Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 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:
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing location, and other requirements. Please do not mail any motions directly to the AAO.
Thank you, kt/{
Ron Rosen.~rg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The petitioner filed a motion to reopen, and on November 25, 2014 the director affirmed his prior decision. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a software development and IT consulting services business. It seeks to permanently employ the beneficiary in the United States as a programmer analyst. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
I. PROCEDURAL HISTORY ·
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is November 14,2013. 2 Part H of the labor certification states that the offered position has the following mtmmum requirements:
H.4. Education: Bachelor's degree in Computer Science or Information Technology.
H.S. Training: None required.
H.6. Experience in the job offered: None required.
H.7. Alternate field of study: None accepted.
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.lO. Experience in an alternate occupation: 60 months of experience in a related occupation. H.14. Specific skills or other requirements: Will work at various unanticipated worksites throughout the U.S.; relocation required.
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Information Technology from completed in 2004. The record also contains a copy of the beneficiary's Bachelor of Commerce diploma and transcripts from issued in 1996.
The record contains evaluations of the beneficiary's educational credentials from the following individuals:
See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).
- By Dr. Associate Professor in the Department of Computer Systems Technology at dated
September 15, 2014.
- By Ph.D., for
, dated December 23, 2014.
- By for dated October 13,
2014.
The director's decision denying the petition concludes that the beneficiary's Bachelor of Commerce degree, consisting of three years of unrelated course work, and his postgraduate certificate, consisting of six courses in computer networks , together do not meet the educational requirement of the labor certification.
The petitioner 's appeal makes a specific allegation of error in law or fact. We conduct appellate review on a de novo basis? We consider ap pertinent evidence in the record, including new evidence properly submitted upon appeal.4 We may deny a petition that does not comply with the technical requirements of the law even if the direCtor does not identify all of the grounds for denial in the initial decision. 5
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time 3 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004).
The submission of addition al evidence on appeal is allowed by the instructions to Form I-290B, Notice of Appeal or Motion, which are incorporated into the regulations by 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).
of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14). 6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject . to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining 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 determining 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 determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
Based on revisions to the Act, the current citation is section 212(a)(5)(A).
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) 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 terms 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, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b ), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983).
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed u.s. workers. It is the responsibility of users to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification.
Eligibility for the Classification Sought
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. See also 8 C.P.R. § 204.5(k)(1).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.
A "profession" is defined as "one of the occupations listed in section 101( a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.F.R . § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post -baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a p. 7 mmtmum 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 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).
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. 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." 7 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" of a United States baccalaureate degree. See 8 C.P.R. § 204.5(k)(2).
The beneficiary's degree must also be from a college or university. The regulation at 8 C.P.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equivalent degree. " For classification as a member of the professions, the regulation at 8 C.P.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 a beneficiary is an advanced degree professional is any less than the evidence required to show that the beneficiary 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. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give effect to all provisions, is equally applicable to regulatory 7 Compare 8 C.P.R. § 214 .2(h)(4)(iii)(D)(5) (defining for purposes of H-lB nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases , a specific combination of education and experience). The regulati ons pertaining to the immigr ant classification sought in this matter do not contain similar language. p. 8 construction). 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, 30706 (July 5, 1991).8
In addition, a three-year bachelor's degree will generally not be considered to be the "foreign equivalent" of a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977).9 See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree); see also Sunshine Rehab Services, Inc. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 2010) (the beneficiary's three-year bachelor's degree was not the foreign equivalent of a U.S. bachelor's degree).
In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Commerce from followed by a one-year postgraduate diploma from
, as being equivalent to a U.S. bachelor's degree.
As is noted above, the record contains evaluations of the beneficiary's educational credentials prepared by the following individuals:10
- By Ph.D., Associate Professor in the Department of Computer Systems Technology at _ . dated
September 15, 2014. Dr. states that the beneficiary's Postgraduate Certificate in Computer Networks from is a "single-source foreign equivalent degree at least at a bachelor's level in the field of Information Technology." Dr. concludes that the beneficiary's degree from and his Postgraduate Certificate from reflect that the beneficiary has the foreign equivalent of a four-year Bachelor of Science Degree in Information Technology from a regionally accredited U.S. college or university.
