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. § I 03.5. Do not file a motion directly with the AAO.
Thank you, l!t0'k� rfo�Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petitiOn and subsequent motion to reopen and reconsider. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a mobile healthcare technology company. It seeks to permanently employ the beneficiary in the United States as a technical lead. 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 petitioner has the ability to pay the proffered wage. Beyond the director's decision, also at issue is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. We conduct appellate review on a de novo basis.' We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal.2 We may deny a petition that fails to comply with the technical requirements of the law even if the director does not identify all of the grounds for denial in the initial decision.3
Ability to Pay the Proffered Wage
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the ETA Form 9089, Application for Permanent Employment Certification, was accepted for processing by any office within the employment system of the U.S. 1 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. ofTransp., NTSB, 925 F.2d 11 47, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., So!tane v. DO.J, 38 1 F.3d 143, 145 (3d Cir. 2004).
Department of Labor (DOL). See 8 C.F.R. § 204.5(d). The petitioner must produce evidence that its job offers to each beneficiary are realistic, and therefore that it has the ability to pay the proffered wages to each of the beneficiaries of its pending petitions, as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977) (petitioner must establish ability to pay as of the date of the Form MA 7-50B job offer, the predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.F.R. § 204.5(g)(2). If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration Services (USCIS) may also consider the overall magnitude of the petitioner's business activities. See Matter o.fSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).
Upon review of the entire record, including evidence submitted on appeal and in response to our Notice oflntent to Dismiss, we conclude that the petitioner has established that it is more likely than not that it has the continuing ability to pay the proffered wage to the instant beneficiary and the beneficiaries of its other I -140 petitions.
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 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 p. 4 to make the two determinations listed in section 212(a)(14).4 Id. at 423. The necessary result of these two grants of authority is that section 212( a)( l4 ) 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)( l4 ) 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. § 11 54(b ), as one of the detenninations 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)(l4) 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. 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. !d. § 204(b ), 8 U.S.C. § 11 54(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir. l9 83 ).
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.F.R. § 204.5(k)(1).
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 10l(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. 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). 5 The priority date of the petition is January 4, 2013.6 Part H of the labor certification states that the offered position has the following mm1mum requirements:
H.4. Education: Master's degree in information technology.
H.5. Training: None required.
H.6. Experience in the job offered: 24 months.
H. 7. Alternate field of study: Computer Science or related.
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H. lO. Experience in an alternate occupation: 24 months, programmer analyst, software engineer or related.
H.14. Specific skills or other requirements: Two years experience in job offered or as programmer analyst, software engineer or related to include large-scale web applications development using Deklarit. .NET. ADO.NET, VB.NET, ASP.NET. Microsoft MCTS certification required.
Part J of the labor certification states that the beneficiary possesses a Master's degree in Information Technology from India, completed in 2007. The record contains a copy of the 5 See section 21 2(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 6 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). p. 7 beneficiary's diploma and transcripts from Kuvempu University, India, issued in 2007.
Part K of the labor certification states that the beneficiary possesses the following employment expenence:Support letters generic or unsupported
- Programmer analyst and senior software engineer with and India from January 17, 2005 until September 9, 2009.
- Software programmer with
December 24, 2004. in the United States in India from July 14, 2003 until
The record contains an experience letter from Assistant General Manager- HR on letterhead stating that the company employed the beneficiary as a programmer analyst and senior software engineer from January 17, 2005 until September 9, 2009.
The record also contains an experience letter from Managing Director on letterhead stating that the company employed the beneficiary as a software programmer from July 14, 2003 until December 24, 2004.
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." !d. 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. 7
According to EDGE, the Master of Science (MSc.) is comparable to a bachelor's degree in the United States.8 It is awarded upon the completion of two years of study beyond the three-year bachelor's degree.
Based on the information contained in EDGE we issued a Notice of Intent to Dismiss (NOID) to the petitioner seeking additional evidence establishing the beneficiary's minimum educational qualifications for the job offered. The NOID was dated September 30, 2014 and included copies of the EDGE credential advice. On November 3, 2014, the petitioner through counsel responded to our NOID.
In response, counsel asserts that the beneficiary possesses the mmtmum education of a foreign equivalent to U.S. master's degree and submits additional evaluations of the beneficiary's education. The record contains an evaluation of the beneficiary's educational credentials prepared by Ph.D. for on March 9, 2011.9 The evaluation states that the beneficiary possesses the foreign equivalent of a Master's Degree awarded by an accredited college or university in the United States. The evaluator states that Master of Science in Information Technology program, admission, and enrollment requirements include graduation from bachelor's level studies and competitive entrance examinations.
The website of of Science (MSc) degree: 10
In response to our NOID, counsel submits a new educational evaluation written by for ---- dated October 24, 2014. Mr. . finds that the beneficiary has earned the foreign equivalent of a Master of Science degree in Computer Science awarded by an accredited U.S. college or university. Mr. asserts that any assertion that a Master's degree in the United States always requires two years of coursework to be completed is baseless. Mr. finds that the beneficiary's three-year bachelor's degree issued by the is equivalent to three years of undergraduate coursework from an accredited institution of higher education in the U.S. Mr. asserts that the findings in EDGE cannot be relied upon because EDGE is not an authoritative source and there is no authoritative source for establishing United States education equivalencies.
We noted in our NOID that the record does not contain a copy of the beneficiary's bachelor's degree or academic transcripts from the The petitioner's response to our NOID did not include a copy of the beneficiary's bachelor's degree or academic transcripts from the Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 r&N Dec. 190 (Reg'l Comm'r 1972)). The new evaluation does not provide independent, objective evidence to address the conclusions of EDGE. Rather, Mr. describes , "general rule when establishing Master's equivalencies" as one applied consistently across all systems. The record fails to provide peer-reviewed material confirming supporting equivalency formula.
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, training, experience and any other requirements of the offered position by the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Matter ofWing's Tea House, 16 r&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter o[Katigbak, 14 r&N Dec. 45, 49 (Reg. Comm. 1971).
In evaluating the beneficiary's qualifications, users 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 I (I st Cir. 1981 ). USCrS 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 p. 10 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. !d. at 834 (emphasis added).
In the instant case, the labor certification states that the offered position requires a Master's degree in information technology, computer science or related, or foreign equivalent degree, and 24 months in the job offered or as a programmer analyst, software engineer or related occupation.
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a U.S. Master's degree in information technology, computer science or related, or a foreign equivalent 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 an advanced degree under section 203(b )(2) of the Act.
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 136 1. Here, that burden has not been met.
ORDER: The appeal is dismissed.