remanded EB-2 Case: Construction Management

(b)(6)
DATE: 
JAN 0 3 2014 
IN RE: Petitioner: 
Beneficiary : 
OFFICE : TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admini strativ e 
Appeal s Off ice (AAO) 
20 Massa chus etts Ave. , N.W., 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 Exce ptional Ability Pursuant to Section 203(b)(2)(A) of the 
Immigrati on and Nation ality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrativ e 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. 
Thank you, 
~(h~/ {~ Roseho'erg 
Chief , Admini strative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center (director), denied the employment-based 
immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The director's decision will be withdrawn, and the petition will be remanded for further action, 
consideration, and the entry of a new decision pursuant to below. 
The petitioner provides general contracting and construction management services. It seeks to 
permanently employ the beneficiary in the United States as a senior project manager. The petition 
requests classification of the beneficiary as a member of the professions holding an advanced degree 
pursuant to section 203(b)(2)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 
1153(b )(2)(A). 
The director found that the petition was not accompanied by a valid ETA Form 9089, Application 
for Permanent Employment Certification (labor certification), certified by the U.S. Department of 
Labor (DOL). Even if the labor certification had been valid, the director found that the petitioner 
failed to establish the beneficiary's educational and experience qualifications for the offered position 
. stated on the labor certification and required for classification as an advanced degree professional. 
Accordingly, the director denied the petition on January 25, 2013. 
On appeal, counsel argues that the director's decision ignores most of the evidence the petitioner 
submitted in response to the director's Request for Evidence (RFE), dated November 29, 2012. Counsel 
asserts that the petitioner's RFE response included 
copies of signed pages of its ETA Form 9089 
rendering the labor certification valid, and evidence of the beneficiary's qualifications for the offered 
position and the requested classification. 
The petitioner's appeal is properly filed and alleges an error in law or fact.1 The record documents the 
procedural history of the case, which is incorporated into the record. The AAO will elaborate on the 
procedural history only as necessary. 
The AAO conducts appellate review on a de novo basis. See, e.g., Soltane v. Dep 't of Justice, 381 F.3d 
143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record? 
1 The AAO exercises appellate jurisdiction over employment-based immigrant visa petitions, 
"except when the denial of the petition is based upon lack of a [labor] certification." 8 C.F.R. § 
103.1(f)(3)(iii)(B) (2003); U.S. Dep't of Homeland Security Delegation No. 0150.1 (delegating to 
the AAO the authority to adjudicate appeals of the matters described at former 8 C.F.R. § 
103.1(f)(3)(iii), effective March 1, 2003). The AAO interprets this exception to apply when a 
petition is filed without an ETA Form 9089 (or Form ETA 750 in the case of labor applications filed 
before March 24, 2005). In the instant case, an ETA Form 9089, certified by the DOL, accompanied 
the petition. The director found the labor certification invalid because the employer, the beneficiary, 
and counsel had not signed it. See 20 C.F.R. § 656.17(a)(l) ("[U.S . Citizenship and Immigration 
Services (USCIS)] will not process petitions unless they are supported by an original certified ETA 
Form 9089 that has been signed by the employer, alien, attorney and/or agent.") Because an ETA 
Form 9089 accompanied the petition, the AAO's jurisdiction over this appeal is not precluded. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
When timely responding to a request for evidence, a pet1t10ner may: submit all of the requ~sted 
materials; submit a partial response and request a decision based on the record; or withdraw the petition. 
8 C.F.R. § 103.2(b)(ll). 
All requested materials must be submitted together at one time, along with the original 
users request for evidence or notice of intent to deny. Submission of only some of the 
requested evidence will be considered a request for a decision on the record. 
8 C.F.R. § 103.2(b)(11). 
The record shows that the director received 
only part of the petitioner's RFE response. The director 
considered the apparent partial response a request for a decision on the record pursuant to the regulation 
at 8 e.F.R. § 103.2(b)(11) and denied the petition. 
The director's RFE, which was faxed to the petitioner, states that a response by either fax or mail is 
acceptable, but that "[r]esponse by facsimile is preferred." The RFE also states: "If reply is more than 
25 pages, please fax in two parts." 
On appeal, the petitioner provides copies of more than 60 pages it submitted in response to the RFE via 
facsimile on January 11, 2013. The documentation, which includes the users RFE and copies of fax 
confirmation reports, shows that the petitioner, over a period of about 27 minutes, faxed its RFE 
response in three parts of 22 pages, 20 pages, and 21 pages, respectively. userS's file contains only the 
third, 21-page part of the submission. The cover sheets of all three parts state the petition's receipt 
number and the beneficiary's alien registration number. The cover sheets also identify the submissions 
as responses to an RFE and indicate that the total submission consists of three parts. 
The record establishes that the director urged the petitioner to respond to the RFE by fax and 
represented his acceptance of faxed responses comprised of multiple parts of up to 25 pages each. 
Although the RFE did not specifically contemplate a faxed response of more than two parts, the 
petitioner substantially complied with the fax specifications stated on the RFE. 
