dismissed EB-2 Case: Software Engineering

Date: 
IN RE: 
DEC \ 8 2612 
Petitioner: 
lkncl'iciary: 
Office: TEXAS SERVICE CENTER 
U.S, I)cl)artnwnt of Homeland Sl.'Curity 
U.S. Llli/l'll~hir ,Inti lrnllligr,illull ~crvlce~ 
Admini~trative Appeab Offici.! (AAO) 
20 Massachuse\t<; Ave., N.W .. MS 209() 
Wa~hing!lln. [)(" 20,";29·2<)lIO 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Prokssions Holding an Advanced 
Degree or an Alien of Exceptional Ahility Pursuant to Section 203(h)(2) of thc Immigration and 
Nationality Act, S U.s.c. § 1153(b)(2) 
ON I3EHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documenh 
related to this matter have hcen returned to the office that originally decided your case. Please he advised Ihal 
any further inquiry that you might have concerning your case must be made to that office. 
If you belicve the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may rile a motion to reconsidL'r Of (j lllotiOIl tll rcopen ill 
accordance with the instructiuns un Form 1-2YOB, Notice of Appeal or Motion, with i:I fcc of Sh30. Tllc 
specific requirements for filing such a motion can he found at H C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please he aware that H C.F.R. § 103.5(a)(\)(i) requires any mOlion tu be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
[Q2""", Acting Chic!' Administrative Appeals Office 
ww",·.llscis.go\" 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a software consulting and development company. It seeks to employ the 
beneficiary permanently in the United States as a senior software engineer. 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 satisfy the minimum level of education 
or work experience stated on the labor certification. The director denied the petition accordingly. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DUr. 381 F.3d 143. 145 (3d 
Cir. 20(4). 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), H 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. H C.F.R. § 204.5(k)(2). The regulation limher 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 t(lreign cquivalent degree," Id. 
To be eligible for approval. a beneficiary must have all the education, training. ancl experience specified 
on the labor certilieation as of the petition's priority date. See Malter of Wing's leo l/ouse. 16 I&N 
158 (Act. Reg. Comm. 1977). The priority date of the petition is February il, 2011, which is the date 
the labor certification was accepted for processing by the DOL See 8 C.F.R. ~ 204.5(d). The 
Immigrant Petition for Alien Worker (Form 1-140) was filed on June 7, 2011. 
Upon review of the entire record, including evidence submitted on appeal, the AAO concludes that the 
petitioner has established that it is more likely than not that the beneficiary had all the education 
specified on the ETA Form 90H9 as of February H, 201 J. That portion of the director's decision is 
withdrawn. 
However, the record docs not establish that the beneficiary had the required five years of experience as 
a senior software engineer or in one of the alternate occupations listed in the ETA Form 908'!. 
In evaluating the requirements for the offered position, U.S. Citizenship and Immigration Services 
(USCIS) must look to the job offer portion of the labor certification. USClS may not ignore a term 
of the labor certification, nor may it impose additional requirements. See Maller of Silver Dragon 
Chinese Restaurant. 19 I&N Dec. 401, 40ti (Comm. 1986). See also, Mandan)' v. Smith, tilJti F.2d 
lO08 (D.C. Cir. 1983); K.RK Iwine, Inc v. Landon, ti99 F.2d lOOti (9th Cir. Cal. 1983); Stewart 
Ill/i'll-Red Commissary o( Massachusetts, Inc. v. Coorney, 661 F.2d I (I" Cir. I'lSI). 
Page 3 
uselS must examine ··the language orthe labor certilication job requirements" in order to ddermine 
what the job requires. Id. 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. S(>(> Rosedale Lilldell 
Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's 
interpretation of the job's requirements, as stated on the labor certification must inn)lve reading and 
applying the plain language of the alien employment certification application form. Sl'(> id. at !-i34. 
USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor 
eertitieation that DOL has formally issued or otherwise attempt to divine the employer's intentions 
through some sort of reverse engineering of the labor certification. 
Here, the DOL certified the ETA Form 9089 on February 11, 20ll. 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.F.R. § 656.I(a). 
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. S(>(> Tongatapll Woodcraft Hawaii, Ltd. ,'. Feldllllln, 736 F. 2" 
1305,1309 (9th Cir. 1984); Madllny v. Smith, 696 F.2d 1008, l012-1Ol3 (D.c:. Cir. IlJ83). 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See NLR.H. 
v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative agencies 
are not free to refuse to follow precedent in cases originating within the circuit); RL 11ll'. l.td. 
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 20(0), a/Td 273 F.3d 874 (lJ'h Cir. 20(1) 
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even 
when they are published in private publications or widely circulated). 
The required education, training, experience, and special requirements for the offered position arc set 
forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a bilchelor"s 
degree, or foreign educational equivalent, in computer science, engineering (any branch) and 60 
months of experience in the job offered or in the alternate occupations of programmer, analyst, 
developer, consultant or similar occupation. 
The beneficiary set forth his credentials on the labor certification and signed his name, under a 
declaration that the contents of the fOI1ll1 are true and correct under the penalty of perjury. On the section 
of the labor certification eliciting infol1ll1ation of the heneficiary's work experience. he represented that 
he has worked as a senior software engineer for the petitioner from November 2U07 through the date 
that the ETA Form 9089 was signed (March 15,2(11). He also claims to have worked as a project 
from April 200 I to October 2007 in Pune, India, and as a manager for 
from April 19lJ7 to April 200l. He additionally claims to have 
Page 4 
worked as a network administrator for 
April I YY7. 
from September 19Y3 to 
the petitioner submitted a letter from _ indicating that the lICIIICIII-ldl 
April 200 I to October 2007 as a project manager and two letters from the 
indicating he worked for that organization from 1993 to Il)Y7. 
