U.S. Department of IiIomeland Security 20 Mass. Ave., N.W., Rm. 3000 Washington, DC 20529 identifying cIc.ta deleted to prevent c!c-~Iy ulwarmat;ed U.S. Citizenship invasion of per- privacy and Immigration Services File: Office: VERMONT SERVICE CENTER Date: JAN 1 0 2001 -EAC-04-018-5 1052 Petition: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3) 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. wiehdnn, Chief Administrative Appeals Office Page 2 DISCUSSION: The Director, Vermont Service Center, denied the immigrant visa petition. The petitioner appealed the denial to the Administrative Appeals Office ("AAO"). The AAO affirmed the director's decision. The petitioner has now filed a Motion to Reopen and Reconsider the AAO decision. The motion to reconsider will be granted. The prior decision of the AAO will be affirmed. The petitioner is a software design, development, and consulting business, and seeks to employ the beneficiary permanently in the United States as a software engineer ("Applications Programmer"). As required by statute, the petition was filed with Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor (DOL). As set forth in the AAO's March 21, 2006 denial, the petition was denied for failure to document that the beneficiary met the degree requirements of the certified labor cerhfication. The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.' The record shows that the appeal is properly filed, timely, and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. The petitioner has filed to obtain permanent residence and classify the beneficiary as a professional or a slulled worker. The regulation at 8 C.F.R. 5 204.5(1)(2) provides that a third preference category professional is a "qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions." The regulation at 8 C.F.R. 5 204.5(1)(2), and Section 203@)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1153(b)(3)(A)(i), provides for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary nature, for which qualified workers are not available in the United States. See also 8 C.F.R. § 204.5(1)(3)(ii)(b). The regulation 8 C.F.R. 4 204.5(g)(2) states in pertinent part: Ability of prospective employer to pay wage. Any petition filed by or for an employment- based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements. The priority date is the date that Form ETA 750 Application for Alien Employment Certification was accepted for processing by any office within the employment service system of the Department of Labor. See 8 CFR 5 204.5(d). The history of the case is quite lengthy and complicated, but pertinent to the case as the petitioner filed two 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). Page 3 prior 1-140 Petitions on behalf of the beneficiary. The prior filings are summarized in a chronology as follows: Application One: On October 23, 2000, the petitioner filed Form ETA 750 on behalf on the beneficiary for the position of an applications programmer. The ETA 750 provided that the beneficiary would be paid $65,000 per year, and that the position required a Master's degree or equivalent in Electronics, Engineering, Computer Science, or in a related field. The application further required "1 year experience in developing client server database applications using PowerBuilder and VC++;" "6 months experience in Superbase," and that the experience could be concurrent. The ETA 750 was approved on January 3, 2001, and the petitioner filed an 1-140 on the beneficiary's behalf on March 8,200 1; The petitioner submitted an evaluation from of b& Associates, International Education Consultants. The evaluation provided that the ene iciary completed a Bachelor of Science degree in Chemistry at the University of Madras in India, which would be equivalent to three years of undergraduate studies in Chemistry at a U.S. school. Further, the beneficiary completed studies at Annamalai University in India from 1998 to 1999, which the evaluator determined would be equivalent to one year of undergraduate study by correspondence in Management Information systems in the U.S. Together, "in-summary, it is the judgment of -& Associates Inc., International Education Consultants, that [the beneficiary] has the equiva ent o completion of three years of undergraduate study in Chemistry and related courses earned at a regionally accredited institution of higher education in the United States and one year of undergraduate study by correspondence in Management Information Systems and related courses at a regionally accredited institution of higher education in the United States." The petitioner submitted several experience letters attesting to over fifteen years of experience, which counsel contends between the evaluation and experience would equate under 8 C.F.R. tj 214.2(h)(4)(iii)(D)(5) to an advanced degree (Master's) based on the formulation of a baccalaureate degree followed by at least five years of experience in the specialty occupation. On January 25, 2002, the director denied the petition on the basis that the beneficiary did not meet the qualifications of the certified ETA 750, in that the beneficiary did not have a bachelor's degree to meet the equivalent standard of a Bachelor's degree and five years of progressive experience. Application Two: The petitioner filed a second 1-140 on May 4, 2002 based on the labor certification filed on October 23, 2000, for an applications programmer, which required a Master's degree or equivalent in Electronics, Engineering, Computer Science, or a related field. The 1-140 sought classification as a skilled or professional worker. Following a request for additional evidence and the petitioner's response, the director denied the petition on the basis that the petitioner failed to show that the beneficiary possessed the required education for the position. Page 4 Application Three: On October 22,2003, the petitioner filed the third 1-140 based on a different ETA 750. The petitioner filed the second ETA 750 on October 3 1, 2001 for the position of Applications Programmer, which was approved on May 9, 2003. The position paid $56,000 and required a Bachelor's degree or equivalent in Engineering, Computer Science or a related degree, along with "1 year experience in developing client server database applications using PowerBuilder and VC++;" "6 months experience in GUPTNCentura SQL Windows," and that the experience could be concurrent. The position description was the same as the initial ETA 750, which required a Master's degree. Subsequent to a request for additional evidence and the petitioner's response, the director denied the petition on August 12,2004 on the basis that the petitioner did not establish that the beneficiary had a bachelor's degree or equivalent as required by the certified ETA 750. The petitioner appealed to the AAO. On March 21, 2006, the AAO dismissed the petition finding that the petitioner had failed to establish that the beneficiary had the required bachelor's degree. The petitioner has now filed a Motion to Reopen or Reconsider the AAO director's denial of the petitioner's third 1-140 filed on behalf of the beneficiary. A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. See 8 C.F.R. 5 103.5(a)(2). A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Citizenship & Immigration Services (CIS) policy; and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. See 8 C.F.R. 5 103.5(a)(3). Counsel asserts that the AAO erred in its determination that the beneficiary did not meet the labor certification requirements. Further, counsel contends that the AAO was mistaken in questioning the evaluations submitted, and that the evaluations confirm the beneficiary has the required degree.