Degree or anAlien of Exceptional Ability Pursuant to Section 203(b)(2) or the Immigration and ·Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case . All or the documents related to this rnatter have been returned to the office that originally decided your case . Please he advised that · any further inquiry that you might have concerning your case. must be made to that office . If you believe the AAO inappropriately applied the law in reaching its · decision, or you have additi<inal information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee or $630: The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he filed within 30 days of the decision that the motion seeks to reconsider or reopen.
U®.~u, .
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The petitioner appealed this denialto the Administrative Appeals Office (AAO), and, on July 10, 2012, the AAO dismissed the ·appeal. Counsel filed a motion to reopen and a motion to reconsider (MTR). the AAO's decision in accordance with 8 C.F.R.·§ 103.5. The motion to reopen will be granted, the motion to reConsider will be denied, the previous decision of the AAO will be affirmed, and the petition will be denied.
The petitioner is a limousine service. It seeks to employ the beneficiary permanently in the United States as an IT manager pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, the petition is accompanied by an ETA Form YOH(), Application for Permanent Employm~nt Certification, approved by the United States Department of Labor (DOL). Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The AAO affirmed this determination on appeal.
In pertinent part, section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), 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. H . C.F.R. § 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." /d. In dismissing the appeal, the AAO concluded that the beneficiary did not satisfy the minimum level of education or experience stated on the labor certification.
The regulation at 8 C.F.R. § 103.5(a)(2) states in pertinent part:
Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence ....
The regulation at 8 C.F.R. § 103.5(a)(3) states:
Requirements for motion to reconsider. A motion to reconsider must 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 [U.S. Citizenship and Immigration Services (USCIS)] policy . A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision . .
On motion to reconsider, the petitioner failed to support the motion with any pertinent precedent decisi~ns establishing that the AAO's decision was based on an incorrect application of law or p. 3 J ' ' policy. Counsel cites an unpublished AAO decision for the proposition that, according to counsel, the AAO has "previously affirmed" that the phrase "or equivalent" includes "a bachelor's degree in any field'' plus 5 years of progressive experience. While 8 C.F.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a). Therefore, the. motion, to the extent it is a motion to reconsider, will be denied· for failing to meet applicable requirements. 8 C.F.R. * 103.5(a)( 4 ).
On motion to reopen, counsel submits new evidence to establish that the beneficiary did not satisfy the minimum level of education and experience stated on th~ labor certification. The motion thus qualifies for consideration under 8 C.F.R. § 103.5(a)(2).
The petitioner submitted a work experience letter from The letter was signed on August 1, 2012. The letter states that the ben.eficiary worked as a deputy chief manager from March 2002 to July 2007. This letter is sufficient to support the claimed work experience. Accordingly, that portion of the AAO's July 10, 2012 decision :-viii be withdrawn. The AAO conducts appellate review on a de novo basis. See Soltane v. DO./, 381 F.3d 143, 145 (3d .Cir. 2004). The AAO considers all pertinent. evidence in the record, including new evidence properly submitted upon appeal. 1
A~ noted above, the ETA Form 9089 in this matter is certified by the DOL. The DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified and available and whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5){A)(i) of the Act; 20 C.F.R. § 656.l(a). . ' It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United States baccalaureate degree is generally found to require four y~ars of education. Matter of Shah, 17 l&N Dec. 244 (Reg'l. Comm'r. 1977). This. decision involved a petition filed under 8 U.S.C. §1153(a)(3) as amended in 1976. At that time, this section provided:
Visas shall next be made available ... to qualified immigrants who arc members of the professions ....
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent ....
Significantly, the statutory language used prior to·Matter of Shah, 17 I&N Dec. at 244, is identical to the statutory language used subsequent to that decision but for the requirement that the immigrant hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of Conference, published as part of the House of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the alien must have a bachelor's degree with at least 'five years progressive experience in the professions." H.R. Conf. Rep. No. 95S, 101
Cong., 2"d Sess. 1990,1990 U.S.C.C.A.N. 6784,1990
WL 201613 at *6786 (Oct. 26, 1990).
