perma.nently employ the beneficiary in the United States as a database administrator. 1 The petitioner requests classification of the: beneficiary as an advanced degree professional under section 203(b)(2)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A).
At issue is 'whether the beneficiary possesses an advanced degree as required by the terms of the labor. certification and the requested immigrant preference classification.
Procedural History
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U;S. Department of Labor (DOL), accompanies the petition. 2 The petition's priority date is February 19, 2012.3
Part H of the ETA Form 9089 states the following minimum requirements for the offered position of database administrator:
H.4. Education: Bachelor's degree in science, computer science, or a related field.
H.5. Training: None required.
H.6. Experience in the job offered: None required.
H.7. Alternate field of study: Science, computer science, or a related field.
H.8. Alternate combination of education and experience: None accepted.
I-i.9. Foreign educational equivalent: Accepted.
H.10. Experience in, a,p alternate occupation: 60 months in "information technology."
H.14. Specific skills or other requirements: None.
The Form I-140, Petition for Alien Worker, identifies the offered position as "database ad!Dinistrator.'' But the accompanying ETA Form 9089, Application for Permanent Employment Certification (labor certification), and the petitioner's letter in support of the petition refer to the offered position as ''computer programmer." The U.S. Department of Labor (DOL), which certified the labor application, classified the offered position as database administrator despite the position title of computer programmer on the ETA Form 9089. Notwithstanding the two different job titles, the proffered wage and job duties of the offered position remain consistent in the record. The job tides therefore appear to refer to the same offered position. Consistent with the. petitioner's · representation on the Form I--140, the AAO will refer to the offered position as database administrator.
Part J of the labot certification states tbat the bl,'!neficiary possesses a bachelor's degree in science from India, completed in 1995. The r¢cord contains a copy of the beneficiary's Bachelor of Scie-n~ degree and memoranda of marks, showing that the beneficiary studied 3 years at Nagarjuna University.
IIi addition, th~ record contains three evaluations of the beneficiary's foreign ~ducat1onal credentials. An Apri110, 2006 evaluation by Dr. for concludes that the benefiCiary's three-year l3Cichelor of Science degree fro _m. India ;is eqJliv(ll¢.nt to Ci U.S. Bachelor of Science degree. The evaluation also states that the combination of his . degtee and employment ex;peritmce is the equivalent of a U.S. bachelor's degree in GOmputer information systems.4
A September 21, 201.2 evalt.Ia,tion by for
September' l8, 2012 evaluation by for _
. that the beneficiary 's three-year degree from India, standing alone, Bacbelor Of Sciel)ce degree with no specified major field of study. and a both cQoclyde
If the AAO cannot grant the appeal, the petitioner asks U.S. Citizenship a11d Immigration Services (US CIS or the Service) to consider a new petition to, classify the beneficiary as a skilled wor~er pursuant to section 203(b)(3)(A)(i) of the Act, which allows for the grant of preference classification to qualified immigrants capable of performing skilled labor requiring at le<:tst two years of training or experience.
The petitioner's appeal is properly filed and alleges specific errors in law or fact. The AAO conducts appellate review on a de novo basis.5 The AAO considers all pertinent evidence in the record, including new evidence properly submitted on appeal. 6 IL LAW AND ANALYSIS
The R9les of tbe DOL and USCIS in the Immigrant Visa Process As noted above, the DOL certified the labor Certification in this matter. Section 212(a)(5)(A)(i) of the Act bars immigrant workers frorn admission to the United States unless the DOL certifies that: (I) there are not sufficient workers who are able, willing, qualified .
. . lind
tbe offered posttlops, a,nd whether the offered posttlons and the beneficiaries qualify for the requested immigrant classifications. See Tongatapu Woodcnift Haw,, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984) (the Service "may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer;'); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) ("There is no doubt that the &uthority to m(l,ke preference classification decisions rests with [the Service].").
Eligibility for the Cla_ssifi~ation Sought
Section 203(b )(2)(A) of the Act provides immigrant , classification to qualifying members of the professious holding CJ.<lvanced degrees. See also 8 C.F.R. § 204.5(k)(1). -The term ''advanced degree'' means:
[A]ny United States academic or professional degree or a. foreign equivalent degree above that of baccalaureate. A United Stati;:S baccalaureate degree or a foreig11 equivalent degree followed by at least five years of progressive experience in the specialty shCJ.U be considered the equiva.Ient of a master;s degree.
