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THE JOB DOES NOT QUALIFY FOR AN EB-2 ADVANCED DEGREE PROFESSIONAL IMMIGRANT VISA-STOP ASKING!

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THE JOB DOES NOT QUALIFY FOR AN EB-2 ADVANCED DEGREE PROFESSIONAL IMMIGRANT VISA-STOP ASKING!

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THE JOB DOES NOT QUALIFY FOR AN EB-2 ADVANCED DEGREE PROFESSIONAL IMMIGRANT VISA-STOP ASKING!

  1. 1. Page 1 of 4 THE JOB DOES NOT QUALIFY FOR AN EB-2 ADVANCED DEGREE PROFESSIONAL IMMIGRANT VISA-STOP ASKING! Compiled by Joseph P. Whalen (Sunday, December 20, 2015) The position offered did not meet the minimum requirements for classification as a member of the professions with an advanced degree. This was because the ETA Form 9089, Application for Permanent Employment Certification included alternatives that fell below the statutory minimum qualifications. The Petitioner described itself as "Gold IRA Specialists" and sought to permanently employ the Beneficiary as an "Industrial Engineer/Quantitative Analyst," requesting immigrant classification as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1153(b)(2). The Director, Nebraska Service Center, denied the immigrant visa petition. The matter came before AAO on appeal, which was initially dismissed on February 1, 2013. The Petitioner filed a motion to reopen and reconsider that decision, and AAO reopened and affirmed the prior decision on August 15, 2013. The Petitioner filed a second motion to reopen and reconsider, and AAO reopened the matter and affirmed its prior decision on May 9, 2014. The Petitioner filed a third motion to reopen and reconsider, and AAO affirmed the prior decision on December 23, 2014. The Petitioner filed a fourth motion to reconsider, and AAO affirmed that prior decision on May 7, 2015. The matter again came before AAO on fifth motion to reopen and reconsider. The latest combined motions to reopen and reconsider were denied on November 30, 2015. MINIMUM QUALIFICATION ON LABOR CERT IS TOO LOW FOR EB-2 LINK-CITATION EXCERPTS-OUTCOME FEB012013_03B5203.pdf The director determined that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree and, therefore, the beneficiary cannot be found
  2. 2. Page 2 of 4 qualified for classification as a member of the professions holding an advanced degree. 8 C.F.R. § 204.5(k)(4). Specifically, the ETA Form 9089 requires a United States master's degree or foreign equivalent degree in industrial engineering, business administration, or a related field and 36 months of experience in the job offered. The petitioner noted in response to Part H, Question 8, that an alternate combination or education and experience would be acceptable. This alternate level of education is described in response to Question 8-A ·as "other" and, in 8-B, the petitioner indicates that it will accept a "Combination of education and experience in lieu of a Master's degree." In response to Question 8-C, the petitioner noted that applicants needed 4 years of experience to fulfill the alternate combination of education and experience indicated in Part H, Question 8. Furthermore, in response to Part H, Question 14, the petitioner stated: Applicant must have a combination of education and experience equivalent to a Master's degree in Industrial Engineering, Business Administration, or a related field, with strong statistical background and analytical skills with a minimum of three years’ experience in the financial industry. Excellent writing and communication skills are also necessary. (The three years of experience in the financial industry is a necessity of the business to ensure sufficient exposure to the financial services industry to enable the applicant to perform the required duties effectively. This experience may have been gained either as a part of the degree equivalency or separately.) (The 4 years of experience in Block H.8-C. reduces to 2 years for a Bachelor's degree holder in any of the specified fields.)
  3. 3. Page 3 of 4 The director concluded that the petitioner's response to Questions 8 and 14 lowered the minimum job requirements to below a bachelor's degree plus five years of progressive experience and, thus, disqualified the position for classification as one for an advanced degree professional. AUG152013_01B5203.pdf The motion will be granted, and the previous decision of the AAO, dated February 1, 2013, will be affirmed. MAY092014_01B5203.pdf The prior decision of the AAO, dated August 15, 2013, will be reopened, a new decision will be entered, and the petition will remain denied. DEC232014_02B5203.pdf The prior decision of the AAO, dated May 9, 2014, will be reopened, a new decision will be entered, and the petition will remain denied. MAY072015_03B5203.pdf The Form I-140 identifies the petitioner as "Gold IRA Specialists." The petitioner seeks to employ the beneficiary permanently in the United States as an "Industrial Engineer/Quantitative Analyst." The director's decision denying the petition concludes that the job offered does not meet the minimum requirements for classification as a member of the professions with an advanced degree. We affirmed the director's decision on appeal as well as our decisions regarding the petitioner's motions to reopen and reconsider. NOV302015_01B5203.pdf Cite as: Matter of A-B-, Inc., ID# 14711 (AAO Nov. 30, 2015) B. USCIS Authority to Determine Eligibility for the Classification Sought In our previous decisions, we addressed the division of authority between the DOL and USCIS in employment-based immigrant petitions requiring an underlying labor certification.
  4. 4. Page 4 of 4 Specifically, we concluded that USCIS has the authority, independent of the DOL's authority, to interpret the requirements of the labor certification to determine whether the position offered as stated on the labor certification, including both the primary and alternate requirements, qualifies for classification under the category requested. 7 The Petitioner again asserts on motion that "evaluation of the position falls to the sole responsibility of the DOL under the statute." The Petitioner asserts that USCIS does not have authority to determine whether the position offered meets the requirements for advanced degree classification because the DOL has certified that the primary and alternate requirements are "substantially equivalent."… p. 5 _______________ 7 The Petitioner previously cited Hoosier Care, Inc. v. Chertoff, 482 F.3d 987 (7th Cir. 2007), for the premise that the DOL, and not USCIS, has the authority to determine whether a position offered qualifies under the classification requested. In our prior decision, pursuant to the Supreme Court's holding in Nat' I Cable & Telecommunications Ass' n v. Brand X Internet Servs. (Brand X), 545 U.S. 967, 982-84, 125 S. Ct. 2688, 2700-01, 162 L. Ed. 2d 820 (2005) we reached a different conclusion from the holding of Hoosier Care regarding the division of authority between the DOL and USC IS. We held that USCIS has the authority to determine whether the terms of the labor certification, including primary and alternate requirements, meet the regulatory requirements to qualify for classification of the position under the particular category requested. X

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