remanded EB-2 Case: Information Technology

(b)(6)
DATE: SEP 0 5 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts 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 Exceptional Ability Pursuant to Section 203(b)(2)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
Thank you, 
~<~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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DISCUSSION: The Director, Texas Service Center, initially approved the employment-based 
immigrant visa petition on January 29, 2009 for a different classification. Upon further review of the 
record, the director determined that the beneficiary was not eligible for the benefit sought and denied 
the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
AAO will withdraw the director's decision on procedural grounds; however, because the petition is not 
approvable, it is remanded for further action and consideration. 
The petitioner seeks classification for the beneficiary as an "alien of exceptional ability," as a Senior 
Project Analyst/People Soft Financials, pursuant to section 203(b)(2)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A). As required by statute, the petition was 
accompanied by an Application for Permanent Employment Certification, ETA Form 9089, which was 
filed with the U.S. Department of Labor (DOL) on March 3, 2008, and certified by the DOL on 
April29, 2008. 
The director found that the petitioner failed to demonstrate "that the job opportunity portion of the 
ETA Form 9089 requires an alien of exceptional ability. See 8 C.P.R. § 204.5(k)( 4)." 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner filed the petition on August 18, 2009. The petitioner checked the box in Part 2 
indicating that it was filing the petition under section 203(b )(2) of the Act. The filing included 
letters from both counsel and the petitioner indicating that the petitioner was seeking to classify the 
beneficiary as an alien of exceptional ability pursuant to section 203(b)(2) of the Act. The director, 
however, approved the petition on January 29, 2009 under section 203(b)(3) of the Act, a lesser 
classification. Upon further review of the record, the director determined that the beneficiary was 
not eligible for classification as an alien of exceptional ability and on May 7, 2012, issued a request 
for additional evidence relating to that classification. The petitioner responded. On September 5, 
2012, the director issued a notice of intent to dismiss, to which the petitioner responded. Contrary to 
counsel's statement on appeal, neither the request for evidence nor the notice of intent to deny 
acknowledge the prior approval or reflect that the director reopened the matter. On November 27, 
2012, the director denied the petition and the petitioner filed the instant appeal on December 28, 
2012. 
On appeal, counsel submits a brief and the Employment and Training Administration Prevailing 
Wage Determination Policy Guidance dated May 9, 2005. Counsel notes that the director made no 
finding in his decision that the beneficiary fails to meet the standard of an alien of exceptional ability. 
Nevertheless, counsel reiterates his case that the beneficiary does meet the standard by satisfying three 
criteria under 8 C.P.R. § 204.5(k)(3)(ii)- the minimum required to qualify as an alien of exceptional 
ability. Counsel did not raise any procedural concerns relating to the director's denial of the approved 
petition. Nevertheless, the AAO will not uphold a denial of an approved petition for the reasons 
discussed below. 
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NON-PRECEDENT DECISION 
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II. ANALYSIS 
The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa 
petition is but a preliminary step in the visa application process. Matter of Ho, 19 I&N Dec. 582, 
589 (BIA 1988). The beneficiary is not, by mere approval of the petition, entitled to an immigrant 
visa. Id. At issue, however, is whether the director properly denied the approved petition. 
While counsel states that the director reopened the matter before issuing the request for evidence and 
notice of intent to deny, neither of the director's notices either acknowledge the approval or state that 
the director is reopening the matter. Moreover, the director cites no provision of law or regulation 
that allows the director to deny a petition the director approved in error. Instead, section 205 of the 
Act, 8 U.S.C. § 1155, states, in pertinent part: "The Secretary of Homeland Security may, at any 
time, for what he deems to be good and sufficient cause, revoke the approval of any petition 
approved by him under section 204." By itself, the director's realization that a petition was 
incorrectly approved is good and sufficient cause for the revocation of the approval of an immigrant 
petition. Matter of Ho, 19 I&N Dec. at 590. 
The regulation at 8 C.F.R. § 205.2 states, in pertinent part: 
Revocation on Notice. 
(b) Notice of intent. Revocation of the approval of a petition or self-petition under 
paragraph (a) of this section will be made only on notice to the petitioner or self­
petitioner. The petitioner or self-petitioner must be given the opportunity to offer 
evidence in support of the petition or self-petition and in opposition to the grounds 
alleged for revocation of the approval. 
