The Petitioner, an accounting, auditing, tax and consulting firm, seeks to employ the Beneficiary as an advisory senior manager. It requests the Beneficiary's classification as a member ofthe professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2).
The Director of the Nebraska Service Center denied the petition, concluding that the Form 1-140, Immigrant Petition for Alien Workers, was not filed with a valid labor certification. Specifically, the Director determined that the job opportunity reflected in the Form 1-140 was not "the same exact position" described in the accompanying ETA Form 9089, Application for Permanent Employment Certification (labor certification). The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification (ETA Form 9089) from the U.S. Department ofLabor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(l)-(11) ofthe Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the beneficiary may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
Analysis
The sole issue addressed by the Director is whether the Form 1-140 was accompanied by a valid labor certification for the specific job opportunity described in the petition. For the reasons provided below, we will withdraw the Director's decision and remand the matter to the Director for further review and entry of a new decision.
A. Validity of Labor Certification
A labor certification remains valid only for the particular job opportunity, noncitizen, and geographic area of intended employment stated on it. 20 C.F.R. § 656.30(c)(2). If a job opportunity changes during a petition's pendency, the validity of an accompanying labor certification may expire. Matter of United Inv. G,p., 19 I&N Dec. 248, 249 (Comm'r 1984). A new original permanent labor certification must be submitted in support of the petition where there has been a "material change in the job opportunity covered by the original permanent labor certification." 6 USCIS Policy Manual E.6(D)( I), https://www.uscis.gov/policy-manual.
The Petitioner indicated on the Form 1-140 that the Beneficiary's current job title is "advisory senior manager," while the job opportunity described at section H.11 of the labor certification is for the position of "advisory manager." In a request for evidence (RFE), the Director observed that the job titles provided on the Form 1-140 and labor certification "do not match," and asked the Petitioner to submit a "an explanation of the job title change and a breakdown of duties detailing the time completing each duty for both positions."
In response to the RFE, the Petitioner stated the advisory manager and advisory senior managers positions are both primarily responsible for providing supervision and guidance to engagement teams tasked with performing accounting and internal control audits. It stated that the Beneficiary's job title change "simply reflects her professional growth and progression in her role" and emphasized that "the same core competencies and many of the same major areas of responsibility are applicable to both titles." The Petitioner's response letter included a chart comparing the two positions, indicating that an advisory senior manager spends I 00 percent of the time performing eight of the ten duties performed by an advisory manager, as listed at section H.11 ofthe labor certification. The chart shows that the remaining two duties, which require eight percent of an advisory manager's time, are not performed by an advisory senior manager.
The Director acknowledged receipt of the Petitioner's response but determined that the evidence reflects the positions of advisory manager and advisory senior manager "are not the same exact position." The Director, citing to 20 C.F.R. § 656.30(c)(2), concluded that "[t]he 1-140 was filed for a different position than the one listed on the labor certification, therefore a valid labor certification was not filed with the instant petition."
On appeal, the Petitioner asserts that the Director failed to carefully weigh the evidence it submitted in response to the RFE and maintains that the position offered to the Beneficiary in the Form I-140 is "practically identical" to the position described in the labor certification.
The Petitioner's assertions are persuasive. When reviewing the job offer covered by the labor certification, USCIS must assess a petition "to ensure that the position offered is the same or similar to the position that the DOL certified and that the beneficiary meets the qualifications for the position." 6 USCIS Policy Manual, supra at E.6(A)(l). The Director should have reviewed the petition to ensure the job opportunity certified in the labor certification is the "same or similar" instead of the "same exact position." Here, the record indicates there has been no material change in the job opportunity covered by the original permanent labor certification that would require the Petitioner to obtain a new labor certification from DOL.Tried to change the endeavor after filing Therefore, we withdraw the Director's finding on this issue. Although the Petitioner has overcome the sole ground for denial of the petition, we cannot sustain the appeal because the record as presently constituted does not demonstrate that the Beneficiary satisfies the minimum education and experience requirements for the offered position and requested classification. Accordingly, for the reasons discussed below, we will remand the petition to the Director for additional review.
B. Beneficiary's Qualifications
A petition seeking to classify a noncitizen as a member of the professions holding an advanced degree under section 203(b )(2) of the Act must be accompanied by an official academic recording showing that the noncitizen has a U.S. advanced degree or foreign equivalent degree, or evidence showing that they have a U.S. baccalaureate degree or foreign equivalent degree followed by five years of progressive experience in the specialty. See 8 C.F.R. § 204.5(k)(3)(i). 1 In addition, a beneficiary must meet all the education, training, experience, and other requirements specified on the labor certification as of the petition's priority date, which in this case is October 7, 2022. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977).
