The Petitioner, a distributor of used clothing, seeks to employ the Beneficiary as a management analyst under the second-preference, immigrant category for members of the professions holding advanced degrees or their equivalents. See Immigration and Nationality Act (the Act) section 203(b)(2XA), 8 U.S.C. § 1153(b)(2)(A).
The Director of Texas Service Center denied the petition. We dismissed the Petitioner's following appeal and combined motions to reopen and reconsider. See In Re: 13072977 (AAO Apr. 14, 2021). We agreed with the Director that the company didn't demonstrate the Beneficiary's possession ofthe minimum employment experience required for the offered position or requested immigrant visa classification. WealsofoundthattheaccompanyingcertificationfromtheU.S.DepartmentofLabor (DOL) does not establish the job's need for an advanced degree professional.
The matter returns to us on the Petitioner's second round of combined motions to reopen and reconsider. The company bears the burden of establishing eligibility for the requested benefit by a preponderance of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof). Uponreview,wewilldismissthemotions.
Motion Criteria
A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). In contrast, a motion to reconsider must establish that our prior decision misapplied law or U.S. Citizenship and Immigration Services (USCIS) policy based on the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant motions that meet these requirements and demonstrate eligibility for the requested benefit.
The Beneficiary's Experience
A petitioner must demonstrate a beneficiary's possession ofall DOL-certified, job requirements ofan offered position by a petition's priority date. Matter o f Wing's Tea House, 16 I&N Dec. 158,160 p. 2 (Acting Reg'l Comm'r 1977). A petitioner must also establish a beneficiary's qualifications for a requested immigrant visa classification. Section 204(b)ofthe Act, 8 U.S.C. § l 154(b).
The accompanying labor certification states the primary requirements of the offered position of management analyst as a U.S. master's degree or a foreign equivalent degree in business administration, with no training or experience required. The Petitioner also stated its acceptance of an alternate combination of education and experience: a bachelor's degree and five years of full-time experience. The company seeks to qualify the Beneficiary based on the job's alternate requirements. TheBeneficiary'seducationalqualificationsarenotatissue. Abeneficiarywithabachelor'sdegree followed by five years of progressive experience in a specialty qualifies as an advanced degree professional under the requested immigrant visa category. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree"). Thus, to qualify for both the offered position and requested immigrant visa c l a s s i f i c a t i o n , t h e P e t i t i o n e r m u s t d e m o n s t r a t e t h a t , b y t h e p e t i t i o n ' s p r i o r i t y d a t e o f D e c e m b e r 1, 2010, the Beneficiary had at least five years (60 months) of full-time, progressive, post-baccalaureate experience.
Our prior decision found insufficient evidence ofthe Beneficiary's claimed qualifying experience. At that time, a preponderance of evidence indicated the Beneficiary's possession of 50 months of full- time, qualifying experience, including 14 months of employment in Pakistan from June 2000 to August 2001 and 36 months of employment by a prior U.S. employer from January 2007 through January 2010. But we found insufficient evidence of his claimed prior full-time employment in the U.S. from May 2005 through December 2006. Rather, from May 2005to May 2006 and from October 2006 through December 2006, we credited him with only part-time employment. Also, for the intervening period from May 2006 to October 2006, we found insufficient evidence that he worked at all.
For labor certification purposes, part-time employment equals halfthe value offull-time employment. See, e.g., Mattera/Cable Television Labs., Inc., 2012-PER-00449 (BALCA Oct. 23, 2014) (equating On motion, the Petitioner concedes the Beneficiary's unemployment from May 2006 to October 16 months of part-time experience by a noncitizen to eight months of full-time experience). the Beneficiary's 15 months ofpart-employmentfrom May 2005 to May 2006 and from October2006 throughDecember2006equatestoaboutsevenandahalfmonthsoffull-timeemployment. Therefore, all toId, we found that the Petitioner established full-time, qualifying experience by the Beneficiaty of only about 57 and a half months, more than two months short of the required 60-month amount for the offered position and requested immigrant visa category.
2006.
But the company submits updated affidavits from the president ofthe Beneficiary's purported DecisionsofDOL'sBoardofAlienLaborCertificationAppeals(BALCA)donotbindUSCTS. See8C.F.R.§ I03.IO(b) (requiring USCTS officers to follow precedent decisions of the Board oflmmigration Appeals (BIA) and the Attorney Generalinproceedingsinvolvingthesameissues). users,however,mayciteBALCAdecisionsaspersuasiveauthority. Sec Martin v. Occupational Health &Safety Review Comm 'n.,499 U.S.144 (l 99l)(requiringan administrative agency to defer to reasonable.regulatory interpretations of a sister agency charged by Congress with enforcing the regulations at issue).