NON-PRECEDeNT DECISION position require the services of a professional holding an advanced degree.
Legislative history shows that Congress intended the advanced degree equivalency of a bachelor's degree followed by 5 years of progressive experience to include a u.s. bachelor's degree or a single, foreign equivalent degree. In passing t~e Immigration Act of 1990, Pub. L. 101-649 (1990), the Joint Explanatory Statement of Congress' Conimittee of Conference explained that an advanced degree equivalency mean~ "tha~ the' alien must have a bachelor's degree with at least five years progressive experience in the prof~ssions." H.R. Conf. Rpt 10l~955 (Oct. 26; 1990) (reprinted in 1990 U.S.C.C.A.N. 6784, 6786) (emphasis added).
Responding to criticism that the then-proposed reg1.1lation at8 C.P.R. § 204.5 bars the substitution of ~xperience for education to meet the advanced degree equivalency; the Service noted that both the 1990 Act and its legislative history indicate that an alien must possess at least a bachelor's degree. The [1990) Act states that, in order to qualify under the second classification, alien members of the professions must hold 'advanced degrees or their equiValent.' As the legislative history ... indicates, the equivalent of an advanced degree is 'a bachelor's degree· with at least five years progressive experience in the professions.' Bec~u_se neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be Unjted States degrees, the Service will recognize foreign equivalent degrees.
But both the Act and its legislative history make clear that, in order to qualify as a professional under the third claSsification or to have experience equating to an advanced degree under the second, an alien must h{JlJe at least a bachelor's degree.
submi_ssion of "a11 official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study." The AAO cannot conclude that classification of an advanced degree professional requires less .proof than the less preferable chtssification of a professional wjtbO'IJ.t undermining Congress' immigration preference scheme. See APWU v: Pottet, ,343 F. 3d 619, 626 (2d Cit,· 2003Y (citing Silyerman ·v. J;;astric;;h Multiple lnv. F~nd, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995)) (a basic tenet of statutory construction, giving effectto all provisions, is equ(llly applicable to regulatory construction). Moreover, in proposing the advanced degtee professional regulations at 8 CF.R. § 204.5(k), tbe Service sta,ted that a"baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." 56 Fed. Reg. 30703, 30706 (July 5, 1991) (emphasis added).8
In addition, a three-year bachelor's degree is generally not consi,dered th~ "foreig11 eq\livalent'' of a U.S. baccalaureate degree. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm':r 1977) (a three ye(lr Be1chelor of Science degree from India did not equate to a U.S. 'baccalaureate degree because the foreign degree did not require four years of study); see also Maramjaya v. USCIS, No. 06-2158, 2008 WL 9398947 *6 (DJ).C. Mar. 26, 2008) (for professional classification, USCIS regulations require ,a beneficiary to possess a U.S. bachelor's degree or a single, four-year foreign equivalent degree); Sunshine Rehab Setvs,, Inc, v. USCIS, No. 09-13605, 2010WL 3325442 **8-9 (E.D. Mich. A~g. 20, 2010) (a beneficiary's three-year bachelor's degree was not the foreign equivalent of a u.s. bacbelor's degree).
In the instant case, the petitioner asserts that the beneficiary's three-year Bachelor of Science degree from Nagarjuna University in India is equivalent to a U.S. Bachelor of Science degtee, as found by the three evaluation.s of his foreign educational credenti<_~.ls in the record. · The evaluations by Dr. and Mr. all conclude that the beneficiary, in obtai11ing his three-year 8acbelor of Science degree in India, completed the equivalenLof more than 120 university credit houts, which is the standard requirement to obtain a, bachelor's degree in the U.S. However, the evaluations do not adequately explain hOW they determined the value of the beneficiary's university coursework in India in U.S. credit hours. Mr. evaluation does not i.ndicate wh(lt courses the beneficiary undertook, and their individual contact hours or credit hours. His evaluation simply st.ates that the beneficia,ry obtained the equivalent of 189 O.S. credit hours without even referencing the total number of contact hours he calculated. Further, Ms.
