dismissed EB-2 Case: Information Technology

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FILE: - Office: VERMONT SERVICE CENTER Dat : N0y 
EAC 04 256 51920 b 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions 
Degree or an Alien of Exceptional Ability Pursuant to Section 
and Nationality Act, 8 U.S.C. 9 1153(b)(2) 
ON BEHALF OF PETITIONER: 
i 
This is the decision of the Administrative Appeals Office in your case. All documents have be n returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
i 
V 
6f Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Servic 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
On appeal, counsel submits a brief and additional evidence. While we find that the 
the director's concerns regarding the petitioner's ability to pay the proffered 
overcome the director's concern that the job does not require an advanced degree 
The petitioner is an information technology company. It seeks to employ the beneficiary 
United States as a senior system analyst pursuant to section 203(b)(2) of the Immigration and 
Act), 8 U.S.C. 5 1153(b)(2). In pertinent part, section 203(b)(2) of the Act provides immigrant 
members of the professions holding advanced degrees or their equivalent and whose services 
employer in the United States. As required by statute, the petition was accompanied by 
Department of Labor. The director determined that the petitioner had not established 
continuing ability to pay the beneficiary the proffered wage beginning on the priority date of 
and denied the petition accordingly. The director further determined that the job requiremelts 
certification did not require an advanced degree professional. 
Ability to Pay 
pemanently in the 
Nti:ionality Act (the 
classification to 
are sought by an 
certification from the 
that it had the 
:he visa petition 
on the labor 
The regulation at 8 C.F.R. 3 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an empl 
based immigrant which requires an offer of employment must be accompanied by 
that the prospective United States employer has the ability to pay the proffered 
petitioner must demonstrate this ability at the time the priority date is 
continuing until the beneficiary obtains lawful permanent residence. 
shall be in the form of copies of annual reports, federal tax 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, the day the Form ETA 750 was accepted for processing by any office within the employ ent system of 
the Department of Labor. See 8 C.F.R. 9 204.5(d). Here, the Form ETA 750 was accepted fo processing on 
January 25, 2002. The proffered wage as stated on the Form ETA 750 is $93,371.20 annuall . On the Form 
ETA 750B, signed by the beneficiary, the beneficiary claimed to have worked for the etitioner as of 
February 2003. 
i 
On the petition, the petitioner claimed to have been established on July 19, 1999, to have 
income of $373,151, no applicable net annual income and to currently employ five workers. I 
petition, the petitioner submitted three years of U.S. Income Tax Returns for an S 
The tax returns reflect the following information for the following years: 1 
Net income $22,153 
Current Assets $38,437 
Current Liabilities $1,792 
Net current assets $36,645 
The director determined that the evidence submitted did not establish that the 
ability to pay the proffered wage beginning on the priority date, and, on February 23, 
petition. The director did not contest the petitioner's ability to pay the proffered wage in 
On appeal, counsel asserts that the petitioner paid the beneficiary's predecessor and the 
funds to establish the petitioner's ability to pay and that the director erred in considering the 
tax returns as the priority date is in January 2002. The petitioner submits its 2004 tax retu-n 
Requirements of Job Offer 
bene-kiary sufficient 
petitioner's 2001 
reflecting net 
We concur with counsel that the petitioner does not have to establish an ability to pay the 
prior to 2002. Thus, we need not address the financial documents relating to 2001. In 
petitioner's ability to pay the proffered wage during a given period, Citizenship and 1mmig;ration 
(CIS) will first examine whether the petitioner employed and paid the beneficiary during that 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
than the proffered wage, the evidence will be considered prima facie proof of the petitioner's 
the proffered wage. In the instant case, the petitioner did not establish that it employed 
beneficiary the full proffered wage in any year. The petitioner did, however, pay the original 
more than the proffered wage in 2002. The petitioner has submitted the initial evidence 
regulation at 8 C.F.R. 9; 204.5(g)(2), federal tax returns. Thus, the evidence that the 
original beneficiary more than the proffered wage in 2002 is sufficient to establish its ab 
proffered wage in that year. As 2002 is the only year contested by the director, the petitione- 
this basis of the director's denial. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(i) provides, in pertinent part: I 
proffered wage 
determining the 
Services 
period. If the 
to or greater 
ability to pay 
and paid the 
beneficiary 
required by the 
peti:ioner paid the 
lity to pay the 
has overcome 
The job offer portion of the individual labor certification, Schedule A application, 
Program application must demonstrate that the job requires a professional 
advanced degree or the equivalent or an alien of exceptional ability. 
