The Petitioner, an exporter and distributor of used clothing, seeks to employ the Beneficiary as a management analyst. The company requests his classification under the second-preference, immigrant categoryformembersoftheprofessionsholdingadvanceddegreesortheirequivalents. SeeImmigration and Nationality Act (the Act) section 203(b)(2XA), 8 U.S.C. § 1153(b)(2)(A).
After the Director of the Texas Service Center denied the petition, we dismissed the Petitioner's following appeal. See In re: 1857314 (AAO Jun. 23, 2020). Agreeing with the Director, we concluded that the Petitioner did not demonstrate the Beneficiary's possession of the minimum employment experience required for the offered position or the requested immigrant visa classification. Id. We also found insufficient evidence ofthe position's need for an advanced degree professional. Id.
The matter is again before us on the Petitioner's combined motions to reopen and reconsider. Upon review, we will dismiss the motions.
Motion Criteria
A motion to reopen must state new facts supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). In contrast, a motion to reconsider must establish a prior decision's misapplication of law or U.S. Citizenship and Immigration Services (USCIS) policy based on the record at the time of the decision. 8 C.F.R. § 103 .5(a)(3). We may grant motions thatmeetthese requirements and demonstrate petitions' approvability.
The Required Experience
To establish the Beneficiary's qualifications for the offered position and the requested immigrant visa classification, the Petitioner must demonstrate that, by the petition's priority date ofDecember 1,2010, the Beneficiary gained at least five years offull-time, post-baccalaureate, business-related experience. See 8 C.F.R. § 204.5(k)(2) (defining the equivalent of an "advanced degree" as a baccalaureate followed by at least five years ofprogressive experience in the specialty); see also Matter ofWing's p. 2 Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977) (requiring petitioners to demonstrate beneficiaries' qualifications by the priority dates oftheir respective petitions).
The Petitioner asserts that the Beneficiary gained about 14 months of qualifying experience in Pakistan, from June 2000 to August 2001. Our appellate decision does not credit the claimed, post- baccalaureate nature of the foreign experience. Rather, we found that the Petitioner did not demonstrate the Beneficiary's attainment ofthe foreign equivalent of a U.S. bachelor's degree before a Pakistani university issued his master-of-commerce diploma on August 20, 2001.Degree not shown to be a U.S. advanced degree equivalent
On motion, the Petitioner submits a copy of a "provisional certificate" from the university regarding the Beneficiary's master-of-commerce studies. The company argues that the provisional certificate demonstrates the Beneficiary's possession of the equivalent of a bachelor's degree upon the certificate's issuance on May 23, 2000.
To establishabeneficiary'spossessionofadegreebeforetheissuanceofacorrespondingdiploma,a petitioner must demonstrate that, before the diploma's issuance, the noncitizen completed all substantive,degreerequirementsandtheapplicableschoolapprovedthedegree'saward. Matterof 0-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017). Consistent with 0-A-, the provisional certificate submitted by the Petitioner indicates the Beneficiary's completion of all requirements for his master-of-commerce degree and the university's approval of the degree's issuance by May 23, 2000. Also, information on the provisional certificate - including the Beneficiary's class roll and enrollment numbers - matches the same information on originals of the Beneficiary's university documents,whichthePetitionerpreviouslyprovided. Thecopyoftheprovisionalcertificatetherefore establishes the Beneficiary's possession of 14 months ofqualifying, post-baccalaureate experience in Pakistan.
The Petitioner, however, must demonstrate the Beneficiary's possession of at least an additional 46 months of qualifying experience. The Petitioner claimed that a shipping supplier employed the Beneficiary full-time in the United States for about 56 months, from May 2005 to January 2010. We found insufficient evidence ofhis continuous, full-time employment during that period. Copies ofthe Beneficiary's federal income tax returns and IRS Forms W-2, Wage and Tax Statements, suggest that he worked for his former U.S. employer from May 2005 to December 2006 on only a part-time basis. See Matter ofCable Television Labs.. Inc., 2012-PER-00449 (BALCA Oct. 23, 2014) (finding that, f o r l a b o r c e r t i f i c a t i o n p u r p o s e s , p a r t - t i m e e m p l o y m e n t e q u a l s o n l y h a l f t h e a m o u n t o f f o l l - t i m e work). While payroll records show that the company annually paid the Beneficiary at least $30,534 in 2007, 2008, and 2009, his tax returns and Forms W-2 indicate his receipt of company wages of only $11,340.80 in 2005 and $11,473.50 in 2006.
