sustained EB-2 Case: Engineering

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PUBLICcopy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
SRC 0618351770
Office: TEXAS SERVICE CENTER Date: MAR 222007
INRE:
PETITION:
Petitioner:
Beneficiary:
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:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The decision of
the directorwill be withdrawn, the appealwill be sustained, and the petition will be approved.
The petitioner is a provider of wireless communications devices. It seeks to employ the beneficiary
pennanently in the United States as a senior performance engineer pursuant to section 203(b)(2) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). hI pertinent part, section 203(b)(2)
of the Act provides immigrant classificationto members of the professions holding advanced degrees or
their equivalent and whose services are sought by an employer in the United States. 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 job offer did not require an advanced degree professional.
On appeal, counsel asserts that the job requirements as stated on the ETA Form 9089, Part H, read in
its entirety, equate to an advanced degree professional position as defined in the relevant regulation.
hI pertinent part, 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 or 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 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." Id.
The regulation at 8 C.F.R. § 204.5(k)(4)(i) provides that the job offer portion of the individual alien
employment certification "must demonstrate that the job requires a professional holding an advanced
degree or the equivalent."
The beneficiary possesses a foreign four-year bachelor's degree and more than five years of
progressive experience. The beneficiary's occupation falls within the pertinent regulatory definition of
a profession. Thus, the beneficiary qualifies as a member of the professions holding an advanced
degree as defined at 8 C.F.R. § 204.5(k)(2). The only issue in contention is whether the job offered
requires a member ofthe professions holding an advanced degree.
The key to determining the job qualifications is found on ETA Form 9089, Part H. This section of
the application for alien employment certification, "Job Opportunity Information," describes the
terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole.
CIS must look to the job offer portion of the alien employment certification to determine the
required qualifications for the position. CIS may not ignore a term of the labor certification, nor
may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N
Dec. 401, 406 (Corom. 1986). See also, Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir.
1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983); Stewart Infra-Red
Commissary ofMassachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
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In this matter, Part H, Line 4, of the alien employment certification reflects that a bachelor's degree
is the minimum level of education required. Significantly, Line 8 reflects that no combination of
education (including no education whatsoever) "and" experience is acceptable in the alternative.
Line 9 reflects that a foreign educational equivalent is acceptable.
The exact language of Lines 6 through 10-A and the petitioner's responses are relevant to our
evaluation and are repeated below.
Line 6:
Line 10:
Line IO-A:
Line 10-B:
Line 14:
Is experience in the job offered required for the job? "No."
Is experience in an alternate occupation acceptable? "Yes."
If Yes, number of months experience in alternate occupation required: "60."
Identify the job title of the acceptable alternate occupation: "Performance Engineer or
Optimization Engineer or any combination thereof.
"* (con '( from H.i O-B) any suitable combination of education, training or experience
are acceptable."
(Emphasis added.) The director concluded that since the petitioner responded "no" on Line 6, no
experience was required. On appeal, counsel asserts that the job does not require experience in the
job offered and, thus, the petitioner could not respond affirmatively to question 6. In other words,
the petitioner does not require a potential employee to have experience in the proffered position in
order to qualify for the position, experience the beneficiary in this matter has only acquired with the
petitioner. Counsel asserts that the job does require five years of experience, which may include
experience in one of the listed alternate occupations.
As mentioned above, the alien is currently employed by the petitioner as a senior performance
engineer, the position that is now being offered on a permanent basis. It is worth noting that DOL
generally will not consider training and experience gained by an alien while working for the
employer to be an employer's actual minimum requirements. 20 C.F.R. § 656.17(i)(3).
Accordingly, DOL would not have permitted the petitioner to require the beneficiary to have gained
the requisite experience within the job that is now offered on a permanent basis.
The confusion arises from the absence on the ETA Form 9089 of a general question as to whether
any experience is required before breaking down the question as to whether that experience must be
in the job offered or can be in an alternate occupation. The petitioner's responses must be afforded
the most reasonable interpretation.
If we upheld the director's interpretation, we would be reading the job requirements as a bachelor's
degree plus either no experience at all or five years of experience in an alternate occupation. Such a
reading is irrational as it renders the responses to Line 10 and 10-A meaningless. Counsel's
interpretation, however, that the job does require five years of experience, but not necessarily in the
job offered, is reasonable and is in accord with the plain language of the form and its instructions.
Counsel's interpretation is bolstered by the use of the word "acceptable" only in relation to the
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alternate occupation. Significantly, Line 10'-A, regarding the amount of experience, uses the word
"required." Thus, the most reasonable interpretation for Section H in this matter, read as a whole, is
that the job does require a bachelor's plus five years of experience,b\lt not in the actual job that is
being offered.
The language that appears in the petitioner's response to Line 14, quoted above, also bears
discussion. If anything less than a bachelor's degree is acceptable, the job does not require an
advanced degree professional. 8 C.F.R. § 204.5(k)(2). Once again, however, we have to read the
entire Part H in context. As quoted above, on Line 14 the petitioner indicated that any "suitable"
combination of education and experience would be acceptable. On Line 4 that the minimum
education required is a bachelor's degree. On Line 8, the petitioner indicated that no other
combination of education or experience, including a combination of experience and no education,
would be acceptable. The petitioner expressly indicated in Line 14 that the language quoted above
clarifies the petitioner's response to Line lO-B, which asks the petitioner to identify the job title of
the acceptable occupation. Given the petitioner's responses to Lines 6 and 8, while the language in
Line 14 could be clearer, we are satisfied that "suitable" education includes graduate level education,
such as a Master's degree, in lieu of experience. Such an alternative does not suggest that the
petitioner would accept anything less than a bachelor's degree plus five years of experience.
In light ofthe above, we are persuaded that the job requires an advanced degree professional.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. Here, the petitionerhas met that burden.
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is
approved.