remanded EB-2 Case: Computer Programming

(b)(6)
I 4 ' . .., 
- . 
DATE:. 
APR \ 7 20\3 
OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U;S. Department of Homeland security 
u:s. Citiz~~~hip ~~d Immigration Services 
Administrative Appeals Office (AAO) 
20 MassachUsetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u~s. Citizenship 
and Imniigratioil 
Services 
FILE: 
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. § 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. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
-www.useis.gov 
(b)(6)
.... 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was initially approved by the 
Director, Texas Service Center (Director). The approval was subsequently revoked by the Director. 
The revocation decision is now on appeal before the Acting Chief, Administrative Appeals Office 
(AAO). The Director's decision will be withdrawn, and the petition remanded for a new decision. 
The petitioner is a software consulting company. It seeks to permanently employ the beneficiary in 
the United States as a computer programmer and to classify him as an advanced degree professional 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2). As required by statute, the petition is accompanied by an Application for Permanent 
Employment Certification, ETA Form 9089, approved by the U.S. Department of Labor (DOL). 
Section 203(b )(2) of the Act provides for immigrant classification to members of the professions 
holding advanced degrees or their equivalent whose services are sought by an employer in the 
United States. The regulation at 8 C.P.R.§ 204.5(k)(2) defines "advanced degree" as follows: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. 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. 
In the revocation decision, issued on October 31, 2012, the Director found that the evidence of 
record failed to confirm the beneficiary's dates of employment with the petitioner and a prior 
employer, . As a result, the Director determil)ed that the record did not 
establish that the beneficiary had the requisite five years of experience (in conjunction with a foreign 
equivalent degree to a U.S. baccalaureate degree) to qualify for the job under the terms of the labor 
certification. 
The petitioner filed a timely appeal, accompanied by a brief from counsel and supporting 
documentation that addresses the issue(s) of the beneficiary's dates of employment with 
and The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 
381 F.3d 143, 145 (3d. Cir. 2004). In view of the entire record, and particularly the materials 
submitted on appeal, the AAO is persuaded that the beneficiary more likely than not was employed 
by the petitioner and during the time periods alleged in the labor certification, as originally 
found by the Director. Accordingly, the AAO will withdraw the Director's decision that revoked the 
approval of the petition for failure of the petitioner to establish the beneficiary's dates of employment 
with and 
The petition does not appear to be approvable, however, because the record still does not show that 
the beneficiary has the requisite five years of qualifying employment. 
,.) 
To be eligible for approval as an employment-based immigrant, a beneficiary must h~tve all the 
education, training, and. experience specified on the labor certification as of the petition's priority date, 
which is the date the underlying labor certification was accepted for processing by the DOL. See 
Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977); see also 8 C.P.R. § 204.5(d). 
(b)(6)
Page 3 
The ETA Form 9089 in this case was filed with the DOL on June 28, 2007, and certified by the DOL 
on August 23, 2007. Hence, the priority date of the ins!ant petition is June 28, 2007. 
The education and experience requirements for the position of(computer) programmer are specified 
in Part H of the ETA Form 9089. In particular: 
Line 4 states that a bachelor's degree is the minimum level of education required. 
Line 4-B specifies "electronics" as the major field of study. 
Line 5 states that no training in the job opportunity is required. 
Line 6 states that 60 months (five years)of "experience in the job offered" is required. 
Line 7 states that no alternative field of study is acceptable. 
Line 8 states that no alternative combination of education and experience is 
acceptable. 
Line 9 states that a "foreign educational equivalent" is acceptable. 
Line 10 states that experience in an alternate occupation is not acceptable. 
Furthermore, Part J, line 21 of the ETA Form 9089 states that the beneficiary did not "gain any of his 
qualifying experience with the employer in a position substantially comparable to the job" offered. 
As evidence of the beneficiary's education, the record includes copies of academic transcripts and a 
diploma indicating that he earned a Bachelor of Engineering (Electronics Communication) from 
India, which was conferred on November 17, 2002, following 
completion of an 8-semester degree program. 
Assuming this degree is a "foreign educational equivalent" to a U.S. bachelor's degree in 
engineering, the beneficiary must also have five years of "experience in the job offered"- (not 
including work with the petitioning company in a substantially comparable position) to qualify for 
the proffered position under the terms of the labor certification. Moreover, the beneficiary's five 
years of qualifying experience must have been completed between the time his bachelor's degree 
was conferred and the priority date of the instant petition to meet the regulatory requirement of five 
years of progressive post-baccalaureate experience to make him eligible for classification as an 
advanced degree professional. See 8 C.F.R. § 103.2(b )(1), (12) and 8 C.F.R. § 204.5(k)(2). 
' 
The beneficiary does not appear to be able to meet this five-year experience requirement since the 
time period between the conferral of his Bachelor of Engineering degree in November 2002 and the 
priority date of the instant petition, June 28, 2007, is less than five years. Furthermore, according to 
the ETA Form 9089 some of the experience the beneficiary did acquire during this time frame 
(January 5, 2006 through June 28, 2007) was with the employer/petitioner in a position whose title 
and job duties were identical to those of the proffered position in this petition. Since the Director 
(b)(6)
. ( ,> 
Page4 
. . 
has not previously addressed these issues, the AAO will remand the petition to the Director for 
further consideration. 
The petitioner must also establish its continuing ability to pay the proffered wage to the beneficiary 
from the priority date up to the present. See 8 C.P.R. § 204.5(g)(2). In this connection, U.S. 
Citizenship and hnmigration Services (USCIS) records show that the petitioner has filed numerous 
other employment-based immigrant petitions (Form 1-140) and nonimmigrant petitions (Form 1-129) 
- over the years. The petitioner must demonstrate its ability to pay the proffered wage for each 1-140 
beneficiary from the priority date of the instant petition until each of the beneficiaries obtains 
permanent resident status. See id.; see also Matter of Great Wall, 16 I&N Dec. 142, 144-145 
(Acting Reg. Comrn. 1977). Furthermore, the petitioner must pay each 1-129 (H-1B visa) 
beneficiary the. prevailing wage in accordance with DOL regulations and the labor condition 
application certified with each H-1B petition. See 20 C.P.R.§ 655.715. 
The burden of proof in these proceedings rests solely with the petitioner. See Section 291 of the Act, 
8 u.s.c. § 1361. 
ORDER: The Director's !decision of October 31, 2012, is withdrawn. The petition is 
remanded to the Director for consideration of whether the beneficiary has five 
years of qualifying post-baccalaureate work experience, in accordance with the 
foregoing discussion. In addition,· the Director may consider whether the 
petitioner has had the continuing ability to pay theproffered wage to the instant 
beneficiary, as well as to all other beneficiaries of pending and approved 
immigrant petitions, from the priority date of June 28, 2007 up to the present. 
The Director may request additional evidence from the petitioner, and prescribe 
a time period for its submission. A new decision will then be issued by the 
Director.