dismissed EB-2 Case: Physical Therapy

U.S. Department of Homeland Security 
U. S. Citizenshiv and Immigration Services 
Prevent clearly unwarranted 
"vasion of personal pri vac~ 
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Office ofAdministrative Appeals MS 2090 
identifying data deleted to 
 Washington, DC 20529-2090 
Prevent clearly Unwarranted 
 U. S. citizenship 
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 and Immigration 
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Office: NEBRASKA SERVICE CENTER Date: JUL 0 6 2009 
LIN 06 191 50928 
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. 5 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
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 further inquiry must be made to that 
ofiice. 
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 
or reope as required by 8 C.F.R. 5 103.5(a)(l)(i). 
J missom 
Acting 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 physical therapist placement agency. 
 It seeks to employ the beneficiary 
permanently in the United States as a physical therapist pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). The petition is accompanied by a 
Form ETA 9089, Application for Permanent Employment Certification, which was not certified by 
the Department of Labor. The Form ETA 9089 indicates in Block H that the minimum level of 
education required for the position is a bachelor's degree in physical therapy and that experience in 
the job is not required. The Form ETA 9089 also requires a New York state physical therapy license 
and the completion of a bachelor's degree program. 
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). The director 
denied the petition accordingly. 
On appeal, counsel argues that the petitioner sought classification as an advanced degree 
professional or alien of exceptional ability in error by mistakenly checking block "d" in Part 2 of the 
Form 1-140. Counsel asserts that the petitioner should have checked block "el' for a professional or 
skilled worker pursuant to section 203(b)(3)(A) of the Act, 8 U.S.C. 5 1 1 53(b)(3)(A). 
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. 
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. 5 204.5(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. 3 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
Page 3 
Here, the Form 1-140 was filed on June 12, 2006. On Part 2.d. of the Form 1-140, 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. $ 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 1147, 1149 (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 he argues that he 
committed a "typing error" by marking Part 2.d. and that the petitioner intended to seek classification 
as a professional or skilled worker. He also submits a "corrected" Form 1-140 in which box "e" is 
checked. 
The regulation at 8 C.F.R. § 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 the minimum level of 
education required for the position is a bachelor's degree in physical therapy and that experience in 
the job is not required. The Form ETA 9089 also requires a New York state physical therapy license 
and the completion of a bachelor's degree program. 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. However, the petitioner requested classification as a member of the 
professions holding an advanced degree or an alien of exceptional ability and attempted to change 
this request to that of a skilled worker or professional on appeal. A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to United States Citizenship 
and Immigration Services requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1988). In this matter, the appropriate remedy would be to file another petition with the 
proper fee and required documentation. 
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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.