Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 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:
INSTRUCfiONS:
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 nor 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 Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:ljwww.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.
Thank you, dwc -(t~
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis~gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a computer software and hardware development company. It seeks to permanently employ the beneficiary in the United States as an The petitioner requests classification of the beneficiary 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).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is May 14, 2012.2 Part H of the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Bachelor's degree in Accounting, Finance, MIS, or related field.
H.5. Training: None required.
H.6. Experience in the job offered: 60 months.
H.7. Alternate field of study: None accepted.
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.lO. Experience in an alternate occupation: Any related occupation.
H.14. Specific skills or other requirements: Must have professional experience with: SAP project leadership; full life cycle of SAP Finance Controlling and contract accounting project implementation; leading finances and system implementation projects; finance business process integration experience.
*Professional experience must be post-baccalaureate progressive in nature.
Part J of the labor certification states that the beneficiary's highest level of education related to the offered position is a Bachelor's degree from the · completed in 2002.
The record of proceeding contains a copy of the beneficiary's three-year Bachelor of diploma and transcripts from the . The record also contains a certificate of membership and a final examination certificate from The record also contains an evaluation of the beneficiary's credentials prepared by ',on October
1, 2012. Dr. concludes that the beneficiary's membership in is a single-source foreign equivalent to a four-year Bachelor's degree in Accounting. Dr. notes that the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) states that membership in the is comparable to a bachelor's degree in the United States. EDGE and AACRAO are discussed in further detail below. The record contains an evaluation of the beneficiary's credentials prepared by B.A., J.D., M.B.A., ' on dated August, 22, 2012. Mr. concludes that the completion of the final examination program is the "equivalent of a four-year Bachelor of Science Degree in Accounting from an accredited college or university in the United States based on the single source of the Final Examination program."
Part K of the labor certification states that the beneficiary possesses the following employment experience:
- Managing Consultant with
November 4, 2011.
- Lead Consultant with p. 4 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.
Finally, the director noted that an AAO decision cited by the petitioner is a non-precedent decision and is non-binding.
On appeal, the petitioner, through counsel, states that associate membership is a single-source degree awarded after a course of study similar in complexity to a course of study for which a U.S. institution would grant a degree. Counsel also states that associate membership is not a series of diplomas or certificates and that EDGE has determined that membership is equivalent to a U.S. bachelor's degree. Finally, counsel asserts that the director's denial was arbitrary and capricious because EDGE was referred to as the "go to source" for USCIS during the Nebraska Service Center Stakeholders' call on October 11, 2012.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis? The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14).6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies'
(b)(6)Page 6
NON-PRECEDENT DECISION
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U .S.C. § 1154(b ), as one of the determinations incident to the INS's decision whether the alien is en~itled to sixth preference status.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) /d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. /d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. /d. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983).
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. p. 7 Eligibility for the Classification Sought
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. See also 8 C.F.R. § 204.5(k)(l).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[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 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
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional mustbe accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the f~rm of letters from current or former employer(s) showing that the alien has at least five years of progressive post -baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. 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 p. 8 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 bachelor's degree with at least five years progressive experience in the professions." H.R. Conf. Rep. No. 955, Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990). In 1991, when the final rule for 8 C.P.R. § 204.5 was published in the Federal Register, the legacy INS 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 of experience 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." Because 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 the 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.
classification as 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 university record showing the date the baccalaureate degree was awarded and the area of concentration of study." The AAO cannot conclude that the evidence required to demonstrate that a beneficiary is an advanced degree professional is any less than 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 evidentiary standard for the more restrictive visa classification. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) per 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 equally applicable to regulatory construction). 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, 30706 (July 5, 1991).8
Thus, the plain meaning of the Act and the regulations is that the beneficiary 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 equivalent degree.
In the instant case, the petitioner relies on the beneficiary's Membership as being equivalent to a U.S. bachelor's degree.
Final Exam and Associate
As is noted above, the record contains an evaluation of the beneficiary's educational credentials prepared by .
examination program is the "equivalent of a four-year Bachelor of Science Degree in Accounting from an accredited college or university in the United States based on the single source of the Final Examination program."
The AAO has reviewed the EDGE created by AACRAO. According to its website, 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 around the world." See http://www.aacrao.org/About AACRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." /d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. Authors for EDGE must work with a publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials.10 If placement recommendations 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. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies.U According to EDGE, the beneficiary's Final Exam and Associate Membership from is awarded upon two years of study beyond the Intermediate Exam and upon passing t e Final Exam.
EDGE concludes that the
"comparable to" a bachelor's degree in the United States, it is not a degree from a college or university. The is not an institution of higher education that can confer a degree.12 Therefore, the beneficiary possesses the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree" within the meaning of 8 C.F.R. § 204.5(k)(2).
In addition, a three-year bachelor's degree will generally not be considered to be the "foreign equivalent" of a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. 244 (Regl Comm'r. 1977).13 See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree); see also Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010) (the beneficiary's three-year bachelor's degree was not the foreign equivalent of a U.S. bachelor's degree).
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
The Minimum Requirements of the Offered Position
The petitioner must also establish that the beneficiary satisfied all of the educational, trammg, experience and any other requirements of the offered position by the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971).
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 12 See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 11 (D. Ore. Nov. 30, 2006) (finding USCIS was justified in concluding that Institute of Chartered Accountants of India membership was not a college or university "degree" for purposes of classification as a member of the professions holding an advanced degree).
Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 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]." /d. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
In the instant case, the labor certification states that the offered position requires a bachelor's degree in Accounting, Finance, MIS, or related field.
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a bachelor's degree in Accounting, Finance, MIS, or related field.
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
Conclusion
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for classification as a member of the professions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
Counsel suggests that the director's adjudication of the petition was arbitrary and capricious. The petitioner has not demonstrated any error by the director in conducting its review of the petition. Nor has the petitioner demonstrated any resultant prejudice such as would constitute a due process violation. See Vides-Vides v. INS, 783 F.2d 1463, 1469-70 (9th Cir. 1986); Nicholas v. INS, 590 F.2d 802, 809-10 (9th Cir. 1979); Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974), cert. denied, 419 U.S. 1113 (1975).
Counsel also references minutes from an American Immigration Lawyers Association (AILA) teleconference p. 13 published decisions from the circuit court of appeals within the circuit where the action arose. See N.L.R.B. v. Askkenazy Property Management Corp. 817 F. 2d 74, 75 (91h Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd, 273 F.3d 874 (91h Cir. 2001) (unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in private publications or widely circulated).
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The appeal is dismissed.