I . PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability P~rsuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCfiONS:
Enclosed please find the decision of the Administrative ApP,eals Office in your case. All of the documents related to this matter have been returned to the office that ori~nally decided your case. Please be advised that any further inquiry that you might have concerning your caselmust be made to that office. · _ If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional informa.tion that you wish to have considered, you may file Ia motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice ef Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion ean be found at 8 C.F.R. § 1()3.5. Do not file any motion I directly with the AAO. Please be aware that8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 3d days of the decision that the motion seeks to reconsider or reopen. · · on Rosenberg
Acting <;hief, Administrative Appeals Office www·uscis;gov
DISCUSSION: The Director, Texas Service Center, d~nied the employment-based immigrant visa petition, which is now before the Administrative Appeals O:(fi.ce (AAO) on appeal. The appeal will be dismissed. /
The petitioner is a plastic design and parts supplier. It sepks to employ the beneficiary permanently in the United States as a senior computer graphic designer pursuant to section 203(b )(2) of the Immigration and Natiomility Act (the Act), 8 U.S.C. § ~153(b)(2). As required by statute, an ETA Form 9089, Application for Permanent Employment Gertification, approved by the United States ·Department of Labor (DOL), accompanied the petition.
On appeal, the p~titioner, thro~gh counsel, submitted additional evidence and argument relevant to the petitioner's ability to pay the proffered wage.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidertce in the record, including new evidence properly submitted upon appeal. 1 ' .
The record shows that the appeal is properly filed and timely and makes a specific allegation of error · in ·law or fact. The procedural history in this case is docbented by the record and incorporated into the decision. Further elaboration of the procedural histoto/ will be made only as necessary. An application or. petition that fails to comply with thi 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. UniteU States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see alsoiSoltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
As is set forth below, although the AAO finds that thj p~titioner has satisfactorily establi~hed the ability to pay the proffered wage and will withdraw the ~irector's September 23, 2008 in this regard. However, the AAO concludes that the beneficiary's ed~cational credentials do not constitute either the U.S. equivalent of a Master's degree or aBachelor'sidegree and do not fulfill the requirements of the position as set forth on the labor certification or the second preference visa classification sought. . . . I. . . . . The AAO issued a Request for Evidence (RFE) on March 15, 2012, relevant to the beneficiary's educational qualifications and requested additional evid~nce pertinent to this requirement as well as the petitioner's ability to pay the proffered wage. Co~sel submitted a response on April 30, 2012 and also requested more time to respond. Ten montHs later, no further documentation has been received by this office. This decision will b~ rendered oh the record as it stands: · · . 1 The submission of additional evidence on appeal is 8llowed by the instructi~ns to the Form I-290B, which are incorporated into the regulations by the regulatlon at 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no reason· to preclude con~ideration of any of the documents newly ·submitted on appeal. See Matter of Soriano, 19 I&N Deb. 764 (BIA 1988).
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 i~ 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 baccalaurdate degree or a foreign equivalent degree followed by at least five years of progressive experierlce in the specialty shall be considered · the equivalent of a master's degree. If a doctoral degree i~ customarily required by the specialty, the alien must have a United States doctorate or a foreign eq~ivalent degree." /d. ' The regulation at 8 C.P.R. § 204.5(g)(2) states in pertineht part:
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 dbmonstrate this ability at the time the priority date is established and continuing · uhtil the beneficiary obtains lawful permanent residence. Evidence of this ability s~all be either in the form of copies of annual reports, federal tax returns, or audited fm~ncial statements. · The petitioner must demonstrate. the continuing ability ~o ·pay the proffered w~ge beginn~g on the priority date, which is the date the ETA Form 9089, Application for Permanent Employment Certification, was accepted for processing by any officejwithin the employment system of the DOL. See 8 C.P.R. § 204.5( d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form . 9089l Application for Permanent Employment Certific~tion, as certified by the DOL and submitted with the instant petition. Ma.tter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the ETA Form 9089 was accepted on November 27, 2007. The minimum proffered wage as stated on the ETA Form 9089 is $21.00 per hour ($43,680 per year).
. . . I
The petitioner must establish that its job offer to·tht;! beneficiary is a realistic one. Because the filing of an ETA Form 9089 labor certification application establi~hes a priority date for any immigrant petition later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic as ofthe priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in evaluating whether. a job offer is realistic. See Matter of! Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977); see also 8 C.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic; United States Cit~enship and Immigration Services (USCIS) rclquires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wa~es, although the totality of the circulnstances I p. 4 affecting the petitioning business will be considered if ~e· evidence warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967).2 · .