Arguably, the submission of a multiple-part fax violates the regulation at 8 C.F.R. § 103.2(b)(11), which 
requires a petitioner to submit all requested materials "together at one time." However, in the instant 
case, even if a multiple-part fax violates the regulation at 8 e.F.R. § 103.2(b)(11), the RFE effectively 
urged the petitioner to fax a multiple-part response. Dismissal of the appeal based on a regulatory 
violation that USers urged the petitioner to commit would be manifestly unfair. See Morton v. Ruiz, 
415 U.S. 199, 235 (1974) ("Where the rights of individuals are affected, itis incumbent upon agencies 
2 The instructions to Form I-290B, Notice of Appeal or Motion, which 8 C.F.R. § 103.2(a)(1) 
incorporates into the regulations , allow for the submission of evidence on appeal. In the instant case, 
the record provides no reason to preclude the petitioner's evidence on appeal. See Matter of Soriano, 
19 I&N Dec. 764, 766 (BIA 1998). 
(b)(6) NON-PRECEDENT DECISION 
Page 4 
to follow their own procedures."); Mantilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991) (failure of 
immigration agencies to follow their own procedures constituted "reversible error"). 
Because the record shows that the RFE urged the petitioner to fax a multiple-part response and the 
director did not review all parts of the petitioner's response, the AAO will withdraw the director's 
decision. 
However, the record does not establish that the petition is approvable. 
A petition for an advanced degree professional must be accompanied by "an official academic record" 
showing that the alien has at least a U.S. master's degree or a foreign equivalent degree, or a U.S. 
bachelor's degree or a foreign equivalent degree followed by 5 years of progressive experience in the 
specialty. 8 C.F.R. 204.5(k)(3)(i). When the Service 
proposed these regulations, it stated that a 
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent 
degree." 56 Fed. Reg. 30703, 30706 (July 5, 1991) (emphasis added); cf 8 C.F.R. § 
204.5(k)(3)(ii)(A) (aliens of exceptional ability must submit "an official academic record showing 
that the alien has a degree, diploma, certificate or similar award from a college, university, school or 
other institution of learning relating to the area of exceptional ability"). 
For a professional petition in the third preference category, evidence of a baccalaureate degree must be 
in the form of "an official college or university record." 8 C.F.R. 204.5(1)(3)(ii)(C) (emphasis added). 
USCIS cannot conclude that professional workers in a lower preference category than advanced degree 
professionals enjoy lesser requirements without violating Congress' immigration preference scheme. 
In the instant case, the petitioner and the beneficiary claim that he attended 4 years of post-secondary 
studies at But the beneficiary's diploma-certificate 
states that it was issued by an apparent 
professional organization. The record therefore does not establish that a college or university issued the 
beneficiary's diploma-certificate. 
Also, the record contains letters from identifying the beneficiary by the first name of ' ' Other 
materials in the record - including the petition, the beneficiary's application form for adjustment of 
status, and a copy of his birth certificate accompanying the adjustment application - identify his first 
name as " ' The record contains no explanation for the discrepancies in the beneficiary' s name. 
The record therefore does not establish the beneficiary's educational qualifications for the offered 
position or the requested classification. 
In addition, the record contains letters from the beneficiary, a brochure about a company he founded, 
and letters from officials at other companies regarding his claimed 10 years of self-employment 
experience in Ireland. The brochure and the beneficiary's letters indicate that he prepared these 
materials himself, raising questions about the independence, objectivity, and reliability of this evidence. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
The record also contains a letter from a purported former employer of the beneficiary. The former 
employer's letter states that the beneficiary began employment there in December 1993, conflicting 
with the January 1, 1993 start date that the beneficiary states on the labor certification. The record 
therefore does not establish that the beneficiary possesses at least 5 years of experience in the job 
offered as stated on the labor certification, or at least 5 years of progressive, post-baccalaureate 
experience in the specialty as required for classification as an advanced degree professional. 
Finally, a petitioner must demonstrate its continuing ability to pay the beneficiary's proffered wage 
from the petition 's priority date until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 
204.5(g)(2). 
The record contains letters from the petitioner's chief financial officer, stating that the company has 
more than 100 employees and possesses the continuing ability to pay the beneficiary 's annual proffered 
wage of $167,856. See 8 C.F.R. § 204.5(g)(2) (allowing a director to accept a statement from a financial 
officer establishing a company's ability to pay where it employs 100 or more workers). 
However, USCIS records show that the petitioner has filed at least 11 I-140 petitions for other 
beneficiaries since 2006. The petitioner must therefore demonstrate its ability to pay the combined 
proffered wages of the instant beneficiary and the beneficiaries of any other petitions that were pending 
from the priority date of the instant petition onward. See 8 C.F.R. § 204.5(g)(2); Matter of Great Wall, 
16 I&N Dec. 142, 145 (Acting Reg'l Comm'r 1977). 
The record does not identify the proffered wages of the other beneficiaries, the priority dates of the 
other petitions, or whether the petitioner paid the beneficiaries wages during the relevant years. The 
record also does not indicate whether any of the other petitions were withdrawn or denied without 
appeal, and whether any of the other beneficiaries have obtained lawful permanent residence. 
Therefore, the record does not establish the petitioner ' s continuing abilty to pay the beneficiary' s 
proffered wage from the petition's priority date onward. 
Because the record does not establish the petition's approvability, the AAO will remand this matter for 
further consideration. The director should consider the issues mentioned above, and any other relevant 
issues he iqentifies. The director should afford the petitioner an opportunity to respond to any issues or 
evidence that USCIS has not previously identified. 
ORDER: The director's decision of January 25, 2013 is withdrawn, and the petition is remanded 
for further action, consideration, and the entry of a new decision.