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 or the documents related to this maHer 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 1-2908, 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 he 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,
(tQ)
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
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DISCUSSION: The employment-based immigrant 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_ an oil refinery. It seeks to employ the beneficiary permanently in the United States as an SAP specialist pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, a labor certification accompanied 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 April 23, 2012 denial, the single issue in this case is 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 Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members ofthe 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 spe"cialty 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
I
The beneficiary possesses a Certificate from the Institute of Chartered Accountants of India (I CAl) and a three-year Indian Bachelor of Commerce degree. Thus, the issue is whether the beneficiary· s combined education and professional certification is a foreign degree equivalent to a __ U.S. baccalaureate degree.
Eligibility for the Classification Sought
As noted above, the ETA Form 9089, Application for Permanent Employment Certification, in this matter is certified by the Department of Labor (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). 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 quaiified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed ~y 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'!. 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 professions holding ~dvanced degrees or their equivalent ....
Significantly, the statutory language used prior to Matter of Shah, 17 l&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, 10151 Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201.613 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 ~lien "~ust have a bachelor's degree" when considering 1 ~quivalency _for sec_ond preference Immigrant visas. We must assume that Congress was aware of the agency ·s prev10us 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 p. 4 adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 6Qg97, 60900 (Nov. 29, 1991) (an alien must have at least a bachelor's degree). i
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 arid 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.
C.F.R. § 204.5(l)(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 degre~." (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"). Because, as explained infra, the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," the beneficiary does not qualify for pr.!;terence visa classification under section 203(b)(2) of the Act as she does not have the minimum level of education required for the equivalent of an advanced degree.Degree not shown to be a U.S. advanced degree equivalent
Qualifications for the Job Offered
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 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 determining if the alien is qualified for the job for which he seeks sixth preference 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 relied on an amicus brief
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(Emphasis added.) 1d. 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 may 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 language of the labor certification job requirements" in . _,order to determine what the job requires. Jd. 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, '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 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 or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.
The_ required education, training, ex:perience, 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 bachelor's degree, or foreign educational equivalent, in accounting, information systems, or related field and 60 months of experience in the job offered . .
The record contains a copy of the beneficiary's three-y~ar Indian Bachelor of Commerce degree and a Certificate from the ICAI.
The record contains the f~llowing educational evaluations of the beneficiary's credentials:
- An evaluation from the American Association of Collegiate Registrars and Admissions Officers (AACRAO). The evaluation is dated February 16, 2012. This evaluation concludes thatthe beneficiary's education in combination with her ICAI certification is equivalent to a U.S. Bachelor of Science degree in accounting.
.. . . .
EDGE confirms that an Associate Membership in the ICAI upon passing the final examination represents attainment of a level of education comparable to a bachelor's degree in the United States . The record contains documentary evidence showing the beneficiary in the instant case passed the final exam and was awarded a certificate of membership as an associate of the ICAI. However, as explained above, the regulation contains a degree requirement in the form of an official college or ·university record. The ICAI is not an academic institution that can confer an actual degree with an official college or university record. The beneficiary is not eligible for classification as a·n advanced degree professional because she has not earned a U.S. bachelor's degree or a foreign equivalent degree even though her membership in the ICAI represents a level of education and experience comparable to a U.S. bachelor's degree. See Snapnames.com, Inc. v. Michael Chertojf, CV 06-65-MO (D. Ore. November 30, 2006). In that case, the labor certification application specified an educational requirement of four years of college and a 'B.S. or foreign equivalent.' The district court determined that 'B.S. or foreign equivalent' relates . solely to the alien's educational background, precluding consideration of the alien's combined education and work experience. Snapnames.com, Inc. at 11-13. In professional and advanced degree professional cases, where the beneficiary is statutorily required to hold a baccalaureate degree, the court determined that USCIS properly concluded that a single foreign degree or its equivalent is required. Snapnames.com, Inc. at 17, 19.
The AAO has concluded that the beneficiary's combined education and professional certification is not equivalent to a U.S .. bachelor's degree and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act. In addition, the beneficiary does not meet the job requirements on the labor certification. For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved.
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.