Advanced 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 (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present 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 instructions at http://www.uscis.gov/fornis for the latest information on fee, filing location, and other requirements. See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. Thank you, i{j{ -\cJ.r
~~Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center (the director), denied the employment based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a computer programming services firm. It seeks to employ the beneficiary permanently in the United States as a computer programmer pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). In pertinent part, section 203(b )(2) of the Act 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. As required by statute, the petition was accompanied by certification from the United States Department of Labor (DOL). The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director also found that the beneficiary did not meet the minimum requirements of the labor certification. The director denied the petition according! y. 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 15, 2013 denial, one issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.
The regulation at 8 C.P.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 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 Form ETA 750, Application for Alien Employment Certification, was accepted for processing by any office within the employment system of the DOL. See 8 C.P.R. § 204.5( d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750, Application for Alien Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the Form ETA 750 was accepted on November 2, 2004. The proffered wage as stated on the Form ETA 750 is $1,571.20 per week ($81,702.40 per year). The Form ETA 750 states that the position requires a Master's degree in computer science or a Bachelor's degree in computer science with five (5) years of experience, plus five (5) years of experience in the proffered position.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.
On appeal, counsel submits a brief, financial documents, copies of case law, education and experience documents and copies of documentation already in the record.
The record indicates the petitioner is structured as a limited liability company and filed its tax returns on IRS Form 1065.2 On the petition, the petitioner claimed to have been established in 2007 and to currently employ 1 worker. On the Form ETA 750, signed by the beneficiary on October 6, 2004, the beneficiary claimed to have worked for the petitioner since May 2002. The petitioner must establish that itsjob offer to the beneficiary is a realistic one. Because the filing of a Form ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the Form ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning business will be The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.P.R. § 103.2(a)(1). 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). 2 A limited liability company (LLC) is an entity formed under state law by filing articles of organization. An LLC may be classified for federal income tax purposes as if it were a sole proprietorship, a partnership or a corporation. If the LLC has only one owner, it will automatically be treated as a sole proprietorship unless an election is made to be treated as a corporation. If the LLC has two or more owners, it will automatically be considered to be a partnership unless an election is made to be treated as a corporation. If the LLC does not elect its classification, a default classification of partnership (multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply. See 26 C.P.R. § 301.7701-3. The election referred to is made using IRS Form 8832, Entity Classification Election. In the instant case, the petitioner, a multi-member LLC, is considered to be a partnership for federal tax purposes. p. 4 considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will first examine whether the petitioner employed and paid the benefjciary during that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the petitioner 's ability to pay the proffered wage. In the instant case, the record includes Internal Revenue Service (IRS) Forms W-2 issued by the petitioner to the beneficiary in 2004-2008 and 2010-2012 stating the following compensation:
Year W-2 Wage Remaining
Balance
2004 $45,000.00 $36,702.40
2005 $37,500.00 $44,202.40
2006 $41,250.00 $40,452.40
2007 $54,000.00 $27,702.40
2008 $75,600.00 $6,102.40
2009 $0.00 $81,702.40
2010 $75,600.00 $6,102.40
2011 $63,000.00 $18,702.40
2012 $69,300.00 $12,402.40
Therefore, for the years 2004 through 2008 and 2010 through 2012, the petitioner has established that it employed and paid the beneficiary partial wages. Since the proffered wage is $81,702.40 per year, the petitioner has to establish that it can pay the difference between the wages actually paid to the beneficiary and the proffered wage in 2004 through 2008 and 2010 through 2012. For the year 2009, the petitioner has not established that it employed and paid the beneficiary the full or partial proffered wage.
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano , 558 F.3d 111 (1 Cir. 2009); Taco
Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's wage expense is misplaced. Showing that the petitioner paid wages in excess of the proffered wage is insufficient.
With respect to depreciation, the court in River Street Donuts noted:
The AAO recognized that a depreciation deduction is a systematic allocation of the cost of a tangible long-term asset and does not represent a specific cash expenditure during the year claimed. Furthermore, the AAO indicated that the allocation of the depreciation of a long-term asset could be spread out over the years or concentrated into a few depending on the petitioner's choice of accounting and depreciation methods. Nonetheless, the AAO explained that depreciation represents an actual cost of doing business, which could represent either the diminution in value of buildings and equipment or the accumulation of funds necessary to replace perishable equipment and buildings. Accordingly, the AAO stressed that even though amounts deducted for depreciation do not represent current use of cash, neither does it represent amounts available to pay wages.
We find that the AAO has a rational explanation for its policy of not adding depreciation back to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense.
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the net income figures in determining petitioner's ability to pay. Plaintiffs ' argument that these figures should be revised by the court by adding back depreciation is without support." Chi Feng Chang at 537 (emphasis added).