NON-PRECEDENT DECiSION
Pages degree, J-Iqwever, Pr. was only able to determine <1 field of study by relying on the beneficiary's thtee-ye~r degree jn combination with his employment exp_etience. 9 The <;opies ofthe beneficiary's degree and tnemorapda of marks from do rtot indicate how many bottrs of class he attended or the amount of credits he earned. The record contains a September 13, 2012 affidavit from the beneficiary, stating that he attended 2,840 hours of classes or conta~t hours to obtain his Bachelor of Science degree: But the re.cord. contains no evidence from __ confirming the beneficiary's statement or the conclusions in the· evaluations. The beneficiary's affidavit is self::.serving and does not provide independent, objective evidence of his class hours at the university. See Matter of Ho, 19 I&N Dec. ~82, 591-592 (BIA 1988) (a petilioner must resolve any inconsistencies 'in the record ' by independent, objective evidenee). Going on record without supporting documentary evidence is insufficient to meet the . burden of proof in these proceedings, Matter of Soffici, 22 I&N bee. 158, 165 (Comm't 1998) (citing Matter ofTreasure Craft ofCal., 14 I&N De~. 190, 193 (Reg'l Comm'r 1972)). · The evaluations of Ms. and Mr.. state that they used the "Carnegie Unit," which they · assert measures post-secondary academic credit in the Unjted States, to determine the equivalency Of the beneficia_ry's university coursework iri India in U._S. 'credit .hours.Claims not backed by documents Btlt the record contains no evidence that the Carnegie Unit is a usef\Il or reliable way to evaiuateJndian university degrees, The Carnegie Unit was adopted to measure classroom time in U.S. high schools in the early 1900s, when bigh school curricula a_nd hours lacked uniformity. See www ,C(lrnegiefoundation.orwfaqs (accessed Nov. 27, 2013). Ibe Camegie Unit does not appear to apply to hi~er ¢d_uc;ation. See http://WWW.Suny.edu/fac:oltysenate/The~arriegieUnit.pdf(accessed Nov. 27,2013).
Tbe recQrd <tlso lacks peer-reviewed materials eonfirming that university I.ectttre hours in India are a _ reliable basis of comparison to U.S. university credit hours. U.S. credit hours presume two hottts of study time. for each classroom hour. See Robert A WaJls:.i:ps, The University of texas at Austin, "Assigning Undergraduate transfer Credit: It's Only an AtithtneticaJ E}!;~tcise," a,t 12; available-at http:/ /ha,ndou_ts"a<tcrao.org!a,m07 /finished/F0345p _ M -Oonahuse.pdf (accessed Nov. 27, 20l3). The record lacks evidence that the Indian system has a·similar ratio of study time ~o dassro:om bouts. Tbe 9 USCIS m<ty ex:¢rc,ise its discretion to treat expert statements as advisory opinions. See Motter of Caron int'l, Inc., 19 I&N Dec. 791, 795 (Commir 1988). But USCIS is ultimately responsible fot tbe ·- . . . .· ·. ! . . .. -·
NON-PREC~DENT DECISION
. Page 9
Watkins' article states that, unlike in the U.S., transfer credits in India are based on the number of examinations_ completed. /d.
As ipdic.ated p~evioqsly, a U,S. baccalal:}reate degree generally requires four ears of univerSity education. Shah, 17 I&N Dec. at 245. The evaluations of Ms. a_nd Mr. assert that the beneficiary; s three-year Bachelor of Science degree from India should be considered the equiva.lent of a U.S. Bachelor of Science degree because many U.S. universities offer accelerated baccalaureate progtaifis that students complete in less than four years. But there is no evidence in the record that . the three-year baccalaureate program that the beneficiary completed is comparable to aP a,ccelerated u.s .. baccalaureate program.
The evaluations of Ms. and Mr. also assert that a United Nations Educational, Scientific and Cultural Organization (UNESCO) recommendation requites the U.S. govetnment to accept academic credentials tha.t 111erit graduate school admission in other nations for graduate admission.in the U.S. The United States, however, has never ratified a UNESCO convention that requires it to recognize the higher education qualifications of another country. Althou.gh t.he UNESCO GeneraJ Conference adopted a Recommendation on the Recognition Of Studies and Qualifications in Higher Education in 1993, the United States was not thei.l a UNESCO member. In any event, the recommendation does not legally require UNESCO members to recognize the aca.demic quali:(ications of other members. See http://www.unesco.org (accessed Nov. 27, 2013). The AAO reviewed the Eiectronic Database for Global Education'· (EDGE), Which was created by tbe American· A.ssociation of Collegiate Registrars and Admissions Officers (AACRAO). The AACRAO's website states that it is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/About-At\CRAO.a.spx. 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. USCIS considers EDGE to be a reliable, peer-review~d source of information about foreign educational equivalencies, 10 .
