Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) nf the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
' Enclosed please find ihe decision of the Administrative Appeals Office in your case. All of the documents related to this mauer have been returned to the office that originally decided your case .. Please he advised that ~111y 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 mmion to reopen in accordance with the instructions .on Form I-290B, Notice of Appeal or Motion, with a fcc of $630. Th( 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 he filed ,.,·ithin 30 days of the decision that the motion seeks to reconsider or reopen. rr?f'rou,
Ih1~ <f!oscnbcrg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on August 23, 2010, the· AAO dismissed the appeal. Counsel filed a motion to reconsider (MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be denied and the previous decision of the AAO will be affirmed.
The petitioner is a financial and banking institution. It seeks to employ the beneficiary permanently in the United States as a Unix administrator 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 Form ETA 750, ·Application for Alien Employment Certification, approved by the Department of Labor (DOL), accompanied the petition. 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 AAb affirmed this determination on appeal. 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.
In dismissing the appeal, · the AAO concluded that while the lETE may offer courses and examinations, there is no evidence that the JETE is a college or university or that an associate . membership, which is based on a combination of practical experience and examinations, is a "baccalaureate degree," which would allow t~e beneficiary to qualify as an advanced degree professional.
The regulation at 8 C.F.R. § 103.5(a)(3) states:
Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration (lnd be supported by any pertinent precedent decisions · to establish that the decision was based on an incorrect application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
On motion counsel does not submit any document that would meet the requirements of a motion to reconsider. Counsel does not state any reasons for reconsideration nor cite any precedent decisions in support of a motion to reconsider other than Matter of Shah, 17 I&N Dec. 244 (Reg ' l Comm'r 1977), which has already been considered by the AAO in its August 23, 2010 decision. Therefore, the motion does not meet the requirements for reconsideration.
Nevertheless, counsel submits new evidence pertammg to whether the beneficiary satisfied the minimum level of education stated on the_ labor certification or as required by the advanced degree professional classification. The AAO will consider this evidence in its de novo review of the entire record.
A~ noted above, the Form ETA 750 in this matter is certified by the DOL. The DOL's role is limited to determining whether there are sufficieQt 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. § 656.1(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 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United States baccalaureate degree is generally fol!nd to require four years of education. Matter of Shah, 17 I&N Dec. 244. 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 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- statuto~y 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 par~ 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 tive 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 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 sewnd preterence 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 a_lter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580- p. 4 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 Jederal 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 f{)r 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 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 tive 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.
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 univen;ity, 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 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"). Here, the Form ETA 750 was accepted on.February 4, 2003. On the ETA Form 750 B, signed by the beneficiary on January 29, 2002, the beneficiary claims to have worked for the petitioner since September 2001. The Form ETA-750A, item(s) 14 and 15, set forth the minimum education, training, and experience that an applicant must have for the position of a Unix Administrator: They reflect the following:
14. Education (Enter number of years)
Grade School 6
High School 6
College 5-6
College Degree Required (Specify)
Master's degree or equivalent
Major Field of Study Electrical Engineering or Computer Science Experience
Job Offered (Yrs.)
Related Occupation
benefi.ciary has a "Master's equivalent" from the Institute of Electronics and Telecommunications Engineers following. a program of study from June 1990 to June 1995, majoring in electrical engineering and telecommunications.
On motion ., counsel submits the following educational evaluation:
- An evaluation from Baruch College. The evaluation is dated September 17, 2010. The evaluation is signed by Solomon Appel. The evaluatio~ describes the beneticiary's diploma in computer engineering and his associate membership in the IETE as being the equivalent of a U.S. Bachelor of Science degree in electronic engineering.
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 detennination regarding an alien's eligibility tor 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 Soffici, 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 201l)(expert witness testimony may be given different weight depending on the extent of the expert's qualitications or the relevance, reliability, and probative value of the testimony).
The Appel evaluation is not persuasive in establishing that the beneficiary's education from India is equivalent to a U.S. bachelor's degree. The evaluation does not compare the beneticiary's education in India to a U.S. bachelor's degree program. The evaluator also fails to address the actual courses of study followed by the beneficiary. Moreover, the evaluation is neither peer-reviewed nor relies on peer-reviewed materials in reaching their unsubstantiated conclusions. Finally, the evaluation does not show that the IETE is an academic institution that can confer an actual degree with an official college or university record. It is not a college or university. Therefore, this credential will not lead to a beneficiary being classified as an advanced degree professional pursuant to the Act and regulations.
In summary, although the petitioner has submitted evaluations stating that the beneficiary's IETE membership is comparable to a four-year U.S. bachelor's degree, the petitioner has not established that it is a "foreign equivalent degree" as required by 8 C.F.R. § 204.5(k)(2).Degree not shown to be a U.S. advanced degree equivalent IETE is a professional engineering organization, not a college or university. Because t~e beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree" from a college or university, the beneficiary does not qualify for preference visa classification under section 203(b )(2) of the Act. EDGE confirms that an Associate Certificate from IETE 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 sho~ing the beneficiary in the instant case passed the p. 7 o , I .. final exam and was awarded a certificate of membership as an associate of the IETE. However, as explained above, the regulation contains a degree requirement in the for'm of an official college or university record. The JETE 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 an advanced degree professional because he has hot earned a U.S. bachelor's degree or a foreign equivalent degree even though his membership in the JETE represents a combination of education and experience comparable to a U.S. bachelor's degree. See Snapnames.com, Inc. v. Michael Chertoff; CV 06-65-MO (0. 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.~. 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 users properly concluded that a single foreign degree or its equivalent is required. Snapnames.com, Inc. at 17, 19.
The b~;uden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. Accordingly,.the previous decisions of tbe director and the AAO will not be disturbed.
ORDER: The motion is dismissed.