dismissed EB-2 Case: Civil Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042. 
Washington, DC 20529 
.dentmmghtalUta 
pmvat dearly unwad 
:,* d aen0n.l oriw 
plJBLIC COPY 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 176 52654 Office: NEBRASKA SERVICE CENTER Date: MAY 2 5 21306 
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. 9 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
P. Wiemann, Chief 
Administrative Appeals Office 
IJ 
LIN 04 176 52654 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition and reaffirmed that decision on motion. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a civil engineering consulting firm. It seeks to employ the beneficiary permanently in 
the United States as a project engineer pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 153(b)(2). In pertinent part, section 203(b)(2) of the Act 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. The statute requires that the petition be 
accompanied by certification from the Department of Labor, Form ETA-750, with two exceptions. The 
petitioner submitted an uncertified Form ETA-750. The director determined that the petitioner had 
not submitted a certified Form ETA-750 or complied with either exception. Thus, the director 
denied the petition accordingly. 
On appeal, the petitioner reiterates its claim that the beneficiary is in a shortage occupation that does 
not require an individual labor certification but indicates that it is pursuing labor certification with 
the Department of Labor. As will be discussed in more detail below, the petitioner is attempting to 
utilize a pilot program that was abolished before it was ever implemented. As such, we uphold the 
director's ultimate conclusion that an individual labor certification was required in this matter and 
that the record lacks a certified Form ETA-750. 
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 beneficiary holds a Ph.D. from Utah State University. The beneficiary's occupation falls within the 
pertinent regulatory definition of a profession. The beneficiary thus qualifies as a member of the 
professions holding an advanced degree. The only issue is whether a labor certification from the 
Department of Labor is required. 
The petitioner relies on the following language on the instructions for the Form 1-140 petition for the 
proposition that an individual labor certification is not required in this matter: 
LIN 04 176 52654 
Page 3 
If the alien is in a shortage occupation, or for a Schedule AIGroup I or I1 occupation, you 
may file a fully completed, uncertified Form ETA-750 in duplicate with your petition 
for determination by INS [now CIS] that the alien belongs to the shortage occupations. 
The regulation at 8 C.F.R. 8 204.50<)(4) provides, in pertinent part: 
Labor certlJication or evidence that alien qualij'ies for labor Market Information Pilot 
Program - (i) General. Every petition under this classification must be accompanied 
by an individual labor certification from the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that 
the alien's occupation is within the Labor Market Information Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. 
(Bold emphasis added.) The petitioner has asserted that the beneficiary works in a shortage occupation 
and discusses its attempts to find qualified workers. Thus, it is clear that the petitioner believes the 
beneficiary qualifies under the Labor Market Information Pilot Program. The director, however, 
presumed that the petitioner was seeking to utilize Schedule A, Group 11, which provides benefits for 
aliens of exceptional ability as defined at 20 C.F.R. $ 656.22(d). The director determined the record 
lacked any evidence relating to Schedule A, Group I1 and denied the petition. In the first appeal, the 
petitioner noted that it was seeking to classify the beneficiary as an advanced degree professional, not 
an alien with exceptional ability as defined at 8 C.F.R. 4 204.5@)(3)(ii). As the first appeal was 
untimely, the director considered it as a motion to reconsider pursuant to 8 C.F.R. 8 103.3(2)(v)(B)(2) 
and determined that the petitioner needed to obtain certification from the Department of Labor prior to 
filing a petition with CIS. On appeal, the petitioner continues to assert that since the beneficiary is in a 
"shortage occupation," certification from the Department of Labor is unnecessary. The petitioner 
further asserts, however, that it is pursuing such certification. 
The beneficiary must be eligible as of the date of filing. See 8 C.F.R. 8 103.2(b)(12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, should the petitioner obtain a labor 
certification from the Department of Labor, that certification would need to support a new petition. As 
such, the only matter before us is whether the beneficiary qualifies for any exception to that 
requirement. 