On motion, the Petitioner argues that it has demonstrated the Beneficiary's possession o f an additional 50monthsoffull-time,qualifyingexperienceintheUnitedStates. Notingthatourappellatedecision does not question the Beneficiary's qualifying experience during the 36-month period from January 2007 through January 2010, the Petitioner argues that it need only demonstrate the Beneficiaty's possessionofanadditional10monthsofqualifyingexperience. WefoundthattheBeneficiaryworked part-time from May 2005 through December 2006. Thus, the Petitioner asserts that, consistent with Cable Television Laboratories, this 20-month period of part-time employment equates to 10 months p. 3 of full-time employment, qualifying the Beneficiary for the offered position and the requested immigrant visa classification. Our appellate decision, however, also noted the Beneficiary's attestation on a prior application for labor certification that he did not work from May 2006 to October 2006. See Matter o fHo, 19 I&N Dec.582,591 (BIA1988)(requiringapetitionertoresoIveinconsistenciesofrecordwithindependent, objective evidence pointing to where the truth lies). We therefore did not credit the Beneficiaiy's claimed, continuous, full-time employment from May 2005 through December 2006. Rather, we credited his part-time employment from May 2005 to May 2006 and from October 2006 through December 2006. Thus, we found that, from May 2005 through December 2006, the Petitioner demonstratedtheBeneficiary'spossessionofonlyabout15monthsofpart-timeemployment,orabout eight months of additional, full-time, qualifying experience, two months less than required for the offered position and the requested immigrant visa classification.
The Petitioner asserts that it previously submitted "several affidavits and records establishing [the Beneficiary's] full-time employment with the U.S. employer from May 2005 to January 2010 with no gaps in between." The company therefore argues that a preponderance of evidence establishes the Beneficiary's qualifying experience.
The record contains two letters and an affidavit from the president of the Beneficiary's former U.S. employer. As the Petitioner argues, these documents state the company's continuous, full-time employment of the Beneficiary from May 2005 to January 2010. But the Petitioner has not corroborated the documents' statements with additional evidence. See Matter ofHo, 19 I&N Dec. at 591 (requiringpetitioners to resolve inconsistencies with independent, objective evidence). Affidavits Also, in an affidavit, the president of the Beneficiary's former employer stated that the company "directly" paid the Beneficiary from May 9, 2005, through December 20, 2005, before placing him on its payroll on December 21, 2005. The record, however, lacks corroborating evidence of the company's purported, "direct" payments to the Beneficiary from May 2005 to December 2005. The Petitioner also has not explained whether the $11,340.80 wage amount on the Beneficiary's Form W- 2 for 2005 reflects compensation for work performed after his listing on the company payroll on December 21, 2005, or for work earlier in the year.
Further, the Beneficiary's own statements cast doubt on his claimed, full-time, continuous employment from May 2005 through December 2006. On the prior labor certification application, he attested to his unemployment from May 2006 to October 2006. The Beneficiary's former U.S. employer filed the application for the Beneficiary in October 2007, while the Beneficiary still worked for the company. Memories tend to fade over time. The infomiation on the prior labor ce1iification application should therefore more accurately describe the Beneficiary's employment history at his formeremployerthanhismorerecentclaimsofcontinuousemployment. Also,inanaffidavit,the from former coworkers ofthe Beneficiary do not confirmthe statements ofthe employer's president. Of the five affidavits submitted, two state that the Beneficiary began work for his former U.S. employer in May 2005. But none ofthe documents indicate how long the company employed him or whether he worked for the company continuously.
