Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Iriunigration and Nationality Act, 8 U.S.C. § 1153(b)(Z)
ON BEHALF OF PETfTIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (MO) in your ca:se. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through no'n-precedent decisions. If you believe the AAO incorrectly applied current law or policy to you:r c~se or if you seek to prese11t new facts for consideration, you may file a motion to reconsider or a · motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I~290B 'instrtictiolls at http:U.www.uscis.gov/fotms for tbe latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
/!:A-'· Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
NON-fRECEDENT DECISION
DJSCUSSlON: The preference visa petition was initially denied by t11e Director, Nebraska Service Center and came before the Administration Appeals Office (AAO) on appeal. The director's . decision wa5 affirmed and the .appeal was dismissed by the AAO on July 26, 2013. The matter is now before the AAO on a motion to reopen and a ·motion to reconsider. The motio11 will be granted. The previous decision of the AAO, dated July 26, 2013 willbe affirmed, and the petition will remain denied, 'fhe petitioner describes itself as a hospital. It seeks to permanently employ the beneficiary in the United States as a "Community Health Manager;'' The petitioner requests classification of the berteficiat'y as art advanced degree professiom1l pursu~nt to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification~ I. PROCEDURAL I::USTORY .
As required by s' t~tl!te, the petition is accompanied by an ETA Fotm 9089; Application for Permanent Employment Certification (labor certificatioll), approved by the U.S. Department of Uibor (DOL). 1 The priority date of the petition is Aliglist 8, 2012} Part H of the labor certification states that tbe offered position has the following miiliinulll requirements:
H.4 ~ Education: Master's degree in "B~siness Administration or related.'' H .. 5. Training: None required ;
H.6. Experience in thejob offered: None required.
H.7. Alternate field of study: "Health Administration or medical related."
H.8. Alternate combination of education and e~p~rielice: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.10. Experience i.n an alternate occupation: None accepted.
H.14. Specific skills or other requirements: Left bl~nk.
Part J of the labor certification states that the beneficiary possesses a Master's degree in "International Business" from the completed in 2011. The record contains a copy of the beneficiary 's Master of Science in International Business diploma and transcripts from the issued in 2011.
The director ' s decision qenying the petition stated that because the beneficiary's Master's degree ill International Business frotn is from an entity that is not an 1 See section 212(a)(5)(D) of. the Act, 8 U.S.C. § 1182(a)(5)(D}; see a./so 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R § 204.5(d). .
NON-PRECEDENT DECISiON accredited institution recognized by the U.S. Department of Education (DOE), the benefi~iary does rtot meet the educational qualifications of the labor certification for classification as an advanced degree professional.
In affmrting the director's decision, the AAO also determined, beyond the decision of the director, that the petitioner did not establish its ability to pay the beneficiary's proffered wage from the priority date onward.
On motion, counsel for the petitioner states tha:t the beneficiary's Master's degree in International Business fron1 qualifies her as an advanced degree professional because: (1) the definition of "advanced degree" in 8 CF ,R. § 2045(~)(2) does not state that the degree must be issued from an accredited institution; (2) is art institution that has been certified · by the U,S. Department 'of Homeland Secm:ity under the Student and Exchange Visitor Program (SEVP); and (3) n.as been accredited by the California B.urealJ for Priv;:tte Postsecondary Education (BPPE). Counsel also asserts that the petitioner has the continuing ability to pay the beneficiary's proffered wage. · The instant motion to reopen qualifi~s for consideration under 8 C.F.R. § 103.5(a)(2) because the petitioner is providing new facts with supporting docu,roentation not previously submitted. The motion to reconsider qualifies for consideration under S C.F.R. § 103.5(a)(3) bec~use tb.e petitioner's counsel asserts tl)at the director an_d the AAO made an erroneous decision through misapplication of law or policy. Therefore, the petitioner's motion is properly filed. The AAO conducts appellate review on a de novo basis. 3 · The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.4 A petition that fails to comply with the technicaJ requirements of the law may be denied by the MO even if the director does not identify all of the grounds for denial in the initial decision. 5
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. CitiZenship and Immigration Services (USCIS) in the employment-based immigrant :visa pro~ss. As noted above, the labor certifica.tion in this matter is certified by the DOL. The DO,L's role in this process is set forth a.t section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has deterrtiined and certified to the Secretary of State and the Attorney Genera.l that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in. clause (ii)) and available at the time of application for a visa and admission to the United States a.nd at the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of Such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.
F.R. § 656, involve a determination as to whether the posjtjon a.nd the alien are qualified for a. specific i:rnmigrant ·classification. this fact has not gone unnoticed by fed_eral circuit courts:
There is no dm~bt that the authority to make preference classification dee_isions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda~ Gonzalez v. INS, .564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14). 6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(l4) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the CJ.gencies' · own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determina.tions other thanthe two stated in section 212(a)(14). If DOL is to analyze· alien qualifications, it is for 6 ·Based on revi_sions to the Act, the c1.1rrent citation is section 212(a)(5)(A).
