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.ER. § 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.
Thank you, cro
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on April 17, 2012, the AAO dismissed the appeal. Counsel filed a motion to reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied.
The petitioner describes itself as an IT consulting company. It seeks to permanently employ the beneficiary in the United States as a system 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).
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). The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is July 19, 2006. See 8 C.P.R.§ 204.5(d).
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.
The AAO decision dismissing the petitioner's appeal concluded that the beneficiary did not have a foreign degree that was the equivalent of a U.S. bachelor's degree, 1 therefore the beneficiary did not possess the education required by the advanced degree professional classification2 and did not meet 1 The record contains copies of the diploma and transcripts for the beneficiary's three-year Bachelor of Commerce degree from India and a postgraduate diploma from the , India.Degree not shown to be a U.S. advanced degree equivalent During the adjudication of the appeal, the AAO consulted the Electronic Database for Global Education (EDGE). See http://aacraoedge.aacrao.org/index.php. According to EDGE, a three-year Bachelor of Commerce from India is comparable to three years of university study in the United States. EDGE also states that a postgraduate diploma from India following a three-year bachelor's degree is comparable to a U.S. bachelor's degree if it is issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE) and that at least a three-year bachelor's degree was required for admission. Counsel does not claim that the beneficiary's postgraduate diploma from India is issued by an accredited university or institution approved by AICTE or that a three-year bachelor's degree was required for admission. 2 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 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. p. 3 the terms of the labor certification.3 The AAO also concluded that the petitioner failed to establish its continuing ability to pay the proffered wage from the priority date of the petition pursuant to 8 C.P.R. § 204.5(g)(2).
On motion to reconsider, 4 counsel's brief claims that:
- The AAO inappropriately relied on Matter of Shah, 17 I&N Dec. 244 (Regl Comm 'r. 1977), in concluding that a four-year U.S. degree is required for classification as an advanced degree professional.
- The AAO engaged in unauthorized rulemaking by concluding that the beneficairy's postgraduate diploma (which was not issued by an accredited university or institution approved by AICTE) is not equivalent to a U.S. bachelor's degree.
- The DOL, not USCIS, has the authority to determine whether or not the beneficiary meets the minimum requirements of the labor certification.
- USCIS cannot conclude that a beneficiary of a labor certification does not meet the minimum requirements of the offered position because the labor certification is drafted with the specific beneficiary in mind.
- The beneficairy meets the minimum requirements of the labor certification because the labor certification indicates that the petitioner will accept a foreign educational equivalent to the required degree.
- The AAO failed to consider Construction and Design Co. v. USCIS, 563 F.3d 593 (ih Cir. 2009) in the decision dismissing the appeal.
Counsel's claims are discussed below.
The AAO inappropriately relied on Matter of Shah in concluding that a four-year degree is required for classification as an advanced degree professional.
Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977), states that a baccalaureate degree is generally found to require four years of education. The AAO does not solely rely on Matter of Shah to conclude that a four-year U.S. bachelor's degree, or foreign equivalent degree, is required for classification as an advanced degree professional.
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, 101s1 Cong., 2nct Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (Oct. 26, 1990).
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 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.
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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." 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."
The AAO will not 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.P.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"). 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 a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. See also 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).
Thus, the plain meaning of the Act and the regulations is that the beneficiary of a petition for a professional must possess a degree from a college or university that is at least a U.S. baccalaureate degree or a foreign equivalent degree. Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 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.
The AAO does not rely on Matter of Shah to conclude that the beneficiary must have a U.S. bachelor's degree from a college or university (or a foreign equivalent degree) in order to meet the requirements of the requested classification. Accoringly, counsel's claim that the AAO inappropriately relied on Matter of Shah to dismiss the appeal is rejected.
The AAO engaged in unauthorized rulemaking by concluding that the beneficairy's postgraduate . diploma (which was not issued by an accredited university or institution approved by AICTE) is not equivalent to a U.S. bachelor's degree.
In its decision dismissing the appeal, the AAO reviewed EDGE created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO p. 6 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. 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.5 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. Id. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 6 Therefore, counsel's claim that the AAO is engaging in rulemaking by consulting EDGE is rejected.
The DOL, not USCIS, has the authority to determine whether or not the beneficiary meets the minimum requirements of the labor certification.
The AAO rejects counsel's claim
(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 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 {ll) 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).7 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 Madnny, 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.
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.) Id. at 1009. The Ninth Circuit, citingK.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 USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and beneficiary are eligible for the requested employment-based immigrant visa classification.
