remanded EB-2 Case: Computer Science

(b)(6)
DATE: DEC 1 2 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S . .Department ofHomeland Security 
U. S. Citizenship and Immigration Service1 
Office of Administrative Appeal s MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
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 (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. All documents have been returned to the office that originally decided your 
case. Any further inquiry must be made to that office. 
Thank you, 
EQ~f!IAt~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The employment-based preference visa petition was denied by the director of the 
Texas Service Center. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The director's decision will be withdrawn. The petition will be remanded to the director. 
The petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), certified by the U.S. Department of Labor (DOL). The priority 
date of the petition is October 25, 2012, which is the date the labor certification was accepted for 
processing by the DOL. See 8 C.F.R. § 204.5( d). 
The petitioner describes itself as an IT consultancy. It seeks to permanently employ the beneficiary 
in the United States as a software developer. The petitioner requests classification of the beneficiary 
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).1 
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. U.S. Dept. ofTransp., 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). 
As set forth in the director's denial, the single issue in this case is whether or not the marriage bar 
under section 204(c) of the Act prohibits the approval of the instant petition. 
The petitioner's ETA Form 9089 was filed with DOL on October 25, 2012 and certified on February 
5, 2013. The petitioner subsequently filed Form I-140 with U.S. Citizenship and Immigration 
Services (USCIS) on April29, 2013. The director denied the petition on June 21, 2013. 
The record reflects that a Form I-130 was filed on the beneficiary's behalf on October 4, 2009. 
Concurrent with the filing of Form I-130, the beneficiary also sought lawful permanent residence 
and employment authorization as the immediate relative of a United States citizen (USC). The 
record contains the completed forms, signed by the beneficiary, and a copy of a marriage certificate 
between the beneficiary and (USC) dated August 17, 2009. 
The record reflects that the petitioner withdrew the Form I-130 petition in a letter dated November 
19, 2009 and received by the director on December 17, 2009. The Form I-130 petitioner sent a 
second letter received by the director on December 31, 2009 in which she stated that the beneficiary 
never moved in with her and that he stayed in Atlanta as he was offered a job there and his ex­
girlfriend lived there. 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees, whose services are sought by an employer in the United States. See also 8 
C.F.R. § 204.5(k)(1). 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
Section 204 of the Act governs the procedures for granting immigrant status. Section 204(c) 
provides the following: 
Notwithstanding the provisions of subsection (b )2 no petition shall be approved if: 
(1) the alien has previously been accorded, or has sought to be accorded, an 
immediate relative or preference status as the spouse of a citizen of the United 
States or the spouse of an alien lawfully admitted for permanent residence, by 
reason of a marriage determined by the [director] to have been entered into for the 
purpose of evading the immigration laws; or 
(2) the [director] has determined that the alien has attempted or conspired to enter 
into a marriage for the purpose of evading the immigration laws. 
On May 13, 2013, the director sent a Notice of Intent to Deny (NOID) to the petitioner finding it 
more likely than not that the beneficiary conspired to enter into a marriage for the purpose of 
evading the immigration laws. 
In response to the NOID, the petitioner provided numerous affidavits from friends and family to 
establish that the beneficiary entered into a bona fide marriage and that the USC had a drug problem 
causing the beneficiary to file for an annulment of the marriage in September 2010. The record 
contains a judgment annulling 
the beneficiary's marriage to the USC on June 27, 2011. 
On June 12, 2013, the director denied the I-140 visa petition. The director discussed inconsistencies 
in the lease agreements filed in connection with the Form I-130 petition; noted that the petitioner had 
not disclosed on the Form I-140 two previous Form I-130 petitions filed on behalf of the beneficiary; 
and cited Section 204( c) prohibiting an alien who has entered into a fraudulent marriage to obtain an 
immigrant visa. The director stated that the petitioner did not meet its burden of proof. While the 
basis for the director's decision is vague, the director suggests that because the beneficiary was 
involved in marriage fraud, under Section 204( c) of the Act the beneficiary is ineligible for the 
benefit sought and the petition must be denied. 
On appeal, counsel asserts that the inconsistencies cited by the director in his denial are not material 
and have been explained and resolved by the evidence in the record and the additional documents 
provided in the instant appeal. 
The standard for reviewing section 204(c) appeals is laid out in Matter of Tawfik, 20 I&N Dec. 166 
(BIA 1990). In Tawfik, the Board held that visa revocation pursuant to section 204(c) may only be 
sustained if there is substantial and probative evidence in the record of proceeding to support a 
reasonable inference that the prior marriage was entered into for the purpose of evading the 
immigration laws. See also Matter of Kahy, 19 I&N Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 
I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972). 
2 Subsection (b) of section 204 of the Act refers to preference visa petitions that are verified as true 
and forwarded to the State Department for issuance of a visa. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
There is not substantial and probative evidence in the record of proceeding to support a reasonable 
inference that the prior marriage was entered into for the purpose of evading immigration laws. The 
record of proceeding does not contain sufficient evidence that a family-based immigrant petition was 
filed solely to obtain an immigration benefit for the beneficiary. 
