Degree or an Alien of Exceptional Ability 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 Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please he a<.lvised that any further inquiry that you might have concerning your case must be made ' to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have add it inn;d information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance ·with the instructions on Form I-290B, Notice of Appeal or Motion, with a fcc of SoJO. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion directly with the AAO. Please he 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.
~u, .
\a-~ Wsenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
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· DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petllton. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on October 1, 2012, the AAO dismissed the appeal. Counsel filed a motion to reopen and a motion to reconsider (MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5 . The motion to reopen will be granted, the motion to reconsider will be denied, the previous ~ecision of ttie AAO will be affirmed, and the petition will be denied.
The petitioner is a software development and consulting services company. It seeks to employ the beneficiary permanently in the United States as a senior programmer analyst pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, a labor certification accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification . The director denied the petition accordingly. The AAO affirmed this determination on appeal.
In pertinent part , 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 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. In dismissing the appeal, the AAO concluded that a certificate of membership as an associat e of the Institution of Electronics and Telecommunications Engineers (IETE), in India, is not a degre e issued by a college or university, and, thus, is not sufficient to establish that the beneficiary possesses a . U.S. bachelor's degree, or a foreign equivalent degree, as required by the terms of the J~bor certification and the advanced degree professional classification.
The regulation at 8 C.F.R . § 103.5(a)(2) states in pertinent part:
Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence ....
On motion .to reopen, counsel submitted additional . evidence and stated new facts to show that the benefiCiary satisfied the minimum level ofeducation stated on the labor certification. The motion to reopen thus qualifies for consideration under 8 C.F.R. § 103.5(a)(2) · because the petitioner is providing new facts with supporting documentation not previously submitted.
The beneficiary is an Associate Member of the IETE . Thus, the issue is whether the beneficiary's professional certification is a foreign degree equivalent to a U.S. baccalaureate degree. p. 3 Eligibility for the Classification Sought
As noted above, the ETA Form 9089, Application for Permanent Employment Certification , in this matter is certified by the Department of Labor (DOL). The DOL's role is limited to detcnnining 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 ~mployed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.l(a). 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 detenriination 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 (9th 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. Comm'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 degi-ees 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 the professions." H.R. Conf. Rep. No. 955, l01 t Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, li.JlJO 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 tor second prefer{!nce 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 intendto alter the agency's interpretation of that term. See Lorillard v. i.Jons, 434 U.S. 575 , 580 -81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it p. 4 adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (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 allm-v f<x 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 atle(Jst a bachelor's degree.
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 th.e 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 degree." (Emphasis added .) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare H C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an oflicial academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school orother institution oflearning .relating to the area of exceptional ability"'). Because, as explained infra, the beneficiary does not have a bachelor's degree, the beneficiary docs not qualify for preference visa classification under section 203(b)(2) of the Act as he does not have the minimum level of education required for the equivalent of an advanced degree.
Qualifications for the .I oh Offered
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth Circuit (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 (91h Cir. 1983). The court relied on an amicus brief from DOL that stated the following:
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)[(5)l 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.
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(Emphasis added.) /d. at 1009. The Ninth Circuit, citing K.R.K.Irvine, Inc., 699 F.2d at lOOn, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the aiicn is in fact qualified to fill the certified job offer." Tongatapu, 736 E 2d at 1309.
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madanv, 696 F.2d at 1015. USCIS must examine "the language of the labor certification joh 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 a 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. 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 alien employment 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 the DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.
The required education, training, experience, and special requirements for the offered position are set forth at Part H of the ETA Form 9089. Here, section H, items 4 through 14 indicate ' that the position requires a bachelor's degree, or foreign educational equivalent, in computer science or engineering and 60 months of experience in the alternate occupations of programmer analyst, tech support provider, system administrator, or tech service.
The beneficiary set forth his credentials on the labor certification and signed his name, updcr a declaration that the contents of the form are true and correct, under the penally of perjury. On the section of the labor certification eliciting information of the beneficiary's education he indicates that he is an Ao;;sociate Member of the IETE.
