Degree or an AJien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Aci, 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 documcnls related to this matter have been returned to the office that originally decided your case. Please be advised I hal any further inq'uiry that you might have concerning your case must be made to that office. Ir you believe the AAO inappropriately applied the ·law in reaching its decision, or you have addilinnal information that you wish to have considered, you may file. a motion to recom;ider or a motion to reopen in accordam::e with the instructions on ·Form I-290B, Notice of Appeal or Motion, with a fcc of $630. Thl: specific requirements for filing such a motion can be found at 8 C.F.R. § 1035 . . 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 moiion seeks to reconsider or reopen.
&&r
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov ,r·
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. · t' ·
The petitiOiier is an information technology company. It seeks to employ the beneficiary permanently in the United States as a computer software engineer-applications. 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 or as required by the advanced degree professional classification. The director denied the petition accordingly.
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. As set forth in the director's June 20, . 2012 denial, the single issue in this case is whether the beneficiary possessed the minimum level of education stated ori the labor certification and as required by the advanced degree professional visa category.' · In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), provides immigrant classification to ·members of the professipns holding advanced degrees or their equivalent and who~e 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 ora foreign equivalent degree." /d.
The AAO conducts appellate review on a de novo basis. See Softane 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.
As noted abov~, the ETA Form 9089 in this matter is certified by the DOL. The 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 .l(a). 1 The submission of additional-evidence on appeal is allowed by the instructions to the Form 1-2908, which are incorporated into the regulations at 8.C.F.R. § 103.2(a)(l). 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).
It is significant that none of the above inquiries assigned to the 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 (9 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United State.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 prof~ssions holding advanced degrees or their equivalent ....
Significantly, the statutory language used prior to Matter ofShah, 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
Cong., 2"d 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 consideri'ng equivalency for second prefyence immigranr 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. Porzs, 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 re.viewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, p. 4 theService 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 degre es must be United. States degrees, the Service will recognize foreign equivalent degrees.
But both the Ae,:t 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. 6,0897, 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 specialty). More specifically, a three-year bachelor's degree will not be considered to be the "foreign equivalent de'gree" 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 experienc e 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 submis sion of an "official academic record showirig 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 fror.n a college or university, or an equivalent 2 Compare 8 C.F.R . § 214.2(h)(4)(iii)(D)(5) (defining for purpos~s of a nonimmigrant visa classification, the "equivalence to completion of a college degree" as including , in certain cas es, a specific combination of education and experience). The regula .tions pertaining to the immigrant classification sought in this matter do not contain similar language.
(b)(6)Page 5 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") . The required education, training, experience, and special requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a master's . degree, or foreign educational equivaleni, in computer science, engineering, or re'lated field. Part H-8 asks the employer if there is an alternate combination of education and experience that is acceptable. The petitioner,answered this question "no."Therefore, the minimum education required by the labor certification is a master's degree or foreign educational equivalent. The petitioner did not permit a .bachelor's degree plus five years of experience as an Jiternative combination of education and experience. USCIS may not ignore a term on a labor certification, nor may it impose additional requirements. See, e.g., Madany, 696 F.2d 1008.
The beneficiary set forth his credentials · on the labor certification and signed his name, under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of the labor certification eliciting information of the beneficiary's , education, and elsew~ere in the record, he states that he received a Bachelor and Master of Science degree from , in He also earned a post graduate diploma (PGD) in also in India.
The record contains the following educational ·evaluations of the beneficiary's credentials:
- An evaluation from lndoUS Technology & Educational Services, Inc. The evaluation is dated May 7, 2012. The evaluation is signed by Pratap P~ Reddy. The evaluation describes the beneficiary's Bachelor and Master of Science degree as heing the e·quivalent of a U.S. master's degree in computer science.
- An evaluation from lndoUS Technology & Educational Services, Inc. The evaluation is dated September 13, 2011. The evaluation is signed by Pratap P. ·Reddy. The evaluation describes the beneficiary's Bachelor and Master of Science degree PGD as being the equivalent of a U.S. master's degree in computer science. The evaluator . also considered the PGD, but this does .not appear . to change the evaluator's conclusions since he states that the master's degree alone is a single-source equivalent to a U.S. master's degree .
