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-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incon·ectly 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 (Form 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, filing location, and other requirements. See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO.
Thank you,
/�(-( ?X
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner appealed this den ial to the Administrative Appeals Office (AAO), and we dismissed the appeal on February 1, 201 3. The petitioner filed a motion to reopen and reconsider our decision, and we reopened and affirmed the prior decis ion on August 15 , 20 13. The petitioner filed a second motion to reopen and reconsider, and we again reopened the matter and affirmed our prior decision on May 9, 20 14 . The matter is again before us as a motion to reopen and reconsider. 1 The prior decis ion of the AAO, dated May 9, 20 14 , will be reopened, a new decis ion will be entered, and the petition will remain denied.
The petitioner states on the Form I -14 0 that it operates as " ' It seeks to employ the beneficia ry permanently in the United States as an "Industrial Engineer/Quantitative Analyst." The director's decision denying the petition concludes that the job offer portion of the labor certification does not meet the minimum requirements for classi fication as a member of the profess ions with an advanced degree. We affirmed the director's decision on appeal, as well as the petitioner's motions to reopen and reconsider our decision, concluding, as did the director, that the requirements in Parts H. 8-C and H. 14 of the labor certification demonstrate that the position offered does not qualify as a position under the advanced degree profess ional category.
The procedural history in this case is documented by the record and incorporated into the decis ion. Further elaboration of the procedural history will be made only as necessa ry.
The AAO conducts appella te review on a de novo basis. 2 We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal or motion. We may deny a petition that fails to comply with the technical requirements of the law even if the director does not identify all of the grounds for denial in the initial decision. 3 The petitioner requests class ification of the benefic iary as an advanced degree profess ional pursuant to section 203( b)(2) of the Immigration and Nationality Act (the Act), 8 U. S.C. § 11 53 (b)(2), which, in pertinent part, 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 pr of�ssional 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 baccal aureate 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 ." ld. 1 The instant motion contains new facts with supporting documentation to meet the requirements of a motion to reopen under 8 C.F.R. § l03.5(a)(2). Counsel asserts on motion that our previous decision constituted an erroneous decision through misapplication of law or policy and therefore qualifies for consideration as a motion to reconsider under 8 C.F.R. § 103.5(a)(3). Therefore, the petitioner's motion is properly filed.
Procedu Ral Hist Ory
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. Department of Labor (DOL) . 4 The priority date of the petition is August 21, 201 1. 5 Part H of the labor certification states that the offered position has the following mm1mum requirements:
H.4 . Education: Master's degree in "Industrial Engineering."
H.5. Training: None required.
H.6. Experience in the job offered: 36 months.
H. 7. Alternate field of study: "Busi ness Administration or related field."
H.8. Is there an alternate combination of education and experience that is acceptable? Yes. H.8-A. If Yes, specify the alternate level of education required: Other.
H.8- B. If Other is indicated in question 8-A, indicate the alternate level of education required: "C ombination of education and experience in lieu of a Master's degree. " H. 8-C . If applicable, indicate the number of years experience acceptable in question 8: "4. " H.9. Foreign educational equivalent: Accepted.
H.1 0. Experience in an alternate occupation: None accepted.
H. 14 . Specific skills or other requirements: Applicant must have a combination of education and experience equivalent to a Master's degree in Industrial Engineering, Business Administration, or a related field, with strong statistical background and analytical skills and a minimum of three years of experience in the financial industry. Excellent writing and communication skills are also necessary. (The three years of experience in the financial industry is a necessity of the business to ensure sufficient exposure to the financial services industry to enable the applicant to perform the required duties effectively. This experience may have been gained either as a part of the degree equivalency or separately.) (The 4 years of experience in Block H.8-C. reduces to 2 years for a Bachelor's degree holder in any of the specified fields.)
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Industrial Engineering from the completed in 1998. The record contains a copy of the beneficiary's bachelor's degree and academic transcripts from the issued in 19 98.
In our previous decision we held: (1 ) that U.S. Citizenship and Immigration Services (USCIS), and not the DOL, has the authority to determine whether the position offered qualifies for a specific employment-based classification under the Act irrespective of the role of the DOL in certifying the labor certification; (2) that the position offered does not qualify for classification within the advanced degree professional category because the minimum requirements for the position allow for education that is less than an advanced degree; and (3) that the beneficiary does not possess five years of post-4 See section 212(a)(5)(D ) ofthe Act, 8 U.S.C. § ll82(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 5 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). p. 4 baccalaureate experience in the specialty to be classified as an advanced degree professional. Counsel raises each of these issues again on motion.