Payrollevidence ofrecordconfirms allbut one ofthe fiveaffiants as fmmerco-workers ofthe Beneficiary. p. 4 Beneficiary stated that, while working for his former U.S. employer, he was "offered a full-time job" by the company. The reference to this later, "full-time"job offer suggests that he initially worked for thecompanyononlyapart-timebasis. ThePetitioner'smotionsdonotresolvetheseinconsistencies of record.Inconsistencies in the record
The Petitioner notes that, as part of the Beneficiary's "optional practical training" (OPT) in U.S. nonimmigrant, student visa status, USCIS granted the Beneficiary permission to work in the United States for one year, from May 2005 to May 2006. See 8 C.F.R. § 214.2(f)(I0(ii)(A) (authorizing eligibleforeignstudentstoengageinworkrelatedtotheirfieldsofstudy). Counselassertsthatforeign students granted OPT "are usually paid less and are often referred to as 'temporary' by employers."
Counsel's assertions, however, do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980)). The Petitioner must substantiate counsel's statements with independent evidence, which may include affidavitsanddeclarations. Also,eveniftheBeneficiary'sformerU.S.employerpaidhimlessmoney and consideredhim to be a "temporary" employee during his OPT period, the Petitioner has not explained the Beneficiary's inconsistentdescriptions ofhis employment status from May 2006 to October 2006, or submitted sufficient, corroborating evidence ofhis purported, continuous, full-time work from May 2005 through December 2006.
The Petitioner provides financial evidence regarding the Beneficiaty' s former employer and states that theemployer'sassetsandrevenues"dramaticallyincreased"from2004to2007. ThePetitionerargues that the increases allowed the Beneficiary's former employer, in 2007, to pay the Beneficiary more and to offer him a "permanent" job.
But any financial limitations on the Beneficiary's formeremployerbefore2007 would not excuse the Petitioner from demonstrating the Beneficiary's possession of at least five years of post-baccalaureate experience for the offered position and the requested immigrant visa classification. See, e.g., 8 C.F.R § 204 .5(k)(3) (requiring a petitioner for an advanced degree professional to submit documenting showing a beneficiary's possession of an advanced degree or its equivalent). The Petitioner must explain the Beneficiary's inconsistent statements regarding his employment status from May 2006 to October 2006 and provide additional evidence of his purported, full-time, continuous work from May 2005 through For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's possession of the minimum employment experience required for the offered position or the requested immigrant visa classification.
It's unclear whether the Petitioner asserts that the Beneficiary's former employer did not pay him for all work he performedfromMay2005throughDecember2006. Ifso,unpaidexperiencecanbequalifyingexperience. Matterof B&B Residential Facility, 01-INA-146, slip op. at *3 (BALCAJuly 16, 2002). But unpaid experience "maybe difficult to document." Id.
December 2006.
Thejob'sneedforanadvanceddegreeprofessional
A labor certification accompanying a petition under the requested immigrant visa classification "must demonstrate that the job requires a professional holding an advanced degree or the equivalent." 8 C.F.R § 204.5(k)(4)(i). The term "advanced degree" means: any United States academic or professional degree or a foreign equivalent degree above thatofbaccalaureate. AUnitedStatesbaccalaureatedegreeoraforeignequivalentdegree followed by at least five years of progressive experience in the specialty shall be considered the equivalent ofa master's degree.
8 C.F.R. § 204.5(k)(2).
On appeal, we found that the laborcertificationaccompanyingthis petition does not demonstrate the job's need for an advanced degree professional. The labor certification states that the offered position of management analyst requires either a U.S. master's degree (or a foreign equivalent degree) in business administration with no experience, or a U.S. bachelor's degree (or a foreign equivalent degree) followed byfiveyearsofexperience. Also,partH.14ofthecertification,"Specificskillsorotherrequirements," states: "Will accept a Bachelor's equivalent based on a combination of education as detem1ined by a professional evaluation service."
To qualify as an advanced degree professional, a beneficiary relying on foreign education must have a single, foreign degree that equates to at least a U.S. baccalaureate. The regulations do not allow baccalaureate equivalents based on combinations of lesser educational credentials or of education and experience. See Final Rule for Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (stating that "both the Act and its legislative history make clear that, in order to ... have experience equating to an advanced degree under the second [preference category], an alien must have at least a bachelors degree") (emphasis added).
