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:
SELF REPRESENTED
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the dm.:uments related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you niay file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-2908, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a ·motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103 .. 5(a)(l)(i) requires any motion to he filed within 30 days of the ~ecision that the motion seeks to reconsider or' reopen .
. Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
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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 information technology company. It ·seeks . to employ . the beneficiary permanently in the United States as a software engineer. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved l)y the United States Department of Labor (DOL). The director determined that the ETA ·Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree. The director denied the petition according! y.
The record shows that the appeal is properly filed and timely. 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.
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.
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. If a doctoral deg;ee is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
The regulation at 8 C.F.R. § 204.5(k)(4) states in pertinent part that "[t]he job offer portion of an 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 of an alien of exceptional ability."
U.S. Citizenship and Immigration Services (USCIS) must examine "the language of the labor certification job requirements" in order to determine what the job requires. Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 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. p. 3 The instant Form 1-140 was filed on January 31, 2012, On Part 2.d. ofthe Form 1-140, the petitioner indicated that it was filing the petition for a me~ber of the professions holding an advanced degree or an alien of exceptional ability. 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 engineering, computer science, business, MIS, math, or accounting and. 60 months of experience in the job offered or in the alternate occupations of programmer/systems analyst, business analyst, or software consultant. Alternatively, in Part H, lines 8, 8-A, and 8-B, the petitioner indicated that it will accept a bachelor's degree and t~o years of experience. The petitioner will "accept the functional equivalent bachelor degree by taking into account a combination of education, training and/or experience." These alternative requirements can be satisfied by someone without a degree since the petitioner will accept "a combination of education ... and/or experience." Moreover, a beneficiary could qualify with less than a master's degree or a bachelor's degree and 5 years of
- . • I ' . , expenence.
Since the minimum requirements, as stated on the ETA Form 9089, do not require the beneficiary to have either a master's degree or a bachelor's degree and 5 years of experience, the petitioner has not established that the ETA Form 9089 requires a professional holding an advanced degree; and the appeal must be dismissed.
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.