II. LAW AND ANAL YSrS
The Roles of DOL and USC/Sin the Immigrant Visa Process Regarding the authority of the USCrS, counsel asserts that USCrS has misinterpreted the regulations regarding its authority to review employment-based immigrant petitions. Specifically, counsel states that "USers has failed to distinguish the educational and experience requirements for the position from the educational and experience qualifications of the alien. The former falls to the DOL; the latter to users." Counsel further states the following in summary, which will be discussed at greater length . below:
[T]he respective roles of the Department of Labor and the USCrS in the employment immigration process present an important issue, one that affects and has affected thousands and thousands of immigrant petitions based on certified labor certifications . Contrary to statute, regulations, and case law, the USCIS has encroached upon the domain of the DOL by seeking to substitute its own interpretation of education and experience parameters specifically mandated for the DOL' s form ETA-9089. The law is clear that the employer and the DOL define the job offered and the USCIS determines whether the alien worker satisfies the position requirements. Follow ing this division of authority, the DOL has certified a minimum Master's degree level position to the USCr S. And we have shown that [the benefici ary] has the Bachelor's degree and five years of progre ssive post baccala ureate experience to meet this requirement.
In our decisions dated August 15 , 20 13 and May 9, 20 14 , we discussed the respective roles of the DOL and USCr S in the employment-based immigrant visa process. As counsel asserts that we have encroached upon the DOL 's authority, we clarify at the outset what the division of authority between the DOL and the USCr S entails .
The Authority of the DOL
The comi in SnapNames.com, Inc. v. Chertoff (SnapNames), No. CV 06- 65-MO, 2006 WL 349100 5 (D. Or. Nov. 30, 2006), provided an accurate assessment of the employment-based immigrant petition process and the division of authority between the DOL and USCIS, as follows: 6 Certain employment-based visa petitions .. . require a labor certification [that is certified by the DOL] (See 8 C.F. R. § 204 . 5(k)(4) for advanced degree professionals;
[T]he petitioner submits an application for certification to the DOL describing the jo b at issue and identifying the alien benefici ary. The petitioner also defines the "minimum education, training, and experience for a worker to perform satisfactorily the job duties." In issuing the certification, the DOL considers the jo b, as defined by the petitioner, and certifies that (1 ) "there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled ... labor," and (2) "the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employe d." 8 U. S.C. § 11 82( a)(5)(A)(i).
SnapNames. com, Inc. , 2006 WL 349 1 00 5, at *4-5. Other federal circuit comts have described the authority of the DOL as follows:
Given the language of the Act, the totality of the legisla tive history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 21 2(a)( 14 ).7
Madany v. Smith, 696 F.2d 10 08, 10 12- 1013 (D.C. Cir. 19 83). Relying in part on Madany, 696 F.2d at 10 08, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employm ent upon the domestic labor market.
KR.K. Irvine, Inc. v. Landon, 699 F. 2d 1006, 10 08 (9th Cir. 19 83). The Ninth Circuit, citing K.R.K Irvine, Inc., 699 F. 2d at 10 06, similarly stated:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the jo b will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 21 2(a)(1 4), 8 U. S.C. § 11 82( a)(l4).8 Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 13 05 , 13 09 (9th Cir. 19 84). These cases demonstrate that, pursuant to section 21 2(a)(5)(A)(i) of the Act, the DOL certifies that the benefic iary's employment will not adversely affect similarly employed U. S. workers.
As will be discussed further below , one issue that appears to cause confusion regarding the division of authority between the DOL and USCIS relates to which agency reviews the benefic iary's qualifications . Although the DOL may also address the benefic iary's qualifications for its specific purposes, this is primarily a requirement for USCIS. As the court stated in Madany v. Smith, 696 7 Based on revisio ns to the Act, the cunent citation is section 212(a)(5)(A).
NON-PRECEDENTDEC§ION
F.2d at 1012, the fact that an inquiry into an alien's skills or quali fications is not one of the inquiries expressly allocated to DOL, discussed below under the section on USCIS authority, "this does not mean that DOL cannot, or does not, undertake analysis of an alien's qualifications as it performs its statutory functions ." (Emphasis added). The court further stated:
Indeed, DOL may gauge an alien's skill level in evaluating the effect of the alien's employment on United States workers. The fact that DOL may find such an analysi s useful, however, does not foreclose INS from consi dering alien qualifica tions in the preference classification decision.