(c) Notification of revocation. If, upon reconsideration, the approval previously granted 
is revoked, the director shall provide the petitioner or the self-petitioner with a written 
notification of the decision that explains the specific reasons for the revocation .... 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. at 590 (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
(b)(6)
NON-PRECEDENT DECISION 
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In this matter, the director ultimately denied the approved petition, rather than issuing a notice of 
intent to revoke and subsequently revoking the petition on those grounds. Thus, the matter must be 
remanded to the director for the purpose of issuing a notice of intent to revoke advising the petitioner 
of the specific inconsistencies in the evidence discussed below in addition to the grounds previously 
raised in the post-approval notices. If the director concludes that the petitioner's response does not 
overcome the deficiencies in the record, the director shall issue a decision that specifically addresses the 
petitioner's evidence and that applies the pertinent statutory and regulatory requirements in the analysis 
of the evidence. 
III. ADDITIONAL ISSUE ON REMAND 
A. Law 
Section 203(b) of the Immigration and Nationality Act (the Act) states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or 
Aliens of Exceptional Ability.--
(A) In General. --Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States, and whose services in the sciences, 
arts, professions, or business are sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered." The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets 
forth the following six criteria, at least three of which an alien must meet in order to qualify as an 
alien of exceptional ability in the sciences, the arts, or business: 
(A) 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 
(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(b)(6)
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NON-PRECEDENT DECISION 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
Where the petitioner fails to submit the requisite evidence, the proper conclusion is that the 
petitioner failed to satisfy the regulatory requirement of three types of evidence. See Kazarian v. 
USCIS, 596 F.3d 1115, 1122 (9th Cir. March 4, 2010). If the petitioner has submitted the requisite 
evidence, users makes a final merits determination as to whether the evidence demonstrates "a 
degree of expertise significantly above that ordinarily encountered." 8 C.F.R. § 204.5(k)(2); see also 
Kazarian, 596 F.3d at 1119-20. Only aliens whose achievements have garnered "a degree of 
expertise significantly above that ordinarily encountered" are eligible for classification as aliens of 
exceptional ability. 8 C.P.R. § 204.5(k)(2); see also Kazarian, 596 F.3d at 119-22. 
While involving a different classification than the one at issue in this matter, the similarity of the two 
classifications makes the court's reasoning in Kazarian persuasive to the classification sought in this 
matter. Specifically, the regulations state a regulatory standard and provide a list of suggested types 
of evidence, of which the petitioner must submit a certain number. Significantly, users may not 
unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.P.R. 
§ 204.5. Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoft 549 F.3d 749, 758 (9th 
eir.2008). Thus, if the regulatory standard is to have any meaning, users must be able to evaluate 
the quality of the evidence in a final merits determination. 
The Kazarian court stated that the AAO's evaluation rested on an improper understanding of the 
regulations. Instead of parsing the significance of evidence as part of the initial inquiry, the court stated 
that "the proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to 
satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 
(citing to 8 C.P.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. 
(b)(6)
NON-PRECEDENT DECISION 
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B. Evidence 
While addressed by the director in the request for evidence and notice of intent to deny, but not 
specifically addressed in the director's decision, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth 
the above six criteria, at least three of which an alien must meet in order to qualify as an alien of 
exceptional ability in the sciences, the arts, or business. 
On remand, the director shall consider the inconsistencies regarding the beneficiary's employment 
record. The record contains six letters from previous employers documenting the beneficiary's 
experience from March 1998 until March 30, 2006. The letter of support signed by 
Director of Employment and Compliance for the petitioner, states that the beneficiary began working 
for the petitioner on April 3, 2006. 
However, the petitioner also submitted a copy of the beneficiary's resume which is not consistent with 
the employment claimed on the ETA Form 9089 and the employment letters. For example, the 
beneficiary's resume states that he has been employed by the petitioner since October 2005. However, 
the ETA Form 9089 and the letter from Ms. states that he did not begin working for the 
petitioner until April 3, 2006. In addition, all of the employment listed on the beneficiary's resume 
prior to August 2001 conflicts with the submitted letters and ETA Form 9089. The discrepancies 
follow: 
R esume ETAF orm 9089 d an emp1 oymen t "f 1 tt ven 1cation e ers 
~!oyer/Location Dates Employer/Location [ Dates 
05/98-03/99 
I 05/99-08/99 03/98-09/99 
08/99-07/00 jl0/99-05/00 
08/00-05/01 I I o6;oo-08/01 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. !d. Thus, on remand the director shall consider whether the record 
resolves the above discrepancies. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable. 
Because the petition is not approvable, the petition is remanded to the director for 
(b)(6)
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NON-PRECEDENT DECISION 
issuance of a new, detailed notice of intent to revoke and decision which , if adverse to 
the petitioner, is to be certified to the Administrative Appeals Office for review.