The Petitioner documented that the Pakistani university issued the Beneficiary a two-year bachelor's degreeandatwo-yearmaster'sdegree. Thecompanysubmittedanindependent,professionalevaluation concluding that the Beneficiary's foreign educational credentials equate to a U.S. bachelor's degree.
The labor certification accompanying the petition states the Petitioner's acceptance ofthe equivalent ofa bachelor's degree "based on a combination of education as determined by a professional evaluation service." Contrary to the Act and its legislative history, this statement allows a candidate with less than a bachelor's degree to combine educational credentials to equal a baccalaureate and thereby qualify for the offered position. We therefore found that the position does not require a single degree equating to at least a bachelor's degree.
On motion, the Petitioner submits an affidavit from its president. The president states: "The 'combination' on the [Labor] Certification means that a foreign bachelor's degree and foreign master's degree can be combined to a U.S. equivalent bachelor's degree, only after it is properly evaluated by a professional evaluation service." Thus, the Petitioner argues that, by listing its acceptance of a combination ofeducation in part H.14 ofthe laborcertification, the company sought only to confirm its p. 6 acceptance of a combination of foreign bachelor's and master's degrees equating to a U.S. bachelor's degree. In determining the minimum requirements o f an offered position, however, the plain language on a labor certificationgenerallybindsUSCIS. See, e.g.,Madanyv. Smith,696F.2d 1008, 1015 (D.C.Cir.1983) (holding that "it is the language ofthe labor certificationjob requirements that will set the bounds ofthe alien's burden ofproof'); see also Rosedale & Linden Park Co. v. Smith, 595 F. Supp. 829,833 (D.D.C. 1984) (stating that "[t]he Court- like the [immigration service] - must examine the certifiedjob offer exactlyasitwascompletedbytheprospectiveemployer"). Onthelaborcertification,thePetitionerstated its acceptance of"a combination ofeducation." That language does not limit the company's acceptance to foreign baccalaureate and master's degrees. Rather, the language allows a combination of any educational credentials, including those less than bachelor's degrees.
We agree with the Petitioner that, for purposes o f qualifying as an advanced degree professional, a foreign master's degree that follows a foreign baccalaureate may equate to a U.S. bachelor's degree. In some countries, bachelor's degrees do not require four years ofuniversity studies as U.S. baccalaureates usually do. See Matter ofShah, 17 I&N Dec. 244,245 (Reg'l Comm'r 1977). A foreign master's degree following a two- or three-year, foreign bachelor's degree equates to a U.S. baccalaureate if the single, master'sdegreeequalsatleastaU.S.bachelor'sdegree. ThePetitioner'sstatementinpartH.14ofthe labor certification, however, broadly allows a combination of any educational credentials, not just foreign baccalaureates and master's degrees. Thus, by its plain language, part H.14 of the labor certification indicates that the offered position does not require an advanced degree professional.
The affidavit from the Petitioner's president cites the company's eff01ts to recruit U.S. workers during thelaborcertificationprocess. Thepresidentstated: "AllofthejobpostingsfortheLaborCertification required the prospective job applicants to either have an "MBA [master of business administration] or BBA [bachelor of business administration] plus 5 yrs. Exp."' The Petitioner submits copies of advertisements for the offered position that the company placed in newspapers and on an online, job- search website. The Petitioner appears to argue that it intended the language in part H.14 of the labor certification to allow only combinations o f foreign baccalaureate and master's degrees to equate to U.S. baccalaureates.
The president's statementand the copies ofthe ads, however, do not specifically support the Petitioner's claimed acceptance of baccalaureate equivalencies based only on combinations of foreign master's and bachelor'sdegrees. Thematerialsdonotindicate,forexample,thecompany'srejectionofjobapplicants with baccalaureate equivalencies based on combinations oflesser educational credentials. The materials therefore do not demonstrate the Petitioner's intention to allow only combinations of foreign baccalaureate and master's degrees as U.S. baccalaureate equivalencies.
For the foregoing reasons, the Petitioner has not demonstrated the offered position's need for an advanced degree professional.
Conclusion
The Petitioner's motions neither demonstrate our prior decision's misapplication oflaw or USCIS policy nor the petition's approvability. We will therefore affim1 the appeal's dismissal.
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.