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NON-PRECEDENT DECIS.ION
· the purpose of "matching" them with those of corresponding United S~ates workers so that it will then be "in a position to meet the requirement of the law," namely the . section 212(a)(14) determinations. ·
Madimy v. Smith, 696 F.2d 1008, 1012,.1013 (D.C. Cir. 1983). Relying inpart on Mada.ny, 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible . only for determining the availability o{ suitable American workers for a job and the impact of alien employment upon the dorne~tic 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 t,mder 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.J(. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cit. 1983). The co11rt relied on an amicus brief from the DOL that stated tbe following: ·
The . labor certification made by the Secretary of Labor , . . pursu,ant to section 212(a)(14) of t.he [Act] Is binding as to the findings of whether there are able, wiUi.ng, qualified, and available United States workers for the job offered to the alien, arid 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 wotkets .. The labor. certification in no way indicates that the alien offered the certified job opportunity is qualified (ot not qualifi~d) to perform the dudes ofthat job. · ·· · ·
(Emphasis added.) Id. at 1009. The Ninth Circuit, citingK.RJ(.lrvine, Inc., 699 F.2d at 1006, revisited this issue,
Therefore, it is the DOL's re~ponsibility to determine whether there are qualified U.S. workers avail~ble to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, a.nd whether the offered position and the benefi~iary are eligible for the requested employment-based immigrant visa class_ifi~tiop. Eligibility for the Classification Sought
Section 203(b)(2) of the Act, 8 {).S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.F,R. § 204.5(k)(l ).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profe~sion.'' An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equiva.lent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experien~ . in the specialty shall be considered the equivalent of a master's degree. If a docto111l degree is customarily required by the specialty, the alien must have a United States doctorate or
NON-PRECEDENTDECISION professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or~ foreign equjv~ent degree) followed by at least five years of progressive experience in the speC;ialty. The beneficiary possesses a Master's degree in "lnternational Business" from the California International University (CIU), which has not been accredited by ~ recognized a~crediting agency. For tbe reasons set forth below, a degree from an unaccredited institution will not be <::onsldered an advanced degree under 8 C.F.R. § 204.5(k)(2).
In the United States, institutions of higher education an~ ilot authorized or accredited by the federal goverrunent. 7 Instead, the authority to issue degrees is granted at the state level. However, state approval to operate is not the sarne as accteditaticm by a recognized accrediting agency. According to the U.S. Department of Education (DOE), "[t]he goal of accreditation is to en.sure that education provided by institutions of higber education meets acceptable levels of quality." 8 Accreditation also ensures the nationwide recognition of a school's degrees by employers and other institutions, and also provides institutions and its students with access to federal funding, Accrediting ~gencies are ,private educational associations that develop evaluation criteria teflectlng the qualities of ~ sound educational program, and conduct evaluations to assess wbetber i:Qstitutions meet those critetia. 9 Institutions that rrieet an a<:;crediting agency's criteria are then "accredited" by that agency. 10
The DOE and the Council for Higher Education Accreditation (CHEA) ate the two entities responsible for the recognition of accrediting bodies in t):le United States. While the DOE does not accredit institutions, it is required by law to publish a list of recognized accrediting agencies that are deemed r,eliable authorities a.s to the quality of education provided by the institutions theyaccredit. 11· The CHEA, an association of 3,000 degree-granting colleges and universities, plays a similar oversight role. The presidents of American universities and colleges established CHEA in 1996 "to strengthen higbet education through strengthened accreditation of higber education instihiJions." 12 CHEA also recognizes accrediting organizations. "Recognition by CHEA affirms that Standards and processes of accrediting organizations are consistent with quality, improvement, and accountability ex:pectations that CHEA has established.''
According to CHEA, accrediting institutions of higher educa.tion "involves bundreds of self-evaluations and site visits each year, attracts thousands of 7 See http://ope.ed.gov/accreditation.
8 http:/ /www2.ed .gov /prin t/admins/finaid/accred/accteditation.htrrtl.
9 ld. .
10 ld. ·
11 !d.
1 ~ www.chea:brg!pdf/Recognition_Policy-June_28_2010-FINAL.pdf.
1 /d. .
