dismissed EB-2 Case: Education

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U.S. Citizenship · 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : APR. 12, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM l-140 , PETITION FOI3. ALIEN WORKER 
The Petitioner, a state public school system , seeks to permanently employ the Beneficiary as a 
secondary school science teacher in accordance with section 203(b )(2) of the Immigration and 
Nationality Act (the Act). This second preference employment-based clas sification makes immigrant 
visas available to advanced degree professionals or individuals who possess exceptional ability , 
whose services are sought by an employer in the United States. 
The Director of the Nebraska Service Center denied the petition
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, concluding that the petition did not 
meet the requirements for the second preference classification. The petition is supported by an 
Application for Perm anent Employment Certification, ETA Form 9089 , certif-ied by the U.S. 
Department of Labor (DOL). The Director determined that the Form ETA 9089 did not demonstrat e 
that the position requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability . Therefore , he found that the Beneficiary was not eligible for the second 
preference classification. 2 See 8 C.F.R. § 204 .5(k)(4) . 
On appeal, the Petitioner maintains that the position requires an individual who possesses 
exceptional ability by virtue of implied position requirements beyond those expressly stated on the 
ETA Form 
9089. We disagree. 
Upon de novo review , we will dismiss the appeal. 
I. LAW 
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The Director first deni ed the petition in December 2015 . The Petitioner filed an appeal of that decision in Janu ary 
2016. The Director then issued a second denial in May 2016, contrary to the requir ements set forth at 8 C. F. R. ~ 
I 03 .3(a)(2)(iv) that an appeal shall be forwarded to our office if the Director determine s that a favorable decision is not 
warranted. The Petitioner filed a second appeal in Jun e 2016, and the Director ultim ately forwarded the petition and 
appeal to us for consideration . 
2 USCIS previously approved a petition for this Beneficiary under the third preference classification based upon the 
position offered to her in this petition . Section 203(b)( 3)(A)(ii) of the Act grant s third preference clas sification to 
qualified immigrants who hold baccalaureate degree s and are members of the profe ss ions. See also, 8 C.F .R. § 
204 .5( I )(2). 
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Matter of 
Section 203(b)(2) ofthe Act provides classification to qualified individuals 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 implementing regulation at 8 C.F.R. § 204.5(k)(2) states: "Exceptional ability in the sciences , 
arts, or business means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business." Unless seeking a waiver in the national interest, the petition must be 
accompanied by a valid, individual labor certification or an application for Schedule A delegation 
that demonstrates the job requires an advanced degree or an individual of exceptional ability. 
8 C.F.R. § 204.5(k)(4)(i). 
Further, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) sets f01th six criteria, at least three of 
which an alien must meet in order to qualify as an alien of exceptional ability in the sciences, arts , or 
business. This , however, is only the first step , and the successful submission of evidence meeting at 
least three criteria does not, in and of itself, establish eligibility for this classification. 3 If the 
petitioner submits sufficient evidence at the first step, we will then go on to determine whether the 
evidence in its totality shows that the beneficiary is an alien of exceptional ability. See Maller qf 
Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) (holding that the "truth is to be determined not by the 
quantity of evidence alone but by its quality"). 
II. ANALYSTS 
It is important to discuss the respective roles of DOL and U.S. Citizenship and Immig1'ation Services 
(USCIS) in the employment-based immigrant visa process. · As noted above , the ETA Form 9089 in 
this matter is certified by DOL. It is DOL's responsibility under section 212(a)(5)(A)(i) of the Act to 
determine whether there are qualified U.S. vvorkers available to perform the offered position, and 
whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. 
lt is significant that none of the inquiries assigned to DOL under the Act or the regulation s 
implementing these duties under 20 C.F.R. ~ 656, involve a determination as to whether the position 
and the beneficiary are qualified for a specific employment-based visa preference classification. Jt is 
the responsibility of USCJS to determine if the beneficiary qualil"ies for the offered position, and 
whether the offered position and beneficiary are eligible for the requested employment-based 
immigrant visa classification. See K. R. K. Irvine. Inc. v. London. 699 F.2d I 006, I 008 9th Cir.l983) . 
3 Cf Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 I 0) (discussing a similar two-part framework relating to aliens of 
"extraordinary ability" where the evidence is first counted and then, if satisfying the required number of criteria , 
considered in the context of a final merits determination). 
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Matter of 
A. Beneficiary's Qualifications for the Second Preference Category 
On the ETA Form 9089, Part H, the Petitioner indicated that the minimum education level for the 
position is a bachelor's degree in education, science or a related field. The Petitioner further 
indicated that experience in the position offered was not required, and that an alternate combination 
of experience and education would not be acceptable. The only other requirement specified on the 
form was eligibility for a state teaching license. Accordingly , the petitioner defined the 
requirement for the position as a bachelor's degree in education , science , or a related field , and 
eligibility for licensure as a teacher in , the location of the employment. 
