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 /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,
Mosln"berg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas 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 a non-profit long-term rehabilitation care provider. It seeks to employ the beneficiary permanently in the United States as an occupational therapist. As required by statute, an ETA Form 9089, Application for Permanent Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education stated on the labor certification and denied the petition, accordingly.
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. 1
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. 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.
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered."
As set forth below, the ETA Form 9089 does not require an alien with exceptional ability and does not permit an alternate master's degree educational equivalency of a baccalaureate degree plus five years of progressive experience in the specialty.Five years of progressive experience not documented
To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). Here, the ETA Form 9089 was accepted for processing on 1 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.F.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).
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NON-PRECEDENT DECISION
November 15, 2011, which establishes the priority date. 2 The Immigrant Petition for Alien Worker (Form 1-140) was filed on August 6, 2012.
The director denied the petition on November 28, 2012, finding that the beneficiary does not have a U.S. Master 's degree in Occupational Therapy or a foreign equivalent degree as required by the terms of the labor certification.
Visa Classification
At the outset, it is noted that section 212(a)(5)(A)(i) of the Act and the scope of the regulation at 20 C.F.R. § 656.1(a) describe the role of the DOL in the labor certification process as follows: In generaL-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 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 left to U.S. Citizenship and Immigration Services (USCIS) to determine whether the proffered position and alien qualify for a specific immigrant classification or even the job offered. 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). 3 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 of the 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).4 Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Cpurt of Appeals for 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.
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)[5] of the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, and available United States workersfor 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.) Id. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d at1309.
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, qualifications, users may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. Id. 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 application form]." See Id. at 834.. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.
ETA Form 9089
The required education, training, experience and skills for the offered position are set forth at Part H of the labor certification. In the instant case, the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Master's in Occupational Therapy
H.5. Training: None required.
H.6. Experience in the job offered: None required.
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
Occupational Therapy. As proof that the Alien's foreign degree is equivalent to a U.S. Master's degree (U.S. Advanced Degree), Employer will accept a credentials evaluation that has been performed by an independent credentials evaluator who has provided a credible, logical and well documented case for such an equivalency determination that is based solely on the alien's foreign degree.
As set forth above, the proffered position requires a Master's degree in Occupational Therapy or a foreign equivalent degree, as well as a Georgia license to be an occupational therapist. That the beneficiary possesses the necessary credentials for licensure in Georgia as set forth in H.14 is not an issue. The petitioner must establish, however, that the beneficiary not only is a member of the professions holding an advanced degree, but also satisfied all of the educational, training, experience and any other requirements of the offered position as of the priority date. 8 C.F.R. §§ 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the job offer portion of the ETA Form 9089 to determine the required qualifications for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th . Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames.com, Inc. v. Chertoff, No. CV-06-65.MO, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006). Beneficiary's Credentials
Part J of the labor certification signed by the beneficiary and the petitiOner, states that the beneficiary's highest level of education related to the offered position is a Master's degree in Occupational Therapy from . completed in 1999.5
The record of proceeding contains a copy of the beneficiary's diploma and transcripts from ri . - , as well as evidence of the beneficiary's occupational therapy licensure in Georgia. The beneficiary's diploma states that she received a Bachelor of Science in Occupational Therapy on March 23, 1999 from _ The accompanying transcript of grades states that the beneficiary's Bachelor's degree was awarded following a five-year course of study including a final year of the program consisting of ten-months of clinical education and thesis writing.
