The Petitioner, an insurance services firm, seeks to employ the Beneficiary permanently in the United States as an operations analyst. See Section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Director, Nebraska Service Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed.
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). As required by statute, the petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The priority date of the petition is March 6, 2014. See 8 C.F.R. § 204.5(d). The Director determined that the Petitioner had not established that the Beneficiary met the minimum requirements of the labor certification. The Director denied the petition accordingly.
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1
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 tum, DOL has the authority to make the two determinations listed in section 212(a)(14).2 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 1 008, 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 2 Based on revisions to the Act, the current citation is § 212(a)(5)(A). p. 3 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.) Id at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
[T]he 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. Id § 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. Id § 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 beneficiary are eligible for the requested employment-based immigrant visa classification.
At issue in this case is whether the Beneficiary possesses the minimum education as required by the terms of the labor certification. The petitioner must establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by the priority p. 4 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'l Comm'r 1977); see also Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971).
Part H of the labor certification states that the offered position has the following minimum requirements:
H.4.
H.5.
H.6.
H.7.
H.8.
H.9.
H.lO.
H.l4.
Education: Bachelor's degree in Accounting, Finance, Business, Economics.
Training: None required.
Experience in the job offered: 60 months. .
Alternate field of study: Any major with approximately 2 semesters or more coursework in Accounting, Finance, Business, Econ.
Alternate combination of education and experience: None accepted.
Foreign educational equivalent: Accepted.
Experience in an alternate occupation: 60 months of experience as an account executive or accountant.
Specific skills or other requirements: Employer . accepts any suitable combination of education, experience and training consistent with H4 through H10 ofthis ETA 9089.
Part J of the labor certification states that the Beneficiary possesses a bachelor's degree in Japanese literature from Japan, completed in 1991. The record contains a copy of the Beneficiary's Bachelor of Arts diploma and transcripts from Japan, issued in 1991. The record also contains a copy of the Beneficiary's certificate of completion and transcript from California, issued in 2004, awarding the Beneficiary an associate in science degree in accounting.
The record contains an evaluation ofthe Beneficiary's educational credentials prepared by for on April 5, 2006.3 It states that the
Beneficiary's bachelor's degree in Japanese literature is equivalent to a bachelor's degree in Japanese literature from a regionally accredited college or university in the United States. It states that the Beneficiary's associate in science degree in accounting is equivalent to an associate's degree in accounting from a regionally accredited community college in the United States. The evaluation concludes that, as a result of her educational background and employment experiences, the Beneficiary h,as an educational background the equivalent of an individual with a bachelor's degree in accounting from a regionally accredited college or university in the United States.
We have reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (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." Id. EDGE is "a web-based,resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 4
According to EDGE, a Bachelor's degree from Japan is comparable to "a bachelor's degree in the United States."
In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification to determine the required qualifications for the position. users 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). USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate that the beneficiary has to be found qualified for the position. Madany, 696 F.2d at 1015. USCIS interprets the meaning of terms used to describe the requirements of a job in a labor certification by "examin[ing] 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]" even if the employer may have intended different requirements than those stated on the form. ld. at 834 (emphasis added).
In the instant case, the labor certification states that the offered position requires a bachelor's degree in accounting, finance, business, economics, or any major with approximately two semesters or more coursework in accounting, finance, business or economics, along with 60 months· (five years) of experience in the proffered position or as an accountant or account executive. No alternate combination of education and experience is accepted.
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., 2d 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 professional under the third classification or to have experience equating to an p. 7 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."5 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" of a United States baccalaureate degree. See 8 C.P.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 (Reg'l Comm'r 1977).6 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. v. USCIS, 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).
The Petitioner has not established that the Beneficiary has a United States baccalaureate degree or a foreign equivalent degree in accounting, finance, business, economics, or any major with approximately two semesters or more coursework in accounting, finance, business or economics.Degree not shown to be a U.S. advanced degree equivalent As stated above, the record contains a bachelor's degree diploma reflecting that the Beneficiary was issued a bachelor's degree in Japanese literature in 1991. The Beneficiary's transcript reflects that she had eight units of economics as partofher bachelor's degree program.
The Petitioner relies on the Beneficiary's bachelor's degree combined with her associate's degree as being equivalent to a U.S. bachelor's degree in a major with approximatelytwo semesters or more coursework in accounting; finance, business or economics. As discussed above, where the analysis of a beneficiary's credentials relies on a combination of lesser degrees and/or work experience, the result is the "equivalent" of a bachelor's degree rather than a full U.S. baccalaureate or foreign equivalent degree required for classification as a professional.
On appeal, the Petitioner contends that the labor certification does not require the Beneficiary to hold the two semesters of coursework in accounting, finance or economics from a single source.