I higher education volunteer professionals, and calls for substantial investment of institutional, accrediting organization, and volunteer time and effort."14 As stated in the AAO's July 26, 2013 decision, the DOE and CHEA recognize six regional associations th~t accredit U:S. colleges and universities, one of which is the Western Association of Schools a:nd Colleges (W ASC), the ~ccrediting association with jurisdiction over California, where is located. 15 WASC's website lists all accredited ~nstitutions within its jurisdiction, and is not named as one of the accredited institutions. See www.wascsen"ior.org/apps/in:stitlltions (accessed November 6,2013). Therefore, 1 has not been accredited by a recognized accrediting agency. While is approved to operate in California by the Bureau for Private Posts¢~ond~ry Education (BPPE); the fact remains th~t it is an unaccredited institution. The State of California acknowledges "accreditation as an indication of the quality of edu~tion offered," and that institutions "must be accredited by an agency recognized by the [DOE] in order for it or its students to receive federal funds." http:/ /www.cpec.ca.gov/x _college guide_ old/accreditation. asp. California's Education Code stateS that approval to operate in California is gra_nted ~{t~r the BPPE has verified that the institution "has the capacity to satisfy the minimum operating standards.'' Cal. Ed. Code section 94887. Accreditation provides assurance of a basic level of quality of the education provided by an institution as well as the nationwide acceptance of its degrees. A degree from a state approved inslitutioo. that i.s: unaccredited does not provide a sufficient assurance of quality. Therefore, since the beneficiary's .in Master's degree in International Business from · is not from an accredited institution of higher education, it does not qualify as an advanced degree within the meaning of 8 C.P.R. § 204.5(k)(2).
The AAO rejects counsel's claim that the beneficiary's degree from should be accepted as an· advanced degre~ because U.S. Immigration and Customs Enforcement .has approved the school to enroll foreign students·-under the Student and Exchange Visitor Program. The approval of an institution to enroll nonimmigrant foreign Students pursuant to 8 C.F.R. § 214 .. 3 is unrelated to the requirements for immigrant classification as ' an advanced degree professioi}~J}. As stated in the AAO's July 26, 2013 decision, a broad range of educational institutions may be approveq to enroll foreign students, including commllnity colleges, junior cofleges, seminaries, conservatories, high schools, elementary schools, and institutions which provide language training, instruction in the liberal arts or fine arts, and/or instruction in the professions. Id. The fact (hat an institution is authorized to enroll nonimmigrant students does not mean that its degrees meet the requirements of an advanced degree under 8 C.F.R. § 204.5(k)(2). Counsel takes issue with this assertion thcH After reviewing all of the evidence in the record, it is concluded that t~e petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (Qr a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the speci~ty.Five years of progressive experience not documented Therefore, the beneficiary 14 /d.
does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act. ·
The Minimum Requirements of the Offered Position
The petitioner must also establish that t_he benefi~iary satisfied all of the educational, training, experience and any other requirements Of the offered position by the priority date. 8 C.F.R. § l03.~(b)(1), (1Z). See Matter o/Wzng 's Tea !louse, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see _a./so Matter o[Katigbak, 14 I&N l)ec , 45,49 (Reg. Comm. 1971).
In evaluating the job offer portion of the labor certification to determine the required qua1ifications for the position; 'USCIS may not ignore a teriJl of the labor certification, nor may it impose additional requirements. See Madariy, 696 F.Zd at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Re(l Commissary of Massachusetts, Inc. v .. Coomey, 661 F.2d 1 (1st Cit. 1981).
Where the job requirements iii a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, users must examine "the' language of the .labor certification job requirements" -in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which l,JSCIS 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." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). tJSCIS's interpretation of the job's requirements, as Stated on the labor certification mu_st involve '·'reading and applying the plgin language of the [labor certification]." /d. at 834 (emphasis added). · users cailllot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the .labor certification. Even though the labor certification may be prepared with the ben~ficiary iii mind, USCIS has an independent role in determining whether the beneficiary meets the "labor certification requirementS. See Snapnames.com; Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. N(>V. 30; 2006).
In the instant case, the labor certification states that the offered position requires a Master's degree in ''Business A~ministration or related," or in an alternate field of study, "Health Administration or medical related." . For the reasons explained above, the· petitioner has failed to e_stablish that the beneficiary possesses a Master's degree in "Business Administration," in "Health Administra.tion," or a tna.ster' s degree in a related field of study to these degrees.
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
The Ability to Pay the Proffered Wage
The petitioner must demonstrate the continuing ability to pay the proffered wage from the priority date onward. Tbe regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any petition 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 a.t tlte time the priority date is es~ablished 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 ~ax returns, or audited fmancial statements.
Oil motion, counsel has submitt.ed suf{ici~_nt evidence to establish that the petitioner has the continuing ability to pay the beneficiary's proffered wag~. Therefore, the AAO~s previous holding regarding the petitioner's ability to pay the proffered wage is withdrawn.
Conclusion
In summary, the petitioper f(liled to establish that the beneficiary possessed an . advanced degree as required by the tetrns of the labor certificatiol) and the requested preference classification. Therefore, the beneficiary . does . not qualify for classification as a member of tbe professiOilS holding an advanced degree under section 203(b )(2) of the Act. ·As stated above, the petitioner has established its ability to pay the beneficiary's proffered wage, anci the AAO's July 26, 2013 finding ill. this regard is withdrawn. However, the other aspects of the AAO's July 26, 2013 decision are affirmed.