!d. Therefore, the DOL has the authority to determine the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. Any inquiry that the DOL makes into the beneficia ry's qualifications is done for the purpose of performing its statutory functions under section 212(a)(5)(A)(i) of the Act regarding the potentia l impact of the beneficiary's employment upon the U.S. workforce.
Therefore, the authority of the DOL regarding employment-based v1sa petitions under section 212(a)(5)( A)(i) of the Act, 8 U.S.C. § 1182( a)(5)(A)(i), is to certify:
(1 ) That there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of applica tion for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) That the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
The Authority of the US CIS
The court in SnapNames continued its analysis of the division authority between the DOL and users, as follows:9
Once certified, the petitioner applies for a visa with [USCIS] , submitting DO L's certification in support as required by the regulations. 8 C. F. R. § 204 . 5(k)(4) (advanced degree professiona ls); 8 C.F. R. § 204 . 5(1)(3 )(i) (professionals, skilled workers and other workers). It is then [USCIS' s] responsibility to determine whether the alien is qualified for a visa under the applicable statute and regulations and under the terms of the certification. 8 U.S.C. § 11 54(b); 8 C.F. R. § 204 . 5(1)( 3) (ii)( A)-( D). (Emphasis added).
SnapNames.com, Inc., 2006 WL 3491 00 5, at *4-5. We note the following in further establishin g the authority of USCIS in adjudicating employment-based immi grant petitions:
1. USCIS Determines Whether the Beneficiary Qualifies for Classification Within the Category Requested Under the Act.
The regulations pertaining to employment-based immi grant petltlons under 8 C.F. R. § 204 . 5 specifically state what documentation must be submitted to USCrS with the Form r-1 40 to demonstrate that the beneficiary qualifies for classification under the particularly category requested. See 8 C.F. R. § 204 . 5(k)(3 ) (for "advanced degree professional s, " relating to the instant case); see also, e.g. , 8 C. F.R. § 204 . 5(1)(3 )(C) (for "professionals "); 8 C. F.R . § 204 . 5(1)(3 )(ii )(B ) (for "ski lled workers"); and 8 C.F. R. § 204 . 5(1)(3 )(ii)(D) (for "unski lled (other) workers"). 10 Accordingly, based upon the documentation required by these regulations, users makes the determination as to whether the bene ficiary meets the requirements for classi fication under the particular employment-based category requested.
It is significant that none of the inquiries assigned to the DOL under section 21 2(a)(5)(A)(i) of the Act, or the regulations implementing these duties under 20 C.F.R . § 656, involve a determina tion as to whether the alien is qualified for a specific immigrant classification. "There is no doubt that the authority to make preference classifi cation decisions rests with INS. The language of section 204 cannot be read otherwise. " Madany v. Smith, 696 F.2d 10 08, 1012 -1013 (D.C. Cir. 19 83) (Citing Castaneda-Gonzalez v. INS, 564 F.2d 41 7, 429 (D.C. Cir. 19 77)).
Relying in part on Madany, 696 F.2d at 10 08, the Ninth Circuit stated:
It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth pref erence status. That determination appears to be delegated to the INS under section 204 (b), 8 U.S.C. § 11 54(b), as one of the determinations incid ent to the INS's decision whether the alien is entitled to sixth preference status.
K.R.K. Irvine, Inc. V. Landon, 699 F.2d 10 06, 10 08 (9th Cir. 19 83). Therefore, users, and not the DOL, determines whether the beneficiary is qualified for the employment-based classification requested.
2. USCIS Determines Whether the Beneficiary Meets the Terms of the Labor
Certification.
The petitioner must establish that the beneficiary satisf ied all of the educational, training, experience and any other requirements of the offered position by the priority date. 8 C.F.R. § 10 3. 2(b)(l), (12). See Matter o.f Wing's Tea House, 16 r&N Dec. 15 8, 15 9 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 r&N Dec. 45,49 (Reg. Comm. 19 71) .
US CIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 10 15. 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 ." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D .C. 19 84) (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]." Jd. at 834 (Emphasis added).
Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See SnapNames.com, Inc., 20 06 WL 349 1 00 5, at *7 (D. Or. Nov. 30, 2006 ). Therefore, USCIS has the authority to determine whether the beneficiary meets the terms of the labor certification. 3. USCIS Determines Whether the Position Offered as Stated on the Labor Certification Meets the Requirements of the Employment-Based Classification Requested.
On motion, counsel correctly states that USCIS has the authority to determine whether the beneficiary is qualified for the position offered. Counsel has not questioned the authority of USCIS to determine whether the beneficiary meets the terms of the labor certification. Instead, at issue in this case is whether USCIS or the DOL has the authority to determine whether the position offered meets the advanced degree professional requirements for the class!fication.
In our previous decision, we cited the regulation pertaining to visa petitions filed for "advanced degree professionals " under 8 C.F. R. § 204 .5(k)(4)( i) to demonstrate the authority of USCIS to determine whether a position qualifies under this particular category. On motion, counsel states that the regulation at 8 C.F. R. § 204.5(k) "is all about 'Aliens who are members of the professions holding advanced degrees ... ' not positions."
The regulation at 8 C.F.R. § 204.5(k) states the following, in pertinent part:
(k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.
(3) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree .. .
(4) Labor cert[fication or evidence that alien qualifies for Labor Market Information Pilot Program-
(i) General. Every petition under this class ification must be accompanied by an individual labor certification from the Department of Labor, by an application for Schedule A des ignation (if applicable), or by do cumentation to establish that the alien qualifies for one of the shortage occupations in the Department of Labor's Labor p. 9 Market Information Pilot Program .... The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.
(Emphasis added). Counsel's assertion that 8 C.F. R. § 204 . 5(k) only addresses the qualifications of alien beneficiaries is incorrect. The regulation at 8 C.F. R. § 204 .5(k)(3 ) does refer to whether the alien qualifies for classifi cation as an advanced degree professional, as counsel asserts; however, the regulation at 8 C.F. R. § 20 4.5(k)( 4)(i), italiciz ed above, refers to whether the position qualifies for this classi fication. The determination by USCIS as to whether "the job offer por tion of the labor certification ... requires a professional holding an advanced degree or the equivalent " is an inquiry USCIS makes that is distinct from the review of the beneficiary's qualifications . If USCIS only had authority to determine whether the beneficiary, and not the position offered, qualifies for classi fication under the advanced degree professi onal category as counsel asserts, one may ask why the regulations state that US CIS must determine that the "job offer portion of the labor certification . . . requires a professi onal holding an advanced degree. " The plain meaning of 8 C.F. R. § 204.5(k)( 4)(i) is that USCIS has the authority to verify that the position offered qualifies as an advanced degree professi onal position because the "job offer portion of the labor certification, " which includes the position's minimum requirements, relates solely to the position offered and is separate from the requirement that the beneficiary must qualify as an advanced degree professional. Therefore, the regulation at 8 C.F. R. § 204 . 5(k)(3) requires that USCIS determine whether the beneficiary qualifies as an advanced degree professional, and the regulation at 8 C.F. R. § 204 . 5(k)( 4)(i) requires that users determine whether the position offered meets the requirements for an advanced degree professi onal position.
On the labor certification, both the primary and the alternative requirements constitute the minimum requirements for the posi tion offered. In ascertaining whether the pos ition offered qualifies for classifi cation as an advanced degree professi onal position, users must ensure that both the primary and alternate requirements of the position offered meet the requirements of a professional holding an advanced degree or the equivalent. If the DOL finds that the alternate requirements as stated on the labor certification are substantially equival ent to the primary requirements to warrant granting certification, this only means that the DOL is certifying that this position will not adversely affect similarly employed U. S. workers. However, the mere fact that the DOL certifies the labor certification does not prevent USCIS from concluding that the overall minimum requirements for the position, including both the primary and the alternate requirements, do not meet the mm1mum requirements for the class ification requested in the immigrant visa petition. 11 On motion, counsel references Hoosier Care, Inc. v. Chertojf, 482 F.3 d 987 (ih Cir. 2007), for the premise that the DOL determines the requirements of the pro ffered position and that USCIS cannot make an inquiry into whether the position as certified by the DOL meets the requirements of a We also note that when the DOL certifies the labor certification, this does not prevent USClS from addressing whether the positio n offered constit utes a bona fide job offer, including wheth er the labor certi fication may be subject to fraud or willful mis representa tion under 20 C.F.R. § 656.31(d), particularly when the petitioner fails to disc lose a family or corporate relationship as requested in Part C.9 of the labor certification. p. 10 particular classi fication. As we stated in our prior decision, the holding in Hoosier Care is not binding here as the instant matter is not within the Seventh Circuit. We are bound by the Act, agency regulations, precedent decis ions of the agency and published decisi ons from the circuit court of appeals from whatever circuit that the action arose.