In K.C.P. Food, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, now USCIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the argument that the Service should have considered income before expenses were paid rather than net income.. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses).
The record before the director closed on December 6, 2012 with the receipt by the director of the petitioner's submissions in response to the director 's request for evidence. As of that date, the petitioner's 2011 federal income tax return was the most recent return available. The petitioner's tax returns stated its net income as:
- In 2004, the petitioner's Form 1065 stated net income of -$6,594.00.3 3 For an LLC taxed as a partnership, where a partnership's income is exclusively from a trade or business, USCIS considers net income to be the figure shown on Line 22 of page one of the petitioner's Form 1065, U.S. Partnership Income Tax Return.
- In 2005, the petitioner's Form 1065 stated net income of -$3,222.00.
- In 2006, the petitioner's Form 1065 stated net income of -$1,764.00.
- In 2007, the petitioner's Form 1065 stated net income of -$9,803.00.
- In 2008, the petitioner's Form 1065 stated net income of -$7,114.00.
- In 2009, the petitioner's Form 1065 stated net income of -$8,653.00.
- In 2010, the petitioner's Form 1065 stated net income of -$7,375.00.
- In 2011, the petitioner's Form 1065 stated net income of -$3,193.00.
Therefore, for all relevant years the petitioner did not establish that it had sufficient net income to pay the proffered wage or the difference between the wages actually paid to the beneficiary and the proffered wage.
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner's net current assets. Net current assets are the difference between the petitionc~r's current assets and current liabilities. 4 A partnership's year-end current assets are shown on Schedule L, lines 1(d) through 6(d) and include cash-an hand, inventories, and receivables expected to be converted to cash within one year. Its year-end current liabilities are shown on lines 15(d) through 17(d). If the total of a partnership's end-of year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. Schedule L of the petitioner's Form 1 065 is blank for all relevant years.5 The petitioner provided no other evidence of its net current assets. Therefore, for all relevant years the petitioner did not establish that it had sufficient net current assets to pay the proffered wage or the difference between the wages actually paid to the beneficiary and the proffered wage. Thus, from the date the Form ETA 750 was accepted for processing by the DOL, the petitioner had not established that it had the conti nuing ability to pay the beneficiary the proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its net income or net current assets.
On appeal, counsel contends that the petitioner need not pay the proffered wage if it has paid the prevailing wage, citing Masonry Masters, Inc. v. Thornburgh, 742 F. Supp. 682 (D.D.C. 1990), remanded in 875 F.2d 898 (D.C. Cir. 1989). That holding is not binding outside the District of Columbia, and it does not stand for the proposition that a petitioner's unsupported assertions have greater weight than its tax returns.Claims not backed by documents The Court held that USCIS should not require a petitioner to show the ability to pay more than the prevailing wage. Counsel has not shown a difference between the proffered wage and the prevailing wage in this proceeding, and the petitioning organization is not located in the District of Columbia.6 See also, Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989). Alternatively, counsel contends that the proffered wage of $1,571.20 per week should not be used for all years, as the DOL amended the proffered wage on April 12, 2007.7 However, the proffered wage as of the priority date is the wage of $1,571.20, as amended on April 12, 2007. The fact that the original wage listed by the petitioner on Form ETA 750 was lower than the amended wage does not excuse the petitioner from paying the full amended proffered wage from the priority date onwards.
On appeal, counsel asserts that the AAO should pierce the corporate veil and consider the assets of the petitioner's owners as evidence of the petitioner's ability to pay the proffered wage. However, because a corporation is a separate and distinct legal entity from its shareholders, the assets of its owners cannot be considered in determining the petitioning entity's ability to pay the proffered wage. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980), and Matter of Tessel, 17 I&N Dec. 631 (Acting Assoc. Comm'r 1980).8 An LLC, like a corporation, is a legal entity separate and distinct from its owners. In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.P.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." The debts and obligations of the company generally are not the debts and obligations of the owners or anyone else.9 An investor's liability is limited to his or her initial investment. As the owners and others only are liable to his or her initial investment, the total income and assets of the owners and others and their ability, if they wished, to pay the company's debts and obligations, cannot be utilized to 6 Counsel submits online wage library printouts reflecting that lower-level computer programmers prevailing wages were lower than the proffered wage; however, entry-level computer programmers only require a Bachelor's degree, whereas in the instant case, the proffered wage is for a computer programmer with a Master's degree plus five (5) years of experience or a Bachelor's degree plus ten (10) years of experience. Moreover, as discussed above, the holding of this case is not binding upon the instant case.
demonstrate the petitioner's ability to pay the proffered wage. The petitioner must show the ability to pay the proffered wage out of its own funds.
