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 in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately. applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance wi~h the instructions on Form·I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5: Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within · 30 days of the decision that the motion seeks to reconsider or reopen. · · rt'frfou,
~~sen berg
Acting Chief, Administrative
Appeals Office
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on January 28, 2011, the AAO dismissed the appeal. Counsel filed a motion to reopen (MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion to reopen will be granted, the previous decision of the AAO will be affirmed, and the petition will be denied.
The petitioner is a manufacturer of diesel engines. It seeks to employ the beneficiary permanently in the United States as a product support engineer pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the
United States Department of Labor (DOL). Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level . of education stated on the labor certification. Specifically, the director determined that the beneficiary did not have a bachelor's degree in mechanical engineering. He also determined that the description of five years ·.of experience stipulated under special skills on the ETA Form 9089 did not establish that the required experience was progressive.Five years of progressive experience not documented Finally the director also determined that the petitioner had not established that the proffered position required an individual with an advanced degree or its equivalent, a baccalaureate degree with five years of work experience. The AAO dismissed the appeal because "the record does not establish that the beneficiary ever completed a baccalaureate degree in mechanical engineering." In pertinent part, 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 or their equivalent and whose · services are sought by an employer in the United States. An advance.d degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "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." /d.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1 · .
In dismissing the appeal, the AAO concluded that the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," and, thus, does not qualify for preference visa classification under section 203(b )(2) of the Act.Degree not shown to be a U.S. advanced degree equivalent In addition, the beneficiary does not meet the job requirements on the labor certification.
The regulation at 8 C.F.R. § 103.5(a)(2) states in pertinent part:
.Page 3
Requirements for motion to reopen. A . motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence ....
Ori motion~ counsel submits the following opinion letter:
- An opinion letter from : The letter is dated February 24, 2011. The letter is signed by The letter states that the beneficiary completed all the coursework necessary to obtain a bachelor's degree in mechanical engineering in 1993 and submitted all the paperwork required to obtain a diploma in 2001. The letter further states that even though "his diploma was issued three years later [on August 12, 2004], it cannot be reasonably concluded that a Bachillerato Degree in Costa Rica is orily attained after a d .iploma is issued." The evaluation concludes that the beneficiary's Bachillerato degree is the equivalent of a U.S. Bachelor of Science degree in mechanical engineering .
. The motion to reopen · thus qualifies for consideration under 8 C.P.R. § 103.5(a)(2) because the petitioner is providing new facts with supporting documentation not. previously submitted. As noted· above, the ETA Form 9089 in this matter is certified by the DOL. The DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified and available and whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.P.R.§ 656.1(a). It . is significant that none of the above inquiries assigned to the DOL, or the remaining regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigran:t classification or even the job offered. This fact has not gone unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (91b Cir. 1984); Macklny v:Smith, 696 F.2d 1008, 1012~1013 (D.C. Cir. 1983). A United States baccalaureate degree is generally found to require four years of education. Matter ofShah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 8 U.S.C. §1153(a)(3) as amended in 1976. At that time, this .section provided:
Visas shall next be made available .
. . to qualified immigrants who are members of
. . . . the statutory language used subsequent to that decision" but for the requirement that the immigrant hold an advanced degree or its equivalent. 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, 10151 Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (Oct. 26, 1990).·
At th~ time of enactment of section 203(b )(2) of the Act in 1990, it had been almost thirteen years since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it stated that an alien "must have a bachelor's degree" when considering equivalency for second preference immigrant visas. We must assume that Congress was aware of the agency's previous treatment of a "bachelor's degree" under the Act when the new classification was enacted and did not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (an alien must have atleast a bachelor's degree).
In 1991, when the fmal rule for 8 C.P.R. § 204.5 was published in the Federal Register, the Immigration and Naturalization Service (the Service), 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 d~gree is "a bachelor's degree with at least five years progressive experience in the professions." Becatise · neither the Act nor its legislative history indicates that bachelor's or advailced 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.
PageS combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree."2 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" to a United States baccalaureate degree (plus the requisite five years of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2).
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the alien has a United States baccalaureate degree or a foreign ·equivalent degree" (plus evidence of five years of progressive experience in the specialty). For 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." 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 ~o would undermine the congressionally mandated. classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. 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, 30306 (July 5, 1991). Compare 8 C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission. of "an official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, ·university, school or other institution of learning relating to the area of exceptional ability"). The required education, training, experience, and spe.cial requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, Part H, line 4, of the labor certification reflects that a bachelor's degree in mecllanical engineering is the minimum level of education required. Line 6 reflects that no experience in the proffered position is necessary. Line 8 reflects that no combination of education or experience is acceptable in the alternative. Line 9 reflects that a foreign educational equivalent is acceptable. Section 14, specific skills or other requirements states the following "5 · years experience working with diesel engine products and equipment. Aity suitable combination of education, training or.experience is acceptable."
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the fmal determination regarding an alien's ·eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien's eligibility. See id. USCIS may give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. /d. at 795. See also M(ltter of Soffici, 2 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases, a specific combination of education and experience). The regulations pertaining to the immigrant .classification sought in this matter do not contain similar language.
' t . •
22 I&N Dec. 158, 165 (Comrnr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrnr. 1972)); Matter of D-R~, 25 I&N Dec. 445 (BIA 20ll)(expert witness testimony may be given different weight depending on the extent of the expert's qualifications or the relevance, reliability, and probative value of the testimony) .
The opinion letter is not persuasive in establishing that the beneficiary's Bachillerato degree was awarded in 2001 when he submitted all the paperwork required to obtain a diploma. Coursework that fulfills the requirements for a baccalaureate degree without the actual diploma will not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. at 245. Therefore, the AAO conciudes that the beneficiary was awarded a foreign equivalent to a U.S. bachelor's degree ~n 2004.
Therefore, since the beneficiary does possess a foreign equivalent to a U.S. bachelor's degree, in order to qualify as a member of the professions holding an advanced degree, the beneficiary must possess the foreign equivalent of a U.S. bachelor's degree followed by five years of progressive experience in the specialty. 8 C.F.R. § 204.5(k)(2). This alternative is also permitted by the ETA Form 9089, part H, item 14. in addition, the beneficiary must have possessed the bachelor's degree and five years of experience by the May 10, 2007 priority date. 8 C.ER. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I. & N. Dec. 158, 159 (Act. Reg. Comrn. 1977); see also Matter of Katigbak, 14 I. & N. Dec. 45; 49 (Reg. Comrn. 1971). As the beneficiary's bachelor's degree was awarded in 2004, it was impossible for him to have five years of progressive experience before the · priority date, and thus, does not qualify for preference visa classification under section 203(b)(2) .of the Act.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 u.s.c. § 1361.
ORDER: The motion to reopen is granted and the decision of the AAO dated January 28,.2011 ·is affirmed. The appeal is dismissed, and the petition is denied.