· 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) 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 case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. Thank you, c&-z~
Ron Rosenberg '(&-
Acting Chief,Administrative Appeals Office www.uscis.gov
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition on July 29, 2011. The petitioner filed a motion to reopen and a motion to reconsider and on January 5, 2012, the Director, Nebraska Service center upheld the original decision The matter is now before the Administrative Appeals Office (AAO) on appeal The appeal will be sustained.
The petitioner seeks to employ the beneficiary as an alien of exceptional ability. as a Food and Beverage Director, pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act); 8 U.S.C. * 1153(b)(2). The director determined that since the labor certification only required 60 months of experience, "the labor certification does not meet the category requested" because the petitioner submitted evidence "that the alien has at least ten years of full-time experience in the occupation for which he or she i~_ being sought" ·
On appeal, counsel submits a brief. For the reasons discussed below, the AAO is satisfied that the evidence of record adequately establishes the beneficiary's eligibility for the classification.
Law
Section 203(b) of the Act states, in pertinent part, that:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.·--
(A) In general. -- Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. .
The regulation at 8 C.F.R; § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ord,inarily encountered in the sciences, arts, or business." The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an alici1 must meet in order to qualify as an alien of exceptional ability in the Sciences, arts, or business: (A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability (B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years offull-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular. profession or occupation
· (D) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations (F) Evidence of recognition for achievements and significant contributions to the industry or field by· peers, governmental entities, or professional .or business organizations
Additionally, 8 C.F.R. § 204.5(k)(3)(iii) states that "[i]f the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." lfa petitioner fails to submit the requisite evidence, the proper conclusion is that the petitioner failed to satisfy the antecedent regulatory requirement of three types of evidence. See Kazarian v. USC IS, 59.6 F.3d 1115 (9th Cir. 2010). If the petitioner has submitted the requisite evidence, USCIS makes a final merits determination as to whether the evidence demonstrates "a degree of .expertise significantly above that ordinarily encountered." 8 C.F.R. § 204.5(k)(2); see also Kazarian, 596 F.Jd at 1119-20. Only aliens whose achievements demonstrate a degree of expertise significantly above that ordinarily encountered in the sciences, arts, ·or business"are eligible for classification as aliens of exceptional ability. 8 C.F.R. § 204.5(k)(2); see also Kazarian, 596 F.3d at 1119-22.
While Kazarian involved a different classification than the one at issue in this proceeding, the similarity of the two classifications makes the court's reasoning in Kazarian persuasive to the classification sought in this matter. Specifically, the · regulations state a regulatory standard and provide a list of suggested types of evidence, of which the petitioner must submit a certain number. Significantly, USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. See Kazarian, 596 F.3d at 1221, Citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Thus, if the regulatory standard is to have any meaning, USCIS must be able to evaluate the quality of the evidence in a final merits determination.
Thus, Kazarian sets forth a two-part approach where the ~vidence is first counted and then considered . in the ·context of. a final merits determination. In this matter, the AAO will review the evidence under the plain language requirements of each criterion claimed.
Analysis
A. Evidentiary Criteria
The petitioner seeks to classify the beneficiary as an alien of exceptional ability. Upon review of the entire record, the AAO finds that the petitioner has established that· the beneficiary meets the minimum eligibility requirements necessary to qualify as an alien of exceptional ability. 8 C.F.R. § 204.5(k)(3). '
R . The Offered Position
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 alic11 of exceptional ability." ·
Upon review of the Form ETA 9089, specifically parts G and H, the AAO finds that the job offer portion, in the aggregate, demonstrates that the job does require an alien of exceptional ability. C. Final Merits Determination
The AAO will next conduct a final merits determination that considers all of the evidence in the context Of whether or not the petitioner has demonstratt,!d that the beneficiary has "a degree of expertise significantly above that ordinarily encountered." 8 C.F.R. § 204.5(k)(2).
In the present matter, the petitioner has submitted sufficient documentation to establish. that the beneficiary is an alien of exceptional ability .
. III. CONCLUSION
While the AAO does not find that all of the petitioner's evidence carries the weight imputed to it by counsel, the AAO does find the evidence of record suffici~nt to establish that the p'etitioner has demonstrated the beneficiary's eligibility for the classification ·sought. Specifically, upon careful review of the record, it is concluded that the petitioner has demonstrated by a preponderance of the evidence that the beneficiary has a degree of expertise significantly above that ordinarily em:ountered, will ~bstantially benefit prospectively the national economy, cultural or education~tl interests, or welfare of the United States, and that his services are sought by an employer in the United States. The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 2Yl of the Act, 8 U.S.C. § 1361. Here, the petitioner has sustained that burden.
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ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is approved.