The Petitioner, an architectural firm. seeks to permanently employ the Beneficiary in the United States as architectural project stafC It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2). 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful pem1anent resident status.
The Director, Texas Service Center, denied the petition on December 30. 2015. The Director determined that the Petitioner had not established that the Beneficiary possessed the required employment experience for the of1ered job as of the priority date.
The matter is now before us on appeal. The Petitioner asserts that the Director should have considered experience the Beneficiary gained with it in a difTerent position. Upon de nom review, we will dismiss the appeal.
Procedural History
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). 1 The priority date of the petition is January 2. 2015.2 Part H of the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Master's degree in architecture.
H.6. Experience in the job offered: 36 months.
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J-1.1 0. Experience in an alternate occupation: None accepted.
J-1.14. Specific skills or other requirements: 3 years architectural design experience: Very strong understanding of policies and regulations of Zoning Commission, Board of Zoning Adjustment, and Historic Preservation Review Board entitlement processes: Strong understanding of zoning and building codes; Residential architectural design. production and build experience: Demonstrated team leadership skills: General knowledge of interior design practice, including programming, space planning, concept and design development, and detailing; Proficient in AutoCAD, Photoshop, Maya, SketchUp, and Ecotect.
The record of proceedings reflects that the Beneficiary possesses a master's degree in architecture from the completed in 2008.
Part K of the labor certification states that the Beneficiary possesses the following employment expenence:
- Self-employed freelance interior designer (part -time) from October 1, 200 I. through May 30, 2005:
- Teaching assistant (part-time) at the from August
1, 2005, through December 31, 2007:
- Statl architect for the Petitioner from September 15, 2008, until October 1, 2011: and,
- Architectural project stafi tor the Petitioner since October 2. 2011.
The record contains an experience letter from
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In the second step of the process. a petitioner files a Form I-140. Immigrant Petition f()r Alien Worker. with USCIS within the 180-day validity period . . \'ee 20 C.F.R. § 656.30(b)(l). 8 C.F.R. § 204.5. The agency then examines whether a petitioner can establish its ability to pay the proffered wage: whether the education and/or experience required for the offered position matches that required by the visa classification: and whether a beneficiary has the required education. training. and experience tor the oflered position. See section 203(b)(3)(A)(ii) of the Act. 8 U.S.C. § 1153(b)(3)(A)(ii); 8 C.F.R. §204.5.
B. The Minimum Requirements of the Offered Position
The petitioner must establish that the beneficiary satisfied all of the educational. training. experience and any other requirements of the ofTered position by the priority date. 8 C.F .R. § 103 .2(b )(I). ( 12 ). See Afaller (~f Wing's Tea House, 16 I&N Dec. 158. 159 (Acting Reg'l Comm ·r 1977): see also Matter (~lKatigbak. 14 I&N Dec. 45.49 (Reg' I Comm·r 1971).
In the instant case. the labor certification states that the offered position requires a master's degree in architecture and three years of experience in the offered job as architectural prqject staff While the Petitioner indicated at Line H.l4. of the labor certification that the position requires --3 years architectural design experience,·· this requirement cannot contradict the requirements stated in Lines J 1.4-H.l 0.Inconsistencies in the record Therefore. the requirement of experience in architectural design cannot override the Petitioner· s statement in Line H.6-A. and H-10 that the position requires three years of experience in the otlered job and no acceptable alternate occupation. Rather. the three years of architectural design experience is read to be a --specific Skill" required in addition to the three years of experience in the oflered job. even if gained concurrently.
As the Petitioner did not allow for experience in an alternate occupation. the Beneficiary's experience as a freelance interior designer and a teaching assistant arc not qualifying experience. The Director found that the Beneficiary's experience with the Petitioner as architectural project staff could not satisfy the requirements of the labor certification because the Petitioner affinned at Line J .21. of the labor certification that the Beneficiary did not --gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested." A petitioner generally cannot count qualifying experience that a beneficiary gained with the same employer that tiled the labor certification. unless the experience was in a position --not substantially comparable .. to the offered position. or the employer demonstrates that it is no longer feasible to train a worker to qualify for the position. 20 C.F.R. §§ 656.17(i)(3)(i). (ii). A --substantially comparable .. position means one --requiring performance of the same job duties more than 50 percent of the time ... 20 C.F.R. §656.17(i)(5)(ii).
Stated otherwise. if a beneficiary's qualit}'ing experience vvith a petitioner is in the job offered. then 20 C.F.R. § 656.17(i)(3) bars the petitioner from counting the experience. On the other hand. if a p. 4 Matter (?f PGNA-, PLLC beneficiary's experience with the petitioner is in a position not substantially comparable to the offered position. then this experience can only be counted if the labor certification allows for experience in an alternate occupation at Line H.1 0.
The Petitioner asserts on appeal that it seeks to use the Beneficiary's experience with it as a stafT architect a position not substantially comparable to the oiTered position of architectural project staff. However. because the Petitioner will not accept experience in any alternate occupation, the Beneficiary's experience in this difTerent position cannot be used to qualify for the offered job. On appeal. the Petitioner states that the work performed by the Beneficiary and described on the labor certification are .. very ditTerenC than the permanent position being offered. The Petitioner specifically indicated in response to question H.6 of the labor certification that 36 months of experience in the job offered is required and in response to question H.1 0 that experience in an alternate occupation is not acceptable. Therefore, by the Petitioner's own assertion. the Beneficiary did not possess the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must be denied.