Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 l).S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF REPRESENTED
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have b.ecn returned to the office that originally decided your case. Please be advised thai any further inquiry that you might.have concerning your case must be made to that office. If you believ e 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 flCCordance with the instructions on Form 1-2908, Notice of Appeal or Motion , with a fcc 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.
Thank you,
[r1Q
Ron. Rosenberg
Acting Chief , Administrative Appeal s Office www.uscis.gov
DISCUSSION: The preference visa .petition was denied by the Director, Texas Service Center, and · is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The . petitioner is a software development and consulting company. It seeks to employ the beneficiary permanently in the United States as a senior system administrator. 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 f10t satisfy the. minimum level cif education stated on the labor certification.' Specifically, the director determined that the was not an accredited university.
The director denied the petition accordingly.
The ~ecord shows th~t the appeal is properly filed, timely and makes a specific allegation of error ii1 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 2, 2009 denial, the primary issue in this case is ·whether the beneficiary possessed th~ minimum level of education and experience stated on the labor · certification and as required by the advanced degree professional v'isa 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 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.
The AAO conducts appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1
Eligibility for the Classification Sought
As noted above, the ETA Form 90S9 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 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). p. 3 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). 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 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 imm'igrants who are members of theprofessions ....
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 . . . . · · Significantly, 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., 2"d Sess. 1'990, 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, 580-81 (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 p. 4 the substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990), and the Joint Explanat9ry Statement of the Committee ofConference; 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 o·r 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 beneficiar ·y 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 degree" to a United States baccalaureate degree. Matter of Shah, 17 l&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." 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 equiva:Ient degree'' to a United States baccalaureate degree (plus the requisite tive years ofprogressive 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 ~ C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date the bac.calailleate 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 ~ny 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 restri~tiv_e visa classification. Moreover, the commentary 2 Compare 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.
Page 5 , accompanying the proposed - ~dvanced 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 ·.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an ofticial 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 requirementsfor 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 equivalent, in computer science, MIS, electronics, engineering or related field and 12 months of work experience in the job offered or in the alternate occupations of . network administrator or network engineer: The petitioner will also accept a bachelor 's degree and five years of progressive experience.
The beneficiary set forth his credentials on the labor certification and signed his name, under a declaration that the contents of th.e 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 elsewhere in the record,. he states that he received a Bachelor of Science degree from the and a M~"ter of Science degree both in India. The beneficiary's Master of Science degree was awarded in 2006.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible . for making 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. USCIS may give less weight to an ·opinion that is not corroborated, in accord with other information or is in any way questionable. /d. at 795. See also Matter of Sofflci. 22 I&N Dec. 158, 165(Commr. 1998) (citingMatter 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 o'r the relevance, reliability, and probative value of the testimony).
The AAO has reviewed the Electronic Database for Global Education (EDGE) 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 . January 30, 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 regardjng the best practices · in records management, . admissions, 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 p. 6 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 co~tinually updated and revised by staff and members of AACRAO. Dale E. Gough, Director of International Education ·services, "AACRAO EDGE Login." http://aacraoedge.aacrao.orglindex.php (accessed January 30, 2013 and incorporated into the record of proceeding). In 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 information 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 discretion in reaching its conclusion.Degree not shown to be a U.S. advanced degree equivalent 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.
EDGE provides that a three-year Indian 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 be awarded on a course-by-course basis." EDGE further states that the Indian Master of Science "represems attainment of a level of education comparable to a ·bachelor's degree in the United States." Educational evaluations of the beneficiary's credentials which are in the record accord with EDGE's conclusions, including the evaluation submitted in response to the AAO's May 23, 2012 RequestforEvidence. ·
Based on the juried ·opinion of EDGE, the AAO has concluded th~t the beneficiary's Bachelor of Science and Master of Science degrees are more likely th~m not comparable to U.S. bachelor's degree. Therefore, in order to qualify as a member of the professions holding an advanced degree, the beneficiary must possess the foreign equivalent of a U.S. bachelor's degree followed by five years of progressive experience in the specialty. 8 C.F~R. § 204.5(k)(2). This alternative is also permitted by the ETA Form 9089, part H, item 8. In addition, the beneficiary must have ·possessed the bachelor's degree and five years of experience by the May 31, 2007 priority date. 8 C.F.R. ~ 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I. & N. Dec. 158, 159 (Act. Reg. Cornrn. 1977); see also Matter of Katigbak,)4 I. & N: Dec. 45, 49 (Reg. Comm: 1971 ).
Qualifications for the .I ob Offered
Relying in part on Madnny, 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 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 determ!ning if the alien . is qualified for the job for which he seeks sixth preference p. 7 0 • 0 •
I 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 (9 h Cir. 1983). The court rei ied on an amicus brief from DOL that stated the following:
The labor certification made by the Secretary of Labor ... pursuant to section · 212(a)[(5)] 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.) /d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309.
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS m£ty not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the hmguage of the labor certification job requirements" in order to determine what the job requires. Id. The only rational manner by which USCIS 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. See Rosedale Linden Park Company v. Smith, 59~ 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 alien employment certification application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that the DOL· has formally issued cir otherwise attempt to divine the employer's intentions through some sort ofreverse engineering of the labor certification;
In the instant case, the beneficiary could not have gained five years of experience following the award of his Indian master's degree (2006) and before the priority date (May 31, 2007). Therefore, the benefiCiary does not ineet the alternative requirement of the labor certification and does not qualify as an advanced degree professional. 8 C.F.R § 204.5(k)(2) .
. The beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," but does not have the required five years of progressive', post-baccalaureate experience in the specialty, and thus, does not qualify for preference _yisa classification under section 203(b)(2) of the Act.Five years of progressive experience not documented The beneficiary also does not meet the job requirements on the labor certification . .
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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.