The petitioner also submitted copies of two "Visa Credential Verification Certificate(s)" from 2006 and 2011 from the National Board for Certification in Occupational Therapy, Inc. (NBCOT) stating 5 The AAO accepts the petitioner's explanation that on Part J.ll of the ETA Form 9089, it was attempting to represent its position that the beneficiary possesses the U.S. equivalency of a Master's degree and was not intentionally misrepresenting the beneficiary's Bachelor's degree. p. 7 that the beneficiary has met the requirements of section 212(a)(5)(C) of the Act and the regulation at 8 C.F.R. § 212.15, for the profession of occupational therapy. 6 The petitioner also submitted a "Letter of Certification of Education Comparability ," dated January 4, 2011, signed by the The letter states that the beneficiary submitted an Education Comparability Determination (ECD) Application and supporting documents and it was found that her education "is comparable to a U.S . entry-level post-baccalaureate degree (U.S. entrtlevel master 's degree) in occupational therapy " and that she meets U.S. certification standards . The petitioner subsequently submitted a copy of the beneficiary's application for educational comparability, where she listed the courses that she had completed to obtain her Bachelor of Science from , However, the professional sources for the letter's determination were neither named nor provided. Further, the regulation at 8 C.F.R. § 212.15(f)(1)(iii) also provides that such verifications are not binding on DHS. Moreover , it does not extend to determining whether (1) the beneficiary's education satisfies the second preference visa classification of "advanced degree" or (2) the beneficiary's education satisfies the minimum requirements stated on the ETA Form 9089, the issue in the instant petition . The record does not contain any evidence that Georgia , or any other state, requires a foreign-educated applicant to hold a single degree equivalent to a U.S. master's degree in occupation al therapy, the educationDegree not shown to be a U.S. advanced degree equivalent
sets forth her evaluation of the beneficiary's courses (dividing them on the evaluation into categories of undergraduate liberal arts credits, undergraduate health/science prerequisite credits, professional coursework credits, and professional internship credits), and presents a list of the U.S. credit equivalency for the courses. l determines that the cumulative number of credits equates to a U.S. Master's degree . The evaluation concludes that the beneficiary has completed a five-year program of academic study culminating in the award of a Bachelor of Science in Occupational Therapy from _ . The evaluation additionally determines that it is the U.S. equivalent of a Master's degree in Occupational Therapy.
The AAO issued a Notice of Intent to Dismiss (NOID) to the petitioner on August 2, 2013.8 The AAO notified the petitioner that it had consulted the website maintained by the American Association of Collegiate Registrars and Admissions Officer (AACRAO). Founded in 1910, AACRAO is a nonprofit, voluntary, professional association of approximately 11,000 higher education admissions and registration professionals who represent approximately 2,600 institutions and agencies in the United States.9 Its mission is to serve and advance higher education by providing leadership and academic and enrollment services. !d. According to the login page, EDGE is a "web-based resource for the evaluation of foreign educational credentials" that contains 232 country profiles and is updated and expanded regularly as educational systems change. 10 USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies.
8Counsel is correct in noting the AAO's error in referring to the National Council on the Evaluation of Foreign Educational Credentials, which ceased to operate in 2006.
According to the EDGE overview of the Philippines educational system , authored by The Philippine Government essentially kept the American educational model though one major exception was made. Strong central control over the educational system , reminiscent of the Spanish model , provides a stark contrast to the situation prevalent in the United States.
Admission to higher education is based on high school graduation and other internal institutional requirements. Two and four.:year colleges exist offering programs varying from 1-year Certificates , two-year Associates degrees , to bachelor 's, master ' s, and doctoral degrees . Very reflective of their similarly-named U.S. counterparts , the post-secondary degrees/diplomas require specific units and types of coursework as mandated by CHED [Commission on Higher Education]. The units are defined identical to American semester units (and Philippine schools operate on a semester calend ar), however, the large average number of units per semester (20-24 per term) leads most U.S. evaluators to count them as equal to .75 a U.S. semester credit hourY
According to EDGE , a Bachelor of Science from the Philippines represents attainment of a level of education "comparabl e to a bachelor ' s degree in the United States ."14 Additionally , it describes the Filipino Bachelor of Science as representing:
Four to five years beyond the high school diploma (except Law which is an advanced degree as in the USA) with four being the most common length (Architecture, Engineering, Physical Therapy and Occupational Therapy for example, are five ).
As noted above, EDGE recognizes that the Filipino Bachelor of Science in Occupational Therapy may represent a five-year program of study. The AAO's NOID concluded that based on the conclusions of EDGE, the evidence in the record is not sufficient to establish that the beneficiary possesses the foreign 12 See http:ijedge.aacrao.orglcountry/author/philippines-author (accessed March 20, 2014). 13 See http:ijedge. aacrao.orglcountry/overview /philippines-overview (accessed March 20, 2014 ). There is no indication on the FIS evaluation whether a formula equal to .75 a U.S semester credit hour was used .
1 4See also Harrison , Jennifer , Ed., Foreign Educational Credentials Required, Fifth Edition, AACRAO: 2003 , p. 181.
equivalent of a U.S. Master's degree in Occupational Therapy as required by the terms of the labor certification.
As set forth above, section 203(b)(2) of the Act provides that a Bachelor's degree followed by five years of progressive experience is considered the equivalent of a Master's degree. However, in this matter, the ETA Form 9089 does not provide for this alternate equivalency and requires an actual Master's degree or a foreign equivalent degree.