The labor certification in this case specifies at section H (Job Opportunity Information) that the position of advisory manager requires a bachelor's degree or foreign equivalent degree in computer science, or a bachelor's degree in information systems, mathematics, accounting, business administration, or another related field. The position further requires five years of post-baccalaureate experience with financial system implementations and large-scale transformation programs for consumer and technology clients.
To demonstrate possession of education and experience equating to an advanced degree under section 203(b )(2) of the Act, the Petitioner must have a single degree that is the "foreign equivalent degree" to a U.S. baccalaureate degree, plus five years ofprogressive experience in the specialty. See 8 C.F.R. § 204.5(k)(2). A U.S. baccalaureate degree is generally found to require four years of education. See Matter of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). Further, the plain language of the regulation at 8 C.F.R. § 204.5(k)(2) states an advanced degree equivalency must consist of a single source degree, with no provision for substituting experience or a combination of lesser educational credentials.
According to the labor certification (section J, Alien Information), the Beneficiary met the minimum educational requirement by virtue of her completion of a "U.S. [equivalent]: Bachelor of Business Administration Degree]" at in 2013. The Petitioner submitted official academic records documenting the Beneficiary's completion of a three-year Bachelor of Commerce degree from following by a two-year Postgraduate Diploma in Management from The record includes an academic equivalency evaluation from The Trustforte Corporation. The author notes the Beneficiary's completion of the above-referenced academic programs in India and asserts "[a]n analysis based solely on the academic studies completed by [the Beneficiary] in the PostGraduate program in Management indicates that she attained the equivalent of at least a Bachelor of Business Administration Degree from an accredited [U.S.] college or university."3 The evaluation's author states that her conclusion is confirmed by the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admission officers (AACRAO)." While we recognize AACRAO EDGE as a reliable source of information regarding foreign educational credentials, the information relied upon by the evaluator does not support her conclusion that the Beneficiary's two-year postgraduate diploma in management is the equivalent of a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent Rather the submitted information from EDGE's section on Indian postgraduate diplomas states "The Postgraduate Diploma, following a 3-year bachelor's degree, represents attainment of a level of education comparable to a bachelor's degree in the United States." (Emphasis added).
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. Matter ofSea, Inc., 19 I&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any way questionable, we may discount or give less weight to that evaluation. Id. Here, the academic equivalency evaluation does not explain how the evaluator found the Beneficiary's completion of a two-year postgraduate program to be the single source equivalent to completion of a four-year bachelor's degree in the United States. According to the submitted information from EDGE, the Beneficiary's postgraduate diploma is "comparable to" a U.S. bachelor's degree only in combination with completion of a three-year bachelor's degree in India; it does not indicate, as stated by the evaluator, that this diploma is single degree that can be considered the foreign equivalent of a U.S. bachelor's degree.
For these reasons, the record as presently composed does not contain sufficient relevant and probative evidence to demonstrate the Beneficiary has attained a U.S. bachelor's degree or its single source foreign equivalent followed by five years of progressive post-baccalaureate experience.Five years of progressive experience not documented We will remand this matter to the Director for further review and, if appropriate, issuance of a request for evidence or notice of intent to deny allowing the Petitioner to submit additional evidence and/or arguments in support of its claim that the Beneficiary meets the minimum educational requirements for the requested classification and for the offered position.
In addition, the Director should review the record to determine if the Petitioner demonstrated that the Beneficiary possesses the required five years of post-baccalaureate experience in an alternate occupation as described at sections H.10-B and H.14 of the labor certification. Experience gained while working for the petitioning employer cannot be used to satisfy the minimum job requirements on the labor certification unless that experience was gained in a position not "substantially comparable" to the proffered position, or the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. 20 C.F.R. § 656.17(i)(3). 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. 20 C.F.R. § 656.17(i)(5)(ii).
According to section J of the labor certification, the Petitioner has employed the Beneficiary in the position of advisory manager since August 23, 2020, and previously employed her in the position of advisory senior consultant from February 24, 2018, until August 22, 2020. 4 At section J.21 of the labor certification, the Petitioner responded "no" to the question "Did the [ noncitizen] gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?" The Director should review the Petitioner's letter dated September 12, 2023, submitted with the initial filing, which includes a description of the duties the Beneficiary performed in the role of advisory senior consultant. The Director may request any additional information or evidence needed to determine whether this position was "substantially comparable" to the advisory manager position described on the labor certification and allow the Petitioner a reasonably opportunity to respond before issuing a new decision.
Conclusion
For the reasons discussed, we will withdraw the Director's decision and remand the matter for further review and entry of a new decision. Specifically, the Director should evaluate whether the Petitioner meets the requirements for classification as a member of the professions holding an advanced degree under section 203(b)(2) of the Act and the regulations at 8 C.F.R. § 204.S(k) and meets all education and experience requirements specified on the labor certification.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.