Counsel states that a DOL Board of Alien Labor Certification Appeals (BALCA) cases are applicable to the instant petition before the Department of Homeland Security's AAO. Citing to Ohsawa America, 1988-INA-240 (BALCA 1988), counsel states that this case stands for the proposition that the $4 million personal assets of the corporate owner were sufficient and should have been considered in determining the ability to pay the proffered wage in that case. Citing to Ranchito Coletero, 2002-INA-104 (2004 BALCA), counsel states that the case stands for the premise that entities in an agricultural business regularly fail to show profits and typically rely upon individual or family assets. Counsel does not state how DOL precedent is binding in these proceedings. While 8 C.P.R.§ 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, BALCA decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.P.R. § 103.9(a).
Moreover, counsel also does not state that the BALCA panel in Ohsawa America also considered the fact that the petitioning entity showed increased revenue and decreased operating losses in addition to one of its shareholder's willingness to fund the company. In the instant petition, while the petitioner shows continuous and increasing revenue, it has increasing salaries paid out and the operating losses fluctuate year to year. Thus, in addition to not being binding precedent, Ohsawa America is distinguishable from the facts of the instant petition.
Furthermore, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the instant petition, which deals with a corporation.
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day the Form ETA 750 p. 9 determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner 's net income and net current assets. USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.
In the instant case, there is no evidence in the record of the historical growth of the petitioner's business, of the occurrence of any uncharacteristic business expenditures or losses from which it has since recovered, or of the petitioner's reputation within its industry. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
The beneficiary must meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition. 8 C.P.R. § 103.2(b)(I), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). In evaluating the labor certification to determine the required qualifications for the position, U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS 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 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." 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 [labor certification]." /d. at 834 (emphasis added). USCIS cannot 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.
In the instant case, the labor certification states that the offered position has the following p. 10 minimum requirements:
Block 14:
Education (number of years)
Grade school
High school
College
College Degree Required
Major Field of Study
Experience:
Job Offered
(or)
Related Occupation
Block 15:
Blank
Blank
Blank
M.S. or B.S. with 5 years of experience
Computer Science
5 years
Blank
Other Special Requirements The candidate must have proficiency in Visual Basic, Oracle, SQL Server, HTML/DHTML, Visual Basic/Javascript and ASP, Microsoft certification preferred.
As set forth above, the proffered position requires a Master's degree in computer science plus five (5) years of experience in the proffered position, or a Bachelor's degree in computer science with five (5) years of experience, plus another five (5) years of experience in the proffered position.
When the beneficiary relies on a bachelor's degree (and five years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree . 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., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990).
In 1991, when the final rule for 8 C.P.R. § 204.5 was published in the Federal Register , the legacy INS respgnded 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 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.
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added).
In Snapnames.com, Inc. v. Michael Chertojf, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree, users properly concluded that a single foreign degree or its equivalent is required. 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. "10 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 equivalent degree" of a United States baccalaureate degree. See 8 C.F.R. § 204.5(k)(2).
The beneficiary's degree must also be from a college or university. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equivalent degree." 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." The AAO cannot conclude that the evidence required to demonstrate that a beneficiary is an advanced degree professional is any less than the evidence required to show that the beneficiary 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. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give effect to all provisions, is equally applicable to regulatory construction). Moreover, the commentary accompanying the proposed advanced degree professional regulation specifically states that a ° Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of H-lB 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.
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30706 (July 5, 1991).11 In addition, a three-year bachelor's degree will generally not be considered to be the "foreign equivalent" of a United States baccalaureate degree. See Matter of Shah, 17 I&N Dec. 244 (Reg1. Comm'r. 1977).12 See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008) (for professional classification, USCIS regulations require the beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree); see also Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010) (the beneficiary's three-year bachelor's degree was not the foreign equivalent of a U.S. bachelor's degree).
In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Science degree in statistics (1994) from India, followed by a Master of Science in statistics (1996) from India and a post-Bachelor of Science diploma in computer science (1997) from India.
The record contains an evaluation of the beneficiary's educational credentials prepared by . for dated October 22, 2012,
An educational credentials evaluation prepared by
. dated October 24, 2012, concludes that the beneficiary's Bachelor of Science and Masters of Science is equivalent to a bachelor's degree in statistics and a master's degree in statistics in the United States. The evaluation also concludes that the beneficiary's post bachelor of science diploma is equivalent to thirty units of undergraduate coursework in the United States.
