AAO decision JUN242013_01B5203

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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services · DATE: JUN 2 4 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: · INRE: Petitioner: · Beneficiary: · PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced

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Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

-(n

Ron Rosenberg

Acting Chief, Administrative Appeals Office www.uscis.gov

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DISCUSSION: The Director, Nebraska Service Center (director), denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner is a sales of high-end heating elements business. It seeks to employ the beneficiary permanently in the United States as a marketing manager. As required by statute, an ETA Form 9089, Application for Permanent Employment Certification, approved by the Department of Labor (DOL), accompanied the petition. 1 Upon reviewing the petition, the director determined that the petitioner failed to demonstrate that the beneficiary possessed the minimum level of education stated on the labor certification.

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.2 In pertinent part, section 203(b)(2) of the 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.

To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Matter of Wing 's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). Here, the ETA Form 9089 was accepted for processing on March 14, 2012.3 The Immigrant Petition for Alien Worker (Form I-140) was filed on June 29, 2012. In evaluating the beneficiary's qualifications, the United States Citizenship and Immigration Service On March 28, 2005, pursuant to 20 C.P.R. § 656.17, theApplication for Permanent Employment Certification, ETA Form 9089 replaced the Application for Alien Employment Certification, Form ETA 750. The new Form ETA 9089 was introduced in connection with there-engineered permanent foreign labor certification program (PERM), which was published in the Federal Register on December 27, 2004 with an effective date of March 28, 2005. See 69 Fed. Reg. 77326 (Dec. 27, 2004).

Footnotes

2The submission of additional evidence on appeal is allowed by the instructions to the Form I-29GB, which are incorporated into the regulations by the regulation at 8 C.P.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).
3If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa abroad. Thus, the importance of reviewing the bona fides of a job opportunity as of the priority date is clear. professions holding advanced degrees or their equivalent .... Significant! y, 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-

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(USeiS) 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 eir. 1981). Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by professional regulation, users 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. 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.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 application form]." !d. at 834 (emphasis added). users 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 the labor certification.

The proffered position's requirements are 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. The instructions for the ETA Form 9089, Part H, provide:

Minimum Education, Training, and Experience Required to Perform the Job Duties. Do not duplicate the time requirements. For example, time required in training should not also be listed in education or experience. Indicate whether months or years are required. Do not include restrictive requirements which are not actual business necessities for performance on the job and which would limit consideration of otherwise qualified U.S. workers.

In the instant case, the labor certification states that the offered position has the following minimum requirements:

H.4.

H.5.

H.6.

H.7.

H.8.

H.9.

H.lO.

H.14.

Education: Bachelor's degree in business administration.

Training: None required.

Experience in the job offered: 60 months.

Alternate field of study: None accepted.

Alternate combination of education and experience: None accepted.

Foreign educational equivalent: Accepted.

Experience in an alternate occupation: None accepted.

Specific skills or other requirements: Five (5) yrs. of exp. in sales and marketing management, which must include two (2) yrs. of exp. in thermal technology field. Domestic and international travel requirements for purposes of visiting current and prospective p. 4 customers and also returning to manufacturing headquarters in Germany.

As noted above, the ETA Form 9089 in this matter is 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.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.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). 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

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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.