income of $25,044, current assets worth $129,787, current liabilities of $862, leaving net durrent assets of 
The regulation at 8 C.F.R. 5 204.5(k)(2) permits the following substitution for an advanced deg/-ee: 
$128,925. The petitioner submits evidence that the original beneficiary (the current 
substitution for the beneficiary listed on the original labor certification) earned $77,837.00 
$102,426.67 in 2002. The petitioner also submits the beneficiary's 2003 and 2004 Forms 
wages of $37,341.07 and $67,900 respectively. 
t~eneficiary is a 
in 2001 and 
W-2 reflecting 
Page 4 
A United States baccalaureate degree or a foreign equivalent degree followed by at 
years of progressive experience in the specialty shall be considered the 
master's degree. 
Block 14 on the ETA-750 Part A contained in the record contains the following information: 
Education - College: "4," Degree Required: "Bachelor's *" 
It is important that the ETA-750 be read as a whole. Block 14 on the certified ETA-750 Part A' 
record contains the following information: 
Experience - "5" years in job offered or a related occupation. 1 
contained in the 
In this matter, block 14 includes an asterisk. Block 15 includes the following language, separate 
as it appears in the original: 
* Or equivalent -will accept combination of education and work experience. 
Will accept Master's and 2 years of experience in lieu of bachelor's with 5 years expe ience. 
1 
The asterisk in Block 14 appears after the bachelor's degree requirement. The asterisk in 
to continue the education requirement, indicating that a combination of education 
substitute for the bachelor's degree. The following statement that a Master's 
acceptable appears to be a separate statement. Thus, we concur with the 
requirements on the labor certification do not require a bachelor's degree or a 
The director concluded that the job did not require a bachelor's degree, but could be dubstituted with 
After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint 
Explanatory Statement of the Committee of Conference, legacy INS specifically noted that b th the Act and 
the legislative history indicate that an alien must have at least a bachelor's degree: I 
education and experience equivalent to a bachelor's degree. On appeal, counsel asserts 
certification "clearly asks for a masters and 2 years of experience which overrides the 
[director] is quoting." Counsel references the job description, which counsel describes as 
concludes that if "the whole text is read together, it is evidence that the position offered was 
level and the qualifications needed for the job were of professional level falling within the. 
category." 
The Act states that, in order to qualify under the second classification, alien member 
professions must hold "advanced degrees or their equivalent." As the legislative 
that the labor 
clarification the 
"complex" and 
of rofessional dP 2" preference 
1 The petitioner also submitted an uncertified labor certification with different educational 
requirements. As this document was not certified by the Department of Labor, it has no r 
actual requirements for the job at issue. 
indicates, the equivalent of an advanced degree is "a bachelor's degree with at least ve years 
progressive experience in the professions." Because neither the Act nor its legislativ history 
indicates that bachelor's or advanced degrees must be United States degrees, the Se ice will 
recognize foreign equivalent degrees. But both the Act and its legislative history m ke clear 
that, in order to qualify as a professional under the third classification or to have ex erience 
equating to an advanced degree under the second, an alien must have at least a b chelor's 
degree. 1 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 oft 
5 1361. The petitioner has not met that burden. 
(Emphasis added.) 56 Fed. Reg. 60897, 60900 (November 29, 1991). As the job does not 
bachelor's degree in addition to experience, the petitioner has not demonstrated that the 
professional holding an advanced degree. 
In the alternative, counsel requests that the petition be considered in a lesser classificatior. 
provisions permitting the petitioner to amend the petition on appeal in order to establish el 
lesser classification. Thus, we must dismiss the appeal on this ground alone. 
ORDER: The appeal is dismissed. 
require at least a 
job requires a 
There are no 
gibility under a