- By Ph.D., for dated December 23, 2014, concluding that the beneficiary's bachelor's degree from and his postgraduate certificate from together constitute the U.S. equivalent of a "Bachelor of Science (BS) in Business Administration with Concentration in Computer Science from a regionally accredited University in the United States of America ."
- By for dated October 13,
2014, concluding that the beneficiary's education credentials are the equivalent of a "Bachelor of Science degree in Computer Information Systems from an accredited institution of higher education in the United States."
We have reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website , AACRAO is "a nonprofit , voluntary, professional association of more than 11 ,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world. " See http://www.aacrao.org/About-AACRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." /d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials . l . 11 eqmva enc1es.
According to EDGE, the beneficiary's three-year Bachelor of Commerce degree is comparable to three years of university study in the United States.
EDGE also discusses postgraduate certificates from the United Kingdom and states that it is awarded after 15 weeks of post-graduate study and that it "represents the attainment of a level of education comparable to one (1) semester of graduate study in the United States."
On appeal, the petition er asserts that because EDGE states that the Postgraduate Certificate requires a Bachelor 's degree as an entry requirement, and because the beneficiary was admitted to this program , this establishes that the beneficiary possesses the equivalent of a U.S. bachelor 's degree. Dr. states in his evaluation
EDGE. He further states that because EDGE indicates that a postgraduate certificate program from the United Kingdom represents the completion of one semester of graduate study, "EDGE confirms that postgraduate certificate programs necessarily meet the requirements of a bachelor's degree equivalent." However, the fact that requires a bachelor's degree and that it accepted the beneficiary into its postgraduate program does not necessarily mean that the beneficiary's three-year degree from is the equivalent of a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent Even though may have determined that the beneficiary's three-year degree was sufficient to meet the bachelor's degree requirement for entrance into the postgraduate program does, this does not mean that the beneficiary's three-year degree from is equivalent to a U.S. bachelor's degree, even when combined with the beneficiary's postgraduate program. As stated above, EDGE states that the beneficiary's three-year Bachelor of Commerce degree from is the equivalent of three years of university study in the United States and that a postgraduate certificate from the United Kingdom is equivalent to one semester of graduate study in the United States.
In addition, as stated above, the labor certification requires a Bachelor's degree in Computer Science or Information Technology. The evaluation by Dr. states that the beneficiary has the U.S.
The Minimum Requirements of the Offered Position
The petitioner must also establish that the beneficiary satisfied all of the educational, trammg, experience and any other requirements of the offered position by the priority date. 8 C.F.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 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. users may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate that the beneficiary has to be found qualified for the position. Madany, 696 F.2d at" 1015. USCIS interprets the meaning of terms used to describe the requirements of a job in a labor certification by "examin[ing] the certified job offer exactly as it is completed by the prospective employer." 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 the plain language of the [labor certification]" even if the employer may have intended different requirements than those stated on the form. !d. at 834 (emphasis added).
In the instant case, the labor certification states that the offered position requires a Bachelor's degree in Computer Science or Information Technology and 60 months of experience in a related field.
For the reasons explained above, after considering the evaluations in the record and the conclusions of EDGE, the petitioner has not established that the beneficiary possesses the foreign equivalent of a U.S. Bachelor's degree in Computer Science or Information Technology.
The petitioner has not established that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
Ability to Pay the Proffered Wage
Beyond the decision of the director/ 2 the petitioner must also establish its ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2).
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the 12 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), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). p. 12 petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, users will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage.13 If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, users may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).
In the instant case, the priority date of the petition is November 14, 2013 and the proffered wage stated on the labor certification is $103,626.00. The record contains a Form W -2 for 2013 that states the petitioner paid the beneficiary $96,183.37 in that year. The record does not contain the petitioner's federal income tax return, annual report, or audited financial statements for 2013 to demonstrate whether it had suffident net income and net current assets to pay the difference between the proffered wage and the wages paid to the beneficiary. The petitioner has not established that factors similar to Sonegawa existed in the instant case, which would permit a conclusion that the petitioner had the ability to pay the proffered wage despite its shortfalls in wages paid to the beneficiary for 2013. Accordingly, after considering the totality of the circumstances, the petitioner has not established its continuing ability to pay the proffered wage to the beneficiary from the priority date onward.
Conclusion
In summary, the petitioner has not established that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for classification as a member of the professions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed. In addition, the petitioner has not established its ability to pay the beneficiary's proffered wage from the priority date onward.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.