Footnotes

56Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added). There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 203(b )(2) of the Act as a member of the professions holding an advanced degree with anything less than a full baccalaureate degree (plus the requisite five years of progressive experience in the specialtyr 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."4 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 source 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
4Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases, a specific combination of education and experience). The regulations pertaining to the immigrant classification sought in this matter do not contain similar language. with translation from the Confederation of Switzerland and a copy of the beneficiary's certificate in Practical Management awarded by the in 1987. The record also contains a credential evaluation from dated February 11, 2004. Mr. concludes that the beneficiary's "formal education equates to graduation from a U.S. technical /vocational high school and a three-credit college course in Management." Mr. then evaluates 22 years of the beneficiary's work experience, asserting that his professional experience is equivalent to "more than a four-year bachelor's degree for immigration purposes." However, Mr. acknowledges that only 12 years of the beneficiary's work experience was documented for his evaluation and that he has assumed the validity of the other experience claimed. Mr. evaluation used the rule to equate three years of experience for one year of education, but that equivalence applies to non-immigrant H1B petitions, not to immigrant petitions. See 8 CFR § 214.2(h)(4)(iii)(D)(5). The beneficiary was required to have a bachelor's degree on the ETA 9089. The petitioner's actual minimum requirements could have been clarified or changed before the ETA 9089 was certified by the DOL, but they were not. Furthermore, as noted above, any attempt to establish an equivalency of work experience alone will not be considered to be a single source foreign equivalent degree. The record further contains an evaluation from for the Foundation for dated November 15, 2012. Ms. states that the beneficiary's ~ ~ _ _ is equivalent to graduation from a vocational high school in the United States. Ms. further asserts, that based on the beneficiary's professional experience and equating three years of professional experience to one year of education, he has a background equivalent to that of an individual with a bachelor's degree in business administration from a regionally accredited college or university in the United States. As noted earlier, the beneficiary was required to have a bachelor's degree on the ETA 9089. The petitioner's actual minimum requirements could have been clarified or changed before the ETA 9089 was certified by the Department of Labor, but they were not. Furthermore, any attempt to establish an equivalency of work experience alone will not be considered to be a single source foreign equivalent degree.

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USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988); Matter of Sea, Inc., 19 I&N Dec. 817 (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).

As noted by the director in his decision denying the instant Form 1-140 petition, 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.orglinfo.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. !d. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 6

As noted in the director's decision, according to EDGE, the or represents attainment of a level of

Footnote

5See An Author's Guide to Creating AACRAO International Publications available at http://www.aacrao.org/Libraries/Publications_Documents/GUIDE_TO_CREATING_INTERNATIO NAL PUBLICATIONS l.sflb.ashx. 6 - -In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court determined that the AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 2010), the court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a USCIS determination that the alien's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The court also noted that the labor certification itself required a degree and did not allow for the combination of education and experience.

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education comparable to completion of a vocational or other specialized high school curriculum in the United States. EDGE also discusses the Certificate from in South Africa. EDGE advises that the National Certificate is "awarded after one year of study at a technikon and represents a level of education comparable to one year of university study in the United States." Therefore, based on the conclusions of EDGE, the director concluded that the beneficiary did not possess the required U.S. bachelor's degree in business administration or foreign equivalent degree as required by the terms of the labor certification and for classification as an advanced degree professional. On appeal, counsel asserts that the director erred in his decision and should allow the petitioner to consider the beneficiary's work experience to establish that the beneficiary has the required education. Accompanying the appeal, counsel submitted copies of the prior decisions in this case and states that an additional brief will be submitted. It is noted that as of the date of this letter, more than four months after the Form I-290B was filed, no brief has been received. Counsel has not submitted any evidence to support his assertion that the beneficiary meets the terms of the labor certification and should be granted the requested classification. Nor did the petitioner submit any additional credential evaluations to refute the conclusions of EDGE. The assertions of counsel do not constitute evidence.Claims not backed by documents Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez Sanchez, 17 I&N Dec. 503,506 (BIA 1980).

After reviewing all of the evidence in the record, the petitioner has failed to establish that the beneficiary possesses a single source degree that is the foreign equivalent to a U.S. bachelor's degree and failed to overcome the conclusions of EDGE with reliable, peer-reviewed information.Degree not shown to be a U.S. advanced degree equivalent Therefore, the AAO concludes that the petitioner has not established that the beneficiary has the equivalent of a U.S. bachelor's degree in business administration from a college or university, as required by the terms of the labor certification and for classification as an advanced degree professional

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.

ORDER: The appeal is dismissed.

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