sustained EB-2 Case: Construction Engineering

(b)(6)
DATE: NOV 1 4 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
.u:s_; oep_art~~nt o.f.IJoiDelll~4 S~c:~ 
U.S. Citizen5hip and Immigration Services 
Administrative Appeals Office 
(AAO) 
20 Massachusetts Ave. , N.w ., MS 2o9<> 
Washington, DC 20529-2090 
U.S. Citizenship 
and Iiiliiligration 
Services 
FlLE: 
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 ttie Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administtatjve Appeals Office in your case. This is a non-precedent 
decision. The AAO does not announce new constructions of law nor establish . agency policy tbtough non­
precedent decisions. 
All of the documents r¢lated 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 you_r case must be made to that 
office~ 
Thank you, 
- M~., 
Ron Rosenberg 
Chief, Administrative Appeals 
Office 
'--
www;u_Sds.go'V 
(b)(6)
NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Center (the director), denied the employment-based 
immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be sustained. The petition is approved. 
The petitioner is a power communication line construction company. It seeks to employ the beneficiary 
permanently in the United States as an international field office engineer (construction manager) 
pin'Suant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
As required by statute, an ETA Form 9089, Application for Alien Employment Certification 
approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the 
petition, the director determined that the beneficiary did not meet the job qu!Uifications stated on the 
labor certification. · 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact The procedural history in this case is documented by the record &lld incorporated into the 
decision. Further elaboration of the procedural history will be made only as necessary. 
The MO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cit. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly 
submitted upon appeal.1 On appeal, counsel submits a brief and copies of documentation already in 
the record. 
Section 203(b )(2) of the Act provides immigrant classification to members· of the professions 
holding advanced degrees or their equivalent and whose services are sought by an employer in the 
. United States. An advanced degree is a United States academic or professional degree ot a foreign 
equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). the regulation further 
states:: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five 
yeats of progressive experience in the specialty shall be considered the eqqivalent of a master's 
degree. If a doctoral degree is customarily requited by the specialty, the alien must have a United 
States doctorate or a foreign equivalent degree." /d. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines the tenns "advanced degree'~_and "profession.'' An 
"advanced degree" is defined as: 
[A]ny United States academic or professional degree ot a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate degree or a foreign 
equivalent degree fol~owed by &t least five years of progressive experience in the 
specialty shall be considered the equivalent of a master's degree. If a doctoral degree 
1 The submission of additional evidence on appeal is allowed by the instructions to the Fonn I-290B, 
which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). The record in the inst'!,nt case 
provides no reason to preclude consideration of any of the documents newly submitted on appeaL 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page3 
is custo~arily 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 101(a)(32) of the Act, as well 
as any occupation for wpich a.. United St.a..tes baccalatlreate 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 sem_inaries." 
The regulation at 8 C.P.R. § 204.S(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 ha8 an United States advanced 
degree or a foreign equivalent degree; or 
{B) An official academic record showing that the alien has a United States 
ba.~a1,1reate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former ernployer(s) showing tb.at tbe alien has at least five · 
years of progressive post-baccalaureate experience in the specialty. 
In Summary, a petition for an advanced degree professional mtiSt establish. that the beneficiary is a 
member of the professions holding an advanced degree, and that the offered position requires, at a 
IJliuimum, a professional holding an advanced. degree. Specifically, for the offered position, the 
petitioner must establish that the labor certification requires no less than a u.s. academic or professional 
degree (or a foreign equiValent degree) above a baccalaureate, or a U.S. ba~aureate (or a foreign 
equivalent degree) followed by at least five years of progressive experience in the specialty. 
In the instant case, Part H' of the labor certification submitted with the petition states that the offered 
position has the minimum requirements of a Bachelor's degree in business administration, 
engineering or a related field, plus 60 months (5 yeats) of experience in tbe alten;1ate occupation of 
construction manager, project manager, project control and administrative manager. 
To be eligible for approval, a.. beneficiary must have all the education, training, and experience specified 
on the labor certification as of the petition's priority Qate. See Ma_tter of Wing's Tea House, 16 I&N 
158. (Act. Reg. Comm. 1977). The priority date of the petition is October 14, 2011,which is the date 
the labor cei:tification was accepted for processing by the DOL. See 8 C.F.R. § 204.S(d}. The 
Immigrant Petition for Alien Worker (Foqp I-140) was filed on February 27, 2012. 
The labor certification state~ that the beneficiary qualifies for the offered position based on education 
in the foilfi of a Titulo de Electronic and Communications Engineer from the 
completed on May 30, 1995, and experience as a project 
manager/estimatot with 
2004 until December 18, 2005; a planner 
with 
Mexico from May 17, 
California from January 
(b)(6)
('. 
NON-PRECEDENT DECISION . 
Page4 
5, 2006 until Aug11~t 18 2006; ~n ~stitn~tor, project manager, field officer with 
_ California, Mexico from A~gust 21, 2006 until July 13, 
2008; and as an estimator, project manager, field officer with the petitioner in Okl~boroa 
from July 14, 2008 u.IJtil_February 20, 2012, the date on which the E.TA Form 9089 was signed. No 
other experienee is listed. The beneficiary signed the labor certification under a declaration that the 
contents are true and correct under penalty of peijury. 
The regulation at 8 C.F.R. § 204.5(g)(1) states: 
Evidence relatipg to qualifying experience· or training shall be in the foim of letter(s) 
from current or former employer(s) or tra.iner(s) ()Dd shall include the name, address, 
and title of the writer, and a specific description of the duties perforined by the alien 
or of the t_rainjng received. 
Upon review of the entire record, including evidence submitted on appeal and in response to a Request 
fot Evidence (RFE) issued by the AAO on August l, 2013, the AAO concludes that the petitioner has 
established that it is more likely than not that the beneficiary had all · the education, tr~injng, and 
e~perience to meet the minimum requirements of the labor certification as of October 14; 2011. 
Accordingly, the petition is approved under section 203(b )(2) of the Act. 
The burden of proof in these proceedings · rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has met that 
burden. 
ORDER: The appeal is sustained. The petition is approved.