However, we find that the Petitioner did not state in the labor certification that two semesters of coursework in accounting, finance or economics was a requirement which could be met through education separate from the bachelor's degree in "any major with approximately 2 semesters or more of courseworkin accounting, finance or economics." The plain language of the labor certification is that, if an applicant did not have a bachelor's degree or foreign equivalent degree in accounting, finance, business or economics, the applicant may still qualify for the proffered position with a bachelor's degree or foreign equivalent degree in a major that required approximately two semesters of coursework in accounting, finance or economics. Such a reading of the labor certification is supported by the advertisements placed by the Petitioner which require a "bachelor's degree accounting, finance, business, economics or any major with approximately two (2) semesters or more of coursework in accounting, finance or economics related subjects." None of the Petitioner's recruitment in support of the labor certification lists a degree requirement for the proffered position other than a bachelor's degree.
We further note that neither the recruitment evidence nor the labor certification indicates that the Beneficiary's eight units of economics awarded in her bachelor's degree program at qualify as "2 semesters or more of coursework." We do not find that two classes taken over the course of a four-year program constitutes "2 semesters or more ofcoursework."
The Petitioner contends that the language in section H.14 of the labor certification reflects that it was willing to accept a combination such as that held by the Beneficiary. However, the language in section H.l4 is required by the DOL regulations at 20 C.F.R. § 656.17(h)(4)(ii):
If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable.
The fact that the Petitioner chose to include this required language on the ETA Form 9089 in section H.14 does not alter the plain language of the labor certification.
After reviewing all of the evidence in the record, we conclude that the Petitioner has not established that the Beneficiary possessed the minimum educational requirements of the offered position as set forth on the labor certification by the priority date.
Beyond the decision of the Director, 7 the Petitioner has not established that the Beneficiary has the required experience in the proffered position or as an account executive or accountant.
Part K of the labor certification states that the Beneficiary possesses employment experience as an accountant with Japan, from May 1, 1991 until February 1, 1998; and with the Petitioner as an account executive since October 1, 2008. The labor certification lists no other employment. The ETA Form 9089 was signed by both the Petitioner and the Beneficiary under penalty of perjury.
Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must include the name, address, and title of the writer, and a specific description ofthe duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(l). If such evidence is unavailable, USCIS may consider other documentation relating to the beneficiary's experience. !d.
The record contains an August 21, 2014, employment verification from , director, on letterhead, stating that changed its name to in 2000, and that it employed the Beneficiary as an accountant from May 1, 1991 to February 1, 1998. However, there is no evidence in the record to establish that changed its name to Further, public business records indicate that is still an active business in Japan, and that has been an active business at the address listed on the letterhead since 1990. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.Inconsistencies in the record Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo , 19 I&N Dec. 582, 591-92 (BIA 1988).
The record also contains an employment verification from the Petitioner confirming the Beneficiary's employment as an accountant executive and stating that the Beneficiary has performed identical duties to those listed for the proffered position since October 1, 2008.8 However, in response to question 121, which asks, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?," the Petitioner answered "no." In general, if the answer to question J.21 is no, then the experience with the employer may be used by the beneficiary to qualify for the proffered position if the position was not substantially comparable.9 Here, the record indicates that the Beneficiary's employment with the United States , 229 F. Supp. 2d 1025, 1043 (E.D . Cal. 2001) , ajj'd, 345 F.3d 683 (9th Cir. 2003) ; see also Soltan e v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that we conduct appellate review on a de novo basis). 8 Public business records reflect that the Petitioner is an insurance .agency and brokerage. The record reflects that the Petitioner employs only the Beneficiary and its owner/president. Further, the Beneficiary has maintained a California property and casualty broker's license since 2009 . . See www.insurance.ca.gov (accessed December 9, 2015). This information, combined with the Beneficiary's low wage, casts doubt on whether the Beneficiary's claimed experience with the Petitioner in Part K is as an accountant executive or in a sales position. Doubt cast on any aspect of the petitioner 's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa retition . Matter ofHo, 19 I&N Dec. at 591-92. In any future filings, the Petitioner must resolve this issue. A definition of "substantially comparable" is found at 20 C.F.R. § 656.17(i):
5) For puq)oses of this paragraph (i):
Petitioner has solely been in a position identical to the proffered position and may not be used as qualifying experience.
In any future filings, the Petitioner must submit evidence that the Beneficiary meets the minimum educational and experience requirements as stated on the labor certification.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe 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.
Cite as Matter ofL.C.JI-S-, Inc., ID# 15605 (AAO Jan. 8, 2016) (ii) A "substantially comparable" job or positiOn means a job or positiOn requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.