remanded EB-2 Case: Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
DATE AUG 2 3 2012 
IN RF Petitiollcr: 
BCllL:riciary: 
OFFICE: TEXAS SERVICE CENTER 
L.S. Department uf Uoml'land ~('('urit~ 
L -.;, ('lli/CIl-.hql ,tnl! Imlllig.ralltill ""l'rl.l~·l·'" 
,\dmilli"'lr,lli\'c ArJll';lh ()II icc (A.·\()I 
1() \-1;1 ...... ;whu,,1'11 ... A\-l', ~,"V. M"i 10'J(J 
\Va..,hirl),!l(lIl.I)( 20:'i2 t j-2()l)(] 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Workn as a Mcmhcr of the Professions Holuing an Advanced 
Dl'grcc or an Alit:n of Exceptional Ahility pursuant 10 section 2()3(h)(2) or the Immigrati()n 
and NaliunalilY Ael, H U.s.c:. ~ 1153(h)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed pkasi.: rind the uu.:isioll of the Administrative Appeals Office in yuur casco All \)1' the doclImcllL-.. 
n:ialcd 10 Ihis matter ha\'\: heen n.:turncd 10 the o/licl' Ihat originally decideu ),'{)ur Gl"e. Please Ill: advised [h;11 
any turther inquiry Ihal you might have concerning your case must he made 10 that (jUice. 
Pcrry Rhe" 
ChieL Adminislrali\'e Appeals Olliee 
,",,·,"\/w.usl'is.gov 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center (Director). It is now on appeal before the Chief, Administrative Appeals Office 
(AAO). The Director's decision will be withdrawn and the petition remanded for a new decision. 
The petitioner is an engineering services company. It seeks to permanently employ the beneficiary 
in the United States as a senior piping engineer, and to classify him as an advanced degree 
professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), I) U.s.c. 
* 11:13(b)(2). 
The regulation at tI C.F.R. * 204.5(k)(2) delines "advanced degree" as 1()lIows 
AdvClIlCl'd degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. A Unikd 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. 
The regulation at /\ CF.R. * 21l4.5(k)(4) also provides. in pertinent pan, as follows: 
0) General. Every petition under this classification must he accomp,mied by an 
individual labor certification from the Department of Labor .... The job oller portion of 
the individual labor certification . . . must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent .... 
The Form 1-14(), Immigrant Petition for Alien Worker, was filed on September 25, 2()OI). The 
petition was accompanied by an ETA Form <)OIl<), Application for Permanent Employment 
Certification. that was certified by the Department of Labor (DOL).' 
In a decision dated May 12, 200<), the Director denied the petition on the ground that the labor 
certification (ETA Form <)01)<)) does not specify that the proffered position requires an individual 
holding an advanced degree or the equivalent of an advanced degree. The Director concluded that 
the marketing position docs not qualify for classification as an advanced degree professional. 
On June 3, 20()<), the petitioner filed an appeal, Form 1-290B, accompanied by a letter from counsel, 
asserting that the Director misread the job requirements on the labor certification. Counsel contends 
that the petitioner did specify in Part H of the ETA Form 90tl9 that the proffered position requires an 
advanced degree as defined in Il C.F.R. ~ 204.5(k)(4) - in particular, a bachelor's degree and five years 
of pmgrcssive experience in an alternate occupation. Since the beneficiary meets these requirements, 
counsel asserts, the Director's decision should be withdrawn and the petition readjudicated. 
The appeal is properly filed and timely. The AAO conducts appellate review on a de //O\'(} basis. 
See S()ltan£' v. DOl, 3/\ I F.3d 143, 145 (3d Cir. 2(04). 
, The ETA Form <)Otl9 was filed with the DOL on April 21, 2001l, and certified by the DOL on 
June 2fJ, 2001l. 
Page 3 
The job requirements for the proffered position in this case are specified by the petitioner in Part II 
of the ETA Form YmN. This section of the labor certification application - Job Opportunity 
In(H1nation- describes the terms and conditions of the job offered. It is important that the ETA 
Form 'lOWl be read as a whole. 
