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:
Endose_d please find the decision of the Administrative Appeals Office in your case. All of the dm:umcnts related to this matter have been returned to the office that originally decided your case. Please he advised that any further inquiry that you might have concerning yo~r case must be made to that office. If you believe the AAO inappropriately applied the I'aw in reaching its decision, or you have additional · information that you wish to have cc:>n~idered; you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form l-290B, Notice of Appeal or Motion, with a fcc of $n30. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any· motion to he filed within 30 days of the decision that the motion seeks to reconsider or reopen. rtr\7\
U\R~herg
Acting Chief, Administrative Appeals Office _www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a medical imaging and radiology company. It seeks to employ the beneficiary permanently in the United States as a marketing and public relations coordinator. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). Upon reviewing tht: petition, the director determined .that the beneficiary did not satisfy the minimum level of education stated on the labor certification or as required by the advanced degree professional classification. The director denied the petition accordingly.
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 May 7, 2012 denial~ the single issue in this case is whether the beneficiary possessed the minimum level of education stated on the labor certification and as required by the advanced degree professional visa category.
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. * 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. II' a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
The AAO conducts appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (Jd Cir. 2004). The AAO considers all · pertinent evidence in the record, including new evidence properly submitted upon appeal.
As noted above, the ETA Form 9089 in this matter is certified by the DOL. The DOL's role is limited to determining whether there are sufficient workers who are able, willing, qualified and available and whether the employmentqf the alien will adversely affect the wages and working conditions of workers,. in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). . I The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, which are incorporated into the regulations 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).
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien is qualified for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by federai circuit courts. See Tongatapu Woodc.raft Hawaii, Ltd. v. Feldman, 73fi F. 2cl _1305, 1309 (9 h Cir. 1984); Madany v. Smith;696 F.2d 1008,1012-1013 (D.C. Cir. 19~3).
A United States baccalaureate degree is generally found to Tequire four years of education. Matter . . of Shah, 17 l&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition tiled under 8 U.S.C. §1153(a)(3) as amended in 1976: At that time, this section provided:
Visas shall nextbe made available ... to qualified immigrants who are members of the professions ....
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent ....
· Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244, is identical to the statutory language used subsequent to that decision but for the requirement that the immigrant hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of Conference, published as 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 . tht.: professions." H.R. Conf. Rep. No. 955, 10P1 Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. fi7~4, IY'JO WL 201613 at *6786 (Oct. 26, 1990).
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it stated that an alien "must have a bachelor's degree" when considering equivalency for second preference immigrant visas. We must assume that Congress was aware of the agency's previous treatment of a "bachelor's degree" under the Act when the new classification was enacted and did not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-81 (197~) (Congress is presu.med to be aware of administrative and judicial interpretations where it adopts a new law incorporating sections of a prior law).· See also 5fi Fed. Reg. fi0~97, fi0900 (Nov. 29, 1991) (an alien must have at least a bachelor's degree).
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the Immigration and Naturalization Service (the Service), responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow f()r the substitution of experience for education. After reviewing section 121 of the Immigration Act of. 1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference , p. 4 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).
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 203(b)(2) of the Act as a member of the professions holding an advanced degree with anything less than a full baccalaureate degree (plus the requisite five years of progressive experience in the Specialty). More specifically, a three-year bachelor's degree will not be. considered to be the "foreign equivalent degree" to a United States baccalaureate degree . Matter of Shah, 17 I&N Dec. at 245. 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." 2 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" to a United States baccalaureate degree (plus the requisite live years of progressive experience in the specialty). 8 C.F:R. § 204.5(k)(2).
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)( B) requires the submission of an "official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent ·degree" (plus evidence of five years of progressive experience in the specialty). For classification as a member of the professions, the regulation at ~ C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study." We cannot conclude that the evidence required to demonstrate that an alien is an advanced degree professional is any less than the evidence required to show that the alien is a professional. To do so would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the commentary accompanying the proposed advanced degree professional regulation · specifically states that a "baccalaureate means a bachelor's degree received from a college or university, or an equivalent 2 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a 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. p. 5 degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 8 C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability"). The required education, training, experience, and special requirements for the offered position arc set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requires a bachelor·s degree, or foreign educational equivalent, in public relations, English, or journalism and 60 months of experience in the -job offered or in the alternate occupations of public relations officer or writer. USCIS may not ignore a term on a labor certification, nor may it impose additional requirements. See, e.g., Madany, 696 F.2d 1008.