Even if the instant case had arisen in the Seventh Circuit, we find that the court's holding in Hoosier Care regarding the division of authority between USCIS and the DOL, based upon the regulation at 8 C.F.R . § 204 . 5(1)( 4), differs from our interpretation of the Act and this regulation. In Nat' l Cable & Telecommunications Ass'n v. Brand X Internet Servs. (Brand .x], 545 U.S. 967, 982-84 , 125 S. Ct. 2688, 2700- 01, 162 L. Ed. 2d 820 (2005 ), the Supreme Court held that, cons istent with "Chevron deference," an agency charged with interpreting a statute that is silent or ambiguous as to a particular issue may choose a different construction than a court "since the agency remains the authoritative interpreter (within the limits of reason) of such statutes." !d. An agency's interpretation is entitled to Chevron deference because "it is for agencies, not courts, to fill statutory gaps." !d. at 982 (citing Chevron USA., Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 843 -844, and n. 11, 104 S.C t. 2778)). The holding of Brand X allows for Chevron deference to an agency's interpretation even if a court's decision precedes that of an agency. !d. at 983 .
First, in this case, the Act is silent as to the issue of whether the DOL or US CIS has the authority to determine whether a position offered meets the necessa ry requirements under employment-based immigrant petition classifications. Second, the regulation that the com1 cited in Hoosier Care regarding the division of authority between USCIS and the DOL, 8 C.F.R . § 204.5(1)( 4), is ambiguous, and therefore, Chevron deference should be given to our interpretation of it. See Christensen v. Harris Cnty., 529 U.S. 576, 588, 120 S. Ct. 1655, 1663, 146 L. Ed. 2d 621 (2000) (citing Auer v. Robb ins, 519 U.S. 452, 461, 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997), in which the court held that "an agency's interpretation of its own regulation is entitled to deference.") Specifically, the regulation relied upon by the court in Hoosier Care at 8 C.F. R. § 204 . 5(1)(4) states the following:
(1) Differentiating between skilled and other workers. The determination of whether a worker is a skilled or other worker will be based on the requirements of training and/or experience placed on the job by the prospecti ve employer, as certified by the Department of Labor. In the case of a Schedule A occupation or a shortage occupation within the Labor Market Pilot Program, the petitioner will be required to establish to the director that the job is a skilled jo b, i.e., one which requires at least two years of training and/or experience.
(Emphasis added) . The court in Hoosier Care held that this language means that "the determination of what kind of training is required to classify an alien as a 'skilled' worker is made by the Labor Department upon cons ideration of the submission by the alien's prospective employer." 482 F.3d at 989. The court further concluded that USCI S only determines whether the alien meets the requirements of the labor certification. !d. The language of 8 C.F .R. § 20 4.5(1)(4) is ambiguous because it states on what the determination of whether a worker is a skilled or other worker will be p. 11 Page II based, but it does not specifically state which agency will make that determination. However, the next phrase in this regulation states that this determination will be based on the requirements of the labor certification "as certified by the Department of Labor, " which demonst rates that USCIS will make this determination based upon the already certified labor certification.
We stated in our previous motion that the logical interpretation of this regulation at 8 C. P. R. § 204 . 5(1)( 4) is that users, and not DOL, makes the determination of whether the filing meets the requested category because, in deciding whether to certify a particular labor certification, the DOL is not notified as to what level of class ification ("professi onal," "skilled worker, " etc.) the employer is seeking for the pos ition offered. Further, the DOL does not and is not required to review the regulations pertaining to each of these categorie s. It is the Form r-1 40 that is filed with USCrS, which is not part of the labor cer tification process and not reviewed by the DOL, that states which level of class ification the employer seeks. The regulations have the same pattern stated above for the "advanced degree professi onal " and "professi onal " categories, 8 C. P. R. §§ 20 4.5(k)(4) (i) and 204.5(1)(3)(i), respectively, which give users the authority to determine whether the pos ition falls within the particular category at issue. 12 Nothing in the regulat ions at 20 C. P. R. § 656, pertinent to labor cetiifications, gives the DOL this authority.