USCIS may, in its discretion, use as advisory opinions statements Sl,lbmitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for rpaking 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 the letters as to whether they support the alien's eligibility ~ See id. USCI~ may give less weight to an opinion that is not corroborated, in p. 6 accord with other information o'r is in any way questionable. /d. at 795. See also Matter of Sojjlci, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matier of Treasure Craft of California, 14 I&N Dec. 190,(Reg. Commr. 1972)); 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, reliabi_Iity, and probative value of the testimony).
The evaluations are not persuasive in establishing that the beneficiary's education from India is equivalent to a U.S. master's degree. Neither evaluation compares the beneficiary's education in India to a U.S. master's degree program. The evaluator also fails to address the actual courses of study followed by the beneficiary. Moreover, neither evaluation is peer-reviewed or reiies on peer reviewed materials in reaching their unsubstantiated conclusions. Accordingly, in this matter, the AAO, similar to the Nebraska Service Center, will prefer the peer-reviewed information provided by EDGE on the equivalency of the beneficiary's foreign education to a U.S. master's degree. EDGE was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its· website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 ·higher education admissions and ·registration professionals who represent approximately 2,600 institutions and agencies in the. United States and in over 40 countries." See http://www.aacrao.org!About-AACRAO.aspx (accessed February 6, 2013 and · incorporated into the record of proceeding). Its mission "is to provide professional development, guidelines and voluntary standards to be used by higher education officials regarding the best practices in records management, admission's, enrollment management, administrative information technology and student services." /d . . In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational ,explanation for its reliance on information provided by AACRAO to support its decision. According to the login page, EDGE is "a web-based resource for the evaluation of foreign educational credentials" that is continually updated ;and revised by ·staff and members of AACRAO. Dale E. Gough, Director of International Education Services, "AACRAO EDGE Login." http://aacraoedge.aacrao.org/index.php (accessed February 6, 2013 and incorporated into the record of proceeding). ln ·Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 2010), a federal district court found that USCIS had properly weighed the evaluations submitted and the infqrmation obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were comparable to a U.S. bachelor's degree. In .Sunshine Rehah Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a USCIS conclusion 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 discr~tion 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. The reasoning in these decisions is persuasive;
In the section related to the Indian educational system, EOGE provides that a three-year Bachelor of Science degree "represents attainment of a level of education comparable to two to three years of university study in the United States. Credit may ~e awarded on a course-by-course basis.·· p. 7 Moreover, EDGE further states that the Master of Science "represents attainmen·t of a level of education comparable to a bachelor's degree in the United States."
EDGE further discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a two-year bachelor's degree represents attainment of a level of education comparable to one year of · university study in the United States. EDGE also states that a postgraduate. diploma following a three-year bachelor's degree represents attainment of a level of education comparable to a bachelor's degree in the United States. However, the "Advice to Author Notes" section states:
Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). So.me students complete PGDs over two years on a part-time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to confuse the PGD awarded after the Higher Secondary Certificate with the .PGD awarded after the three-year bachelor's degree. ·
The record contains no evidence that the is an AlCTE approved post-bachelor level program and that the entrance requirements are a three:..year bachelor's degree. Therefore, it cannot be concluded that the combinat~on of the beneficiary's degrees and the . is the equivalent to a U.S: master's degree.
Based on the Nried opinion of EDGE, the AAO has concluded that the beneficiary's education is more likely than not comparable to a bachelor's degree in the United States. Since the ETA Form 9089 required a master's degree as the minimum level of education, the petitioner has failed to establish that the beneficiary possessed all the education, training, and experience specified on the labor 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. at 159; see also Matter of Katigbak, 14 L' & N. Dec. 45, 49 (Reg. Comm. 1971 ). Therefore, the beneficiary does not meet the job requirements on the labor certification. Beyond the decision of the director, the AAO will dismiss the appeal as moot because the petition is not accompanied by an individual labor certification from the DOL which pertains to the proffered position. 8 C.F.R. § 204.5(k)(4); 20 C.F.R. § 656.30(c). The ETA Form 9089 indicates in Part H that the job opportunity is in The ETA Form 9089 does not indicate that the beneficiary will be employed at "unanticipated client sites.'' However, Part 6 of the Form 1-.140 states that the job will be in "unanticipated locations in the U.S." Therefore, the job offered is for a different job opportunity than what was certified by the DOL. 20 C.F.R. § 656.30(c)(2). The appeal will be dismissed b'ecause it is not accompanied by a valid labor certification. 8 C.F.R . . § 204.5(k)(4). .
The burden of proof in these proceedings rests s'olefy 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.