In a request for evidence (RFE) dated June 20, 2011, the director noted that the "employment dates 
you have provided in ETA Yen;'} and dates submitted with 1-140 is contradictorv with the dates we 
have in record." In response to the RFE, counsel submitted an explanation of the inconsistencies 
along with a record of the dates of employment. Counsel claims that the beneficiary was actually 
employed b_from 2004 to 2010 an~ from 2001 to 2004, even though this is 
inconsistent with both the ETA Form Y08Y and the experience letter from ~hich claims that 
the beneficiary "ended his employment in October 2007." His employment with the petitioner did 
not allegedly begin until 2010, even though it is claimed in the ETA Form 9089 that his employment 
with the petitioner began in 2007. 
The director denied the petition because "there is too 
is in contradictory within all three instances of fir 
request. 
id,'n,·" in employment dates and 
and rc:sponse receive on 
On appeal, counsel states that .. the dates of employment was entered incorrectl:- in the Form FlA-
9089 due to an inadvertent error." However, it is not clear how this error could have been made by 
the beneficiary when he signed the ETA Form 9089. The beneficiary'S failure to apprise himself of 
the contents of the paperwork or the information being submitted constitutes deliberate avoidance 
and does not absolve him of responsibility for the content of his petition or the materials submitted 
in support. Se" Hanna v. Gonzales, 128 Fed. Appx. 478, 480 (61h Cir. 200S) (unpublished) (an 
applicant who signed his application for adjustment of status but who disavowed knowledge of the 
actual contents of the application because a friend filled out the application on his behalf was still 
charged with knowledge of the application's contents). The law generally does not recognize 
deliberate avoidance as a defense to misrepresentation. See Balltista v. Star Crllis('\, 3Y6 F.3d 12t\Y. 
1301 (1IIh Cir. 200S); United Stales v. PIII'll te, 982 F.2d 156, 159 (51h Cir. 1993). 
On appeal, counsel further states that the beneficiary worked for Syntei Ltd. (US) from October 
2004 to April 2010. However, this employment is not listed on the ETA Form Y089. In Maller oj' 
LellnK, 16 I&N Dec. 2S30 (BIA 1976), the BlA notes that the beneficiary'S experience, without such 
fact certified by the DOL on the beneficiary'S ETA Form 9089, lessens the credibility of the 
evidence and facts asserted. See also Maller of Ho, 19 I&N Dec. 582, 591-592 (BIA 19t\t\). 
Doubt cast on any aspect of the petitioner's evidence may lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such 
Pagt: 5 
inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice, 
The beneficiary's work experience letters do not provide independent, objective evidence of his prior 
claimed work experience, See id Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings, Matter o{ ,~'ofJici, 22 
I&N Dec, 158, 165 (Comm'r 1(98) (citing Matter of Treasure Craft ofCalijiJrnia, 141&N Dec. 19() 
(Reg'l Comm'r 1(72)), Overall, the record is so rife with unsatisfactorily explained and unresolved 
inconsistencies surrounding the beneficiary'S work experience that it cannot be concluded that he 
meets the requirements of the ETA Form 9089 or the advanced degree professional c1assirication, 
The petitioner claims on appeal that the ETA Form 9089 contains an incorrect account of the 
beneficiary'S experience, yet it submitted letters in support of the petition which square with this now 
repudiated list of work experience, Only after being called upon to reconcile this list of experience 
with inconsistencies in the record did the petitioner produce an entirely different version of the 
beneficiary's work experience history, This new version changed the beneficiary's start date with the 
petitioner by three years and claimed that the beneficiary actually worked in the U.s, for Syntel 
when such experience was entirely omitted from the ETA Form 9089, Thndore, the petitioner has 
not established that the beneficiary had the required five years of prior experience by the priority 
date, 
Beyond the decision of the director, the petitioner has also failed to establish its continuing ability to 
pay the proffered wage as of the priority date, See 8 c'F,R, § 204.5(g)(2), 
According to USClS records, the petitioner has filed numerous 1-140 petitions on behalf of other 
beneficiaries, Accordingly, the petitioner must establish that it has had the continuing ability to pay the 
combined proffered wages to each beneficiary from the priority date of the instant petition, Scc Mauer 
of Great Wall, 161&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977), 
The evidence in the record does not document the proffered wage or wages paid to each beneficiary, 
whether any of the other petitions have been withdrawn, revoked, or denied, or whether any of the other 
beneficiaries have obtained lawful permanent residence, The record is also devoid of any required 
evidence (i,e" annual reports, audited financial statements, or tax returns) pertaining to the petitioner's 
ability to pay the proffered wage beginning on the February 8, 2011 priority date. Thus. it is also 
concluded that the petitioner has not established its continuing ability to pay the proffered wage to the 
beneficiary, 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision, See Spencer Enterprises, fllc, v, United States, 229 F. Supp, 2d 1025, 1043 (E,D, 
Cal, 2()(JI), ajfd, 345 F,3d 683 (9'h CiL 2(03); see also Sollane v. DOJ, 381 F.3d 143, 145 (3d CiL 
20(4) (noting that the AAO conducts appellate review on a de novo basis), 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of lhe ACI, 
8 U.S.c, § l3ol. The petitioner has not mel that burden. 
ORDER: The appeal is dismissed.