As discussed above, the petitioner asserts that an individual labor certification is not required because 
the beneficiary is within a shortage occupation designated by the Department of Labor under the Labor 
Market Information Pilot Program. This program was authorized in 1990 under section 122(a) of 
Public Law 101 -649. mle the Department of Labor issued proposed regulations to implement ths 
program, 58 Fed. Reg. 15242-0 1 (March 19, 1993), those regulations were never finalized. Congress 
abolished the program in 1994 before it had even been implemented. P.L. 102-4 16 $2 19(ff) (1 994). 
Thus, while the instructions for the Form 1-140 and the regulation at 8 C.F.R. 8 204.5(k)(4) were written 
in the expectation that the program would be implemented and were never amended to reflect the 
LIN 04 176 52654 
Page 4 
abolition of this program, the program was abolished before ever being implemented. 
 Thus, the 
petitioner cannot seek benefits for the beneficiary under this program as it never existed as a viable 
program. We will, however, consider the two exceptions to individual labor certification that are viable 
for eligible aliens. 
First, section 203(b)(2)(B) provides that Citizenship and Immigration Services (CIS) may, when 
deemed in the national interest, waive the labor certification requirement. The precedent decision 
addressing national interest waivers of is Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15 
(Comm. 1998), which sets forth several factors which must be considered when evaluating a request for 
a national interest waiver. First, it must be shown that the alien seeks employment in an area of 
substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. 
Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. The petitioner has never asserted that it is seeking a national interest waiver of the job 
offer (labor certification) requirement and has never addressed these factors. Thus, the petitioner has 
not established that a national interest waiver is warranted in this matter. 
Second, as quoted above, the regulation at 8 C.F.R. 5 204.5(k)(4)(i) provides that evidence of eligibility 
for Schedule A is acceptable as an alternative to an individual labor certification. 
While the petitioner seeks to classify the beneficiary as an advanced degree professional pursuant to 
section 203(b)(2) of the Act, in order to establish eligibility for Schedule A, Group I1 designation, the 
petitioner must establish that the beneficiary qualifies as an alien with exceptional ability as defined by 
the Department of Labor at 20 C.F.R. 5 656.22(d). While it is admittedly conhsing that section 
203(b)(2) of the Act and the regulations pertaining to Schedule A, Group 11 both use the phrase 
"exceptional ability" with significantly different criteria, that language is binding on us. The regulation 
at 20 C.F.R. 5 656.22(d) provides: 
An employer seeking labor certification on behalf of an alien under Group I1 of 
Schedule A shall file, as part of its labor certification application, documentary 
evidence testifying to the widespread acclaim and international recognition accorded 
the alien by recognized experts in their field; and documentation showing that the 
alien's work in that field during the past year did, and the alien's intended work in the 
United States will, require exceptional ability. 
(Emphasis added.) In addition, the same provision outlines seven criteria, at least two of which must 
be satisfied for an alien to establish the widespread acclaim and international recognition necessary to 
qualify as an alien of exceptional ability. Given the introductory language to the criteria emphasized 
above in 20 C.F.R. § 656.22(d), the evidence submitted to meet these criteria should reflect 
"widespread acclaim and international recognition." 
LIN 04 176 52654 
Page 5 
The petitioner does not challenge the director's determination that no evidence was submitted relating 
to Schedule A, Group 11. Thus, the beneficiary does not qualify for Schedule A, Group 11, the second 
exception to the labor certification process. 
The petitioner submitted only an uncertified Form ETA-750. For the reasons discussed above, the 
petitioner has not established that an individual labor certification fiom the Department of Labor is not 
required in this matter. Specifically, the Labor Market Information Pilot Program on which the 
petitioner relies was never implemented and the petitioner has not presented evidence relating to a 
national interest waiver or Schedule A, Group 11. Thus, the petitioner has not complied with 8 C.F.R. 
8 204.5(k)(4)(i) or (ii). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U. S.C. 5 1 3 6 1. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied 
by a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER. The appeal is dismissed.