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:
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 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://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.
Thank you,
AAf;~
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, (director) denied the employment-based immigrant visa petition. Upon a subsequent motion to reopen the director affirmed his decision to deny the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a "catastrophe modeling tools and" business. It seeks to permanently employ the beneficiary in the United States as a director of software engineering/vice president. 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.
Proceduralhistory
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 July 5, 2012. 2 Part H of the labor certification states that the offered position has the following m1mmum requirements:
H.4. Education: Master's degree in computer science.
H.5. Training: None required.
H.6. Experience in the job offered: 36 months.
H.7. Alternate field of study: Engineering, math or information systems.
H.8. Alternate combination of education and experience: Bachelor's degree and 5 years of expenence.
H.9. Foreign educational equivalent: Accepted.
H.lO. Experience in an alternate occupation: 36 months managing software development teams or software projects or a software vendor for property insurance.
H.14. Specific skills or other requirements: No special requirements. Any suitable combination of education, training or experience is acceptable.
Part J of the labor certification states that the beneficiary possesses a bachelor's degree in Electronics Engineering from completed in 1998. The record contains a copy of the beneficiary's certificate and transcripts from the
, issued on January 21, 1999. The transcripts indicate that the beneficiary passed both Section A and Section B, and the certificate indicates that the beneficiary was 1 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). p. 3 elected an Associate Member of the institution.
The record also contains an evaluation of the beneficiary's credentials prepared by for , on August 23, 2011. The evaluation states that the beneficiary possesses "the academic equivalent of a bachelor's degree in electronics engineering from a regionally accredited institution in the United States. "
Part K of the labor certification states that the beneficiary had worked for the petitioner 's subsidiary in India as a software engineer from December 7, 2000, through July 16, 2003. The beneficiary also indicated that he worked for the petitioner in the following capacities:
- Senior software engineer from July 23, 2003, through December 31, 2007.
- "Assist. Vice President/Dir." from January 1, 2008, through May 31, 2012.
- "Vice President/Director" since April 1, 2012.
The record contains an experience letter from managing director of Air stating that the company employed the beneficiary as a software engineer from December 7, 2000, through July 16, 2003. The record also contains an experience letter from for the petitioner , confirming the beneficiary ' s claimed employment there as detailed above.
On April 29, 2013, the director denied the petition after concluding that the beneficiary 's membership in did not constitute the foreign equivalent of a United States (U.S.) bachelor's degree. On motion to reopen the petitioner submitted another credentials evaluation from c described the process of gaining membership in and summarized that such membership should be considered "a 'single source' degree" because the studies, examinations, and professional experience were all conducted under the auspices of a single institution. cited the Electronic Database for Global Education (EDGE) as indicating that associate membership in should be considered the equivalent to a U.S. bachelor ' s degree. On July 8, 2013, the director reopened the case and again denied the petition after concluding that the beneficiary did not possess the degree required by the labor certification because . was a professional society, not a college or university, and therefore could not issue a degree.
On appeal, counsel for the petitioner states that the regulations and statute do not require that the institution granting the degree be an actual university or college. Counsel also stressed that the government of India recognizes as a degree-granting institution. Counsel again cited EDGE as considering . membership to be equivalent to a single U.S. bachelor's degree. Counsel asserted that the director erred by noting only the practical experience requirement for membership without acknowledging the academic requirements and sought to clarify that the experience required for membership is not professional experience, but rather academic training. Finally, counsel stated that in admitting the beneficiary to its master's degree program, found that the beneficiary had the foreign degree equivalent to a U.S. bachelor's degree.
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. 3 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.4 A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision. 5
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
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' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany , 696 F.2d at 1008, the Ninth Circuit stated:
[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 entitled 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, citingK.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. 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.P.R.§ 204.5(k)(1).
The regulation at 8 C.P.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 must be 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 form 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 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, 101st Cong., 2nct 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.F.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 p. 8 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, 60900 (Nov . 29, 1991) (emphasis added).
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree , USCIS properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary'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." 7 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 a "foreign equivalent degree" to a United States baccalaureate degree. See 8 C.F.R. § 204.5(k)(2).
The beneficiary's degree must also be from a college or university. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equiv a lent degree." For
regulations and statute do not require that the institution granting the degree be an actual university or college is not persuasive.
In the instant case, the petitioner relies on the beneficiary's membership as being equivalent to a U.S. bachelor's degree. As is noted above, the record contains two evaluations of the beneficiary's educational credentials prepared by. , which conclude that the beneficiary's membership is equivalent to a U.S. bachelor ' s degree. 9 The AAO has reviewed the EDGE database that was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) and cited by in her credentials evaluation and by counsel. According to EDGE, membership in "represents attainment of a level of education comparable to a bachelor's degree in the United States."
As is explained above, for classification as an advanced degree professional , the beneficiary must possess a foreign degree from a college or university that is equivalent to a U.S. bachelor's degree. While EDGE concludes that the beneficiary's membership is "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. 10 Therefore, the beneficiary possesses the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree" within the meaning of 8 C.P.R. § 204.5(k)(2). While counsel stresses that both the government of India and University have recognized . membership as equivalent to a bachelor's degree for admissions purposes, the standards of these institutions are not binding on USCIS.
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)Five years of progressive experience not documented
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 )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter ofKatigbak, 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. 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]." Id. 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 master's degree and 36 months of experience, or a bachelor's degree and five years of experience, and allows for a foreign educational equivalent. For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a master's degree or a bachelor's degree.
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 p. 11 an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.