dismissed EB-2 Case: Computer Science

(b)(6)
DATE: fEB 2 1 ZU13 · Office: . TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and lmmigr ati.on Scr.vices· 
Administrative Appeals Office (AAO) 
20 Massachusetls Ave., N.W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
. I · 
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 AAO inappropriately applied the law in reaching its decision , or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B , Notice of Appeal or Motion, with a · fee of $630. The 
specific requirements for filing such a motion can be· found at 8 C.F.R. § 103,5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the. motion seeks to reconsider or reopen. 
Thank you, . 
~·~ . CP---
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov , 
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DISCUSSION: The Director, Texas Ser\lice Center, denied the employment-based immigrant visa 
petition, which is now before the Aqministrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to employ the beneficiary as an alien of ex~ptional ability as an "Intrusion 
Detection Systems Analyst," pursuant tci section ·203(b)(2) of the linmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2). The director determined that the labor certification did not require an alien 
of exceptional ability as required by 8 C.F.R. § 204.5(k)(4) and therefore "the · petition cannot be 
approved." 
On appeal, counsel submits a brief and additional eyidence. The AAO notes that while counsel restates 
the beneficiary's q~alifications on appeal, the sole issue in the instant petition is whether "[t]he job 
offer portion of an individual labor certification ... requires ... the equivalent of an alien of exceptional 
ability." For the reasons discussed below, the AAO upholds the director's conclusion that the petitioner 
has not established eligibility for the exclusive classification sought. The AAO conducts appellate 
re,view on a de novo basis. AAO's de novo authority is well recognized by the federal courts . . See 
Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
L LAW· 
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 regulation at 8 C.F.R. § 204.5(k)(2) defines ·"exceptional ability" as "a degree of expertise 
significantly above that ordimirily encountered in the sciences, arts, ot business." The regulation at 
8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an . alien must 
meet in order to qualify as an alien of e~ceptional ability in the sciences, arts, or business: . 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a coilege, university, school, or other institution of 
learning relating to the area of exceptiof!al ability 
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(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought 
(C) A licens'e to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration· for 
services, which demonstrates e~ceptional ability 
(E) Evidence of membership in professional associations 
(F) Evidence of recognition for achievements. and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations . 
II. ANALYSIS 
A. The Offered Position 
The regulation at 8 C.F.R. § 204.5(k)(4) provides the following information regarding labor 
certification and Schedule A designation for classification as aliens who are members of the professions 
holding advanced degrees or aliens of exceptional ability: 
(i) General. Every petition under this classification must be accompanied by an · 
individual labor certification from the Department of Labpr, 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's 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. 
The job offer portion of the 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 or an alien of exceptional ability. 
I . . 
(Emphasis added.) As required by statute, a certified ETA Form 9089, Application for Permanent 
Employment Certification, accompanied the petition. However, the job offer portion of the labor 
certification in this matter indicates that the proffered position requires a bachelor's degree in· 
Management Information Systems or Computer Science and 36 months of related experience or a 
master's degree. The ETA Form 9089 does not provide any other requirements, including specific 
skills or other requirements, in item 14 except for indicating that "[a]ny suitable combination of 
education, training or experience is acceptable." The petitioner does not contest the director's 
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findings that the job offer portion of the labor certification does nofrequire an individual of exceptional 
. ability. The AAO , therefore; considers this issue to be ab~mdoned. Sepulveda v. U.S. Att'y Gen., 401 
F.3d 1228 n. 2, Hristov v. Roark, 2011 WL' 4711885 at *9 '(plaintiff's claims were abandoned as he 
failed to raise them on appeal to the AAO) . 
Rather, counsel's sole assertion is that the director erred as a matter of law by requiring that the job 
offer portion of the labor certification require an individual of exceptional ability. .The director 
·discussed the deficiencies in the job offer portion of the labor certification and. found that the petitioner 
failed to "establish [that] the offered job requires an alien of exceptional ability." On appeal, counsel 
. asserts that "there is rio requirement to demonstrate that the job requires exceptional ability" because 
the "case .is based on an Exceptional 
Ability ·upgrade and not a Schedule A application or Pilot 
Program ." Contrary to counsel's assertion , the plain language of the regulation at 8 C.F.R. 
§ 204.5(k)(4) is not limited to. Schedule A applications or Pilot Programs; 'it specifically includes aliens 
applying for classification as an alien of exceptional ability . supported by an individual . labor 
certification. USCIS is bound by that regulation. Counsel further asserts that "to demonstrate 
'exceptional ability' on the Form 9089 filed in support of the EB3 PERM/Labor Certification would be 
contrary to the Department of Labor regulations." The AAO notes that the instant petition ·is based 
upon a labor certification previously utilized by the petitioner under a different classification. While 
the regulations permit a certified labor certification to be used in support of more than one petition, 
there is no requirement that the petitioner utilize a labor certification which was previously certified for 
a different , lesser employment classification. The labor certification filed in support of an application 
for classification as an alien of exceptional ability must still comply with the regulations at 8 C.F.R. 
§ 204.5(k)(4). 
· Accordingly, the petition cannot be approved. 
' \ 
III. CONC:LUSION 
The petitioner has not established eligibility pursuant to section 203(b )(2) ·of the Act and . the petition 
may not be approved. · · 
The burden of proof in visa p~tition·. proce.edings· remains entirely with the petitioner. Section 291 of 
· the Act, ,8 U.S.C. § 1361. Here, the petiiioner has not ~ustained that burden ; Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.