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.
Ron Rosenberg
Acting Chief, Administrative Appeals Office
~;uscis~gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a juice manufacturer. It seeks to employ the beneficiary permanently in the United States as a quality control manager. 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 combination ofeducation and experience stated on the labor certification. 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 elaboration of the procedural history will be made only as necessary. As set forth in the director's March 26, 2012 denial, the primary issue in this case is whether the beneficiary possessed the minimum level of education and experience stated on the labor certification and as required by the advanced degree professional visa category.
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
Eligibility for the Classification Sought
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.F.R. § 656.1(a). 1 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, 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).Evidence submitted too late
(b)(6)Page 3
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 (91h Cir. 1984); Madany 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 of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). Tllls decision involved a petition filed under 8 U.S.C. §1153(a)(3) as amended in 1976. At thattime, 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
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, ~991) (an alien must have at least a bachelor's degree).
In 1991, when the final ruie 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 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, p. 4 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 c-onsidered 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 equiyalent 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 req~ired 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 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 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 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 special requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a bachelor's degree, or foreign educational equivalent, in food and nutrition science or related majors and 60 months of experience in the job offe.red or in the alternate occupations of nutrition, food science, or related positions. The petitioner will also accept a master's degree and 3 years of work experience. The beneficiary set forth her credentials on the labor certification and signed her name, under a declaration that the contents of the form are true and ·correct under the penalty of peijury. On the section of the labor certification eliciting information of the beneficiary's education, and elsewhere in the record, she states that she received a Bachelor of Science degree in home science and a Master of Science degree in food and nutrition from the
The record contains the following educational evaluations of the beneficiary's credentials:
- An evaluation from Academic Credentials Evaluation Institute, Inc. (ACEI). The evaluation is dated October 11, 2006. The evaluation describes the beneficiary's Bachelor of Science degree in home science and a Master of Science degree in food and nutrition as being the equivalent of a U.S. Bachelor of Science degree in home economics and a
Master of Science degree in nutritional science.
- An evaluation from International Services, Inc. The evaluation is dated March 19, 2010. The evaluation is signed by The evaluation describes the beneficiary's Bachelor of Science degree in home science and a Master of Science degree in food and nutrition as being the equivalent of a U.S. Bachelor of Science degree in food and nutrition science and a Master of Science degree in food and nutrition 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 final 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 ofthe 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 Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 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 2011)(expert witness testimony may be given different weight depending on the extent ofthe expert'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. The evaluation does not compare the beneficiary's education in India to a U.S. master's degree program. The evaluator also fails to address the actual courses of study followed by the beneficiary. The ACEl evaluation attempts to compare the ·beneficiary's education in India to a U.S. master's degree program but the rationale behind these credit assignments is not substantiated. Moreover, none of the evaluations is peer-reviewed or relies on peer-reviewed materials in reaching their unsubstantiated conclusions. Accordingly, in this matter, the AAO, similar to the Nebraska Service Center, will prefer the peer-reviewed information provided by EDGE on the equivalency of the beneficiary's foreign education to a U.S. master's degree.
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent approximately 2,600 institutions and agencies in the United States · and in over 40 countries." See http://www.aacrao.org/About-AACRAO.aspx (accessed January 18, 2013 and incorporated into the record of proceeding). Its mission "is to provide professional development, guidelines and voluntary standards to be used by higher education officials regarding the best practices in records management, admissions, enrollment management, administrative information technology and student services." /d. ln Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision.
According to the login page, EDGE is "a web-based resource for the evaluation of foreign educational credentials" that is continually updated and revised by staff and members of AACRAO. _ "AACRAO EDGE Login," http://aacraoedge.aacrao.org/index.php (accessed January 18, 2013 and incorporated into the record of proceeding). In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 2010), a federal district court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The court also noted that the labor certification itself required a degree and did not allow for the Combination of education and experience. The reasoning in these decisions is persuasive. ln the section related to the Indian educational system, EDGE provides that a three-year Bachelor of Science degree "represents attainment of a level of education comparable to two to three years of university study in the United States. Credit may be awarded on a course-by-course basis." EDGE p. 7 further states that the Master of Science "represents attainment of a level of education comparable to a bachelor's degree in the United States."
Based on the juried opinion of EDGE, the AAO has concluded that the beneficiary's Bachelor of Science and Master of Science degrees are comparable to U.S. bachelor's degree. Therefore, 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). In addition, the beneficiary must have possessed the bachelor's degree and five years of experience by the April 5, 2010 priority date. 8 C.P.R. § 103.2(b )(l), (12). See Matter of Wing's Tea House, 16 I. & N. Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). In this matter, the record does not establish that the beneficiary had five years of progressive experience in the specialty before the priority date.Five years of progressive experience not documented Therefore, she may not be classified as an advanced degree professional.
Qualifications for the Job Offered
Relying in part on Madany, ~96 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth Circuit (Ninth Circuit) stated:
[I]t appears that the DOL is responsible only for detennining ·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 detennining 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. § 1154(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 (91h Cir. 1983). The court relied on an amicus brief from DOL that stated the following:
· The labor certification made by the Secretary of Labor . . . pursuant to section . 212(a)[(5)] 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 tenns 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, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo detennination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309.
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, .696 F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in · order to determine what the job requires. Id. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is ~o examine the certified job offer exactly as it is completed by the prospective employer. See 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 tke plain language of the alien employment certification application fom1.· See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.
On the section of the labor certification eliciting information of the beneficiary's work experience, she represented that she has worked as a food technologist for the petitioner from October 2008 through the date that the ETA Form 9089 was signed. She worked as a trainee (part-time, 30 hours per week) for the petitioner from March 2008 to September 2008 and as laboratory technician from September 2007 through March 2008 and January 2007 to May 2007. She additionally worked as a diet counselor for Beyond Looks from September 2004 to June 2005 and from November 2002 to September 2003.
The record contains the beneficiary's work experience letters from the petitioner and However, these letters document only approximately 4 years of experience following the award of her Indian bachelor's degree.
The beneficiary has a ''United States baccalaureate degree or a foreign equivalent degree," but does not have the required five years of experience in the job offered or the specialty, and thus, does not qualify ·for preference visa classification under section 203(b)(2) of the Act. The beneficiary also does not meet the job requirements on the labor certification. · 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.