The material provided in the record reflects that the Beneficiary earned a doctoral degree in 
education from in 2003, several years before the tiling of the ETA Form 9089 
on February 23, 2006. Additionally, she has 
held a teaching license since 2004. 
Therefore, she met the requirements for the position at the time her priority date was established for 
an immigrant visa. See 8 C.F.R. § 204.5(d) . She also met the definition of an advanced degree 
professional under the second preference classitication. 4 Therefore , the remaining issue before us is 
whether the position itself qualifies for this classification. 5 
B. Qualifying Position for the Second Preference Classification 
Since the ETA Form 9089 only requires a bachelor ' s degree and eligibility for a teaching license , the 
job ofiered to the Beneficiary does not meet the second preference requirements as a position for an 
advanced degree professional. Therefore , the Petitioner must demonstrate that the position offered 
in the ETA Form 9089 requires the equivalent of an alien of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(2) and 8 C.F.R. § 204.5(k)(4)(i). 
The regulation at 8 
C.F.R. § 204.5(k)(3)(ii) contains an evidentiary framework that must be met to 
establish eligibility for second preference status as an alien of exceptional ability. Six evidentiary 
criteria are set forth at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), and encompass things like academic 
degrees, work experience and licensure in the area of specialty, high compensation relative to others 
working in the field, membership in professional associations, or recognition for achievements or 
significant contributions to the field. 
As an initial step, the Petitioner must provide satisfactory evidence that the position offered in the 
ETA Form 9089 requires at least three of those six criteria. If the Petitioner submits sufficient 
evidence at the first step, we will then go on to determine whether the evidence in its totality shows 
that the position offered is equivalent to an alien of exceptional ability. In this case, the Petitioner 
4 The Petitioner maintains that the Beneficiary is also eligible for the second preference classification as an alien of 
exceptional ability. ·As she possessed a doctoral degree in education at the time of filing of the ETA Form, a 
determination regarding whether she is an alien of exceptional ability is moot. She meets the statutory and regulatory 
definition of"advanced degree professional". See section 203(b)(2)(A) of the Act and 8 C.F.R. § 204.5(k)(2). 
5 The Petitioner has established its continuing ability to pay the proffered wage pursuant to 8 C.F.R. § 204.5(g)(2). 
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Matter o.f 
has not established that the position meets at least three of the criteria. The Petitioner highlights the 
Beneficiary's academic accomplishments and level of compensation, and contends that an analysis 
of her qualifications is a reasonable basis for determining whether the position itself requires the 
equivalent of an alien of exceptional ability. However, for the classification at issue, the job offer 
portion of the ETA Form 9089 must demonstrate that the job requires the equivalent of an alien of 
exceptional ability. See 8 C.F.R. § 204.5(k)( 4 )(i). 
The ETA Form 9089 requires a bachelor's degree in education, science or a related field and so 
meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). However, as a prospective applicant only needs 
to be eligible to obtain a teaching license to meet the requirements of the ETA Form 
9089, and does not need to have possessed a teaching license at the time the priority date was 
established, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) has not been met. 
The proffered wage of $41,172 for the position was based upon a collective bargaining agreement 
for teachers working in , and has not been shown to be a level of compensation that is high 
relative to others working in the occupation in . The ETA Form 9089 specified that the 
wage might also be as high as $67,637. While an applicant for the position may be offered a higher 
salary, the minimum wage of $41,172 matches the form's prevailing wage. The Petitioner has not 
demonstrated that tendering the prevailing wage indicates that the job requires an individual of 
exceptional ability. Therefore, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) has not been met. 
The Petitioner contends that the position meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), noting 
that membership in the is a :·subsumed" requirement of the 
teaching position in the ETA Form 9089. However, no mention of this position requirement is 
expressly made on the form. When determining whether a beneficiary is eligible for a preference 
immigrant visa, USCIS may not ignore a term of the labor ce1iification, nor may it impose additional 
requirements. See Madany v. Smith, 696 F.2d 1015 (D.C. Cir. 1983). lJSCIS must examine "'the 
language of the labor certification job requirements" in order to determine what the job requires. /d. 
USCIS cannot require evidence of membership in order to establish the Beneficiary's eligibility 
for this position as it was not specified on the E'TA Form 9089. Similarly, the Petitioner may not 
rely on position requirements that are not documented on El'A Form 9089 in order to demonstrate 
that the position offered meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner did not provide discussion or material to show that the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) or (F) have been met. As the evidence of record does not show that the . 
requirements of the position meet at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), we 
will not go on to the next step to determine whether the evidence in its totality shows that the 
position offered is equivalent to an alien of exceptional ability. Rather, we conclude that the position 
does not meet the requirements of 8 C.F .R. § 204:5(k)( 4 )(i). 
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Matter of 
III. CONCLUSION 
The Petitioner has not demonstrated that the job requires an individual of exceptional ability. 
Accordingly, the Beneficiary is not qualified for the second-preference visa classification based on 
this petition. Therefore, the Beneficiary is ineligible for immigration benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of ·, ID# 276806 (AAO Apr. 12, 2017) 
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