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 (AAO) in your case. This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
~/.~~ k~ Rosenoerg
Chief, Administrative Appeals Office www. uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a "Tennis Club and Instruction" business. It seeks to permanently employ the beneficiary in the United States as a "Tennis Program Coach." The petitioner requests classification of the beneficiary 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).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
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 31, 2013 _2 Part H of the labor certification states that the offered position has the following mm1mum requirements:
H.4. Education: Bachelor's degree in "Sports and Health Science or related."
H.5. Training: None required.
H.6. Experience in the job offered: 60 months.
H.7. Alternate field of study: "Arts or related field."
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Not Accepted .
H.10. Experience in an alternate occupation: None accepted.
H.14. Specific skills or other requirements: None.
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Exercise and Sports Science from completed in 2005. The record contains a copy of the beneficiary's Bachelor of Arts diploma and academic transcripts from , issued in 2005. The record also contains a copy of the beneficiary's Bachelor's degree diploma and transcripts from Semmelweiss University, issued in 2004.
Part K of the labor certification states that the beneficiary possesses the following employment expenence:
- As a Tennis Program Coach with the petitioner beginning June 16, 2007.
- As a Tennis Program Coach with m
Florida, from September 15, 2006 until June 15,2007.
- As a Tennis Program Coach with in
Connecticut, from June 20, 2005 until August 31, 2005 and from May 20, 2006 until June 19, 2006.
- As a Tennis Program Coach with in
Germany, from September 1, 1996 until August 20, 2001; from May 20, 2003 until August 20, 2003; and from May 20, 2004 until August 20, 2004.
The record contains experience letters from the following employers:
- From the manager of in Connecticut, stating that the beneficiary was employed there as an Assistant Tennis Professional from May 20, 2006 until August 31, 2006 and from May 20, 2005 until August 31, 2005.
- From the president of: i j Germany, stating that the beneficiary was employed there as a tennis coach from September 1, 1996 to August 20, 2001; from May 20, 2003 until August 20, 2003; and from May 20, 2004 until August 20, 2004.
The director's decision denying the petition concludes that the petitioner has not established that the beneficiary had the required five years of post-graduate experience to qualify as having an advanced degree under section 203(b)(2) ofthe Act.
On appeal, counsel for the petitioner states that the beneficiary's employment with the petitioner constitutes more than five years of progressive post -baccalaureate experience for her to qualify as an advanced degree professional.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. We conduct appellate review on a de novo basis. 3 We consider all pertinent evidence in the record, including new evidence properly submitted upon appea1.4 We may deny a petition that fails to comply with the technical requirements of the law even if the director does not identify all of the grounds for denial in the initial decision. 5
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14). 6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14) . If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so 6 Based on revisions to the Act, the current citation is section 212(a)(5)(A). p. 5 that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL 's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U.S.C. § 1154(b ), as one of the determinations incident to the INS 's decision whether the alien is entitled to sixth preference status.
K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers . The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) Id at 1009. The Ninth Circuit, citing K.R.K Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon , 699 F.2d 1006, 1008 9th Cir.1983) .
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position , and whether the employment of the beneficiary will p. 6 adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought
Section 203(b)(2) ofthe Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.P.R.§ 204.5(k)(l).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a 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. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or p. 7 foreign equivalent degree) followed by at least five years of progressive experience in the specialty. In the instant case, the petitioner claims that the beneficiary may be classified as an advanced degree professional based on her four-year bachelor's degree from in Hungary and her U.S. bachelor's degree from _ followed by at least five years of progressive experience in the specialty. First, the petitioner must resolve the discrepancies between the dates of the beneficiary's bachelor's degree programs. The record reflects that the beneficiary was emolled in bachelor's degree programs at from September 2001 until May 2005 and at m Hungary from 2000 through 2004, which dates overlap. Doubt cast on any aspect of the petitioner 's evidence may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. !d.Inconsistencies in the record The petitioner must resolve these discrepancies in any further filings.
Second, even if the discrepancies regarding the beneficiary 's degrees were resolved , the petitioner has not established that the beneficiary meets the five years of progressive post-graduate experience.Five years of progressive experience not documented The record reflects that the beneficiary graduated from on June 4, 2004.
