dismissed EB-2 Case: Product Management

identifying data deleted to 
prevent ci..::.;;,> ,.mwarr~ted 
invasion of personal prtvacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
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 
Date: JAN 11 2012 Office: NEBRASKA SERVICE CENTER 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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: 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
T\~k(y' 
~erry%ew 
Chief, Administrative Appeals Office 
www.uscis~gov 
Page 2 
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 merchandise identification business. It seeks to employ the beneficiary 
permanently in the United States as a product manager pursuant to section 203(b )(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(2). The petition is accompanied by 
ETA Form 9089, Application for Permanent Employment Certification, certified by the United 
States Department of Labor. 
The director determined that the ETA Form 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. § 204.5(k)(4). The director 
denied the petition accordingly. 
On appeal, counsel argues that the petitioner intended to seek classification as an alien of exceptional 
ability and that prior counsel erred by not requesting this classification. Alternatively, counsel 
argues that, had the petitioner been properly advised by prior counsel, it would have sought 
classification in a different visa category. 
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. § 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. § 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered. " 
Here, the Form 1-140 was filed on December 28, 2007. 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 conducts appellate review on a de novo basis. See Solfane 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 appeal. On appeal, counsel submits a brief in which she argues that the 
petitioner was wrongfully advised by former counsel to prepare the petition as presented. Counsel 
further asserts that ineffective assistance of counsel action has commenced against former counsel. 
The regulation at 8 C.F.R. § 204.5(k)(4) states in pertinent part that "[t]he 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 ETA Form 9089 indicates that the minimum level of 
education required for the position is other, "any suitable combination of education/training and/or 
experience" and 120 months of experience in the job is required. The ETA Form 9089 also requires 
as an alternate level of education required, "any suitable combination of educations/training and/or 
experience." Accordingly, the job offer portion of the ETA Form 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 and attempted to re-characterize the classification requested 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'r 1988). 
Regardless, although counsel argues on appeal that the petitioner was wrongfully advised by former 
counsel, the petitioner's representative's signature which was signed under penalty of peljury under 
the laws of the United States of America appears as the person preparing the form, not former 
counsel. Former counsel appears to have signed the ETA Form 9089, but there is no evidence that 
former counsel prepared and filed the Form 1-140. Finally, even if it could be established that prior 
counsel was ineffective, it is unclear what relief could be granted as the petitioner may not change 
classifications after the denial. See Matter of Izummi. It is also noted that current counsel appears to 
have represented the petitioner before the petition was denied by submitting a response to the 
director's August 4, 2008 Request for Evidence. 
The evidence submitted does not establish that the ETA Form 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. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.