(b)(6)

MATTER OF E-T- INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 23 , 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a business engaged in the sales, distribution, and service of machine, tools, and equipment, seeks to permanently employ the Beneficiary in the United States as a technical support engineer, or sales engineer. It requests classification of the Beneficiary as a professional under the third preference immigrant classification. See Immigration and Nationality Act (the Act), section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanert resident status.

The Director, Nebraska Service Center, denied the petitiOn, concluding that the mmtmum educational requirements on the submitted ETA Form 9089, Application for Permanent Employment Certification (labor certification) did not support the requested professional classification. The Petitioner filed a motion to reconsider. The Director granted the motion, but ultimately reaffirmed the denial of the petition.

The matter is now before us on appeal. The Petitioner asserts the Director erred in finding that the labor certification did not support the requested classification as a professional. Alternatively, the Petitioner states that the petition should be considered under the skilled worker classification. Upon de novo review, we will dismiss the appeal.

I. LAW

Section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii), provides immigrant classification to professionals. See also 8 C.F.R. § 204.5(1)(2). A petition for a professional must be accompanied by a valid, individual labor certification, an application for Schedule A designation, or documentation of a beneficiary's qualifications for a shortage occupation. 8 C.F.R. § 204.5(1)(3)(i).

Section 101 ( a)(32) of the Act defines the term "profession" to include, but is not limited to, "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." If the offered position is not statutorily defined as a profession, "the petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C).

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Matter of E-T- Inc.

In addition, the job offer portion of the labor certification underlying a petition for a professional "must demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(l)(3)(i). .

The beneficiary must possess a baccalaureate degree, per the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) which states, in part:

If the petition is for a professional, the petition must be accompanied by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions. Evidence of a baccalaureate degree shall be in the form of an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study.

The beneficiary must also meet all of the requirements of the offered position set forth on the labor certification by the priority date ofthe petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing 's Tea House , 16 I&N Dec. 158, 159 (Act. Reg' l Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg' l Comm'r 1971).

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Therefore, a petition for a professional must establish that the occupation of the offered position is listed as a profession at section 101(a)(32) of the Act or requires a bachelor' s degree as a minimum for entry; the job offer portion of the labor certification requires at least a bachelor's degree or foreign equivalent degree; the beneficiary possesses a U.S. bachelor's degree or foreign equivalent degree from a college or university; and the beneficiary meets all of the requirements of the labor certification.

II. ANALYSIS

A. Labor Certification Does Not Support Classification as a Professional

In this case, the Petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, Part 2, Box I.e. that it was filing a petition for a professional. As required by statute, the petition is accompanied by an approved labor certification, certified by the Department of Labor (DOL). See Section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). The priority date ofthe petition is November 11 , 2013 .1

The required education, training, experience, and skills for the proffered position of technical support engineer are set forth at Part H of the labor certification. The labor certification states that the position has the following minimum requirements:

H.4. Education: minimum level required: Bachelor's degree.

1 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).

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Matter of E- T- Inc.

, H.4-B. H.6.

H.7.

H.8.

H.8-A.

H.8-C.

H.9. H.lO. H. lO-A.

H. lO-B.

H.14.

Major field of study: Engineering. Is experience in the job offered required for the job? No.

Is there an alternate field of study that is acceptable? No.

Is there an alternate combination of educatibn and experience that is acceptable? Yes. If Yes, specify the level of education required: None.

If applicable, indicate the number of years experience acceptable in question 8: 48. Is a foreign educational equivalent acceptable? Yes. Is experience in an alternate occupation acceptable? Yes. If Yes, number of months experience in alternate occupation required: 24. Identify the job title of the acceptable alternate occupation: Qualifying exp. In sections H-8-C & H-1 0-A must be in: installing/servi [remainder unreadable].

Specific skills or other requirements: No special requirements. Any suitable combination of education, training or experience is acceptable.

