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.P.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.P.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.
~o7l.
Ron Rosenberg
Acting Chief, Administrative Appeals www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (director). The subsequent appeal was dismissed by the Administrative Appeals Office (AAO). The matter is now before the AAO on a motion to reopen and motion to reconsider. The motions will be granted, the previous decision of the AAO will be affirmed, and the petition will be denied. The petitioner is an accounting business. It seeks to employ the beneficiary permanently in the United States as a systems accountant 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, an ETA Form 9089, Application for Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that the beneficiary did not qualify for the second preference classification. Specifically, the director determined that the beneficiary did not possess a U.S. bachelor's degree or foreign degree equivalent.
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 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.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.
As noted above, DOL certified the Form ETA 9089 in this matter. 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.P.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.P.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 (9 h Cir. 1984); Madany v. Smith, 696 P.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). 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 ....
Significant! y, the statutory language used prior to M after 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., 2nct 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. The AAO 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). In fact, the Senate Conference Report for the Act presumes that a baccalaureate is a "4-year course of undergraduate study." S. Rep. No. 101-55 at 20 (1989). 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 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).
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 post baccalaureate experience in the specialty). More specifically, a three-year bachelor's degree will not be considered 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."1 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.P.R. § 204.5(k)(2). The degree must also be from a college or university. Specifically, the regulation at 8 C.P.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.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." The AAO 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. Silverman v. East;ich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted inAPWU 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 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, 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").
On motion, counsel asserts that the beneficiary has the education required by the terms of the labor certification and for classification as an advanced degree professional. In the instant case, the labor certification states that the offered position has the following minimum requirements: 1 Compare 8 C.P.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 ~ases, a specific combination of education and experience). The regulations pertaining to the immigrant classification sought in this matter do not contain similar language.
H.4. Education: Master's degree in Accounting.
H.5. Training: None required.
H.6. Experience in the job offered: 60 months.
H. 7. Alternate field of study: Finance.
H.8. Alternate combination of education and experience: Bachelor's degree and 5 years of experience.
H.9. Foreign educational equivalent: Accepted.
H.lO. Experience in an alternate occupation: 60 months experience as an accountant.
H.14. Specific skills or other requirements: none.
The record established that the beneficiary completed a three-year bachelor of commerce degree at the in 1981 and after passing the Intermediate and Final exams, was awarded Associate Membership from the in 1990.
The AAO does not dispute that the beneficiary's credentials represents a level of education comparable to a U.S. bachelor's degree and that the beneficiary therefore meets the terms of the labor certification which allows a foreign educational equivalent. However, counsel incorrectly asserts that the beneficiary also qualifies for classification as an advanced degree professional. The credential is not a degree and it is not issued by a college or university as required by the regulations for the advanced degree preference category, as discussed at length above. On motion, counsel refers to two decisions issued by the AAO concerning the credential, but does not provide its published citation. While 8 C.F.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a). Furthermore, the cited cases are distinguishable from the instant case in that they were not advanced degree professional cases.
The record contains no evidence that is a college or university. In fact, the materials submitted by the petitioner make a distinction between and a college or university. The evaluation from the American Association of Collegiate Registrars and Admissions Officers (AACRAO) included a statement that the passage of the final exam and associate membership has been recognized as the equivalent of an Indian Master's degree by the Association of Indian Universities for the purposes of admission into Ph.D. programs. This highlights the fact that even within the Indian educational system the credential is not recognized as a degree, but rather a level of education comparable to a degree.
Counsel's reliance on the credential evaluation from further highlights the fact that the is not a college or university. writes "While the is not a college or university in a traditional sense, it is a professional school within the professional field of accounting." continues "Thus, while the Certificate of Associate Membership awarded by the is not awarded by a traditional university, it qualifies as an academic degree based on the fact that it is a title conferred by a professional school in Accounting upon completion of a program of academic study." analysis makes it clear that while he may personally p. 6 consider the credential to be a "degree" from a professional school, it is patently not a degree from a college or university.
On motion, counsel submits a credential evaluation dated October 16, 2012 from for writes in direct response to the prior AAO dismissal and includes a summary of previously submitted credential evaluations. also provides a detailed analysis of the material covered by the examinations and how it would compare to the material covered in U.S. bachelor's degrees in order to conclude that the beneficiary possesses the equivalent of a U.S. Bachelor of Science in accounting degree awarded by an accredited college or university. In this regard, evaluation concurs with the conclusion of the AAO and EDGE. However, then goes on to assert that the "Associate Member credential awarded (to the beneficiary] by the is most accurately categorized as a degree. There is simply no better way to describe the Associate Member credential." statements are not supported by facts or evidence.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). also states "Further, by association, that makes the a degree-granting institution in the same category of higher educational institutions as college and universities." attempt to compare the to a degree granting college or university only serves to highlight that the is not a degree granting college or university.
Because the beneficiary does not have a United States baccalaureate degree or a foreign equivalent degree from a college or university, 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.Degree not shown to be a U.S. advanced degree equivalent We note that an AAO decision reaching the same conclusion on similar facts (a three-year degree plus membership seeking classification pursuant to section 203(b)(2) of the Act) was upheld in federal court. Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 11 (D. Ore. Nov. 30, 2006).
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 motions are granted and the decision of the AAO dated September 17, 2012 is affirmed. The petition is denied.