Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new conStructions of law not establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a: Notice of Appea,l or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. on Rosenberg
Chief, Administrative Appeals Office
NON-PRECEDENT DECISION
· Page . ~.
DISCUSSION:: The employment-based petition was dismissed by the Director, Nebrask:!l Service Center (dire.ctor). The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The · matter ·is now before the AAO on a motion to reopen the deci.sio!J.. The AAO will grant the motion but affirm the MO's M!ly 22, 2013, dismissal of the appeal. The petition will remai!l depied. The petitioner is an inks and dyes supplier. It seeks ~o employ the beneficiary permanently in the United States e;rs a textile chemist pursuant to section 203(b )(2) of the lmt;r:ligration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2), As required by statute, ali ETA Form 9089, Application for Permanent Employment Certification approved by the Pepartment of tabor (DOL), accompanied the petition, Tbe director determined that the beneficiary did not satisfy the mininmm level of education stated on the ·labor certification or as required by the advanced degree professional classification. The director denied .the petition accordingly. 1
On May 22, 2013, the AAO di_smissed the appeal, concluding that the beneficiary does not possess . a U.S. advanced degree or a foreign eq1,1ivalent degree issued by a college or university. · On June Zl, 4013, the petitioner flied a motion to reopen. A motion to reopen must sl.ate t1J.e new facts to be submitted in the reopeped proceeding and be supported by affidaVits or other documentMy evidence~ 8 C.P.R. § 103.5(aX2). Included with the motion, counsel submits additional evidence related to the n!l.qrre ofthe beneficiary's . credentials.
' The regulation at 8 C.F.R. § 204.5(k)(2) defines the term "a,dvanced degree:;'
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or: a foreign · equivalent degree followed by at least five years of progressive ~xperience in the specicdty shall be com;idered the equivalent of a IiiaSter's degree. If a doctoral degree is customarily required by the specialty, the ali_en must l,ave a United States doctorate or a foreign equivalent degree
The regulation at 8 C.F,R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree; or
(B) Ail official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, apd evic:fe_nce in the form of letters from currel)t or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience jp the specialty. i TIJ,e MO conducts appellate review on a de novo basis. The AAO's de novo ~\ltbority is well recogniZed by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cit. 2004). The procedural history of this case is documented in the record and is wcorporated herein. Further references to t1J.e procedural history will only be made as necessary.
NON.,.PRECEDENT DECISION
PageJ
Th¢ record indicates that the beneficiary obtained a Technician's Certificate in the Dyeing of Textiles folloWiilg attendance at the and passing the examination (May June 1970). He also received a Technician's Advanced Certificate in the Dyeing of Textil~s following attend~ce at (May-Jliile 1971). In 1976, the beneficiary was certified as an Associate in The Society of Dyers and Colourists (SOC), entitling him to describe himself as a Chartered Colour Technologist. In 2005, he became·a Fellow w SDC.~ . On motion, the petitioner renews the llSSertion th11t the beneficiary's credential as an associate in SDC shoUld be regarded as a foreign equivalent bachelor's degree sufficient to qualify him as a second preference advanced degree professional under se.ction 203(b )(2) of the· Act. AccOrding to the materials · submitted on motion, the SDC is a professtol)~ organization. it has two classes of members: Member Non-Corporate and Member Corporate. An "Associateship (which is of boJ)oup;-gegree standard) is awarded to corporate members who have passed either the prescribed Society examinations or who possess a good honours degree (or equivalent qualification), and who have demonstrated to the Society their competenc¢ and the validity of their experience in the knowledge a,nd ~ of color'' (page 1 of the SbC membership document submitted on ·motion). The petitioner contends that the passage of "diploma" SOC ex~tions signifying the individual's competence supports the beneficiary's eligibility as the recipient of a foreign degree issu~d by a college or university.
The AAO cannot concur. As noted in its prior May 22, 2013 deeision, when the beneficiary relies on a bachelor's degree (and five years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. 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 bach~lor's degree with at leli$t five years progressive experience in the professions." H.R. Conf. Rep. No. 955, 101 Cong., 2nd Sess. 1990, 1990
U.S.C.C.A_.N, 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990).
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the cou.rt held that, in professional and advanced degree professional cases, where the beneficiary is statutorily requJred to bold at lea.st 'a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary'~ credentials relies on work experienCe alone or a combination of multiple lesser degrees, the result is tbe "equivalent" of a bachelor's degree rather than a "foreign equivalent degree. "3 In order to have experience and education equating to. an advanced degree under section 203(b)(2) of the Act, the beneficiary's five 2 According to tbe online printout submitted by the petitioner on motion, SDC Fellowship candidates must have an approved university honours degree, or a qualification or achievement that demonstrates a level of knowledge and ability at least equivalent to attaining an approved honours degree in a colour-related discipline.
(b)(6) NON-PR£CEDENT DECISION. yeats of progressive experience must be predic(lted on a single degree that is a i'foreign equivalent degree" to a United States baccalaureate degree. See 8 C.F.R. § 204.5(k)(2).
Moreover, the beneficiary's degre~ must a.lso be from a college or university. The regUlation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of (ln "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equiva.lent degree.'' For classification a.s a member of the professions, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or vniversity record showing the date the baccalaureate degree wa.s awarded and the area of concentration ofstudy." The AAO cannot condude th(lt the evidence required to demonstrate that a beneficiary is an advanced degree prOfessional is any less tha.n the evidence required to show that the beneficiary is a professional. To do so would undermine the congressionally mandated classification Scheme by allowing a lesser evideotiCJ.ry ~ta,ndard for the . more restrictive visa classification. See Silverman v. Eastrich Mult{ple Investor Fund, LP,, 51 F. 3d 28, 31 (3rd Cir. 1995) pet APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003) (the baSic tenet of statutory construction, to give effect to all provisions, is eql!Cllly applicable· to regulatory construction). Moreover, the commentary accompanying the proposed advanced degree professional regulation specifically states that a "baccClll:lureate means a·bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30706 (July 5, 1991)~ . .
Thus, the plain meaning of the Act and the regulations is that the bepefici~ of an advanced degree professional petition must possess, at a minimum, a degree from a college or university that is a U.S. baccalaureate degree or a foreign equiva,lent degree. · As noted above, for classification as an advanced degree professional, the beneficiary must possess a foreign degree from a college or university that is an equivalent degree to a U.S. bachelor's degree. Based on a re·view of the record, the AAO CCJ.rtnot con.clude that the SDC i.s a college or university th(lt can confer a degree.5 therefore, although the beneficiary may possesses th.e ~'eql!iv&lene• of a bachelor's degree, he does not possess a "foreign equivalent degree'' from a college or university within the meaning of 8 C.F.R. § 204.5(k)(2),Degree not shown to be a U.S. advanced degree equivalent
Based on the foregoing, the AAO reaffirms its previous dismissal of the appeal on May·22, 2013. The burden of proof in these proceedings rests solely with the petitioner. The petitioner has not met that burden. Section 291 of the Act, 8 U.S.C. § 1361.