An educational credentials evaluation prepared by dated February 6, 2001, concludes that the beneficiary's bachelor's degree combined with her post-bachelor's diploma is equivalent to a bachelor's degree in computer science in the United States. The evaluation concludes that the beneficiary's master's degree is equivalent to a master's degree in statistics in the United States. The evaluations are inconsistent with each other regarding whether the beneficiary's post bachelor of science degree, completed in 1997, is equivalent to a Bachelor of Science degree or to thirty units of undergraduate coursework in the United States. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.Inconsistencies in the record Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
According to EDGE, the beneficiary's three-year Bachelor of Science in statistics is comparable to three years of university study in the United States, and the Master of Science in Statistics is comparable to a bachelor's degree in the United States.
EDGE also discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a two-year bachelor's degree represents attainment of a level of education comparable to one year of university study in the United States. EDGE also states that a postgraduate diploma following a three-year bachelor's degree represents attainment of a level of education comparable to a bachelor's degree in the United States. However, the "Advice to Author Notes" section states: Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). Some students complete PGDs over two years on a part-time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to confuse the PGD awarded after the Higher Secondary Certificate with the PGD awarded after the three-year bachelor's degree.
The evidence in the record establishes that the beneficiary's postgraduate diploma was issued by an accredited university or institution approved by AICTE and a three-year bachelor's degree was required for admission into the program of study. Therefore, based on the conclusions of EDGE, the evidence in the record on appeal is sufficient to establish that the beneficiary possesses the foreign equivalent of a U.S. bachelor's degree in computer science, but not the foreign equivalent of a U.S. master's degree.Degree not shown to be a U.S. advanced degree equivalent
Section 203(b )(2) of the Act, 8 U.S.C. § 1153(b )(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.P.R.§ 204.5(k)(l).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
3464314 (E.D.Mich. August 30, 2010), the court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the beneficiary's three-year foreign "baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a USCIS determination that the beneficiary'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 required a degree and did not allow for the combination of education and experience.
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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 A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or 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 specialty.
In the instant case, the petitioner claims that the beneficiary rna y be classified as an advanced degree professional based on a foreign equivalent degree to a U.S. bachelor's followed by at least five years of progressive experience in the specialty.
Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must include the name, address, and title of the writer, and a specific description of the duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(l). If such evidence is unavailable, USCIS may consider other documentation relating to the beneficiary's experience. /d.
The labor certification states that the beneficiary ualifies for the position based on experience as a computer programmer with India from July 1998 to September 2000; a computer instructor with . India, from October 2000 to May 2002; and a computer programmer with the petitioner from May 2002 until October 6, 2004, the date on which the labor certification was signed. No other experience is listed.
The record contains an experience letter, dated November 30, 2000, from ..___ letterhead, indicating that the company employed the beneficiary as a programmer analyst from July 1, 1998 to November 30, 2000. However, the letter does not provide the address of the employer and the title of the signatory or describe the beneficiary's duties in detail. A second experience letter, dated November 30, 2000, from _ letterhead indicates that the company employed the beneficiary as a programmer analyst from July 1, 1998 to November 30, 2000 and provides an attached detailed description of the projects and roles the beneficiary played during her tenure with the company. However, the second letter does not provide the address of the employer and the title of the signatory. Further, both experience letters are inconsistent with the information provided on the labor certification and the beneficiary's resume regarding the name of the employer, the beneficiary's title and dates of employment. The labor certification states that the beneficiary was employed as a computer programmer and the resume states that the beneficiary was employed as a computer programmer, intranet application team leader and web developer by from July 1998 to September 2000. See Matter of Ho, 19 I&N Dec. at 591-92.
The record contains an experience letter, dated May 31, 2002, from director, on letterhead, indicating that the company employed the beneficiary as a systems analyst/computer faculty from December 1, 2000 to May 31, 2002. However, the letter is inconsistent with the labor certification and the beneficiary 's resume regarding the name of the employer and with the labor certification regarding dates of employment. The labor certification states that the beneficiary was employed as a computer instructor (not a systems analyst) by _ from October 2000 to May 2002. The resume states that the beneficiary was employed by See Matter of Ho, 19 I&N Dec. at 591-92.
The record contains an experience letter dated June 30, 1998, from on letterhead, indicating that the company employed p. 17 that the beneficiary is qualified for the offered position, independent and objective evidence of this experience must be submitted in any future filings.
Therefore, the submitted experience letters do not establish that the beneficiary possesses five (5) years of post-baccalaureate experience in the specialty. Nor does the record demonstrate that the beneficiary possesses the additional five (5) years of experience in the job offered as of the priority date.
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or 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 specialty.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
Even if, the AAO were to accept the experience set forth in the above referenced experience letters, the beneficiary does not possess a further five (5) years of experience in the proffered position, as is required by the labor certification. The petitioner therefore 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 petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The appeal is dismissed.