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 law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. f,!.'i ( },'•/
·-~ n
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis~gov
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 The director's decision will be withdrawn. The petition will be remanded.
The petitioner is an information technology services company. It seeks to employ the beneficiary permanently in the United States as a senior programmer analyst. 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 possess an advanced degree or a bachelor's degree and five years of progressive experience in the specialty field, plus 12 months of experience in the proffered position or in the alternate occupation of software engineer or a related occupation.Five years of progressive experience not documented The director denied the petition accordingly. On appeal, counsel asserts that the beneficiary does possess the equivalent of a bachelor of science degree from a U.S. college or university and five years of progressive experience in the specialty field, plus the 12 months of experience. In support, counsel submits a second credential evaluation, dated July 3, 2012, from from that is identical to the previously submitted evaluation dated October 24, 2011 considered by the director.
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. In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act) 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.P.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. DOl, 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
The beneficiary possesses a foreign three-year bachelor of science degree from in India and a "B" Level Master's Diploma in computer applications from the The record contains the beneficiary's transcripts and degree from and his transcripts and diploma from The petitioner has also submitted two credential evaluations from dated October 24, 2011 and July 3, 2012, both concluding that the beneficiary possesses the equivalent of a bachelor of science degree in computer science "based on the single source of B level Master's Diploma program completed by [the beneficiary] under the auspices of As noted above, the ETA Form 9089 in this matter was certified by DOL. 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). It is significant that none of the above inquiries assigned to 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 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Rather, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and published decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) (unpublished agency decisions and agency legal memoranda are not binding under the AP A, even when they are published in private publications or widely circulated). Even USCIS internal memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000) (an agency's internal guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely.") AU. S. baccalaureate degree is generally found 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 must have at least a bachelor's degree).
In 1991, when the 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 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 ofthe 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.
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 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"). Relying in part on Madany, 696 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 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.
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 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, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309.
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of the application for alien labor certification, "Job Opportunity Information," describes the terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. Moreover, 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. !d. 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 to 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 the plain language of the alien employment certification application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of p. 7 foreign educational credentials." http://edge.aacrao.orglinfo.php (accessed May 2013). Authors for EDGE are not merely expressing their personal opinions. Rather, they must work with a publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials. 3 If placement recommendations are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire Council. /d. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies.4 According to EDGE, completion of the DOEACC "B" Level Examination represents attainment of a level of education comparable to a bachelor's degree in the United States.
US CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). See also Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)(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). 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 of those letters as to whether they support the alien's eligibility. See id. at 795. USCIS may even 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 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In the instant case, the two evaluations of record from The Trustforte Corporation state that the beneficiary "completed advanced post-secondary classes and examination, with a concentration in computer science, under the auspices of the ' Both evaluations are consistent with the EDGE report. Therefore, the AAO is persuaded that the beneficiary possesses the equivalent of a single source bachelor of science degree in computer science from a U.S. college or university.
The petitioner has submitted evidence that the beneficiary possesses five years of progressive PvnPr1PnrP 1n the specialty field. The record contains a letter, dated Se tember 12, 2011, from development manager in verifying the beneficiary's employment as a full-time principal software engineer from June 22, 2009 to September 1, 2011. The record also contains a letter, dated July 20, 2010, from vice president of confirming the beneficiary's employment as a full-time programmer analyst from April 15, 2006 to June 21, 2009. Both letters are detailed and in conformance with the requirements of the regulation at 8 C.P.R. § 204.5(g)(1) and (1)(3)(ii)(A). Thus, the beneficiary has the requisite five years of progressive experience in the specialty field.5 The director's decision is withdrawn.
The petition may not be approved, however, as the record does not establish that the beneficiary has the required work experience or that the petitioner has the ability to pay the proffered wage as of the priority date. As the director did not address these issues in the decision, the petition will be remanded for the director to consider the issues and enter a new decision. The petitioner must establish that the beneficiary had the requisite work experience in the job offered as of the priority date and that the petitioner has the ability to pay the proffered wage from the priority date onwards. 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 (91h Cir. 2003); see also Soltane v. DOJ, 381 F.3d at 143. As noted above, the ETA 9089 at Lines H.6 and H.10 requires 12 months of experience in the proffered position or 12 months of experience in the alternate occupation of software engineer or a related occupation. On the ETA 9089 signed by the beneficiary on May 24, 2012, he indicated over six years of experience as a software engineer and related occupations. Specifically, the beneficiary listed the following employment experience:
- Programmer Analyst at
- Application Developer at
failed to establish that the beneficiary possesses the minimum 12 months of experience in the proffered position or in the alternate occupation of software engineer or a related occupation. With respect to the petitioner's ability to pay, the regulation at 8 C.F.R. § 204.5(g)(2), in pertinent part, provides:
Ability of prospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.
In the instant case, the ETA 9089 labor certification was accepted for processing on November 11, 2011. The rate of pay or the proffered wage specified on the ETA 9089 is $77,834 per year. The record contains an Internal Revenue Service (IRS) Form W-2 evidencing that the petitioner paid the beneficiary $30,678.91 in 2011. Thus, the petitioner must establish the ability to pay the difference between the proffered wage and the actual wages paid, or $47,155.09 in 2011. However, there is no other evidence in the record to establish the petitioner's ability to pay in 2011.6 Therefore, the AAO concludes that the petitioner has failed to establish the ability to pay from the priority date of 2011 onward.
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to the director for review and consideration of the additional issues that impact the petitioner's eligibility that were not initially identified by the director. The director may request any additional evidence considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of time to be determined by the director. Upon receipt of all the evidence, the director may review the entire record and enter a new decision, which, if adverse to the petitioner, should be certified to the AAO for review. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 u.s.c. § 1361.
ORDER: The director's decision to deny the previously approved petition is withdrawn. The petition is remanded to the director for further action in accordance with the foregoing and entry of a new decision.