dismissed EB-2 Case: Systems Analysis

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 2 6 2015 FILE#: 
IN RE: Applicant: 
Beneficiar y: 
APPLICATION: 
RECEIPT#: 
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 APPLICANT: 
Enclosed is the non-prec edent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are loca ted at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
Thank you, 
k?vt kr-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition on September 17, 2014. The 
denial was appealed to the Administrative Appeals Office (AAO), who dismissed the appeal on March 
19, 2015. The petitioner filed this motion to reopen on April15, 2015. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2) as a member of the professions holding an advanced 
degree. 
In dismissing the appeal, we determined that the petitioner did not establish that the beneficiary 
possessed the minimum educational requirements, or t_hat the beneficiary possessed the required 
minimum experience required by the terms of the labor certification. 
Under 8 C.P.R.§ 103.5(a)(3), a motion to reconsider: 
must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or 
Service policy. A motion to reconsider a decision on an application or petition must, 
when filed, also establish that the decision was incorrect based on the evidence of record 
at the time of the initial decision. 
The petitioner has provided no pertinent precedent decisions showing that our decision incorrectly 
applied the law to either grounds for the dismissal of the appeal. The petitioner's citation to 
Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), is inapplicable to 
this case. In Snapnames, the labor certification application specified an educational requirement of four 
years of college and a 'B.S. or foreign equivalent.' The alien had a three-year degree and membership 
in the Institute of Chartered Accountants of India (leAl). USeiS had concluded that the alien did not 
qualify for EB-2 or EB-3 (due to the specific job requirements on the labor certification). The court 
upheld the USCIS determinations on EB-2 and EB-3 as a professional but reversed USeiS in the EB-3 
skilled worker classification. 
In reaching its conclusions, the federal district court in Snapnames.com, Inc. determined that 'B.S. or 
foreign equivalent' relates solely to the alien's educational background, precluding consideration of the 
alien's combined education and work experience. !d. at *11-13. Additionally, the court determined that 
the word 'equivalent' in the employer's educational requirements was ambiguous and that in the context 
of skilled worker petitions (where there is no statutory educational requirement), deference must be 
given to the employer's intent. !d. at *14. In professional and advanced degree professional cases, 
however, where the alien is statutorily required to hold a bachelor's degree, the USeiS properly 
concluded that a single foreign degree or its equivalent is required. !d. at *17, 19. The court in 
Snapnames.com, Inc. recognized that even though the labor certification may be prepared with the alien 
in mind, USeiS has an independent role in determining whether the alien meets the labor certification 
requirements. !d. at *7. Thus, the court concluded that where the plain language of those requirements 
does not support the petitioner's asserted intent, USeiS "does not err in applying the requirements as 
written." !d. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Our previous decision dismissing the appeal is supported by Snapnames, as the plain language of the 
labor certification states that the offered position requires a United States Master's degree of foreign 
equivalent degree and 12 months of experience, or alternatively a United States Bachelor's degree 
coupled with six years experience, and the beneficiary does not possess either a United States Master's 
or Bachelor 's or foreign equivalent degree. Therefore, in line with Snapnames, the beneficiary does not 
qualify for classification as an advanced degree professional. 
Nor does the petitioner cite any legal authority that would upset our other ground for dismissal. In the 
two paragraphs of the petitioner's brief devoted to the beneficiary's work history, the petitioner cites to 
no law or precedent decisions that suggest that we incorrectly applied the law. 
In our previous decision, we found that the beneficiary possessed four years and nine months of 
progressive work experience, which is less than the six years of experience required by the terms of the 
labor certification. The petitioner now asserts that the beneficiary's experience working with the 
petitioner as a system analyst/administrator should be considered as qualifying experience for the 
offered position. 
Representations made on the certified ETA Form 9089, which is signed by both the petitioner and the 
beneficiary under penalty of perjury, clearly indicate that the beneficiary's experience with the 
petitioner or experience in an alternate occupation cannot be used to qualify the beneficiary for the 
certified position.