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it stated that an alien "must have a bachelor's degree" when considering equivalency for second preference immigrant visas. We must assume that Congress was aware of the agency's previous treatment of a "bachelor's degree" under the Act when the new classification was enacted and did not intend to alter the agency's interpretation of that term. See Lorillard v. Puns, 434 U.S. 575, 580-81 (1978). (Congress is presumed to be aware of administrative and judicial interpretations where it adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov . 29, 1991)
(an alien must have at least a bachelor's degree). · In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the Immigration and Naturalization Service (the Service), responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the substitution ofexperience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649. (1990), and the Joint Explanatory Statement of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bachelor's degree:
The Act states that, in order to qualify under the second classification, alien members of the professions must hold "advanced degrees or their equivalent." As the legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's degree with at least five years progressive experience in the professions." Bec~use neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be United States degrees, the Service will recognize foreign equivalent degrees.
But both th~ Act and its legislative history make clear that, in order to qualify as a professional under the third classification or to have experience equating to an advanced degree under the second, an alien must have at least a bachelor's degree .
. 56 Fed. Reg. 60897, 609()0 (Nov. 29, 1991) (emphasis added).
There is no provision in the statute or the regulations th~t would allow a beneficiary to qualify under section 203(b)(2) of the Act as a member of the professions holding an advanced degree with· anything less than a full baccalaureate degree (plus the requisite five years of progressive experience in the specialty). More specifically, a three-year bachelor's degree will not be considered to be tht: "foreign equivalent degree" to a United States baccalaureate degree. Mauer of Shah, 17 l&N Dec. at 245. Where the analysis of the b~neficiary's credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree." 2 In order to have experience and education equating to an advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree (plus the requisite -five years of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2).
For this classification, advanced degree professional, the regulation · at 8 C.F.R. ~ 204.5(k)0)(i)(B) requires the submission of an "official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree" (plus evidence of tive years of progressive experience in the specialty). For classification as a- member of the professions, the regulation at ~ C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date _the baccalaureate degree was awarded and the area of concentration of study." We cannot conclude that the evidence required to demonstrate that an alien is an advanced degree professional is any less than the evidence required to show that the alien is a professional. To do so would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the ·commentary accompanying the proposed advanced degree professional regulation specifically states that a "baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare ~ C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, univer~ity, school or other institution of learning relating to the area of exceptional ability"). When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. U_SCIS must examine "the language of the labor certification job requirement<' in order .to determine what the job requires. /d. The only rational manner by which USC IS can he expected to interpret the meaning of terms used to describe the requirements of a job in labor certification is to examine · the certified job offer exactly as it is· completed by the prospectiv<.: employer. See Rosedale Linden Park Company v. Smi(h, 595 F. Supp. 829, 833 (D.D:C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve reading and applying the plain language of the labor certification 2 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases, a specific combination of education and experience). The regulations pertaining to the immigrant classification sought in this matter do not contain similar language. p. 6 application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the ETA Form 9089.
The required education, training, experience, and special requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a master's degree, or foreign educational equivalent, in computer information systems. The petitioner will also accept a bachelor's degree and five years of experience. The petitioner specifically states that no alternate fields of study would be acceptable. Therefore, only a degree in computer information systems is acceptable. ·
On the section of the labor certification eliciting information of the beneficiary's education, he states that he attended the in Pakistan and received a two-year Bachelor of Science degree in physics and a Master of Science degree in applied physics.
On motion, counsel submits the following educational evaluation:
- An evaluation from . The evaluation is dated August 6, 2012. The evaluation is signed by The evaluation describes the beneficiary's education as being the equivalent of a U.S. Bachelor of Science degree in applied physics with a major in physics and computer information systems.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien's eligibility. See id. USCIS may give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. /d. at 795. See also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 l&N Dec. 190 (Reg. Commr. 1972)); Matter of D-R-, 25 I&N Dec. 445 (BIA 201l)(expert witness testimony may be given different weight depending on the extent of the expert's qualifications or the relevance. reliability, and probative value of the .testimony).