According to EDGE, the beneficiary's three~ year Bachelor of Science 'ilegree is comparable to three years of university study in the United States.
10See Tiseo Group, /t:ic. v. Napolitano, No. 09-10072; 2010 WL 3464314 *4 (E.D. Mich. Aug. 30, 2010) (USCIS properly weighed the petitioner's educational evaluations and information from EDGE to conclucie that the beneficiary's foreign degrees were comparable to only a U.S. bachelor's degree); Sunshine Rehab Servs., Inc. v. USCIS, No. 09-13605, 2010 WL 3325442 **~-9 (E.D. Mich. Aug. 20, 2010) (USCIS was entitled to prefer the information in EDGE and did not abuse its discretion in reaching its conclusion); Confluence Int 'i, Inc. v. Holder, No. 08-2665, 2009 WL 82.5'793 *4 (D. Minn. Mar. 27, 2009) .(the AAO provided a rational explanation fot its reliance on AACRAO inforrn~tion to Sl:lpport its decision).
NON-PREC£DENT DECISION
Therefore, based on the conclusions of EDGE, the evidence on appeal does not establish that the beneficiary possesses the foreign equivalent of a U.S. bachelor's degree. , On October 10, 2013, the AAO issued a Notice of Intent to Dismiss (NOiD) the petitioner 's appeal. The AAO notified the petitioner that the record did not establish the beneficiary ' s possession of an advanced degree and afforded the petitioner an opportunity to submit additional evidence. Counsel for the petitioner responded to the NOlO with a three-page responsive brief, but did noLsubmit any new, probative evidence or documentation.
After carefully reviewing alfof the evidence in the record, the AAO concludes that the petitioner has failed to establish that the beneficiary possesses at least a U.S. academic or professional degree (or a foreign equiv~ent 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.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2)(A) of ~he Act. ·Not eligible at the time of filing
The Minimum Requlrelllents of the Offered Position
A petitioner must (llso est.ablish that the beneficiary satisfied all of the education, training, experience and any other requirements of the offered ,position by the petition's priority date. 8 C.F.R. §§ 103.2(&)(1), (12); see also Matter of Wing's Ted House, 16 I&N Dec. 158; 159 (Acting Reg' I Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45; 49 (Reg' I Comm'r 1971).
In examining the job offer portion of a labor certification to determine ' the. mmtmum job requirements of the offered position, USCIS may not ignore a term, not may it impose additional requirements. See Madany~ 696 F.2d at 1015; l(.R . .{( Irvine, Inc., 699 F.2d at 1009; Stewart Infra Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1,3 (1st Cir. 1981).
Where the job requirements are not otherwise unambiguously prescribed, e.g., by.regulation, USCIS must examine "the language of the labor certification job requirements" to determine the qualifications that the beneficiary must possess. Madatty, 696 F.2d at 1015. The only rational way to interpret job requirements of a labor certification is to "examine the certified job offer exactly as it is completed bY~ tile prospective employer." Rosedale & Linden Park Co. v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements requires "reading and applying the plain language of the [labor certification]." !d. at 834 (emphasis added). Although an employer may prepare a labor certifiCation with the beneficiary in mind, USCIS has an independent role i.n determining whether the beneficiary meets the labor certification requirements. See SnapNarnes.com, 2006 WL3491005 at *7.
In the instant case, the director interpreted the labor certification as requiring a U.S, bachelor's qeg~ee or a foreign equivalent degree in science, COIIlputer science, or a related field, plus 60 mon:ths of experience in an information technology occu:pation.
In response to the AAO's NOlO, counsel argues that the labor certification does not expressly require a four-year bachelor's degree. But P~ H.4 of the ETA Form 9089 states that the offered position requires a bachelot'.s degree. Part H.4 clearly refers to a U.S, degree because the labor certification states in Part H.9 that a foreign educational equivalent is also acceptable. Therefore, based on the plain langu_age of tbe labor certification, the AAO finds that the minimum educational requirements for the offered position are a U.S. bachelor's degree or a foreign equivalent degree. As discussed previously, U.S. bachelor's degrees generally requite four years of university Stl!Qy.