1 
Specifically, the petitioner indicates that questions J.19 and J.20, which ask about 
1 20 C.F.R. § 656.17 states: 
(h) Job duties and requirements. (1) The job opportunity's requirements, unless adequately 
documented as arising from business necessity, must be those normally required for the occupation 
( 4)(i) Alternative experience requirements must be substantially equivalent to the primary 
requirements of the job opportunity for which certification is sought; and 
(i) If the alien beneficiary already is employed by the employer, and the alien does not meet 
the primary job requirements and only potentially qualifies for the job by virtue of the 
employer's alternative requirements, certification will be denied unless the application states 
that any suitable combination of education, training, or experience is acceptable. 
(ii) Actual minimum requirements . DOL will evaluate the employer's actual mmunum 
requirements in accordance with this paragraph (i). 
(1) The job requirements, as described, must represent the employer's actual minimum requirements 
for the job opportunity . 
(2) The employer must not have hired workers with less training or experience for jobs substantially 
comp arable to that involved in the job opportunity. 
(3) If the alien beneficiary already is employed by the employer, in considering whether the job 
requirements represent the employer's actual minimums, DOL will review the training and experience 
possessed by the alien beneficiary at the time of hiring by the employer, including as a contract 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
experience in an alternate occupation, are not applicable. In response to question 1.21, which asks, "Did 
the alien gain any of the qualifying experience with the employer in a position substantially comparable 
to the job opportunity requested?," the petitioner answered "no." The petitioner indicates in response to 
question H.6 that 12 months of experience in the job offered is required and in response to question 
H.lO that experience in an alternate occupation is acceptable. In general, if the answer to question 1.21 
is "no", then the experience with the employer may be used by the beneficiary to qualify for the 
proffered position if the position was not substantially comparable 2 and the terms of the ETA Form 
9089 at H.10 provide that applicants can qualify through an alternate occupation. Here, the 
beneficiary indicates in response to question K.l. that his position with the petitioner was as a 
system analyst/administrator, and the job duties are mostly the same duties as the position offered, 
including analysis, planning design, development, configuration, troubleshooting, administration and 
maintenance of networks, intranet and internet communications systems, and application peripherals. 
Therefore, the experience gained with the petitioner appears to be in the position offered as it is 
substantially comparable, performing the same job duties more than 50 percent of the time. 
According to DOL regulations, therefore, the petitioner cannot rely on this experience for the 
beneficiary to qualify for the proffered position. 
employee. The employer can not require domestic worker applicants to possess training and/or 
experience beyond what the alien possessed at the time of hire unless: 
(i) The alien gained the experience while working for the employer, including as a contract 
employee, in a position not substantially comparable to the position for which certification is 
being sought , or 
(ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for 
the position. 
(4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, 
DOL will not consider any education or training obtained by the alien beneficiary at the employer 's 
expense unless the employer offers similar training to domestic worker applicants. 
(5) For purposes of this paragraph (i): 
(i) The term " employer" means an entity with the same Federal Employer Identification 
Number (FEIN), provided it meets the definition of an employer at § 656 .3. 
(ii) A "substantially comparable" job or position means a job or position requiring 
performance of the same job duties more than 50 percent of the time. This requirement can be 
documented by furnishing position descriptions, the percentage of time spent on the various 
duties, organization charts, and payroll records. 
2 A definition of "substantially comparable" is found at 20 C.F.R. § 656.17: 
5) For purposes of this paragr aph (i): 
(ii) A "substantially comparable" job or posttiOn means a job or pos1t10n requmng 
performanc e of the same job duties more than 50 percent of the time. This requirement can be 
documented by furnishing position descriptions, the percentage of time spent on the various 
duties, organization charts, and payroll records. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
We further noted that the beneficiary's claimed experience with from 1995 through 
2000 overlapped with the beneficiary's education at University from 1994 through 1998. The 
petitioner did not address this on motion. 
Motions for the reconsideration of immigration proceedings are disfavored for the same reason as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS 
v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to 
reconsider a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current 
motion, the movant has not met that burden. The motion will be denied. 
ORDER: The motion is denied. The petition remains denied.