Therefore, desp ite the court' s holding in Hoosier Care that the DOL determines whether a posi tion offered meets the requirements for skilled worker class ification under the Act, pursuant to the Supreme Court's holding of Brand X, we reach a different interpretation, namely that users has the authority to determine whether a posi tion offered meets the requirements for class ification under the category requested, regardless of whether it is in the advanced degree professional, professi onal or skilled worker category .
As further support for the conclusi on that USCr S has the authority to determine whether the posi tion offered qualifies for consideration under the particular category requested, the regulation for "professional workers " and "skilled workers " similarly give USCIS this authority. 13 Although not the category at issue in this case, the regulation at 8 C. P. R. § 204 . 5(l)( 3 )(i) regarding the "professional worker " category states that "[ e ]very petition under this class ification must be accompanied by an individual labor certification from the Department of Labor .. . The job offer portion of an individual labor certification ... must demonstrate that the jo b requires the minimum of a baccalaureate degree." The fact that this regulation, which pertains only to users and is nearly identical to 8 C. P. R. § 204 . 5(k)(i), requires that the jo b offer portion of the labor certification meets a particular threshold demonstrates that USCIS has the authority to determine whether the posi tion as The second sentence of 8 C.F.R. § 204.5(1)(4) states, "The petitioner wil l be required to establish to the director tha t the job is a skilled job, i.e., one which requires at least two years of training and/or experience" [in the case of a Schedu le A occupation or a shortage occupation] (Emphasis added). However, the reference to the directo r's review of the minimum requirements in this sentence is specific to Schedule A or shor tage occ upations in which a certified labor certification applica tion is not required. In those cases, the petitioner must submit a compl eted labor certification application signed by the petitioner and the bene ficiary to USCIS directly, even though it is not first certified by DOL. 13 As noted above and in our previous decision, the regulations for "professio nal workers" and "skilled workers" do not relate to the instant petition but are instructive in demonstra ting the authority of USCIS in the adjud ication of immi grant petitions. We again ci te them here to demons trate that the regulations consi stently demonstr ate that USCIS has the authority to determine whether the position offered quali fies under a particular preference category. p. 12 stated on the labor certification, and certified by DOL, qualifies as a position offered for the requested class ification.
Similarly, not the category requested here, the meaning of the regulation at 8 C.F. R. § 204 . 5(1)(4)14 regarding the "ski lled worker" classification is that users will make the determination of whether a worker is a ski lled or other worker based upon the already certified labor certification. To support the assertion that the DOL determines whether the position offered qualifies under a particular classification, counsel has submitted the DOL' s Standard Operating Procedur es (SOP), 15 dated December 10, 201 0, which includes a section on "verifying job opportunity requirements." This section states in Part C that in certifying the labor certification, the DOL analyst determines whether the primary and alternate requirements are substantially equiva lent by using Speci fic Vocational Preparation (SVP). The regulation at 20 C. F.R . § 656. 1 7(h) states, in pertinent part: (h) Job duties and requirements. (1) The jo b opportunity's requirements, unless adequately documented as arising from business necessity, must be those norn1ally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones.
( 4)(i) Alternative experience requirements must be substantially equival ent to the primary requirements of the job opportunity for which certification is sought.
The DOL' s Standard Operating Procedures provides an SVP chart which equates levels of education to an equivalent number of years of vocational preparation, which allows both experience and education to be measured under one common denominator. Counsel seems to state that because the DOL utilized the SVP Worksheet in the instant case to determine that the alternative education and experience requirements of the labor certification are substantially equivalent to the primary education and experience requirements, the DOL has certified that the position qualifies for classification as a master's degree le vel position under the advanced degree professional category. However, as stated above, the Ninth Circuit stated the following, relying in part on Madany, 696 F.2 d at 1008:
[I]t appears that the DOL is responsibl e only for determining the availability of suitable American workers for a jo b and the impact of alien employment upon the domestic labor market.
