Degree or an Alien of Exceptionai 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 10 .I his maller have hcen returned to the office that originally decided your case. Please he advised I hal any further inquiry that you might have concerning your case. must be made to that office. If you believe the AAO inappropriately applied the ·Jaw 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 lo reopcn in accordance 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 h,e filed wirhin 30 days of the decision that the motion seeks to reconsider or reopen.
(JID""·
Ron Rosenherg
Acting Chief, Administrative Appeals 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 temporary services company. It seeks to employ the beneficiary permanently in the United States as a developer. 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 record did not establish the petitioner's continuing ability to pay the proffered wage. The director also 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 o~Iy as necessary. As set forth in the director's January 4, 2012 denial, the issues are whether the record establishes the petitioner's continuing ability to pay the proffered wage alid whether the beneficiary possessed the minimum level of education stated on 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 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. Ira 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
Ability to Pay the Proffered Wage
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any pet1tton 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 demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the ETA Form 9089 was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d).
Upon review of the entire record, including evidence submitted on appeal and in response to a Request for Evidence issued by the AAO, the AAO concludes that the petitioner has established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. '
Beneficiary Qualifications
As noted above, 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 si'milarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § fi56.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, 73() F. 2d 1305, 1309 (9
.J 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 experie~ce 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 2?1613 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 at ien 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 nott:d 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 .
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 "toreign equivalent degree" to a United States baccalaureate degree (plus the requisite tive 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 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 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 otlicial academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, sclz.ool or other institution of/earning 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
(b)(6)Page 6
- Two evaluations from The evaluations are dated December 12, 2011 and May 11, 2006. The evaluations are signed by The evaluations describe the beneficiary's education as · being the equivalent of a U.S. master's degree in computer science.
- Two evaluations from The evaluations are dated January 13, 2012 and January 2, 2013. The evaluations are signed by The evaluations describe the beneficiary's education as being the equivalent of a U.S. Bachelor of Science degree in computer science and a Master of Science degree in computer science.
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 l~ss 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 ofSuffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter 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, reliability, 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. The evaluations make no attempt to assign credits for individual courses. Further, the evaluations fail to provide any explanation as to how they evaluated the beneficiary's degree, what materials were relied on, or what methodology was used in evaluating the beneficiary's degree. Additionally, the evaluations make no attempt to evaluate the courses taken by the beneficiary or compare then to a U.S. program. The ~valuations explain in detail the content of the beneticiary's two-year master's degree program. However, these reports fail to establish that the beneficiary's master's program following a three-year bachelor's degree program truly equals the depth of a U.S. master's program following a four-year U.S. bachelor's degree. The evaluations conclude that a program of study with 158 credits is equivalent to a U.S. master's degree. However, provides no explanation for how the individual course credit numbers were determined. We note that the beneficiary's transcripts in the record at the time did not list the number of credits. Accordingly, in this matter, the AAO 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 nonprotit , 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 20, p. 7 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, admissions, enrollment management, administrative information technology and student services." ld. 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 20, 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 Rehab 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. 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, EDGE provides that a bachelor's 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." Moreover, EDGE further states that the Master of Science "represents attainment of a level of education comparable to a bachelor's degree in the United States." ·
While the petitioner challenges the AAO's utilization of AACRAO's EDGE database as a resource, characterizing it as an inappropriate preferential endorsement of its education evaluation service over other credential evaluation servic~s, the AAO does not agree. In reviewing this petition, the AAO has not relied on an evaluation by AACRAO of the beneficiary's specific educational credentials that was paid for with a fee to AACRAO. . Rather, the AAO has utilized information from AACRAO's database - EDGE - that has been vetted by a panel of experts and has general applicability to all three-year bachelor's degrees in India. The evaluations submitted by the petitioner, on the other hand, focus exclusively on the beneficiary's degrees. Thus, they are not comparable to the independent, broadly applicable analysis offered by EDGE. In short, the AAO considers the AACRAO database a reliable resource for information about the U.S. equivalency of foreign degrees.
Based on the juried 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 p. 8 . · . ... _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 I & N Dec. 45, 49 (Reg. Comm. 1971 ). ' . Therefore, the beneficiary does not qualify for preference visa classification under section 203(b)(2) of the Act. ··
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.