The beneficiary set forth her credentials on the labor certification and signed her name, under a declaration that the contents of the form a:re true and correct under the penalty of perjury . On the section of the labor certification eliciting information of the beneficiary's education , and elsewhere in the record, she states that she received a Bachelor of Arts degree (no field of study indicated) from the · - · in South Africa. · ·
The record contains thefollo~ing educational evaluations ofthe beneficiary'scredentials:
- Two evaluations from The evaluations are dated
March 16, 2009 a~d June 2, 2012. The evaluations are signed by The March 16, 2009 evaluation describes the beneficiary's education as being the equivalent of .a U.S. bachelor's degree in English and Law. Additionally, her education combined with her over 11 years of professional work experience is equivalent to a second major in marketing and public relations. The June 2, 2012 evaluation describes the beneficiary's education as being the equivalent of a U.S. bachelor's degree in English and Law.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not prcsumptivc evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien's eligibility. See id. 'USCIS may ! give less weight to an opinion that ·is not corroborated , in accord with other information or is in any way questionable. /d. at 795. See also Matter of Soflici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)); Matter ofD-R-, 25 I&N Dec. 445 (BIA 201l)(expert witness testimony may be given different weight depending on the extent of the ex.pert's qualifications or the relevance. reliability, and probative value of the testimony).
The evaluations are not persuasive in establishing that 'the beneficiary ' s education from South Africa is equivalent to a U.S. bachelor's degree. Ne'ither of the evaluations compares the beneticiary's education in South Africa .to a U.S. bachelor's degree program nor do they substantiate the claim that p. 6 the beneficiary's South African degree is truly comparable to British degrees. The evaluator also fails to address the actual courses of study followed by the beneficiary. Moreover, neither of the evaluations is peer-reviewed nor relies on peer-reviewed materials in reaching the unsubstantiatc .d conclusions. Accordingly, in this matter, the AAO, similar to the Nebraska Service Center, will prefer the peer-reviewed information provided by EDGE on the equivalency of the beneficiary's foreign education to a U.S. bachelor's degree.
EDGE was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, www.aacrao.org, AACRAO is ''a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent approximately 2,600 institutions and agencies in the United States and in over 40 countries." See http://www.aacrao.org/About-AACRAO.aspx (accessed March 25, 201J and incorporated into the record of proceeding). Its mission "is to provide professional development, guidelines and voluntary standards to be used by higher education officials regarding the best practices in records management, admissions, enrollment management, administrative information technology and student services." /d. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision. . According to the login page, EDGE is "a web-based resource for the evaluation of foreign educational credentials" that is continually updated and revised by staff and members of AACRAO. Director of International Education Services, "AACRAO EDGE Login:· http://aacraoedge,aacrao.org/index.php (accessed March 25, 2013 and incorporated into the record of proceeding). In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 20 10), a federal district court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were comparable to a· U.S. bachelor's degree. In Sunshine Rehah Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a USCIS conclusion that the alien'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 itself required a degree and did not allow for the combination of education and experience. The reasoning in these decisions is persuasive.
In the section related to the South African educational system, EDGE provides that a three-year Bachelor of Arts degree "represents attainment of a level of education comparable to three years of university study in the United States. Credit may be awarded on a course-by-course basis." It is noted that, in South Africa, there are 4-year bacheior programs and "bachelor of arts honours" programs which are comparable to U.S. 4.:year bachelor's degrees. The beneficiary did not earn suth a degree.
Based on the juried opinion of EDGE, the AAO has concluded that th~ beneficiary's education more likely than not "represents attainment of a level of education comparable to three years of university study in the United States." Since the ETA Form 9089 required a bache.Ior's degree as the minimum p. 7 I • •. • level of education, the petitioner has failed ·to establish that the beneficiary possessed all the education, training, and experience specified on the labor certification as of the priority · date. ~ · C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16. I&N Dec. at 159; see alsrJ Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). Therefore, the beneficiary does not meet the job requirements on 'the labor certification. The beneficiary is also not eligible for the advanced degree professional category because she does not have a U.S. bachelor's degree or foreign degree equivalent. · ·
The burden · 'Of proof in these proceedings rests solely with . the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.