As noted above, a petition for a professional must establish that, among other things, the job offer portion of the labor certification requires at least a bachelor's degree or foreign equivalent degree. Here, the Director found, in the original denial and again on motion, that the Petitioner stated that it will accept less than a bachelor's degree or foreign equivalent degree for the proffered position, specifically in section H.8. that it will accept no education with 48 years of experience,2 and therefore, the labor certification did not support a petition for professional classification.

On appeal, the Petitioner states that the "visa classification requested, i.e., EB-3 includes both )

'professionals' and 'skilled workers'" and that the labor certification here "supports either a professional position or a skilled worker position." However, Form I-140 makes a distinction and the Petitioner must select the appropriate category for filing.

First, in filing the Form I-140, the Petitioner requested consideration as a professional. As such, the labor certification and other materials were analyzed using the requirements of a professional position as outlined in the statue and regulations. As noted above, that includes the requirement that

2 Although the Petitioner indicated on the labor certification that the alternate combination of education and experience required 48 years of experience, we find this was likely a scrivener's error. In stating the requirements for the position in other materials submitted with the petition, the Petitioner indicated that 48 months, not years, of experience was required for the alternate combination of education and experience. However, per DOL regulations, no modifications may be made to labor certifications filed after July 16,2007. See 20 C.F.R. § 656.11(b).

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the labor certification require at least a bachelor's degree or foreign degree equivalent. In this case, the Petitioner explicitly stated in the alternate requirements that the proffered position did not require a bachelor's degree or foreign equivalent degree. Rather, the Petitioner stated on the labor certification that it would accept no education with 48 years of experience as the minimum requirement for the proffered position. United States Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Irifra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). USCIS interprets the meaning of terms used to describe the requirements of a job in a labor certification by "examin[ing] the 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). USCIS' interpretation of the job's requirements, as stated on the labor, certification must involve "reading and applying the plain language of the [labor certification]'"' even if the employer may have intended different requirements than those stated on the form. !d. at 834 (emphasis added). As the labor certification does not require a bachelor's degree or foreign equivalent degree as the minimum level of education in the Petitioner's alternate requirements, but instead accepts no education as the minimum requirement, the labor certification cannot support a petition for a professional position.

Second, contrary to the Petitioner's assertions on appeal, USCIS cannot consider the instant petition as a skilled worker petition. The Petitioner appears to contend that because there is no difference in the issuance of visa numbers available for the skilled worker category and the professional category in that they are both issued visa numbers from the EB-3 classification, that there is no distinction between the two groups. The Petitioner is conflating the assignment of visa classification numbers with the "classification" of the proffered position as either skilled worker or professional. Both the statute and the regulations delineate the necessary qualifications for a skilled worker and a professional. The Petitioner must establish eligibility under the section of law of the classification being sought, as that classification (i.e. skilled worker or professional) is identified on the Form I-140. When submitting the initial Form I-140, the Petitioner clearly indicated in Part 2 that it was requesting classification as a professional by selecting box 1.e. rather than selecting box l.f. for skilled worker.3 Neither the law nor the regulations require the Director to consider lesser classifications if the Petitioner does not establish eligibility for the classification requested. We cannot conclude that the Director committed reversible error by adjudicating the petition under the classification requested by the Petitioner. There are no provisions permitting the Petitioner to amend the petition on appeal in order to establish eligibility under a lesser classification. Moreover, a petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988).

3 On appeal, the Petitioner also discusses prior versions ofthe Form I-140, where a Petitioner could request consideration as a professional or skilled worker. The Petitioner states that "[b ]efore 2009 the agency [USCIS] did not care if a petitioner distinguished the position as 'professional' or 'skilled worker' .... " However, the I-140 Form currently in .use, and prior versions of the 1-140 Form, which was changed in January 20 I 0, requires a petitioner to designate a choice between professional and skilled worker, and only one box selection will be considered for that individual filing.

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III. CONCLUSION

The petition will be den~ed and the appeal dismissed for the above stated reason. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; See Matter ofBrantigan, 11 I&N Dec. 493 (BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofE-T- Inc., ID# 119887 (AAO Nov. 23, 2016)

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