dismissed EB-2 Case: Economics

(b)(6)
Date: 
MAR 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
: (;ql_~ D.ep~rlin:eJ:it ~r, Hometiiitd Stlc\JrltY 
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 
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) ofthe 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 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. 
(1\j)"' 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)Page2 
DISCUSSION: The preference 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 public university. It seeks to employ the beneficiary permanently in the United 
States as an assistant professor. 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). Upon reviewing the petition, the director determined that the 
beneficiary did not possess a doctorate degree as of the petition's priority date. The director denied 
· the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. 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. 
As set forth in the director's August 24, 2010, December 23, 2010, and May 13, 2011 denials, the 
single issue in this case is whether the beneficiary possessed the minimum level of education stated 
on the labor certification. 
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.ER. § 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 Unjted States 
doctorate or a foreign equivalent degree." /d. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appea1.1 . 
· As noted above, the ETA Form 9089 in this matter is certified by the DOL. The DOL's role is limited 
to determining whether there are sufficient workers who are able, willing, qualified and available and 
whether the employment of the alien will adversely affect the wages and working conditions of workers 
in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.P.R.§ 656.1(a). 
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations 
' 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations at 8 C.P.R. § 103.2(a)(1). The record in the instant case 
provides no reason to preclude consideration .of any of the documents newly submitted on appeal. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
Page 3 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific i.mniigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9
1
b Cir. 1984); Madilny v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
Relying in part on Madilny, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (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 DOL that stated the following: 
The labor certification made by the Secretary of Labor .... pursuant to section 
212(a)[(5)] 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 ce;tification 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.) /d. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madilny, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. /d. 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. Stizith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
(b)(6)
Page4 
certification must involve reading and applying the plain language of the labor certification. 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. 
The petitioner must demonstrate that, on the priority date, the beneficial)' had the qualifications stated 
on its labor certification application, as certified by the DOL and submitted with the instant petition. 
Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg1 Comm'r 1977). 
In this matter, the required education, training, experience, and special requirements for the offered 
position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires 
a u~s. doctorate degree in economics. 
The beneficiary set forth her credentials on the labor certification and signed her name, under a 
declaration that the contents of the form are true and correct und~r the penalty of perjury. On the section 
of the labor certification eliciting information of the beneficiary's education, she states that she attended 
the t and received a doctorate degree in economics. 
The record contains letters from the 1 claiming that she completed "all 
requirements" of her doctorate program in August 2009, which would have been before the instant 
priority date.Z However, it is admitted that her doctorate degree was not conferred until December 
20, 2009. Accordingly, the beneficiary's doctorate degree was not awarded until after the priority 
date. 
On appeal, counsel states that as of the priority date, August 4, 2009, the beneficiary "completed all 
coursework and requirements for the issuance of her Ph.D in Economics." Therefore, the beneficiary 
arguably satisfied the minimum level of education stated on the labor certification. The petitioner 
submitted the beneficiary's official academic transcript from the _ printed on 
February 10, 2010. However, the transcript" reflects that the beneficiary's Ph.D. degree was 
"awarded" on December 20, 2009, after the petition's priority date. 
2 USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the 
alien's eligibility. See id. USCIS may give less weight to an opinion that is not corroborated, in 
accord with other information or is in any way questionable. /d. at 795. See also Matter of Soffici, 
22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Commr. 1972)); Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)(expert witness testimony 
may be given different weight depending on the extent of the expert's qualifications or the relevance, 
reliability, and probative value of the testimony). 
(b)(6)
. . ' .. 
PageS 
Since the ETA Form 9089 required a doctorate degree as the minimum level of education, the 
petitioner has failed to establish that the beneficiary possessed all the education specified on the 
labor certification as of the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea 
House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comrn. 
1971). Both precedent decisions and the regulation are clear that, if a doctorate is required for the 
position, the beneficiary must have earned the degree before the priority date. See ·8 C.F.R. § 
204.5(k)(2). 
Although counsel cites to a decision of the Board of Alien Labor Certification Appeals (BALCA) in 
support of her claim that the beneficiary was not required to have earned the degree required by the 
labor certification by the priority date, counsel does not state how BALCA precedent is binding on 
the AAO. While 8 C.F.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all 
its employees in the administration of the Act, BALCA decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 
C.F.R. § 103.9(a). 
Therefore, the beneficiary does not meet the job requirements on the labor certification. 
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.