The Petitioner, a state university, seeks to employ the Beneficiary as an assistant professor. It requests advanced degree professional classification for the Beneficiary under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas Service Center denied the petition on the grounds that the Petitioner did not establish that the Beneficiary had the requisite experience to qualify for the proffered position and advanced degree professional classification under the terms of the labor certification.
On appeal the Petitioner submits a brief and additional documentation, asserting that the evidence of record establishes that the Beneficiary has the requisite experience to qualify for the job offered and the requested visa classification under the terms of the labor certification.
Upon de novo review, we will withdraw the Director's decision and remand the case for further consideration and the issuance of a new decision.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions o f domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(11) o f the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
Analysis
To qualify for classification as an advanced degree professional the Beneficiary must have a U.S. degree or a foreign equivalent degree above that of baccalaureate, as defined in 8 C.F.R. § 204.5(k)(2). The Beneficiary must also meet the specific educational, training, experience, and other requirements of the proffered position as stated on the labor certification. See 8 C.F.R. § 204.5(k)(4)(i). All 1 requirements must be met by the priority date of the petition, which in this case is August 1, 2018. See Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977).
In this case section H o f the labor certification (Job Opportunity Information) specifies the following with respect to the requirements for the job of assistant professor:
\6 2
Ifrom March 15, 2011, to August 15, 2011,
4. Education: Minimum level required: 4-B. Major field of study 5. Is training required for the job?
6. Is experience in the job offered required?
7. Is an alternate field of study acceptable?
8. Is an alternate combination of education
and experience acceptable?
9. Is a foreign educational equivalent acceptable?
10. Is experience in an alternate occupation acceptable?
10-A. How long?
10-B. Acceptable alternative occupation:
Doctorate
Applied Mathematics No
No
No
No Yes Yes
12 months
Experience in financial company(s)
Thus, the labor certification requires a U.S. doctoral degree in applied mathematics, or a foreign educational equivalent, and 12 months of experience in a financial company (or companies).
With its initial evidence the Petitioner submitted copies of the Beneficiary's degree certificate and academic record from the University o-ft Iwhich show that she was granted a doctor of philosophy in applied mathematics in June 201 7 upon completion of a five-year academic program. Thus, the Beneficiary meets the minimum educational requirement for the job under the terms of the labor certification.
As evidence of the Beneficiary's qualifying experience the Petitioner submitted documentation with the petition and in response to the Director's request for evidence (IIFE), lhich indicated that the Beneficiary had internships with three French companies -I l andl I-for a total of 151⁄2 months during the years 2010-2012. from officials in each company (submitted in response to the RFE) stating that the Beneficiary worked full-time, confirming her dates of service, and describing her duties and projects. In his decision, however, the Director declined to consider any evidence of the Beneficiary's work experience with The internships ran from September 6, 2010, to Mai.·ch4, 2.01 with□;andfromApril16,2012,toAugust31,2012,wit The documentation included English-language letters The priority date of an employment-based immigrant petition is the date the underlying labor certification (ETA Form 9089) was filed with the DOL. See 8 C.F.R. § 204.5(d). p. 3 the three French companies, stating that none of this experience was listed on the labor certification, that a petitioner had to establish its eligibility for the requested benefit at the time the petition was filed, and that a petitioner could not make a material change to a deficient petition to make it conform to USCIS requirements, citing Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). The Director concluded that the Beneficiary was not eligible for classification as an advanced degree professional because the Petitioner did not establish that she met the experience requirement of the labor certification.
On appeal the Petitioner asserts that the Director was rong lot to consider the evidence it submitted of the Beneficiary's work experience withI I1 andl Ieven if those jobs were not listed on the labor certification. The Petitioner discusses Matter ofLeung, 16 I&N Dec. 2530 (BIA 1976), which held that the failure to list experience on a labor certification may lessen the credibility of the claimed experience, but does not preclude USCIS from considering documentary evidence of such experience in its adjudication of an 1-140 petition. Supplementing its previously submitted documentation, the Petitioner submits additional evidence of the Beneficiary's experience with the three French companies including, in particular, copies of her monthly pay statements (in French with certified English translations) from each company. Based on the entire record we conclude that the Petitioner has established, by a preponderance of the evidence, that the Beneficiary had a total of 151⁄2 months of experience with the three French companies, which exceeded the 12-month minimum requirement of the labor certification.
It is unclear from the record, however, whether all of this experience was with financial companies, as require! by secton H.10 of the labor certification. The evidence of record does not show that I I an~ lare all "financial companies," which they would have to be for the Beneficiary to meet the labor certification's minimum experience requirement since no two internships added up to 12 months of experience.
Therefore, we will remand this case to the Director for further consideration of whether the Beneficiary's internships with the three French companies constitute qualifying experience with financial companies.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.
Section K of the labor certification (Alien Work Experience) calls for the listing of all jobs held during the past three years, as well as any other experience that qualifies the beneficiary for the job offered. In this case the only jobs listed on the labor certification are (1) assistant professor with the Petitioner starting in August 2017, and (2) research/teaching assistant at the University ofl Ifrom September 2012 to June 2017, both of which were held by the Beneficiary during tln·ee-year period preceding the filing of the labor certification. Employment verification letters from each ofthese institutions were submitted with the petition. However, neither ofthese jobs represents qualifying experience under the terms of the labor certification.