On appeal and in response to the AAO's NOID, counsel asserts that the credential evaluation provided by FIS establishes that the beneficiary's Bachelor of Science in Occupational Therapy is the U.S. equivalent of a Master's degree in Occupational Therapy. Counsel also asserts that the NBCOT certification supports this determination and the state of Georgia accepted these findings in issuing a license to her. Counsel maintains that the AACRAO EDGE evaluation did not individually recognize the individual beneficiary's credentials. Further, as noted above, counsel submitted a copy of a memo from of FIS to counsel defending the position she took with regard to the beneficiary's Bachelor's degree from - · · as equivalent to a U.S. M~ster's degree; copies of e-mails from counsel's office to ; (author of EDGE report on Philippines) in which _ __ _ .. ________ __; refers counsel's office to the USCIS; and a copy of a memorandum No.7. Series of 1998 from the Office of the President Commission on Higher Education of the Republic of the Philippines in which the policies and standards of programs in physical therapy and occupational therapy are described, including the Bachelor of Science program in occupational therapy.
The AAO does not concur with counsel's assertion that the beneficiary's Bachelor of Science degree in Occupational Therapy is the U.S. equivalent of a Master's degree in Occupational Therapy. EDGE describes a "Master of Arts/Science degree gained in the Philippines as 1-2 years of graduate study usually requiring a thesis."16 EDGE considers this degree to be the equivalent of a U.S. Master's degree. The petitioner presented no diploma from the Philippines indicating that the beneficiary possesses a Master's degree in Occupational Therapy representing 1-2 years of graduate study. (Emphasis added). It is noted that the FIS evaluation's characterization of the beneficiary's courses as undergraduate or professional are not reflected as such on the transcript of the beneficiary's grades.17 Additionally it is observed that the overwhelming majority of courses completed by the beneficiary in her first year of study were unrelated to occupational therapy and one-third of her classes in her second year were unrelated to occupational therapy. Counsel submitted copies of materials from the American See http://edge.aacraoorg/country/credential/master-of-artssciences-etc?cid=sin (accessed March 20,2014).
Further, it appears that one of the sources relied upon by the FIS evaluation is the PIER (Projects for International Education Research) titled Philippines. is identified in AACRAO EDGE as a coauthor of the 2001 PIER report on the Philippines. No copy of this report was provided to show how it supported the FIS conclusion that the beneficiary's Filipino Bachelor of Science represents an equivalent degree to a U.S. Master's degree in Occupational Therapy.
Occupation Therapy Association's [AOTA] website containing a list of U.S. colleges and universities offering either professional entry level master's degrees, combined baccalaureate/master's degrees, or both degrees in occupational therapy in support of his assertion that such programs are similar to the beneficiary's course of study in the Philippines. However, a review of the curriculum for _ . ~ _ _ . for example, which offer a five-year combined baccalaureate/master's degrees in occupational therapy, shows that there is much less emphasis on unrelated liberal arts courses and immediate immersion in courses directly related to occupational therapy over the first two years of study when compared to the beneficiary's course of study in her first two years at
Counsel further contends that the beneficiary's Bachelor of Science degree in Occupational Therapy is the first professional degree obtained in the Philippines and is comparable to degrees such as a Bachelor of Dentistry or Bachelor of Dental Science from India or a Bachelor of Medicine and Bachelor of Surgery from Pakistan. Two unpublished AAO decisions are cited. The AAO does not find this assertion persuasive as each degree is distinct and each comes from different countries with its own educational system. Moreover, 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, unpublished 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).
Based upon all of the information above, it is found that the beneficiary has a Bachelor of Science degree in Occupational Therapy from , representing a five-year undergraduate program but not representing the U.S. equivalent of a Master's degree (or even a Filipino Master's degree). In this, the AAO does not find the FIS credential evaluation by or the NBOT determination to be probative of the beneficiary's U.S. educational equivalency or her eligibility for an advanced degree second preference visa classification. Nor has counsel demonstrated that the NBCOT issuance of a certificate is binding on USCIS or meets the regulatory definition of an advanced degree required by the second preference visa classification. As set forth in the NOID, the AAO finds the EDGE evaluation of a U.S. equivalency to a Bachelor of Science degree in Occupational Therapy issued in the Philippines to be a reliable, peer-reviewed source of information about foreign credential equivalencies.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the petition is no presumptive evidence of eligibility. users may evaluate the content of the letters as to whether they support the alien's eligibility. See id. at 795. 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 2011)(expert witness testimony may be given different weight depending on the extent of the expert's qualifications or the relevance, reliability, and probative value of the testimony).
The beneficiary does not have a United States Master's degree in Occupational Therapy or a foreign equivalent advanced degree, and, thus, does not qualify for preference visa classification under section 203(b )(2) of the Act.
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.