The .job title or the proffered position is identified in Part H, Box 3, as senior piping engineer. In 
Boxes 4 and 4-13 the minimum educational requirement is specified as a bachelor's degree in 
mechanical engineering. In Box lJ the petitioner stated that a foreign educational equivalent is also 
acceptable. In Boxes :'1 and 6 the petitioner indicated that no training or experience in the "job 
offered" is required. In Boxes 10 and IO-B, however, the petitioner indicated that hO months (five 
years) of experience in an alternate occupation - in particular, "developing piping design systems for 
the oil, gas & petrochemical industry" - is acceptable. In Box 14 the foregoing job requirements arc 
consolidated in the following language: 
Any suitable combination of education, experience or tralllIng is acceptable. 
Experience must be progressively responsible. Minimum requirements are Bachelor's 
degree or foreign equivalent in Mechanical Engineering with five years experience in 
developing piping design systems for the oil, gas & petrochemical industry. 
In his denial decision the Director I()euscd on the petitioner's entries in Boxes 6 <lnd 14. and ignored 
the petitioner's entry in Box 10. Since the labor certification did not require any "experience in the 
job offered" to go along with the requisite bachelor's degree. and stated that "any suitable 
combination of education, experience or training is acceptable," the Director concluded that the 
proffered position did not require both a bachelor's degree and five years of progressive experience 
in the specialty. In the Director's view, therefore, the position could not be classified as an advanced 
degree prok,sional. 
The AAO docs not agree with the Director's interpretation of the labor certification. Rather, the 
AAO agrees with counsel's contention that the entries in Boxes 4 and 10 of Part H make clear that 
both a bachelor's degree and five years of experience in an alternate occupation arc required to 
qualify for the proffered position. Box 10 is read in combination with Boxes 4,5, and 6. and is not a 
stand-alone job requirement. While Box 14 docs say that "any suitable combination of education. 
experience or training is acceptable," that seemingly open-ended language is modified by the 
language that immediately follows: "Minimum requirements are Bachelor's degree or foreign 
equivalent in Mechanical Engineering with five years experience developing piping design 
systems for the oil, gas & petrochemical industry." (Emphasis added). Since the educational and 
experience components of the labor certification, in combination, constitute an advanced degree 
within the definition of t-: C.F.R. ~ 204.S(k)(4), the proffered position qualifies for classification as an 
advanced degree professional under section 203(b )(2) of the Act. 
Thus, the petitioner has overcome the ground for denial in the Director's decision. Accordingly. the 
Director's decision will be withdrawn. 
To be eligible (lr approval as an advanced degree professional, the beneficiary must have all the 
education, training, and experience specified on the labor certification as of the petition's priority date. 
S"" .\ful/a of Wing" Tea /fOIlSe, If] I&N 158 (Act. Reg. Comm. IlJ77). The petitioner must also 
Page 4. 
establish its continuing ability to pay the proffered wage from the priority date onward . .'i"" t-\ C.F.R. 
* 204.5(d). The priority date is the date the labor certification application was accepted for 
processing by the DOL. Id.' The priority date in this case is April 21. 20()8. The "otTered wage" of 
the subject position. as stated in Box G of the ETA Form '!Otl'!, is $LJ4,N,)O per yeaf. 
The Director made no findings in his decision as to whether the beneficiary satisfied the education 
and experience requirements of the labor certification," and whether the petitioner has established its 
continuing ability to pay the proffered wage. 
Thnd(lre, the petition will be remanded to the Director for the consideration of these issues, and any 
other issue the Director deems appropriate. The Director may request additional evidence from the 
petitioner. if needed. and the petitioner may submit additional evidence within a reasonable time 
pniod to be set by the Director. The Director will then issue a new decision. 
As always in visa petition proceedings. the burden of proof rests entirely with the petitioner. Scc 
section 2') I of the Act. 8 U .S.c. ~ 13A I. 
ORDER: The Direetor's decision of May 12. 200'!. is withdrawn. The petition is remanded to the 
Director for the issuance of a new decision. 
If the petition is approved. the priority date is also used in conjunction with the Visa Bulletin issued by 
Ihe Departmenl of Siale to determine when a beneficiary can apply for adjustmenl of status or for an 
immigrant visa abroad. 
, The AAO notes Ihal the Electronic Database for Global Education (EDGE). created by the 
American Association of Collegiale Registrars and Admissions Officers (AACRAO). includes an 
entry for Tililio de Illgelliem. Ihe degree earned by the heneficiary in Venezuela (specifically. Tilllio 
de Ingelliem Meconic()). describing it as a professional degree thai is comparable 10 a bachelor's 
degree in the United Siaies.