Counsel also requests that USCIS consider a new petition by the petitioner, requesting Classification of the beneficiary as a skilled worker under section 203(b)(3)(A)(i) of the Act ·The record shows that the petjtioner filed a new skilled worker petition for the beneficiary accompanied by the same labor certification after the director denied the instant petition. The record shows that OSCIS denied the new petition on March 27, 2013. As in the instant case, the director concluded that tbe petitioner failed to establish the beneficiary's educational qualifications for the offered position as required by the labor certificate~ That matter is not properly before the AAO and counsel's· request cannot be considered. For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a U.S. bachelor's degree or a single, foreign equivalent degree. Therefore, the petitioner has failed to establish that the beneficiary possessed the minimum requirements of tbe offered position stated on the labor certification by the petition's priority date. Accordingly, the petition must also be denied for this reason.
The Beneficiary's Qualifying Experience
Beyond the decision of the director, the petitioner has also not established that the beneficiary possessed the qualifying experience for the offered position by the petition's priority date. 11 The labor certification's acce·ptance of employment experience in an alternate o·ccupation without requiting any experience in the job offered is unus1,1aL The Board of Alien Labor Certification Appeals has questioned similar requirements. See Matter of Microsoft Corp., 2011-PER-00200, 2012 WL 1074397 *3 (BALCA Mar. 27, 2012) (characterizing a labor certification's requirements of no experience in the job offered but 6 months of experience in an alternate occl}pation as "conflicting"). flowever, the DOL appears to allow requirements for experience in an alt.ernate occupation without requiring experience in the job offered. See ''OFLC [Office of Foreign Labor Certification] Frequently Asked Questions and Answers/' Advertisement Content 9, U.S. Dep't of Labor, Emp't & Training Admin., available at http://W;ww.foreignlaborcert.doh!ta.gov/ faqsanswers.cfm#&dcont9 (accessed Nov. 27, 2013) (an employer's advertisement is not requited to inClude a statement that it will accept any suitable combination of education, training, and/or experience where it indicates that the. offered position requires experience in an alternate occupation and not in the job offered).
· A petitioner must establish that the beneficiary possessed all the education, training, and experience specified on the labor certification as of the priori~y date. 8 C.F.R. §§ 103.2(b)(l), (12); see also Wing's Tea llo~s£:, 16 I&N Dec. · at 159; Katigbak, 14 I&N Dec. at 49. IIJ. e.v~luating the beneficiary' .s qualifications for the offered position, USCIS must examine the job offer portion of the labor certification to determine the minimum job requirements. {)SCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 101.5; K.R.K. Irvine, 699 F.2d ~t 1009; Stewart Infra-Red Commissary, 661 F.2d at 3.
In the instant case, the labor certification states that the offered position of d~tabase administrator requires 60 mout.ns of employment experience in an information technology occupation. On the labor certification, the beneficiary claims about 150 months of full-time experienee in information technology, as follows:
- About 24 moiJ.tbs as a computer programmer analyst with the petitioner in the United States from · February 11, 2010 u:rttil the petition's priority d~;tte of february 19, 20 12;
- About 28 months as a computer programmer ana.lyst with in the United States froiil OCtober 15, 2007 until February 10, 2010;
- About 8 months as a computer programmer analyst with in the United States from February 1, 2007 to October 12, 2007;
- About 41 months as a computer technical lead with in the United Kingdom from May 12, 2003 to October 11, 2006;
- About 2 months as a computer programming manager with in India from March 8, 2003 to May 1, 2003;
- About 17 montlls as a computer project lead with in Singapore ftom May 2, 2001 to September 30, 2002;
' About 12 months as a eorrtputer project lead with in Singapore from March 17, 2000 to March 25, 2001; ·
- About 7 months as a computer project lead with from August 3, 1999 to .March 15, 2000; and
- About 35 months as a senior softWare programmer with from August 5, 1996 to July 2, 1999.
Page i3 establish the beneficiary's dates of employment with the companies. The copies of the July 31; 2006 offer letter and ~igp.ed employment agreement from indicate that the company offered the beneficiary a position as a col)lputer programmer analyst and that he agreed to work for the company. But the documents do not establish for how long the beneficiary worked for or even that the company employed him at all.
Similarly, the May 10, 2003 letter from ipdicates that the beneficiary ended employment with the company on May 10, 2003. However, the letter does not s~ate tpe beneficiary's start date of employment or his position with the company. The letter also does not contain an address or describe the beneficiary's experience purstHlnt to the regulation at 8 C.F.R. § 204.5(g)(l ).