Thus, the director's determination that the beneficiary sought to be accorded an immediate relative 
or preference status as the spouse of a citizen of the United States by reason of a marriage 
determined by USCIS to have been entered into for the purpose of evading the immigration laws is 
withdrawn. 
The petition may not be approved, however, as the director has not adjudicated the merits of the 
petition. 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An 
"advanced degree" is defined as: 
[A]ny 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 
A "profession" is defined as "one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post -baccalaureate experience in the specialty. 
In addition, the job offer portion of the labor certification must require a professional holding an 
advanced degree. See 8 C.P.R.§ 204.5(k)(4)(i). 
Thus, the petition will be remanded for the director to determine whether the beneficiary is a member of 
the professions holding an advanced degree, and that the offered position requires, at a minimum, a 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
professional holding an advanced degree. The director should also determine whetherthe petitioner has 
established that the beneficiary possessed all the education, training, and experience specified on the 
labor certification as of the priority date. 8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the beneficiary's qualifications, USCIS must look 
to the job offer portion of the labor certification to determine the required qualifications for the 
position. USCIS may not ignore a term of the labor certification, nor may it impose additional 
requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 
699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 
661 F.2d 1 (1st Cir. 1981). 
In the instant case, the labor certification states that the offered position requires a master's degree in 
electrical engineering, computer science, or related equivalent and 36 months of experience in the 
job offered. Further, the offered position provides for an alternate combination of education and 
experience, a bachelor's degree and five years of progressive experience and 36 months of 
experience in an alternate occupation. 
On the labor certification, the beneficiary claims to qualify for the offered position based on experience 
as a Programmer Analyst with m from August 12, 2008 until January 30, 
2011; and a Programmer Analyst with in _ from July 1, 2007 to February 28, 
2008. The beneficiary signed the labor certification under a declaration that the contents are true and 
correct under penalty of perjury. 
The beneficiary's claimed qualifYing experience must be supported by letters from employers giving 
the name, address, and title of the employer, and a description of the beneficiary's experience. See 8 
C.F.R. § 204.5(g) 1). The record contains an experience letter from _ 
President on letterhead stating that the company employed the beneficiary as a 
programmer analyst from August 12, 2008 until January 14, 2011; and an experience letter from 
_ _, HR Manager on letterhead stating that the company employed 
the beneficiary as a programmer analyst from July 1, 2007 until February 28, 2008. Further, 
has informed US CIS that the beneficiary has been employed as a programmer analyst 
contractor since 2009. Further, 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 cannot be used to quality the beneficiary for the certified 
position.4 In response to question J.21, which asks, "Did the alien gain any of the qualifying 
3 US CIS records show that the beneficiary resided from October 2009 to October 2012 in and 
_, not in or where the claimed work was performed. 
4 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
experience with the employer in a position substantially comparable to the job opportunity 
requested?" the petitioner answered "no." The petitioner specifically indicates in response to 
question H.6 that 36 months of experience in the job offered is required and H.lO that experience in 
an alternate occupation is acceptable. In general, if the answer to question J .21 is no, then the 
(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 minimum 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 
comparable 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 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
experience with the employer may be used by the beneficiary to qualify for the proffered position if 
the position was not substantially comparable5 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 programmer analyst, and the 
job duties are the same duties as the position offered. Therefore, the experience gained with the 
petitioner was in the position offered and is substantially comparable as he was 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. 
Next, the regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the ETA Form 9089, Application for Permanent Employment 
Certification, was accepted for processing by any office within the employment system of the DOL. 
See 8 C.F.R. § 204.5( d). The petitioner must also demonstrate that, on the priority date, the beneficiary 
had the qualifications stated on its ETA Form 9089, Application for Permanent Employment 
Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea 
House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
According to USCIS records, the petitioner has filed over 14 Forms I-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. See Matter 
of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977). The evidence in the record 
does not document the priority date, 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 
5 A definition of "substantially comparable" is found at 20 C.F.R. § 656.17: 
5) For purposes of this paragraph (i): 
(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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
have obtained lawful permanent residence. Thus the petitioner has not established its continuing ability 
to pay the proffered wage to the beneficiary and the proffered wages to the beneficiaries of its other 
petitions.6 
In view of the foregoing, the director's decision is withdrawn and the petition is remanded. The 
current record does not establish marriage fraud pursuant to§ 204(c) of the Act. The director may issue 
a request for evidence specifically requesting proof of the bona fides of the marriage at its inception. 
Similarly, the director may request evidence to establish whether the petition is approvable for an 
advanced degree professional and whether the petitioner has the ability to pay the beneficiary and the 
remaining sponsored beneficiaries. Upon receipt of any response, the director will review the entire 
record and enter a new decision. 
As always, the burden of proof remains with the petitioner. In visa petition proceedings, the burden 
is on the petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N 
Dec. 493 (BIA 1966). 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing and entry of a new decision, which, if 
adverse to the petitioner shall be certified to the AAO for review.