Degree or an Alien of Exceptional Abiiity Pursuant to Section 203(h)(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 1 Appeals Office (AAO) in your case. All of the documents 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 your case must he made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have addi1ional information that you wish to have considered, you may file a motion to reconsider or a motion lo n;opt.:n in accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fcc of $630. Tht.: specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any mi1tion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he fikd within 30 days of the decision that the motion seeks to reconsider or reopen. miD"'
Ron Rosenberg
Acting Chief, Administrative App'eals 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 he dismissed. ·
The petitioner is an energy company. It seeks to employ the beneficiary permanently in the United States as a senior SAP programmer systems analyst. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certificati(m. approved by the United States Department of Labor . (DOL). Upon reviewing the petition, the director determined that the evidence did not establish that the beneficiary possessed at least a bachelor's degree in the major field listed o~ the ETA Form 9089. 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 November 5, 2012 denial, the single issue in this case is whether the beneficiary possessed at least a bachelor's degree degree in the major field listed on the ETA Form 9089.
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), g 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 abov~ 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." ld.
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
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 employment of 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 ~n appeal is allowed by t.he_instructions to the Form I-290B, which are incorporated into the regulations at 8 C.F:R. § 103.2(a)(l). the record in the instant case provides no reason to preclude consideration of any of the documents newly submilled on appeal. See Matter of Soriano, 19 l&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 federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United States baccalaureate degree is generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (Reg'l. Cornm'r. 1977). This decision involved a petition filed under 8 U.S.C. §1153(a)(3) as amended in 1976. At that time, this section provided:
Visas shall next be 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 Commitlee 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. Con f. Rep. No. 955, 101 st Cong., 2"d Sess. 1990, 1990 U .S.C.C.A. N. 6 784, 1990 WL 201613 at *6786 (Oct. 26; 1990).
At the time of ~nactment 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 tor second preference immigrant visas. We rriust 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 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60YOO (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 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, 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/east 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 Ac.t 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 uf S~ah, 17 l&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 tive 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)(l3) 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 tive years of progressive experience in the specialty). 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 awardeq 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. § 2t4.2(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.
' . ' ~ de'gree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991 ). Compare ~ 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"). When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term oft~~ labor certification, nor may it impose additional requirements. See Madany; ()<)() F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. /d. 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 labor certification is to examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. ~29, ~33 (D. D.C. llJ84) (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 ofthe labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the ETA Form 9089. ·
The key to determining the job qualifications is found on ETA Form 9089 Part H. Thfs section of the application for alien labor certification, "Job Opportunity Information," describes the terms and conditions of the job offered. It is important that the ETA Form 9089 be read as a whole.· The required education, training, experience, and special requirements for the offered position are 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 "computer science or related" and 60 months of experience in the alternate occupation of computer systems analyst.
On the section of the labor certification eliciting information of the beneficiary's education, and elsewhere in the record, he states that he received a Bachelor of Technology degree in chemical engineering from in India. He also received a Master of Science degree in engineering from the in the U.S.
The record contains the following educational evaluation:
I
- An evaluation from Queens College. The evaluation is dated October 4, 2012. The · evaluation is signed by The evaluation describes the beneficiary's Master of Science degree in engineering and more than eight years of progressive experience as being the equivalent of a U;S. Bachelor of Science degree in computer information systems.
The labor certification and regulation cited above requires that an applicant for the proffered position have at least a bachelor's degree. The designated field of study on the ETA Form ?089 is computer science or related field. . ...
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 det~rmination regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive 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' corroborat ed, in accord with other information or is in any way questionable. /d. at 795. See alsu Matter of Sojji"ci, 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 qualitications or the relevance , reliability, and probative value of the testimony).
The degree evaluation from Queens College used an equivalence to determine that three years of experience equaled one year of college to conclude that the beneficiary had achieved the equivalent of a Bachelor of Science degree in computer Information systems , but that regulatory-prescribed equivalence applies to non~immigrant HlB petitions, not to immigrant petitions. See 8 C.F.R . § 214.2(h)(4)(iii)(D)(5).
Moreover, while it ·may be viewed that the. beneficiary may hold a U.S master's degree, his studies do not indicate that he has ever received at least a bachelor's degree in computer science or related field. It has not been established that the beneficiary 's field of study is sufficiently related to computer science . Therefore , the beneficiary does not .qualify for preference visa classification under section 203(b )(2) of the Act.
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 r:net that burden.
ORDER: The appeal is dismissed.