Although the DOL' s inquiry into SVP relates to the "job opportunity requirements" and whether the beneficiary meets those requirements, as stated above, the court held in Madany v. Smith, 696 F.2d at 1012 , that even though an inquiry into an alien' s skills or qualifications is not one of the inquiries expressly allo cated to DOL, "this does not mean that DOL cannot, or does not, undertake analysis of 14 As stated above, this is the regu lation that the court addressed in Hoosier Care.
an alien's qualifications as it performs its statutory function s." Accordingly, the court held that "DOL may gauge an alien's skill level in evaluating the effect of the alien's employment on United States workers." Madany, 696 F.2d at 10 12. The DOL' s inquiry into SVP serves this purpose to prevent the employment of alien beneficiaries from adversely impacting U.S. workers. Counsel has not stated how SVP applies to whether the position offered qualifies under the advanced degree professional category. As stated above, the SVP is used to determine whether the alternate and primary requirements are normal for the occupation, a requirement mandated by the DOL regulations apart from those of users relating to immi grant visa classification. The DOL regulations at 20 C.F. R. § 656.1 7 do not state anything about certifying a particularposi tion under a particular immigrant visa classification.
Therefore, in summary regarding the division of authority between the DOL and USers, as supported by section 212(a)(5)(A)(i) of the Act, as well as the court's decision in Madany v. Smith, 696 F.2 d at 1012 -1013 (D.C. Cir. 19 83) , the DOL only has the authority under section 212 (a)(5)(A)(i) of the Act to certify:
(1 ) That there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unski lled labor, and (2) That the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the speci alty, the alien must have a United States doctorate or a foreign equival ent degree.
A "profession" is defined as "one of the occupations listed in section 101( a)( 32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equival ent is the minimum requirement for entry into the occupation. " The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 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) An official academic record showing that the alien has a 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 equivalent 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.
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.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. See 8 C.F. R. § 204. 5(k)(4)(i). Both of these requirements describe the minimum requirements for classification under section 203( b )(2) of the Act. Therefore, US CIS has the obligation to determine whether both the primary and alternate requirements, as minimum requirements for the position offered, meet the terms of the Act for classification as an advanced degree professi onal.
In this case, Part H. 8-C of the labor certi fication states that the petitioner would accept a master's degree and three years of experience as the primary qualifications or "other" education as the alternate, allowing for a "combination of education and experience in lieu of a master' s degree" and four years of experience. Part H.1 4 of the labor certification states that this combination may reduce to two years "for a Bachelor's degree holder in any of the specified fields." This means that the petitioner will accept a Master's degree in Industrial Engineering, Business Admini stration or a related field and 36 months of experience in the jo b offered; or, alternately, the petitioner will accept unspecified education and four years of experience or a bachelor's degree and two years of experience. In our previous decisions, we held that these minimum requirements do not meet the minimum requirements for classification of the position under the advanced degree professional category.
On motion, counsel states that the ETA Form 9089 and its instructions indicate that "block H.8- C does p. 15 not apply when 'Other' is checked in block H.8- A. " The instructions 16 to the ETA Form 9089 state the following regarding Part H:
8-A. If the answer to question 8 is Yes, select the alternate level of education that is acceptable in combination with the number of months of experience specified in question 8-C.
8-B. If the answer to question 8-A is Other, enter the alternate level of education that is acceptable.
8-C. If the answer to question 8 is Yes, enter the number of months of experience in the job offered that is acceptable in combination with the level of education specified in question 8-A.
These instructions and the questions on the ETA Form 9089 demonstrate that if the answer to question 8 is Yes, which is the case here, the petitioner is directed to en ter the amount of experience in the job offered that is acceptable in Part H.8- C as part of the alternate combination of education and experience. As stated above, the petitioner indicated in Part H.8 -C that four years of experience is acceptable as part of the alternate combination of education and experience. Thus, contrary to counse l' s assertions, Part H. 8-C does apply and it states a requirement that is below the minimum requirements for the position offered to be classified as an advanced degree professio nal under section 203(b)( 2) of the Act. As also stated above, the ETA Form 9089 lists the alternate requirements as "Other" (unspecified education) and four years of experience or a bachelor 's degree and two years of experience. Neither of these requirements is at least a professional degree above a baccalaureate or a baccalaureate followed by at least five years of progressive experience in the specialty. 17 Therefore, the positi on offered does not qualify for classification as an advanced degree professio nal position.Five years of progressive experience not documented The Beneficiary Does Not Meet the Minimum Requirements for Classification as an Advanced Degree Professional
The regulation at 8 C.F. R. § 204 .5(k)(3 ), pertaining to the classifica tion sought in this case, states: The petition must be accompanied by documenta tion showing that the alien is a professional holding an advanced degree.
An advanced degree is a United States academic or profession al 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 cons idered the equivalent of a master 's degree ." See http://www.f oreig nlaborcert.dol eta.gov/pdf/9089inst. pdf (accessed December 1, 20 14 ). 1 7 Even if Pmi H.8 of the ETA Form 9089, as certified, could be interpreted to requ ire an advanced degree, the petitioner's alternate requirement in Part H. l4 states that a bachelo r's degree plus two years of experience is acceptable, which is Jess than the requir ements for an advanced degree. Therefore, the language in Part H. l4 demonstr ates that the petitioner is wil ling to accept less than an advanced degree for the proffered position and the position offered cannot be cla ss ified as an advanced degree professional position.
As stated above, the labor certification requires a Master 's degree in Industrial Engin eering, Business Administration or a related field and 36 months of experience in the job offered; or, alternately, unspecified education and four years of experience or a bachelor's degree and two years of expenence.
In om August 15 , 20 13 and May 9, 20 14 decisions, we determined that, beyond the decision of the director, the petitioner had failed to establish that the beneficiary possessed the experience requirements to qualify as an advanced degree professional. As stated above, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalameate, or a U.S. baccalameate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. See 8 C.F. R. § 204. 5(k)(4)(i). Therefore, even if the petitioner had required a bachelor's degree plus five years of experience for the position offered on the labor certification, it would still need to establish that the beneficiary has a bachelor's degree and five years of progressive experience in the specialty. See 8 C.F. R. § 204. 5(k)(2). The record reflects that the beneficiary possesses a Bachelor's degree in Industrial Engineering from the however, the beneficiary's employment in the specialty, as an Industrial Engine er/Quantitative Analyst with , only covers a period of time of three years and six months, which is one year and six months short of the five years of experience required to qualify as an advanced degree professional. 18 We held in om previous decision, dated May 9, 20 14 , that the beneficiary' s experience as president and CEO of did not constitute qualifying experience for the position offered. 19Inconsistencies in the record
On motion, counsel asserts that the beneficiary possesses five years of experience in the specialty due to his experience with On motion, the petitioner
NON-PRECEDENT DECISiON homes and commercial buildings. He states that he "created a network of business clients and suppliers" and that he "developed and directed the business and conducted or directed every aspect of the operation, including business research and planning, marketing, sales, managements, and assessment ." While we acknowledge the breadth of the beneficia ry's experience owning and operating this does not establish that the beneficia ry's experience there consti tutes full-time experience as an Industrial Engineer/Quantitative Analyst. Part H. ll of the ETA Form 9089 states that the jo b duties of the position of fered as an Industrial Engineer/Quantitative Analyst include: determining price trends for precious metals on a regular basis, building forecasting models to project price trends for various precious metals, employing statistica l tools to analyze operational efficiency, and providing quantitative analyst on radio spot commercial data. The evidence in the record has not demonstrated that the beneficia ry engaged in these job duties on a full-time basis as president and CEO of Therefore, this employment does not constitute qualifying experience for the position offered. For the reasons explained above, even if the position offered met the requirements for classi fication under the advanced degree professional category, the petitioner has also failed to establish that the beneficiary possesses five years of post-baccalaureate experience required for the beneficiary to be classified as an advanced degree professional.
Conclusion
In summary, it is USCIS and not the DOL that has the authority to determine : (1 ) whether the beneficia ry qualifies for classifi cation within the category requested under the Act; (2) whether the beneficia ry meets the terms of the labor certification for the classific ation requested under the Act; and (3) whether the position offered as stated on the labor certification meets the requirements of the classific ation requested under the Act.
The petitioner has not demonstrated that the position offered meets the requirements of the advanced degree profess ional category. In addition, the petitioner has failed to establish that the beneficia ry qualifies for classif ication under the advanced degree professional category pursuant to section 203 (b)( 2) of the Act.
The petition will be denied for the above stated reasons, with each consi dered as an independent and alternative basi s for denial. In visa petition proceedings, the burden of proving eligibili ty for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 12 7, 12 8 (BIA 20 13 ). Here, that burden has not been met.
ORDER: The motion is granted; the previous decision of the AAO, dated May 9, 2014 1s affirmed. The petition remains denied.