sustained EB-2 Case: Management Analysis

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PUBLICCOpy
U.S. Department ofHomeland Security
..' 20 Mass. Ave., N.W., Rm.JOOO
Washington,:DC 20529
~l S. Citizenship
and Immigration .
Services
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FILE:
LIN 07 082 52968
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Office: NEBRASKA 'SERVICE CE;NTER Dat$PR ;c; 7 2867
IN RE: Petitioner:
Beneficiary: .
PETITION: . Iriuni~ant Petition·for Alien Worker as a Member ofthe Professions Holding an Advanced
De~ee or an Alien of Exceptional Ability Pursuant to Sectiol1203(b)(2) o(the immi~ation
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 ~e made to 'that office.· ,
'~~!JLc ~ Robert P. Wiemann, Chief
IV: 'Administrative Appea~s,Office
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www.uscis;gov
DISCUSSION: The Director, Neb~aska Service Center, denied .the employment~based immigrant
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. ,The'
decision of the director wilibe withdraw:n, the appeal,will be' sustained, and the petition will be
, approved. '
The' petitioner performs litigation document coding s~ces. It ~eeks, to employ the beneficiary
permanently in the United States as a management analyst pursuant to', section 203(b)(2) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1i53(b)(2). In pertinent part, section 203(b)(2)
ofthe Act provides immigrantclassificationto membersof the professionsholding advanced degrees or
their equivalent and whose services are sought by an employer in the uriited States. As required by
statute" an ETA Form 908Q Application fOI-Alien Employment Certification approved by the
Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director
determined that the job did not require an advanced degree professional.
On appeal,' counsel explains that the ETA Form 9089 contained an' error due to a glitch in
LawLogix's software. " While the unsupported assertions of counsel do not constitute evidence,
Matter ofObaigbena" 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano" 19 I&N Dec. 1 (BiA
1983); Matter 'of Ramir~z'-Sanchez, 17 I&N pee. 503, 506 (BIA 1980), counsel supports this
assertion with affidavits, aprintout of the document that was electronically transmitted to DOL and a
letter from LawLogix. 'Subsequently, counsel asserts that 'DOL has certified a corrected ETA Form
9089 and requests that we rely on that form for the current petition.
The regulation at 8 C.F.R. §-103.2(b)(12) precludes us froin co~sidering an ETA Form 9089
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"certified after the petition i~ this matter was filed. That said, for the reasons' discussed below,
reading the ETA Form 9089 filed with the petition as 'a whole, we are persuaded that the job requires
an advanced degree professional.'
In pertinent part, section 203(b)(2) of the Act provides immigrant dassific,ation to niembersof 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 ora 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'adoctoral degree is customarily required by the specialty, the '
, ,alienmust have a United States doctorateor'a foreign equivalent degree." Id; , ,
The beneficiary has a baccalaureate degree'from 'York University evaluated as equivalent to aU.s.
baccalaureate in economics froni an accreditbd U.S.. college or university. The benefiCiaryhas more
, , than five years of progressive experience iri the specialty. The beneficiary, therefore, qualifies for
, the classi~cation sought: The regulation atl~ C.F:R. § 204.5(k)(4), however, provid.es that t?e job,
offer portIOn of the allen employment, certification "must demonstrate that the Job reqUIres a
professional holdirig an advanced degree ortpe equivalent or an alien of exceptiorialability." ,
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As noted abo~e" the ETA Form 9089 in. this matter is certified by DOL. Thus, at th~ outset, it is useful
, to discuss DOL's role in thi~process.' Section 212(a)(5)(A)(i)ofth~ Act provides:
In general.-Any alien who seeks to enter the United States for the purpose of performing
skilled or unskilled labor is inadmissible~'unless the Secretary of Labor has determined
and certified to the SecretarYof State and-the Attorney Genenll that- ' , '
.(1)' there' are 'not sufficient 'workers' who are able, wiiling, 'qUalified (or
equally qualified in the case,of an alien described in.clause (ii» and available
at the time ofapplication for a visa and admission to the United States and at
the place where the alien is to p~rfotfu such skilied or unskilled labor, and
'. (II) the emploYm~nt of such alien will not adversely affect the wages and
working condItions of workers in the United States similarly employed. .
According to 20 C.F.R § 656.1(a), the plll]Jose and scope' of tJ;1e regulations regarding labor
certification ate as follows: . " .<
(a) Under ~ection 212(a)'(5)(A) of the Immigration and Nationality Act (INA orAct)
(8 U.S.c. 1182(a)(5)(A», certain aliens' may.not obtain immigrant visas for 'entrance
, into, the United ,States in order to engage in permanent employment unle~sthe
Secretary of L~bor has~rst ,Certifiedto the Se.cretaryof State and to tht? S~cretary, of .
Homeland Security that:. . ., .
'(1) Ther~ are not sufficient Ur,ritedStates workers who are able, willi~g,'
qualified and available at the time of application for a visa and admission,
. into the United States and at the place where the alien is to perform the
" work; and' .
'(2) The emploYment of thy alien will not adversely affect the wages
and working conditions of United States workers similarly employed;
Madanyv. Smith,696 F.2~'1008, 1012-i'013 (D.C. Cir. 1983), states:
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.Given the language of the Act, the ~otality of the legislativ,ehistory, .and the agencies? .'
own interpretations oftheir duties under the Act, we must conclude that Congress did
not intend ,DOL to have primary authority to make any determinations other than the . '
two stated in section 212(a)(14) [cUlTentsection 212(a)(5)]1•.. ,'.
". 1. As amended by Seq. 601, and as furthe~amerided bySec~ 172 of the Immigration Act of 1990, Act'
~f Nov. 29, 1990~ Pub. L. No: 101~649; 104, Stat. 4978; however, the changes made by Sec.