USCIS cannot conclude that a beneficiary of a labor certification does not meet the minimum requirements of the offered position because the labor certification is drafted with the specific beneficiary in mind.
The AAO rejects counsel's claim that it does not have the authority to conclude that the beneficairy does not meet the minimum requirements of the labor certification. As is discussed above, p. 9 determining the beneficiary's qualification for the offered position is one of the roles assigned to users in the petition process.
The beneficiary must meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I&N Dec. at 49.
In evaluating 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).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, users must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which USers 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." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.e. 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]." Id. at 834 (emphasis added). USCrS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the alien meets the labor certification requirements. Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006).
Therefore, USeiS has the authority to conclude that the beneficairy does not meet the minimum requirements of the labor certification.
The beneficairy meets the minimum requirements of the labor certificaiton because the labor certification indicates that the petitioner will accept a foreign educational equivalent to the required degree.
The AAO did not dismiss the appeal because the beneficiary possessed a foreign degree. Instead, the AAO dismissed the appeal, inter alia, because the evidence in the record did not establish that the beneficiary possessed a foreign degree that was the equivalent of a U.S. bachelor's degree, as required by the requested preference classification and the terms of the labor certification. The AAO failed to consider Construction and Design Co. v. USCIS, 563 F.3d 593 (7th eir. 2009) in the decision dismissing the appeal.
In Construction and Design Co. v. USCIS, 563 F.3d 593 (ih Cir. 2009), the seventh circuit addressed the method used by USCIS in determining a petitioner's ability to pay the proffered wage. The employer in Construction and Design was a small construction company which was organized as a Subchapter S corporation. The employer sought to employ the beneficiary at a salary of over $50,000 per year. The court noted that, according to the employer's tax returns and balance sheet, its net income and net assets were close to zero. The court also noted that the owner of the corporation received officer compensation of approximately $40,000.
In considering the employer's ability to pay the proffered wage, the court stated that if an employer "has enough cash flow, either existing or anticipated, to be able to pay the salary of a new employee along with its other expenses, it can 'afford' that salary unless there is some reason, which might or might not be revealed by its balance sheet or other accounting records, why it would be an improvident expenditure. "8
The court then turned to an examination of the USCIS method for determining an employer's ability to pay the proffered wage. The court noted that USCIS "looks at a firm's income tax returns and balance sheet first. "9 The court, recognizing that the employer bears the burden of proof, went on to state that if the petitioner's tax returns do not establish its ability to pay the proffered wage the petitioner "has to prove by other evidence its ability to pay the alien's salary." 10 The court found that the employer had failed to establish that it had sufficient resources to pay the proffered wage "plus employment taxes (plus employee benefits, if any). "11 Thus, the court in Construction and Design concurred with existing USCIS procedure in determining an employer's ability to pay the proffered wage. This method involves (1) a determination of whether a petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage; (2) where the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during the relevant period, an examination of the net income figure and net current assets reflected on the petitioner's federal income tax returns; and (3) an examination of the totality of the circumstances affecting the petitioning business pursuant to Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). Further, the court in Construction and Design noted that the "proffered wage" actually understates the cost to the employer in hiring an employee, as the employer must pay the salary "plus employment taxes (plus employee benefits, if any)." As noted above, because the instant case arose in the seventh circuit, the AAO is bound by the seventh circuit's decision in Construction and Design. Therefore, pursuant to the decision in Construction and Design, the petitioner in the instant case must establish that it has the ability to pay the proffered wage plus compensation expenses for the employee which may include legally required benefits (social security, Medicare, federal and 8 !d.
9 !d. at 596.
10 !d.
state unemployment insurance, and worker's compensation), employer costs for providing insurance benefits (life, health, disability), paid leave benefits (vacations, holidays, sick and personal leave), retirement and savings (defined benefit and defined contribution), and supplemental pay (overtime and premium, shift differentials, and nonproduction bonuses). The costs of such benefits are significant. Therefore, pursuant to the seventh circuit decision in Construction and Design, the petitioner in this case would have to establish its ability to pay a higher wage than the proffered wage stated on the labor certification that the petitioner already failed to establish that it could pay. Therefore, considering Construction and Design in the assessment of the petitioner's ability to pay the proffered wage, the AAO affirms the conclusion that the petitioner failed to establish its ability to pay the proffered wage.
In summary, the AAO grants the petitioner's motion to reconsider. After addressing and rejecting counsel's claims on motion, the AAO affirms