The new evaluation is not persuasive. The evaluation breaks down the beneficiary's subjects into .courses and practicals and awards credits for each course and practical, concluding that the beneficiary achieved 120 credits in an applied physics program of study which is equivalent to a U.S. Bachelor of Science degree in applied physics with a major in physics· and computer information systems. However, provides no explanation for how the individual course credit numbers were p. 7 master's program at the as equivalent to at least a bachelor's degree in Electronics and Computer Information Systems at U.S. institutions." The evaluator provided th~ names of the universities to support his conclusion. However, the petitioner failed to suhmit evidence from the universities that they do, in fact, ''accept the advanced bachelor's-level studies completed by Mr~ in the master's program at the as equivalent to at least a· bachelor's degree in Electronics and Computer Information Systems. " Going on record without supporting documentary evidence is not sufficient for purpos~s of meeting the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm ' r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)).
Given the serious inconsistencies in credits discussed above and the remaining evidence of record , the AAO will prefer the peer-reviewed information provided by the Electronic Database for Global Education (EDGE) created by the American Association of ( ,ollegiate Registrars and Admissions Officers (AACRAO) .Inconsistencies in the record
According to its website, www.aacrao.org, AACRAO is "a nonprofit , voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries ." http://www.aacrao.org/about-AACRAO.aspx (accessed April 9, 2013). Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services."' ld According to the registration page for .EDGE, EDGE is "a web-based resource for the evaluation of foreign educational credentials." http://edge.aacrao.org/info.php (accessed April 9, 2013). Authors for EDGE are not merely expressing their personal opinions. Rather, they must work with a publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials? If placement recommendati,pns are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire Council. /d.
In the section related to the Pakistan educational system, EDGE provides that a Pakistani Bachelor of Science degree "represents attainment of a level of education comparable to two to three years of university study in the United States. Credit may be awarded on a course -by-course basis ." · Moreover , EDGE further states that the Master of Science . "represents attainment of .a level of education comparable to a bachelor ' s degree in the United States. " · · The labor certification and regulation cited above requires that an applicant for the proffered position have at least the U.S. equivalent of a bachelor's degree. The designated field of study on the ETA Form 9089 is computer information systems. However, a Bachelor of Science degree in applied physics is not in the required field of study, and the petitioner indicated on the ETA Form 9089 that alternate fields of study were unacceptable.
- I I "
On appeal, counsel explains that the petitioner would accept a bachelor's degree with "no tield of study required." Counsel further states that the AAO "impermissibly added the requirement that the bachelor's degree be in the required field of study." To the contrary, it is the petitioner that restricted the fields ofstudy to only computer information systems. Furthermore, ample room is provided on the ETA form 9089 for the petitioner to specify what it intends. For example, Part H, item 14, provides a general blank entitled "specific skills or other requirements" that could have been used. However, this was not done. Nothing on the ETA Form 9089 states that the petitioner would allow a candidate to qualify with at least a bachelor's degree in any field. The petitioner attempts to have Part H read as a non-cohesive statement about what is required for the job, however, nothing .on the ETA Form 9089 indicates that items 7, 9, 10, 11,
12, 13, or 14 would apply only to the answer given · in item 4 or in item 8. Instead, those blocks all-contain general questions that apply, on their face, to the job in general. When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. /d.
In this case, while it may be viewed that the beneficiary may hold at least the foreign degree equivalent of a U.S. bachelor's degree, his studies at the do not indicate that he has ever received a bachelor's degree in the required field of study. Therefore, the beneficiary does not qualify for preference visa classification under section 203(b )(2) of the Act. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 u.s.c. § 1361.
ORDER: The motion to reconsider is denied. The motion to reopen is granted and the decision of the AAO dated July 10, 2012 is affirmed. The appeal is dismissed, and the petition is denied.