In this case, the AAO finds that the · evidenCe warranJ the consideration of evidence supporting a determination based on the principles set forth in SonegaJa. The petitioner is a long-standing business, havmg been established almost 40 years with a payroll a?vering over 70 workers. Following a r~view. of the petitioner's financial documentation submitted to the record, which included records from 1996 ·to 2011, and which reflected gross receipts from $13 td $43 million, the current record reflects the overall magnitude of the petitioner's busmess which basi demonstrated substantial financial resources sufficient io conclude that the job offer is realistic.- The ~etitioner has established that it has had the continuing ability to pay the proffered wage. The director's decision with respect to the petitioner's ability to pay the proffered wage will be withdrawn.
Eligibility for the Classification Sought
Beyond the decision of the director, the petitioner has also not established that the beneficiary is qualified for the offered position . The petitioner must establish that the beneficiary possessed all the I education, training, and experience specified on the la bor certification as of 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 (Acting Reg'l I
Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l ~omm'r 1971). In 2 US CIS may consider the overall magnitude of ~e petitioner's business activities in its determination ofthe petitioner's ability to pay the proffe'red wage. See Matter ofSonegawa, 12 I&N Dec. 612 (BIA 1967). The petitioning entity in Sonegkwa had been in business for over 11 years and routinely earned a gross annual income of about $1q0,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large movUtg costs and also a period of. time when the petitioner was unable to do regular business. The Rbgional Comnlissioner determined that the petitioner's prospects for a resUmption of successful buJiness operations were well established. The petitioner was a fashion designer whose work had beenifeatured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included _in the· lists of the best-dressed California jwomen. The petitioner lectured on fashion design at design and fashion shows throughout the Unit~d States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding teputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevan~ to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such factors as the number of years the petitioner ·has been doing busine~s, the established historical growth of the petitioner's business, the overall number of employe~s. the occurrence of any uncharacteristic business expenditures · or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an out~ourced service, or any other evidence that USCIS deems relevant to the petitioner's ability to pay t&e proffered wage. . I
(b)(6)·Page 5 evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification to determine the required qualifications fo~ the position. USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. USCIS must examine "the language of the labor certification job requirements" in ?rder to determine what the job requires. /d. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. ]983); Stewart Infra-Red Commissary of Massachuset~s, Inc. v. Coomey, 661 F.2d 1 (151 Cir. 198l). .
The only rational manner by which USCIS. can be expJted to interpret the meaning of terms used to describe the requirements of a job in a labor certificatiob is to examine the certified job · offer exactly as it is completed by the prospective employer. See Ros~dale Linden Park Company v. Smith, 595 F. . . I
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 1and applying the plain language of the alien I . employment certification application ~orm. See id. at 8314. USCIS ~~~t and should not reasonably be expected to look beyond the plam language of the labor certification that DOL has formally issued or otherwise attempt to divine the employer'~ · intentions through some sort of reverse engineering of the labor certification. · ·
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 availftbility of suitable American workers for a job and the impaCt of alien employment upon the . I domestic labor market. It does not appear that . the DOL's role extends to determining if the alien is qualified for the job !tor which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), I
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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 Opportumty.lnformation," describes the terms and conditions of the job offered. ·
In this matter, Part H, line 4, of the labor certification reflects that a Master's degree in Graphic Design is the minimum level of education required. Parf H, lines 7 and 7-A indicate that an alternate field, of study of commercial design is acceptable. The petitioner will also accept an alternate . I . combination of education and experience of a Bachelor's degree and 5 years of experience as indicated by lines 8, ·8-A and 8-C. Line 9 reflect~ that a foreign educational equivalent is acceptable.
As suggested by the record, the p~titioner indicates that the beneficiary qualifies for the job opportunity and the visa claSsification as an advanced degree professional based on the beneficiary's asserted Bachelor's degree in Graphic Design and five ybars of progressive experience. . . Part J of the ETA Form 9089 indicates that the be~eficiary claims a Bachelor's degree from Peru, which he received in 1995.
