Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your cas e. Ple ase be advised that any further inquiry that you might have concerning your case must be made to that office. Thank you,
~hf-Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, initially approved the preference visa petition. Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form I-140). The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's decision; however, because the petition is not approvable, it is remanded for further action and consideration.
Section 205 of the Act, 8 U.S.C. § 1155, states, in pertinent part, that the Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204."
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals has stated:
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)).
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the revocation of the approval of an immigrant petition. /d. The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. /d. at 589. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. /d.
The petitioner is a fashion diamond jewelry company. It seeks to employ the beneficiary permanently in the United States as a financial analyst 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, a certified Application for Permanent Employment Certification, ETA Form 9089, accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the Form ETA 9089. The director revoked the petition accordingly.
In pertinent part, section 203(b)(2) of 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.P.R. § 204.5(k)(2). The regulation further provides: "A United States baccalaureate degree or a p. 3 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." /d.
The beneficiary possesses a Certificate from the and a three-year Bachelor of Commerce degree from the • In the NOIR, the director determined that the beneficiary's credentials did not meet the job requirements set forth on the ETA Form 9089.
Counsel's request that the petition be adjudicated under a lesser classification pursuant to Grace Korean United Methodist Church v. Chertoff, 437 F. Supp. 2d 1174 (D. Or. 2005), is not persuasive. That case dealt with professional and skilled workers, both of which are in the same classification. Counsel is now requesting approval under a different, lesser classification. There is no provision in statute or regulation that compels users to readjudicate a petition under a different visa classification in response to a petitioner's request to change it, once the decision has been rendered. A petitioner may 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 1988).
In addition, the Ninth Circuit has determined that once USCIS concludes 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, 286 Fed. Appx. 963 (9th Cir. July 10, 2008). Finally, 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 I-140 covered the cost of the director's adjudication of the I-140 petition under section 203(b)(2) of the Act. Pursuant to section 286(m) of the Act, 8 U.S.C. § 1356, USCIS 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 indirect costs of providing a good, resource, or service.1
Regarding the director's conclusion that the beneficiary does not meet the job requirements set forth on the ETA Form 9089, counsel asserts on appeal that the beneficiary has the foreign educational equivalent of a bachelor's degree, which the ETA Form 9089 permits. This point is moot, however, if the beneficiary does not possess an advanced degree as defined at 8 C.P.R. § 204.5(k)(2). The director, however, did not raise the beneficiary's eligibility for the classification sought in the NOIR. A revocation can only be grounded upon, and the petitioner is only obliged to respond to, the allegations in the NOIR. 8 C.P.R.§ 205.2(b); Matter of Arias, 19 I&N Dec. 568, 570 (BIA 1988). As the director did not advise the petitioner of this ground of ineligibility, the matter is remanded to the director for evaluation of whether, irrespective of whether the beneficiary meets the job requirements set forth on the ETA Form 9089, the beneficiary possesses an advanced degree as defined at 8 C.P.R.§ 204.5(k)(2). If the director determines that the beneficiary is not eligible for the classification sought, the director must issue a new NOIR that raises this issue.
In considering whether the beneficiary possesses an advanced degree as defined at 8 C.P.R. § 204.5(k)(2), the director should take into account the following. A United States baccalaureate degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977). In 1991, when the final rule for 8 C.P.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 regulation 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. 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991).
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 203(b )(2) of the Act as a member of the professions holding an advanced degree with anything less than a full baccalaureate degree (plus the requisite five years of progressive experience in the specialty).
For this classification , the regulation at 8 C.P.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" (plus evidence of five years of progressive experience in the specialty). For classification as a member of the professions, the regulation at 8 C.P.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." Moreover, the commentary accompanying the proposed
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is remanded to the director for issuance of a new, detailed decision which, if adverse to the petitioner, is to be certified to the Administrative Appeals Office for review.