Immigrant Petition for Alien Worker as a Member of the Professions Holding an 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 Jaw 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/forms for the 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,
/4-A ftr
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed .
The petitioner describes itself as an electric utility company. It seeks to permanently employ the beneficiary in the United States as a "Support Analyst IV." The petitioner requests classification of the beneficiary as an advanced degree professional pursuant 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.
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is July 12, 2013?
Part H of the labor certification states that the offered position has the following mm1mum requirements:
H.4. Education: Master's degree in Computer Information Systems.
H.5. Training: None required .
H.6. Experience in the job offered: 24 months .
H.7. Alternate field of study: None accepted.
H.8. Alternate combination of education and experience: None accepted .
H.9. Foreign educational equivalent: Accepted.
H.10. Experience in an alternate occupation: None accepted.
H.14. Specific skills or other requirements: "Master's degree in Computer Information Systems or closely related field (or foreign equivalent) and 2 years of experience in SharePoint Support I Development. "
Part J of the labor certification states that the beneficiary possesses a Master's degree in Computer Information Systems from the India, completed in 2000. I he record contains a copy of the beneficiary's master's degree diploma and transcripts from the India, issued in 2000. The record also contains a copy of the beneficiary's Bachelor of Science degree in Mathematics and academic transcripts from in India issued in 1998, and the beneficiary's post-graduate diploma in Electronic Data Processing and Computer Management from the in India issued in 1998.
NON-PRECEDENTDEC~ION
The record contains an evaluation of the beneficiary's educational credentials by dated March 9, 2005. Mr. first states that the beneficiary's Bachelor of Science degree from is equivalent to "three years of academic studies toward a Bachelor of Science De2:ree in Mathematics from an accredited college or university in the United States." Mr. then states that the beneficiary's J20St-graduate Diploma in Electronic Data Processing and Computer Management from the in Mumbai constitutes "the equivalent of a bachelor's level concentration in Computer Information Systems, from an accredited college or university in the TTnite States." Mr. concludes that the beneficiary 's three year rogram at . together with his "advanced bachelor's level-studies" at the are equivalent to a "Bachelor of Science Degree, with a dual major in Mathematics and Computer
Information Systems from an accredited U.S. college or university." Mr. further concludes that the beneficiary 's Master of Computer Management degree from the · is the "equivalent of a Master of Science Degree in Computer Information Systems from an accredited U.S. college or university."
The record also contains an evaluation of the beneficiary's educational credentials prepared by for the dated April 30, 2014. Mr.
- From stating that the beneficiary worked there from March 14, 2005 until April 5, 2007.
The director's decision denying the petition concludes that the beneficiary does not possess a U.S. master's degree or the foreign equivalent thereof as required by the labor certification to qualify as an advanced degree professional under Section 203(b)(2) of the Act.
On a eal, counsel for the Qetitioner cites the evaluations from Mr. for the and Mr. and states that the director failed to accord proper weight to these evaluations. Counsel also asserts that the beneficiary qualifies as an advanced degree professional based on the combination of his education and experience due to his bachelor's degree and seven years of professional experience. ·
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. We conduct appellate review on a de novo basis. 3 We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal.4 A petition that fails to comply with the technical requirements of the law may be denied 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 (US CIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at 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 determined and certified to the Secretary of State and the Attorney General 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 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. US. Dept. ofTransp. , NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
of application for a visa and admission to the United States and 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.P.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions 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)(14) 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 ofthe Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212( a)(14) determinations .
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1 008, the 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.
NON-PRECEDENTDEC§ION
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing , qualified, and available United States workers for the job offered to the alien, and 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 workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b) , 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983) .
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available 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 users to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought
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.F.R. § 204.5(k)(l).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[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 defmed 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 relies on the beneficiary's three-year Bachelor of Science degree from India; his ost-graduate Diploma in Electronic Data Processing and Computer Management from the m
Mumbai; and his Master of Computer Management degree from the India, as together being equivalent to a U.S. master's degree.
As noted above, the p. 8 of Science Degree in Computer Information Systems from an accredited U.S. college or university." 7 The record also contains an evaluation by Mr. who concludes that the beneficiary's educational credentials are the "equivalent of a bachelor's degree and a master's degree in management information systems."
TheS'"' "'""'lw,tinn.s reach conflicting conclusions regarding the beneficiary's post-graduate program. Mr. states that the beneficiary's postgraduate Diploma in Electronic Data Processing and Computer Management from the in Mumbai constitutes "the equivalent of a bachelor's-level concentration in Computer Information Systems, from an accredited college or university in the United States." However, Mr. states that the beneficiary's postgraduate program in Electronic Data Processing and Computer Management is "equivalent to completion of a professional training program offered at a private institute in the United States." It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-592 (BIA 1988).
We have reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/About-AACRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." Id. EDGE is "a web-based resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 8
According to EDGE, the beneficiary's three-year Bachelor of Science degree is comparable to three years of university study in the United States, and the Master of Computer Management degree is comparable to a bachelor's degree in the United States. As stated above, the evaluations in the record reach conflicting conclusions regarding the beneficiary's postgraduate di lorna in Electronic Data Processing and Computer Management from the _ Even if these discrepancies were resolved, EDGE states that a post-graduate 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 post-graduate 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
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, users may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; KR.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 clearly 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 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). users 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. Even though the labor certification may be prepared with the beneficiary in mind, users 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. Nov. 30, 2006).
In the instant case, the labor certification states that the offered position requires a Master's degree in Computer
Information Systems. As stated above, Part H.8 of the labor certification does not allow for an alternate combination of education and experience. The record reflects that the beneficiary possesses the foreign equivalent of a bachelor's degree from an accredited college or university in the United States. For the reasons explained above, an in accordance with the conclusions of EDGE, the petitioner has failed to establish that the beneficiary possesses a Master's degree in Computer Information Systems or the foreign equivalent thereof. Therefore, the beneficiary does not meet the requirements of the labor certification to qualify for the position offered.
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.
Conclusion
In summary, the petitioner failed to establish that the beneficiary possessed Master's degree in Computer Information Systems as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not meet the terms of the labor certification to qualify for classification as a member of the professions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed. p. 11 The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. 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.