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). EDGE confirms that an Associate Membership from IETE upon passing th~ final examination. represents attainment of a level of education comparable to a bachelor's degree in .the United States. The record contains documentary evidence showing the beneficiary in the instant case passed the final exam and was awarded a certificate of membership as an associate of the JETE. However, as explained above , the regulation contains a degree requirement in the form of an official college or university record; The IETE is not an academic institution that can confer an actual degree with an official college or university record. The beneficiary is not eligible for. classification as an advanced degree professional because he has not earned a U.S. bachelor's degree or a torcign equivalent degree even though his membership in the IETE represents a combination of education and experience comparable to a U.S. bachelor's degree. See Snapnames.com,1nc. v. Michael Cherwjj; CV 06-65-MO (0. Ore. November 30, 2006). In that case, the labor certification application specified an educational requirement of four years of college and a ' B.S. or toreign equivalent.· The district court determined that 'B.S. or foreign equivalent' relates solely to the alien's educ<ttional . . p. 7 background, precluding consideration of the alien's combined education and work experience. Snapnames.com, Inc. at 11-13. In professional and advanced degree professional cases, where the beneficiary is statutorily required to hold a baccalaureate degree, the court determined that USCIS properly concluded that a single foreign d~gree or its equivalent is required. Snapnames.com, Inc. at 17, 19.
·On appeal, counsel asserts that Indian government and the Union Public Service Commission (UPSC) recognize that Associate Membership from IETE is a foreign equivalent degree to a bachelor's degree. However, USCIS is not bound by a foreign government decision. In addition, the Indian government does not have jurisdiction to determine whether USCIS considers an Indian diploma, certificate, or degree as a single source foreign equivalent degree to a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent
Cn11nc;:eJ ~lc;:n states that the beneficiary's admission to the master's degree program at the _ is evidence that Associat~ Membership from IETE is equivalent to a U.S. bachelor's degree since a bachelor's degree is required for admission to the master's degree program. However, the petitioner failed to submit evidence from the that they do, in fact, accept Associate Membership from IETE as being the equivalent to a U.S. bachelor's degree. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec . 190 (Reg'l Comm'r 1972)) .
According to its website, IETE is· a professional society. 2 While JETE may offer courses and examinations, there is no evidence that IETE is a college or university or that membership is a "degree." See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006) . (finding USCIS was justified in concluding that membership in the Institute of Chartered Accountants of India was not a college or university "degree" for purposes of classification as a member of the professions holding an advanced degree).
In summary, although the petitioner has submitted evidence stating that the beneficiary's IETE membership represents a combination of education and examinations comparable to a four-year U.S. bachelor's degree, the petitioner has not established that it is a "foreign ~.:quivalcnt degr~.:e" as required by 8 C.F.R. § 204.5(k)(2). IETE is a professional engineering organization, not a college or university. Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree" from a college or university, the beneficiary does not qualify .for preference visa classification und(;!r section 203(b)(2) of the Act.
Therefore, the AAO has concluded that the beneficiary's combined education and professional certification is not equivalent to a U.S. bachelor's degree and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act. In addition, the beneficiary does not ~eet the job requirements on the labor certification. For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved.
2 http://www.iete.org/theiete.htm (accessed March 21, 2013).
The regulation at 8 C.F.R. § 103.5(a)(3) states:
Requiremellls for motion to reconsider. A motion ·to reconsider must state the reasons .. for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was.based.on an incorrect application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision .
On motion to reconsider, the petitioner failed to . supporf the motion · with any pertinent precedent decisions establishing that the AJ\O's decision was based on an incorrect _application of law or policy. Therefore, the motion, to the extent it is a motion to reconsider, will be _denied -for failing to meet applicable requirements. 8 C.F.R. § 103.5(a)(4).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, ~ u.s.c. § 1361.
ORDER: The motion to reconsider is denied. The motion to reopen is granted and the decision of the AAO dated October 1, 2012 is affirmed. The appeal is dismissed, and the petition is denied. (