dismissed EB-2 Case: Communications

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
- 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 083 51 164 
 DEC 0 4 2009 
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. 8 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
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 krther inquiry must be made to that 
office. 
If you believe the law was inappropriately applied or you have additional information that you wish 
to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 
C.F.R. 5 103.5 for the specific requirements. 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 
$585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider 
open, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
rry Rhew 
Chief, Administrative Appeals Office 
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 a communications network. It seeks to employ the beneficiary permanently in the 
United States as an applications engineer pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1153(b)(2).' The petition is accompanied by a Form ETA 
9089, Application for Permanent Employment Certification, which was certified by the Department 
of Labor. The Form ETA 9089 indicates in Block H that the minimum education and experience 
level necessary for the position is a bachelor's degree plus two years of experience. 
The director determined that the Form ETA 9089 failed to demonstrate that the job requires a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability and, 
therefore, the beneficiary cannot be found qualified for classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability. 8 C.F.R. 5 204.5(k)(4). 
On appeal, counsel argues that, since the petitioner marked the box for the third preference category 
on the Form 1-140, U.S. Citizenship and Immigration Services (USCIS) should have considered the 
petition under the classification for professionals or skilled workers under section 203(b)(3)(A) of 
the Act, 8 U.S.C. 5 1153(b)(3)(A), even though both counsel and the petitioner indicated at the time 
of filing, and upon the rejection of the beneficiary's Form 1-485, that the 2nd preference category was 
being sought. 
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. 
' It is noted that the instant petition was accom anied by a cover letter signed by the president of the 
petitioner,, in which dindicates on both page 1 and page 2 that the 
petition is for a "2n Preference Immigrant Visa Petition." Although the petitioner indicated that it 
was petitioning for the third preference category on the Form 1-140, previous counsel to the 
petitioner sought to clarify the petitioner's intent upon the rejection of the beneficiary's Form 1-485 
package by sending a letter dated March 14, 2007 in which counsel clearly confirms that the 
petitioner is applying for the second preference classification. This clarification resulted in the 
acceptance of the Form 1-485 package on March 30, 2007. As both the petitioner's president and 
prior counsel represented on multiple occasions, including at the time of filing, that the 2"d 
preference was being sought, the Nebraska Service Center's use of discretion to treat the petition as 
one being for that visa classification was not in error. USCIS is not considering counsel's March 14, 
2007 letter to be a request for a change, material or otherwise, from the third preference category to 
the second preference category. Rather, as noted by counsel in the letter, counsel simply clarified 
that the petitioner's president clearly intended to file for the second preference category at the time 
the petition was filed. 
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. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. 8 204.5(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." Id 
Section 203(b)(2) of the Act also includes aliens "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." The regulation at 8 C.F.R. 
 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered. " 
Here, the Form 1-140 was filed on December 18, 2006. As noted supra, 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. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. On appeal, counsel submits a brief in which she argues that USCIS 
should have considered the petition under the classification for professionals or skilled workers 
under section 203(b)(3)(A) of the Act. 
The regulation at 8 C.F.R. 8 204.5(k)(4) states in pertinent part that "[tlhe 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." 
In this case, the job offer portion of the Form ETA 9089 indicates that a bachelor's degree plus two 
years of experience is the minimum level of education and experience for the position. Accordingly, 
the job offer portion of the Form ETA 9089 does not require a professional holding an advanced 
degree or the equivalent of an alien of exceptional ability. It is noted that the petitioner and prior 
counsel repeatedly requested classification as a member of the professions holding an advanced 
degree or an alien of exceptional ability. Especially important, the petitioner's president requested 
this classification at the time the petition was filed. The Nebraska Service Center did not act 
inappropriately by exercising its discretion to treat the petition as one being for the second 
preference category and not for the third preference category. In this matter, the appropriate remedy 
would be to file another petition with the proper fee and required documentation. 
Page 4 
The evidence submitted does not establish that the Form ETA 9089 requires a professional holding 
an advanced degree or the equivalent of an alien of exceptional ability, and the appeal must be 
dismissed. 
Furthermore, the record is devoid of the necessary initial evidence establishing that the petitioner has 
the continuing ability to pay the proffered wage beginning on the priority date, i.e., April 12, 2006. 
8 C.F.R. $ 204.5(g)(2). The record does not contain audited financial statements, tax returns, or 
annual reports containing pertinent financial data relating to the petitioner's ability to pay the 
proffered wage on or after the priority date. Accordingly, the petition may not be approved for this 
additional reason. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. $ 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.