The_ letter from also does qot describe the beneficiary's experience pursuant to the regulation at 8 C.F.R. § 204.5(g)(1).
For the foregoing reasons, tb.e petitioner has· failed to establish that the beneficiary possessed 60 months of experience in an information technology occtJpation as required by the labor certification by the petition's priority date. ·
The Petitioner's Ability to Pay the Proffered Wa.ge
Also beyond the decision of the director, the petitioner has failed to establish its contim!ing abiliJy to pay the beneficiary's proffered wage.
A petitioner must demonstrate. its continuing ability to pay the proffered wage from the petition's priority d_ate, continuing uv.til the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ab-ility to pay "shall be in the form of copies of annual reports, federal tax returns, or audited financial statements." /d.
The record before the director closed on October 19, 2012, with his receipt of the petitioner's response to his request for evidence. As of that date, the petitioner's 2011 federal income tax return was the most recent return available.
The AAO's NOID requested evidence of the petitioner's ability to pay the beneficiary's proffered Wage of$95;576 per year from the petition's priority date of February 19,2012 onward. However, the petitioner's response to the NOID did not include any evidence of its ability to pay the proffered wage or indicate that the evidence was unavailable.
The petitioner's unexplained faifure to provide complete annual reports, federal t_ax returns, or audited financial statements for each year beginning with the year of the priority date constitutes grounds to dismiss this appeaL The failure to · submit requested evidence that precludes a material line of inquiry is ground to dismiss. 8 C.F.R. § 103.2(b)(14).
NON~PRECEDENT DECISION
Al_so, USCIS records ~bpw that, since 1999, the petitioner has filed at least 40 I-140 petitions for other beneficiaries. Accordingly~ the petitioner must eslablish its contin11i11g ability to pay the combined proffered wages of the instant beneficiary and the beneficiaries of its other petitions that were pending from the priority date ofthe instant petition onward. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977).
The record does . not document the priority dates, proffered wages, or wages. paid to the petitioner's other beneficiaries. The record also does not establish whether any of the other petitions were withdrawn, revoked, or denied, or whether any of the other beneficjaries obtained lawful permanent residence. Thus, the petitioner has not established its continuing ability to pay the combined proffered wages of the beneficiary and the beneficiaries of its other petitions . .
Accordingly, the petitioner has also failed to establish its continuing ability to pay the beneficiary's proffered wage .from the petition's priority date on;ward.
The AAO's NOID notified the petitioner of the AAO intention to dismiss this appeal on the additio·nal grounds of the petitipner's failure to establish the beneficiary;.s qualifying experience for the offered position and its continuing ability to pay the proffered wage. The NOI.P also requested additional evidence·regarding these issues.
In response to the NOID, counsel states: "Due to the fact that the experience and petition~r's ability to pay have not been raised at this time. The issue is not in question."
Counsel appears to argue that the AAO lacks authority to dismiss the petitioner's appeal on grounds that the director did not invoke. The AAO, however, may deny art application or petition that fails to comply with the technical requirements of the law, even if the director did not identify all or'the grounds for denial in the initial decision. See Spen(:er En,ts., lnc. v. Uniteci States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
Moreover, the AAO notified the petitioner of the additional defects in its petition and afforded it an opportunity to rebut the proposed findings. Therefore, the AAO wi_ll dismiss the · appeal _ on the additional grounds that the petitioner failed to establish its continuing ability to pay the proffered wage and the beneficiary's qualifying experience for the offered position.
Conclusion
' I.n summary, the petitjpi)er bas failed to establish t_hat the beneficiary possessed an advanced degree as requited by the terms of the labor certification and the requested preference classification . Therefore; the. beneficiary does not qualify for classification as a member of the professions holding . an advanced degree under section 203(b )(2)(A) of the_ Act. The dire:ctor's decision denying the petition is affirmed. p. 15 the AAO also finds that the petitioner has failed to establish the beneficiary's qualifying experience for the offered position by the p~tition's priority date and its continuing ability to pay the beneficiary's proffered 'Nage from the priority date onward. Accordingly, the petition must also be denied for these reasons.
The appeal will be dismi.ssed for the e1bove stated reasons, with each considered an independent and alternate basis for the decision. In visa petition proceedings, the petitioner must establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127; 128 (BIA 2013). Here, theit burden has not been met.
ORDER: The appeal is dismissed.