The record now contains a copy of his diploma from! this institution and a transcript of grades. Several copies have been submitted in resoonse to thb AAO's RFE. As stated in the RFE, the transcript of grades indicate that ' i~ an "lnstituto Superior Tecnologico." The diploma does not indicate that any Bachelor's degree web actually conferred upon the beneficiary. A statement from the beneficiary submitted in response to the AAO's RFE indicates that he completed the program in 3.5 years. '"
The petitioner has also submitted a -credentials evaluation from of the , dated April 10, 2006. A du~licate of this evaluation has been submitted in response to the AAO's RFE. The evaluation states jthat the beneficiary's completion of a four year rogram of study in Graphic Design at the
(b)(6)Page 7
'http://www.aacrao.org'About-AACRAO.aspx. Its mission "is to serv·e ~dadvance higher education by providing leadership in academic and enrollment se~ices." /d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." http://edge.aacrao.org/info.php. Authors for EDGE·must work with a publication consultant and ajCbuncil 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 lgive feedback and the publication is subject to fmal review by the entire Council. /d. USCIS con~iders EDGE to be a reliable, peer-reviewed source of information about foreign credentials equival_ehcies.4 . · · As stated in the RFE, a~ording to EDGE, a "ProfessionLTechnician in ... [is] [a]warded after 3 to 4 years of study at a instituto superior tecnologico (highe~ techniccll institute), university OR instituto superior pedagogico I ISP (higher technical institute)."! Under the credential advice, EDGE states that it represents "the attainment of a level. of education comparable to 3 to 4 years of university study in the United States. Credit may be awarded on Ia course-by-course basis." As stated in the RFE, EDGE does not conclude that this education would be comparable to a U.S. bachelor's degree. Nothing that the petitioner has submitted on appeal or in'~sponse to the AAO's RFE establishes that the beneficiary's diploma from the is a degree
(b)(6)Page 8 is qualified for a specific immigrant classification or e~en 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 (91h Cir. 1984); Mad1my v. Smith, 696 F.2(l' 1008, 1012-1013 (D.C. Cir.l983). . I . A United States baccalaureate d~gree is generally foun4 to require four years of education. Matter of Shah, 17 I&N De~. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed Wtder 8 U .S.C. § 1153( a )(3) as amended in 1976. At that time, ithis 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 eqhivalent . . . . .
Significantly, the statutory language used prior to MattJ of Shah, 17 I&N Dec. at 244 is identical to the statutory language used subsequent to that decisio~ 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 Repr~sentatives 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 I 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 Apt in 1990, it had been almost thirteen years since Matter of Shah was issued. Congress is presume~ 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 wherl the new classification was enacted and did not intend to alter the agency's interpretation ,ofthat ten!n. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (Congress is presumed to be aware of admiJistrative and judicial interpretations where it adopts a new law incorporating sections of a prior law)l See also 56 Fed. Reg. 60897, 60900 (N1 ov. . I 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 Las published in the Federal Register, the Immigration and Naturalization Service (the Service)l responded to criticism that the regulation required an alien to have a bachelor's degree as a minilhum and that the regulation did not allow for the substitution of experience for education. After revibwing 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:
(b)(6)Page 9
The Act states that, in· order to qualify under the second classification, alien members of the professions must hold "advanced degr~es or their equivalent." As the legislative history ... indicates~ the equivalent ofjan 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 irldicate~ that bachelor's or advanced degrees must be. United S~ates degrees, the Service will recognize foreign equivalent dewees.
But both the Act and its legislative history mak¢ clear that,. in order to qualify as a professional under the third classification or to have experience equating to an advanced degCee under the second, an alien must have at least a bachelor 's degree.
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added). · · · . ~ere is no provision in the statute or the regulations thjt would allow a beneficiary to qualify unde~ 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 r~quisite five ·years of prowessive experience in the specialty). Where the analysis of the beneficiary'~ 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."5 In order to hkve experience and education equating· to an I
It is noted that the record does not establish that the enticy, which awarded the beneficiary's diploma may be considered as a college or university. Further, b~cause the beneficiary has neither (1) a U.S. master's degree or foreign equivalent degree in graphic /design, nor (2) a U.S. baccahiureate degree or foreign equivalent degree in graphic design or commercial design and five years of progressive experience in the specialty, he ·does not qualify for pr~ference visa classification as an advanced degree professional under section 203(b )(2) of the Act.Five years of progressive experience not documented
Based on the foregoing, ·the director's decision finding that the petitioner failed to establish the continuing ability to pay the proffered wage will be withdrawn. The AAO fmds that the petitioner established its ability to pay the pro.~ered wage. ~owevj ~r, beyond the decisio~ o~ the director and