dismissed EB-2 Case: Business Intelligence

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
l>lffiLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: 
MAR 2 8 2012 
Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
WOU, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
· . 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is an insurance company. It seeks to employ the beneficiary permanently in the 
United States as a senior business intelligence analyst. As required by statute, the petition is 
accompanied by an ETA Form 9089, Application for Permanent Employment Certification, 
approved by the United States Department of Labor (DOL). The director determined that the ETA 
Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or 
foreign equivalent degree followed by at least five years of progressive experience and, therefore, 
the beneficiary cannot be found qualified for classification as a member of the professions holding 
an advanced degree. The director denied the petition accordingly. 
The record shows that the appeal is properly filed and timely. The procedural history in this case is 
documented by the record and incorporated into the decision. Further elaboration of the procedural 
history will be made only as necessary. 
The AAO conducts appellate review on a de novo basis. See Sollane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (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.F.R. § 204.5(k)(2). The regulation further states: "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 a foreign equivalent degree." I d. 
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 alien of 
exceptional ability." 
The ETA Form 9089, section H, items 4 through 14, set forth the minimum education, training, and 
experience that an applicant must have for the proffered position. Here, section H, items 4 through 
14 indicate that the position requires a master's degree, or foreign educational equivalent, in 
Computer Science or Information Science. The petitioner will also accept a "3-yr Bachelor plus 2-yr 
Master or any similar equiv combination." 
The beneficiary set forth his credentials on the labor certification and signed his name, under a 
declaration that the contents of the form are true and correct, under the penalty of perjury. On the section 
· . 
Page 3 
of the labor certification eliciting information of the beneficiary's education, he states that he attended 
rAr'A'" TAn a Bachelor of Science degree. He also received a Master of Science 
U.S. Citizenship and Immigration Services (USCIS) must examine "the language of the labor 
certification job requirements" in order to determine what the job requires. Id. The only rational 
manner by which USCIS can be expected to interpret the meaning of terms used to describe the 
requirements of a job in a labor certification is to examine the certified job offer exactly as it is 
completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as 
stated on the labor certification must involve reading and applying the plain language of the alien 
employment certification application form. See id. at 834. USCIS cannot and should not reasonably 
be expected to look beyond the plain language of the labor certification that the DOL has formally 
issued or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification. 
In evaluating the requirements for the offered position, USCIS must look to the job offer portion of 
the labor certification. USCIS may not ignore a term of the labor certification, nor may it impose 
additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 
(Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1
st 
Cir. 1981). 
The instant Form 1-140 was filed on August 16, 2007. On Part 2.d. of the Form 1-140, the petitioner 
indicated that it was filing the petition for a member of the professions holding an advanced degree 
or an alien of exceptional ability. However, accepting "3-yr Bachelor plus 2-yr Master or any similar 
equiv combination" lowers the minimum requirements listed in Part H-4 through H-I0B to not 
requiring a foreign equivalent degree for the position offered. 
Since the minimum requirements, as stated on the ETA Form 9089, do not require the beneficiary to 
have either a master's degree or a foreign equivalent bachelor's degree and 5 years of experience, 
the petitioner has not established that the ETA Form 9089 requires a professional holding an 
advanced degree; and the appeal must be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.