DATE: FEB 2 2 .2013 OFFIC~: TEXAS SERVICE CENTER
IN RE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Servicds
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
U.S. Citizenship
·and Immigration
Services
FILE: ,
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an· Advanced Degree or an Alien of Exceptional' Ability 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 in your case.
All of. the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you !"llight have concerning your ·case must be made to that office. Thank you,
Ron Rosenberg
Acting Chief, Administrative Appeals OffiCe www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the emplQyment-based immigrant visa petition, which is now before-the Administrative Appeals Office (AAO) on appeal. The. appeal will be rejected as untimely filed. · ·
In· order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party or the attorney or representative of record must submit the complete appeal within 30 days of service of the unfavorable decision~ If the decision was mailed, the appeal must be filed within 33 days. See 8- C.F.R. § 103.8(b). The date of filing is not the date of submission, but the date of actual receipt with the required fee. See 8 C.F.R. § 103.2(a)(7)(i) ..
The record indicates that th~ service center di~ec.tor issued the decision on November 22, 2011 by mail. It is noted that the service center director properly gave notice to the petitioner that it had 33 days to file the appeal, or a motion to reopen or reconsider, as the denial was sent by mail. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(8)(2) states that, if an untimely appeal meets the .requirements of a motion to reopen or a motion to reconsider, the· appeal must be treated as a motion, and a decision must be made on the merits of the case. The official haying jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Texas Service Center., See 8 C.F.R. § 103.5(a)(1)(ii). The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO.
Form 1-2908 was due no later than Tuesday, December 27, 2011, but was not received by the service center until Thursday, January 5, 2012. Accordingly, the ·appeal was untimely filed. The AAO notes that counsel provided evidence that Form 1-2908 had initially been delivered to the
Phoenix Lockbox on December 23, 2011. However, the form was rejecte_d because counsel marked multiple boxes in Part 2 of Form 1-2908, Notice of Appeal or Motion.·· On appeal, counsel claims that''Form 1-2908 at Part 2 invites the checking of one box. The invitation is precatory in nature." Counsel requests that the AAO "exercise discretion ... and accept this re~filing for all purposes." However, Part 2 of Form 1-2908 directs the app~!lant to "[ c ]heck on'e box below that best describes your request. Note: If you. indicate that you are filing an appeal, it may be considered by USCIS as a motion before it is forwarded to the AAO." The AAO notes that counsel checked box A in Part 2 upon refiling, indicating that he was filing an appeal.
Furthermore, the regulation at 8 C.F.R. § 103.2(a)(l) provides:
General. Every application, petition, appeal, motion, request, or other document submitted on. the form prescribed by this chapter shall be. executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations iri this chapter requiring its ·submission.
(b)(6)Page 3
Finally, the instructions for Part 2 of Form I-2908 state that "[y]ou must clearly indicate if you are filing an appeal or a motion." '
Furthermore, for the reasons discussed below, even if the appeal had been timely filed, the AAO does not find any of counsel's assertions persuasive.
The petitioner seeks to employ the beneficiary permanently in the -United States as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). As, required by statute, an ETA Form 9089 Application for Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that "the minimum educational requirement for the worker to satisfactorily p~rform the duties· of the position is less than a master's degree. This · position then cannot be determined to be an advanced degree position." The director's decision sufficiently discussed the deficiencies in the petitioner's documentary evidence as it related to the ETA Form 9089.
Eligibility for the Classification Sought
As noted above, the ETA Form 9089 in this matter is certified by DOL. 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 DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a qetermination 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 Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
·~ On appeal counsel asserts that "the bachelor's degree and the specialized associate's degree are educationally equal." However, counsel" "concede[s] that the beneficiary" holds "only a specialty knowledge-based associate's degree." Furthermore, the petitioner submitted an evaluation with the immigrant petition which states that the. beneficiary's "education in Argentina is equivalent to completion of two years of undergraduate study in Elementary Education and related subjects at a regionally accredited college in the United States" and that the beneficiary's "education and professional work experience are equivalent to the U.S. Bachelor's degree in Elementary Education awarded by a regionally accredited university in the United States."
In pertinent part, section 203(b )(2) of the Act 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 <:Iegree 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 equivale[lt degree p. 4 followed by at least five years of progressive experience in the specialty shall be consi.dered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
The Joint Explanatory Statement of the Committee of Conference, published as part· of the House of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions." H.R. Conf. Rep. No. 955, I 01 st Cong., 2"d Sess. l990, 1990 U.S.C.C.A.N.6784, 1990 WL201613 at *6786 (Oct. 26, 1990). . .
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the Immigration and NatUralization Service (the Service), responded to criticism that the regulation required an alien to have_ a bachelor's degree as a minimum and that the n:gulation did not allow for the substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bachelor's degree: ·
The Act states that, in order to qualify ~nder the seoond classification, alien memberS of the professions must hold "advanced degrees or their equivalent." ~s 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." Because neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be United 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 al{en must have at least a bachelor's degree.
visa pursuant to section 203(b )(3)(A)(i) of the Act as a skilled worker with more than two years of training and experience. 56 Fed. Reg. at 60900.
For. this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree." For classification as a member of the professions, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an 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 the· evidence. required to demonstrate that an alien is an advanced degree professional is any less than the evidence required to show that the alien is a professional.. To do so . would undermine the .congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification.
Becaus~ the beneficiary does not have a "United States baccalaureate degree or ~ foreign equivalent degree," the beneficiary does no~ qualify for preference visa classification under section 203(b)(2) of the Act.Degree not shown to be a U.S. advanced degree equivalent Furthermore, as the aliernative minimum education level listed in Part H of Form ETA 9089 lists an associate level degree, the position cannot be considered tQ be an advanced degree position as required under 8 C.F.R. § 204.5(k)(4).
Request for Consideration as an Exceptional Ability Alien or Skilled Worker As conceded by counsel on appeal, "the [p ]etition ... was originally filed as a[ n] [advanced degree] professional. For the first ·time on appeal, counsel requests that 'the petition be "granted as ... an exceptional alien professional, or a skilled worker professional with at least t~o· years of specialized training or experience." With regard to the exceptional ability request, counsel fails to explain how . the job offer secti.on of the ETA Form 9089 reflects that the job requires an alien of exceptional ability. See 8 C.F.R. § 204.5(~)(4).
The AAO will not entertain a request for a change of classification for a petition that the director has already adjudicated. A post-adjudication alteration of the requested visa classification constitutes a material change. A petitioner inay not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). In· addition, the NinthCircuit has determined that once USCIS conclupes that an alien is not eligible for the specifically requested classification, the agency is not· required to consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil Quality Stones, Inc., v. Chertoff, Slip Copy, 286 Fed, Appx. 963 (9 h Cir. July 10, 2008). · · -1 .
Furthermore, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for a single petition with a single fee. The initial filing fee for the Form 1-140 covered the cost of the director's adjudication of the 1-140 petition. Pursuant to section 286(m)of the Act, 8 U.S.C. § 1356, US~IS is required to recover the full cost of adjudication·. In addition to 'the statutory requirement, Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all direct and p. 6 Page 6 · indirect costs of providing a good, resource, or service. 2 Counsel has cited no statute, regulation, or standing precedent that permits a petitioner to change the classification .of a petit~on once a decision has been rendered by the director.
For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved.
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.
·As the appeal was untimely filed, the appeal must be rejected .
. ORDER: . The appeal is rejected.