'162(e)(1) were repealed by Sec. 302(e)(6) of the Miscellaneous an4 Technical Immigration and'
Natur~lization Amendments of 1991, Actof Dec. 12, 1991, Pub. L. No. 102-323, 105 Stat. 1733,
. effective as though tha~ paragraph had not been enacted.
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-Relying inpart on Madany, 696 F.2d at 1008, the Ninth Circuit stat'ed:
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[I]t appears that the DOL is ref)ponsible only for determining the availability of
suitable American workers fOf a job and the impact of alien employment upon the
domestic labor mark~t.- -
KR.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th cii. '1983). The court relied on an amicus brief'
from DOL that stated the following:, '_,
The labor certification made by the Sec~etary of ,Labor ... pursuant, to section
[212(a)(5)] of the .:.[Act] ... is .bin~ingas_to the findings of whether there are able,
willing, qualified, and available United States workers for the job offered to the alien;
',- and whether employment ofthe alien under the terms set by the employer would
_adversely -affect the-wages and working conditions of similarly employed United'
States workers. - -- -,' -
'ld. at 1009. The Ninth Circuit, citing KR.K Irvine,'Inc., 699 F.2d at 1006, revisited this issue, stating-:
The Department of Labor ("DOL") must_certify that ins~fficient domestic' workers
are available to'perform thejob and that the alien's performance of the job will not
'adversely affect the wages and working conditions of similarly employed domestic
workers,' Id' [§ 212(a)(5), 8 U.S.C. § 1182{a)(S)]. The INS then makes -its own
determination of the alien's entitlement to' sixth preference status. Id. § 204(b),
8 U.S.C. § 1154(b). See generally KR.K Irvine, IflC. v. Landon, 699 F.2d 1006,
1008 (9th Cir.1983). ' "
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Tongatapu Woodcraft Hawaii, Ltd. v. Ff!ldrnan,736 F.2d 1305, 1309 (9 Cir. 1984).
The key to determining the job requiremehtsi~, found on ETA Form 9089 Part H: This se<2tionof
'the application for alien labor certification, "Job Opportunity Information," describes the terms and
coriditions of the job offered; "Most significantly, it is important that the ETA Form 9089 be read as
a ~hole. ' , , ' ,
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In this matter, Pan: H, line 4, of the labor'certificaiionrefl~cts that a'Master's degree is the minimum
, ,level of education required. Line 8,reflects that, In'the alternative, a baccalaureate degree plus "0"
,years of experience are acceptable. Most significantly in this matter, line 14 states: '
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Company is willingto consider and ac~ept what it deems to be a suitable combination
of training"education, and experi~nce; Compirny considers a J.D. degree or a
bachelors degree plus -no less than fiveyeari ofprogressive experience as acceptable
equivalents to a master's degree., ,
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(Emphasis added.) CIS 'may not ignore a' tennof the labor certification, nor may it impose
. additional· requirements, See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406
(Comm. 1986). See also, Madany, 696 F.2d at 1008;K.R,K. Irvine, Inc" 699 F.2d atl006; Stewart
Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661. F.2d 1 (1st Cir.1981).Where thejob
requirements in an alien emplo~eilt certification are not otherwise unambiguously prescribed, e.g.,
by professional regulation, CIS must examirie"the language of the labor .¢ertification job
.requirements" in order to determine what the··petition benefiCiary·'must demonstrate to be found
qualified for the position. Madany, 696 F.2d at 1015. The only rational manner by which CIS can
, be'expected to interpret the meaning of terms'used to describe the requirements of a job in a labor
certification is to "examin'ethe certified job offer exactly as it is completed by the prospective
employer.'" Rosedale Linden Park Company v. Smith,. 595 f; Supp. 829, 833 (D.D.C.
1984)(emphasis added). CIS's interpretation of the job's requirements, as stated on the labor
certification must involve "reading and applying the plain language of the [labor certification
" application form]." Jd. at, 834 (emphasis added). CIS cannot and should not reasonably be expected
to look' beyond the plain language of the labor certification that DOL has formally issued or
otherwise attempt to divine the employer's inten:tioIi~'through some sort of reverse engineering of
the labor certification.' ' , '"
'On appeal, counsel explains that the original data inputtoothrough the LawLogic SoftWareinto the ETA
Form 9089, line 8-C, waS "5 yrs of progressive experience." The letter fromLawLogix explains that
they have "confirmed that DOL site, in this si~ation~ could have taken the unacceptable text entry
placed in H8C(5 yrs progressive experience) in LawLOgixand converted it to a zero." The petitioner
submitSthe advertising for the position; all ,indicatingthat a J.D. or baccalaureate must be'followed by
five years of experien,ce. '
We are bound by the form as certified by DOL. Thus; the'mere fact that aclear error in transmission of
, data occurred is not dispositive. Thatsaid, we must also read the ETA Form 9089, Part H, as a whole.
, The language included in' line 14 of that part k dear and unambiguous. We are persuaded that the job
offer portion of the alien employmentcertification, When read as a whole, satisfactorily indicates that,
where a baccalaureate jisthe only education, ,five years of progressive experience is required. The
petitioner has satisfactorily shown'that this position; at a minimum, requires a professional holding the
equivalent of an advanced degree. ,: , "
The burden of proof in ·these proceedings rests solely with the petitio~er.' Section 291 of the Act,
8 U.S.c. § 1361: Here,'thepetitioner has met that 'burden.
, ORDER: The decision of the director dated January 30, 2007, is withdrawn. The appeal 'is.
sustained and the petition is~approved.
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