Therefore, the beneficiary must have five years of post-graduate experience from that date onward. Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must include the name, address, and title of the writer, and a specific description of the duties performed by the beneficiary. 8 C.P.R. § 204.5(g)(l). If such evidence is unavailable, USCIS may consider other documentation relating to the beneficiary's experience . !d.
As discussed above, the record contains an experience letter from the president of in Germany, stating that the beneficiary was employed there as a tennis coach from September 1, 1996 to August 20, 2001; from May 20, 2003 until August 20, 2003; and from May 20, 2004 until August 20, 2004. This employment experience after June 4, 2004, the date of the beneficiary's graduation from constitutes a period of two months and 16 days.
The record also contains experience letters from the manager of . in Connecticut, stating that the beneficiary was employed there as an Assistant Tennis Professional from May 20, 2005 until August 31, 2005 and from May 20, 2006 until August 31, 2006. This equates to six months and 22 days, which added to the experience with . constitutes approximately
Further, a letter submitted in a previous filing from the _ in Hungary, states that the beneficiary was employed there as a coach during the summer months of June to August from 1998 to 2004. As this employment predates the beneficiary's graduation with a bachelor's degree from , this does not constitute progressive post-graduate experience. We further note that these dates conflict with the beneficiary's stated employment with in Germany. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988).
Therefore, the petitiOner has not established that the beneficiary had the required five years of progressive post-graduate experience to be classified as an advanced degree professional. On appeal, counsel states that the beneficiary's employment with the petitioner constitutes progressive post-graduate experience to qualify as an advanced degree professional. However, the beneficiary's experience with the petitioner or experience in an alternate occupation cannot be used to qualify the beneficiary for the certified position.7 Specifically, the petitioner indicates that questions 1.19 and 1.20, which ask about experience in an alternate occupation, are not applicable. In response to question 1.21, which asks, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?," the petitioner answered "no." The 7 20 C.F.R. § 656.17 states :
(h) Job duties and requirements. (1) The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation (i) Actual minimum requirements. DOL will evaluate the employer's actual minimum requirements in accordance with this paragraph (i).
(1) The job requirements, as described , must represent the employer's actual minimum requirements for the job opportunity.
(2) The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.
(3) If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums , DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer , including as a contract employee . The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless :
(i) The alien gained the experience while working for the employer , including as a contract employee , in a position not substantially comparable to the position for which certification is being sought , or
(ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. p. 9 petitioner specifically indicates in response to question H.6 that 60 months of experience in the job offered is required and in response to question H.l 0 that experience in an alternate occupation is not acceptable. In general, if the answer to question J.21 is no, then the experience with the employer may be used by the beneficiary to qualify for the proffered position if the position was not substantially comparable 8 and the terms of the ETA Form 9089 at H.10 provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates in response to question K.1 that her position with the petitioner was as a Tennis Program Coach, which has the same job title and job duties as the position offered. Therefore, the experience gained with the petitioner was in the position offered and the petitioner cannot rely on this experience for the beneficiary to qualify for the proffered position.
Therefore, the submitted experience letters do not establish that the beneficiary possessed five years of post-baccalaureate experience in the specialty.
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
The Minimum Requirements of the Offered Position
The petitioner must also establish that the beneficiary satisfied all of the educational, trammg, experience and any other requirements of the offered position by the priority date. 8 C.P.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971).
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, users may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts , Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames. com, Inc.
In the instant case, the labor certification states that the offered position requires a bachelor's degree and 60 months of experience in the job offered. Although the beneficiary may use employment experience prior to the beneficiary's bachelor's degree to meet the experience requirements of the labor certification (apart from the analysis of whether the beneficiary meets the progressive post-graduate experience requirements), the record reflects several discrepancies with the beneficiary's experience, as noted above. The letter from the , states that the beneficiary was employed there as a coach during the summer months of June to August from 1998 to 2004. These dates conflict with the beneficiary's stated employment with in Germany. In addition, the beneficiary's employment experience with and her experience with in
Connecticut, reflect employment experience of approximately nine months. As stated above, the beneficiary may not use experience gained with the petitioner meet the 60 months of required experience to meet the terms of the labor certification.
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses the required experience for the offered position.
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
Conclusion
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for · classification as a member of the professions holding an advanced degree under section 203(b)(2) of the Act. The director's decision denying the petition is affirmed.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed .