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 with 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. l&?i)'
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner is an IT consulting and staffing company. It seeks to employ the beneficiary pem1anently in the United States as a software engineer. 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 or as required by the advanced degree professional classification. Specifically, the director determined that the record does not contain evidence ''that the beneficiary completed all of the requirements of the master's degree program, and that the beneficiary was granted a master's degree." 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 elaboratio~ of the procedural history will be made·only as necessary. As set forth in the director's August 2, 2010 denial, the primary issue in this case is whether the beneficiary possessed the minimum level of education stated on the labor certification and as required by the advanced degree professional visa category. On appeal, the AAO has identified additional grounds of ineligibility as will be discussed in this decision.
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (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 advanced 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
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 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec: 764 (BIA 1988). p. 3 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.F.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.F.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant 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); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United S~ates baccalaureate degree is generally foun~ to require four years of education. Matter of Shah, 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 professions . . . . -
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides:
Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent ....
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244, is identical to 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, 101 st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (Oct. 26, 1990).
At the 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 musthave at least a bachelor's degree).
In 1991, when t~e final. rule for 8 C.F.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 p. 4 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 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).
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 203(b )(2) of the Act as a member of the professions holding an advanced degree with anything less than a full baccalaureate degree (plus the requisite five years of progressive experience in the specialty). More specifically, a three-year bachelor's degree will not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. Matter of Shah, 17 I&N Dec. at 245. 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."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 so would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the commentary 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.
PageS 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 coll~ge, university, school or other institution of learning relating to the area of exceptional ability"). The required education, training, experience, and special ·requirements for the off~red position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a master's degree, or foreign educa_tional equivalent, in computer appli~ations or engineering, or related field and 12 months of experience in the job offered or in the alternate occupations of senior business analyst or application programmer. Part H-8 asks the employer if there is an alternate combination of education and experience that is acceptable. The petitioner answered this question "no." Therefore, the minimum education required by the labor certification is a master's degree or foreign educational equivalent. The petitioner did not permit a bachelor's degree plus five years of experience as an alternative combination of education and experience. USCIS may not ignore a term on a labor certification, nor may it impose additional requirements. See, e.g., Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 (Comm'r 1986).
The beneficiary set· forth his credentials on the labor certification and signed his name, under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of the labor certification eliciting information of the beneficiary's education, and elsewhere in the record. he states that he received a Bachelor of Science and Master of Computer Applications degree from
The record contains the following educational evaluations of the beneficiary's credentials:
- An evaluation from International Credentials Evaluation and Translation Services.
The evaluation is dated October 2003. The evaluation is signed· by · The evaluation describes the beneficiary's Bachelor of Science and Master of Computer Applications degrees as being the equivalent of a U.S. Master of Science degree in computer science.
- An evaluation from Morningside Evaluations and Consulting. The evaluation is dated June 9, 2010. The evaluation is signed by, _ · · The evaluation describes the beneficiary's Bachelor of Science and Master of Computer Applications degrees as being the equivalent of a U.S. Master of Science degree in computer science.
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 p. 6 · Page 6 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 Matter of Soffici, 22 I&N Dec. 158, 165 (Comrnr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 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 e?'pert's qualifications or the relevance, reliability, and probative value of the testimony). · · The evaluations are not persuasive in establishing that the beneficiary's education from India is equivalent to a U.S. master's degree in computer science. None of the evaluations compares the beneficiary's education in India to a U.S. master's degree program. The evaluators also fail to address the actual courses of study followed by the beneficiary. Moreover, none of the evaluations is peer-reviewed or relies on peer-reviewed materials in reaching their unsubstantiated conclusions. Moreover, the record is devoid· of evidence that the beneficiary was actually award~d a Master of Computer Applications degree. The record contains a certificate from indicating that the beneficiary" passed the final examination" in the master of computer applications program and was placed in "third position," but there is no evidence that the beneficiary was awarded a degree. The record also contains a letter from the "controller of examinations" at claiming that the beneficiary was "awarded" this degree in 1999 and placed in "first class." However, 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." Also, the letter from the Controller of Examinations is inconsistent with the certificate from n that they place the beneficiary in different classes.Inconsistencies in the record
The authenticity of these documents is called into question. The petitioner has failed to establish that the beneficiary possessed all the education, training, and experience specified on the labor certification as of the priority date. 8 C.F.R. § l03.2(b )(I), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comrn. 1971). Therefore, the beneficiary does not qualify for preference visa classification under section 203(b )(2) of the Act as he does not have the minimum level of education required for the equivalent of an advanced degree. ·
Beyond the decision of the director, the petitioner has also not established that the beneficiary has the required work experience for the offered position. The petitioner must establish that the beneficiary possessed . all the education, training, and experience specified on the labor certification as of the priority date. 8 C.F.R. § 103.2(b )(I), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg: Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 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. USCIS may not ignore a term of the labor certification, 'nor may it. impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm~ 1986). See also, Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 Cir. 198'1).
I '· ' t
The beneficiary's claimed qualifying experience must be supported by letters from employers giving the name,. address, and title of the. employer, and a description of the beneficiary's experience. See 8 C.F.R. § 204.5(g)(1): .
The petitioner submitted a work experience letter from fhe letter was signed by on September 27, 2007. J11e letter states that the beneficiary worked as an Application programmer from October 2003 to August 2007. However; this letter is insufficient to support the claimed work experience because it does not provide a sufficient description of the job duties for the beneficiary. /d.
The evidence in the record does not establish that the beneficiary possessed the required experience set forth on the labor certification by the priority date. Therefore, the petitioner has also failed to establish that the beneficia~y is qualified for the offered position.
An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajfd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.