sustained EB-2 Case: Psychoanalysis

IdehtiiFjling 
prevent clcady unwmu 
invasion ofmad privacy 
PI mclc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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 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. 
obert P. Wiemann, Chief 
Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska 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decision of the director will be withdrawn, the appeal will be sustained, and the petition will be 
approved. 
I 
The petitioner is a non-profit entity. It seeks to employ the beneficiary permanently in the United States 
as a traininglsupervising child and adult psychoanalyst pursuant to section 203(b)(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 5 1153@)(2). In pertinent part, section 203@)(2) of the Act 
provides immigrant classification to aliens of exceptional ability and 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. The director 
determined that the job offered did not require a member of the professions holding an advanced 
degree. 
On appeal, counsel asserts that a reading of the alien employment certification as a whole 
demonstrates that the job does require a member of the professions holding an advanced degree. For 
the reasons discussed below, we concur with counsel. 
In 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. 5 204.5(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. 5 204.5(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 completed the medical program at the University of Buenos Aires for which he 
received the title "Doctor of Medicine." This degree has been evaluated as a "first professional 
degree in medicine." Two years later the Argentine Ministry of Social Welfare certified the 
beneficiary in Psychiatry. The beneficiary is a full member of the International Psychoanalytical 
Association (IPA) by virtue of his membership in the Buenos Aires Psychoanalytic Association, 
which qualifies him to practice psychoanalysis. The beneficiary has 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. 5 204.5&)(2). The only issue in contention is whether the job offered 
requires a member of the 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 (Comm. 1986). See also Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 
1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983); Stewart Infra-Red 
Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 st Cir. 198 1). 
In this matter, Part H, Line 4, of the alien employment certification reflects that a bachelor's degree 
in psychology is the minimum level of education required. Line 8 reflects that no combination of 
education and experience is acceptable in the alternative. Line 9 reflects that a foreign educational 
equivalent is acceptable. 
The exact language of Lines 6 through 14 and the petitioner's responses are relevant to our 
evaluation and are repeated below. 
Line 6: 
 Is experience in the job offered required for the job? "Yes." 
Line 6-A: 
 If Yes, number of months experience required: "48." 
Line 10: 
 Is experience in an alternate occupation acceptable? "No." 
Line 14: 
 Specific skills or other requirements: "Experience in the British Object Relations 
school of psychoanalysis; credentials acknowledged by the International 
Psychoanalytic Association; valid Washington State license to practice 
psychotherapy." 
(Emphasis added.) The director concluded that since only 48 months of experience were required 
for the job offered, the job does not require a bachelor's degree plus five years of experience. 
On appeal, counsel asserts that the job requires at least four years in the job offered. Thus, the 
petitioner answered "48" when asked the number of months of experience in the job offered was 
required. As none of this experience could be in an alternate occupation, the petitioner had to 
answer "No" to question 10. According to counsel, however, by requiring IPA certification, the 
petitioner also required at least five years of post-baccalaureate experience. 
First, it must be noted that the Form ETA-9089 was developed solely to allow the Department of 
Labor to determine and certify to the Department of Homeland Security and to the Department of 
State that there are no able, willing, qualified and available U.S. workers to fill a specific position, 
and that the employment of the alien will not adversely affect the wages and working conditions of 
similarly employed U.S. workers. Section 212(a)(5)(A) of the Act. DOL certification of the form 
does not establish that the alien or the position meet the requirements of any preference 
classification. See May 25, 2007 Declaration of William L. Carlson, PhD, Administrator, OFLC, 
ETA, U.S. Department of Labor, (copy incorporated into the record of proceeding). In contrast, CIS 
is charged with determining whether the proffered employment and the alien's education and 
employment history meet the requirements of the requested preference classification. See section 
103(a)(l) of the Act (charging the Secretary of Homeland Security with the administration and 
enforcement of laws in the Act and all other laws relating to the immigration and naturalization of 
aliens, except insofar as those laws relate to the powers, functions and duties of the President, the 
Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or 
consular officers); see also section 204(b) of the Act ("[alfter investigation of the facts in each case, 
and after consultation with the Secretary of Labor.. .[the Secretary of Homeland Security] shall, if he 
determines that the facts stated in the petition are true and that the alien in behalf of whom the 
petition is made,. .is eligible for preference under subsection (a) or (b) of section 1153 of this title, 
approve the petition"). See also 8 C.F.R. $204.5(k)(4). Accordingly, given that it is designed solely 
for DOL's purposes, the Form ETA 9089 does not necessarily request, elicit, or present information 
that is useful to CIS in its administration of the ~ct.' In fact, CIS review of the Form ETA 9089 and 
has led to understandable confusion during adjudication of relating immigrant petitions. 
In this instance, 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. 
The petitioner provided a copy of the IPA's Minimum Requirements for Acquiring and Maintaining 
the Function of Training Analyst, the job in which the petitioner requires at least four years of 
experience. This document indicates that in order to be assessed as a training analyst, the individual 
must have been a member of the IPA, "implying a minimum of five years of experience of 
unsupervised psychoanalytical treatments." Thus, by requiring four years of experience as a training 
analyst, the petitioner indirectly but effectively required five years of experience as a psychoanalyst, 
for a total of nine years of experience following a first professional degree. 
In light of the 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. 4 1361. Here, the petitioner has met that burden. 
ORDER: 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved. 
1 
 CIS has repeatedly met with DOL to discuss how CIS uses the Form ETA 9089 and to suggest changes to 
the form.