The Petitioner states that the Beneficiaty's discovery of copies of his expired employment authorization document and h i s a p p r o v a l n o t i c e f o r a n H - l B n o n i m m i g r a n t w o r k v i s a p e t i t i o n o n h i s b e h a l f r e m i n d e d h i m o f h i s u n e m p l o y m e n t during theperiod. ThecompanystatesthattheBeneficiarydidn'tworkduringtheperiodbecausehelackeduserspermission to do so.
Thus, p. 3 former U.S. employer and five claimed former co-workers of the Beneficiary asserting his full-time employment from May 2005 to May 2006 and from October 2006through December 2006.
With the updated affidavits, the Petitioner also submits a copy of an IRS Form W-2, Wage and Tax Statement, for 2006 of one of the Beneficiary's purported former co-workers. The Form W-2 identifies the co-worker's employer by the same name as the Beneficiary's claimed former employer. But the federal employer identification number (FEIN) on the co-worker's Form W-2 differs from the FEIN of the Beneficiary's claimed former employer, as listed on his Forms W-2 from 2005 to 2010 and the employer's federal income tax returns for the same period. Also, USCIS records indicate that, from December 2000 to June 2009, the Beneficiary's claimed former employer filed petitions under three, separate FEINs: the number on the Beneficiary's Forms W-2 and the company's tax returns; the number on the Fonn W-2 of his purported co-worker; and a third, different FEIN.
On appeal, we accepted the Petitioner's explanation that, even though the Beneficiary initially worked at the site of an affiliate ofhis former U.S. employer, the former employer paid him during his entire, claimed tenure from 2005 to 2010. The new evidence submitted on motion, however, highlights discrepancies in the FEIN of the claimed former employer and casts doubt on the employer's identity and the authenticity of the evidence we previously accepted suppmiing the employer's purported payments to the Beneficiary.Inconsistencies in the record See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies ofrecord with independent, objective evidence pointing to where the truth lies). Without resolution of the purported former employer's FEIN, the record does not demonstratetheBeneficiary'sclaimedqualifyingexperience. Rather,uponconsiderationofthenew evidence and the additional, unexplained discrepancies it raises, the Petitioner has established the Beneficiary's possession of only 14 months offull-time, qualifying experience in Pakistan, notthe 57- and-a-half-month total previously indicated.
For the foregoing reasons, the Petitioner hasn't established the Beneficiary's qualifying experience for the offered position or the requested immigrant visa category.
The Position's Need for an Advanced Degree Professional
A labor certification accompanying a petition for an advanced degree professional must demonstrate that the offered position requires an advanced degree professional. 8 C.F.R. § 204.5(k)(4)(i). As previously indicated, the term "advanced degree" includes a bachelor's degree followed by five years of progressive experience in a specialty. 8 C.F.R. § 204.5(k)(2).
The Petitioner's labor certification states the company's acceptance of the alternate requirement of a bachelor's degree followed by five years ofprogressive experience. But, in part H.14, "Specific skills or other requirements," the certification also states the Petitioner's acceptance of "a Bachelor's equivalent based on a combination of education as detennined by a professional evaluation service."
We agreed with the Director that, contrary to requirements of the requested immigrant visa category, the Petitioner's language in part H.14 of the labor certification allows the equivalent of a U.S. bachelor'sdegreebasedonacombinationoflessereducationalcredentials. Forexample,insupport ofapriorFormI-140petitionfortheBeneficiary,anemployersubmittedanindependent,professional evaluation stating that the Beneficiary's combination of a two-year bachelor's degree from Pakistan p. 4 and a two-year associate's degree from the United States equated to a U.S. bachelor's degree. For "advanced degree" purposes, regulations do not allow combinations oflesser degrees as baccalaureate equivalents. Rather, the equivalent of an advanced degree, if followed by at least five years of progressive experience, is "[a] United States baccalaureate degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(2) (emphasis added); see also Final Rule for Immigrant Visa Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (stating that "both the Act and its legislative history make clear that, in order to . . . have experience equating to an advanced degree under the second [preference immigrantcategory],analienmusthaveatleastabachelor'sdegree")(emphasisadded). Thus,for purposes of the requested immigrant visa category, a foreign equivalent of a U.S. bachelor's degree must constitute a single degree.
On motion, the Petitioner submits an affidavit from its manager and argues that we should consider thecompany'sintendedmeaningofthelanguageinpartH.14ofthelaborce1iification. Themanager states that the language means that "a foreign bachelor's degree and foreign master's degree can be combined to be a U.S. equivalent bachelor's degree."
The Beneficiary has a two-year, Pakistani bachelor's degree in commerce followed by a two-year, Pakistani master's degree in the same field. We agree that the Beneficiary's master's degree in commerce equates to a U.S. bachelor's degree in business administration and that he therefore has a single-degree, foreign baccalaureate equivalency. But the Petitioner's explanation of its language in part H.14 is otherwise unconvincing. First, the explanation would render the language redundant. In part H.9 of the labor certification, the company indicated its acceptance of a foreign equivalent of a U.S. bachelor's degree. Also, as the Petitioner argues, Form 1-140 petitioners generally demonstrate foreign educational equivalencies by submitting educational evaluations from professional services. Thus, under the Petitioner's claimed intent, its language in part H.14 of the labor certification would be unnecessary.
Also, the Petitioner has provided inconsistent rationales for its language in part H.14 of the labor certification. InresponsetotheDirector'snoticeofintenttodenythepetition,thePetitionerdescribed the language as "Kellogg language." Under Matter o fFrancis Kellogg, 94-INA-464 (BALCA Feb. 2, 1998) (en bane), labor certification employers employingnoncitizens who qualify for offered positions based only on alternate requirements must state the business' acceptance of"any suitable combination of education, training, or experience." See also 20 C.F.R. § 656.17(h)(4)(ii) (codifying the Kellogg language). ThePetitionerinitiallyassertedthatitslanguageinpartH.14"complieswiththe'Kellogg' language and is clear evidence of Petitioner's intent to hire [an] individual with Beneficiary's qualifications." The Petitioner has not explained its differing rationales for the language in part H.14, casting doubt on the verbiage's true purpose. See Matter ofHo, 19 T&N Dec. at 591 (requiring a petitioner to resolve inconsistencies ofrecord).
The Petitioner's manager further argues that, during labor certification proceedings, the company's advertisements for the offered position did not indicate the business's acceptance ofa combination of lesserdegrees. Rather,shestatesthat,pursuanttotheprimaryandalternaterequirementslistedonthe certification, the ads required either a bachelor's or master's degree in business administration.
The Petitioner, however, hasn't provided copies of its ads or any applicant resumes received in responsetothem. Thus,therecorddoesnotestablishhowthecompanyadvertisedtherequirements p. 5 or its rejection of applicants with equivalent combinations oflesser degrees. The manager's letter therefore does not sufficiently support the Petitioner's rationale on motion for the language in part H.14 of the labor certification.
The Petitioner also argues that its language in part H.14 complies with the requirements for the requestedimmigrantvisacategory. ThePetitionercontendsthat,liketherequirementsforanadvanced degree professional, the company's verbiage in part H.14 limits the company's acceptance to only a "Bachelor's equivalent." As previously indicated, however, the requested visa category more specifically requires a foreign equivalent o f a U.S. bachelor's degree to constitute a single degree. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree"). In contrast, the Petitioner's language allows any combination of educational credentials found equivalent to a U.S. bachelor's degree, potentially including combinations oflesser credentials.
Finally, the Petitioner cites numerous BALCA decisions accepting language like the company's on labor certification applications. See, e.g., Matter ofYazaki N Am., Inc., 2014-PER-01514 (BALCA Feb. 25, 2019) (listing "any suitable combination of education, training, or experience"); Matter of NCS Pearson, Inc., 2015-PER-OO 110 (BALCA Jan. 24, 2019) (listing "[a]ny combination of educ, tng, and/or exp. equivalent to U.S. bachelor's degree as detennined by written evaluation"); Matter o f Sure Tech Servs., Inc., 2015-PER-00449 (BALCA Jun. 28, 2018) (listing "[a]ny combination of education from any institution deemed equivalent"). In these cases, however, the employers listed their language as alternate job requirements in part H. 8 of their applications, and BALCA considered only whether the stated alternate requirements reflected the "actual minimum requirements" of the offered positions. See 20 C.F.R. § 656. l 7(i)(l ). In contrast, the Petitioner listed its language in part H.14 of its labor certification application to clarify its alternate requirement. Thus, the BALCA cases cited by the Petitioner do not rule on the issue before us: whether the Petitioner's stated alternate requirements, as clarified in part H.14, requires an advanced degree professional.Citation record not persuasive The BALCA cases are therefore distinguishable from this matter.
Conclusion
Neither the Petitioner's evidence nor arguments on motion demonstrate the Beneficiary's qualifying experience for the offered position or requested immigrant visa category. The company's motions also do not establish the offered position's need for an advanced degree professional. We will therefore affirm our dismissal ofthe Petitioner's appeal.
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.