Degree or an Alien of Exceptional Ability Pursuant to Section 203(11)(2) of the Immigration ami 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 advised that any further inquiry that you might have concerning your case must be made to that ollice. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 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 1-2908, Notice of Appeal or Motion, with a lee of $630. 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 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. nv·
Ron Rosenberg
Acting Chief, Administrative Appeais Office www.uscis.gov
DISCUSSION:· The preference visa petition was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner is a medical .supply company. It seeks to employ the beneficiary permanently in the United States as a computer programmer. 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 the petition, the director determined that the beneficiary did not satisfy the minimuin level of education stated on the labor certification or as required by the advanced degree professional classification. The director denied· the petition accordingly.
I
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 8, 2011 denial, the single issue in this case is whether the beneficiary possessed the minimum level of education stated on the labor certification and as requiredby 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. If 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 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including .new evidence properly submitted upon appeal. 1
Here, the issues are whether the beneficiary's Bachelor of Commerce degree is a foreign degree equivalent to a U.S. bachelor's degree or, if . not, · whether it is appropriate to consider the beneficiary's years of experience in addition to that , degree. We must also consider whether the beneficiary meets the job requirements of the proffered job as set forth on the labor certification. 1 The submission of additional evidence on appeal is allowed by the. instructions to the Fo~m l-2lJOB, 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).
Eligibility for the Classification Sought
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL's role is limited to determining w.hether 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. ~ fi5fi.l(a). It is significant that none of the above inquiries assigned to 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 um1oticed 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. 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 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 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, 101
Cong., 2ndSess. 1990, 1990 U.S.C.C.A.N. 6784, 1990
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 (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, 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 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, 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 inust 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.
Page 5 · professional is any lessthan 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 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 ofticial 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 are set forth at Part H of the ETA Form 9089. Here, Part H shows that the position requ·ires a bachelor's degree, or foreign educational equivalent, in commerce and 84 months of experience · in the job offered. ·
The record contains a copy of the beneficiary's Bachelor of Commerce degree from The record contains the following educational evaluations (!fthe beneficiary's credentials:
- An evaluation from the . . The evaluation is dated June 21, 2011. The evaluation is signed by The evaluation describes the beneficiary's Bachelor of Commerce degree and at least 15 years of experience as being the equivalent of a U.S. bachelor's degree in computer information systems.
The evaluator describes the beneficiary's education alone as being equivalent to 3 years of university study in the U.S.
- An evaluation from The evaluation is dated
June 29, 2009. The evaluation is signed by The evaluation describes the beneficiary'sBachelor of Commerce degree and more than 12 years of experience as being the equivalent of a U.S . . Bachelor of Science degree in computer information systems. The evaluation describes the beneficiary's degree alone as being equivalent to 3 years of university study in the U.S. ·
- An .evaluation .from The evaluation is dated March 22, 2013. The evaluation describes the beneficiary's Bachelor of Commerce degree and more than 12 years of experience as being the equivalent of a U.S. Bachelor of Science degree in computer information systems. The evaluator notes that the beneficiary's education is "substantially similar to ... the first three years of coursew<?rk in a four-year Bachelor's Degree program ... in the United .States."
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 p. 6 ultimately responsible for making the final determination regarding an alien's eligibility fw the benefit sought. /d. The submission of letters from experts supporting the petition is not p'resumptive 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 Soflh:i, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California , 14 l&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 AAO has reviewed the Electronic Database for Global Education (EDGE) 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 approximatel y 2,600 institutions and agencies in the United States and in over 40 countries. " See http://www.aacrao.org/About-AACRAO.aspx (accessed March 29, 2013 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 . Dale E. Gough , Director of International Education Services, "AACRAO EDGE Login ...
. . . . regulatory-prescribed equivalence applies. to non-immigrant HlB pettttons, not to immigram petitions, See 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). The record contains no evidence that the beneficiary possesses a bachelor's degree awarded by a college or university. The petitioner's credential evaluations concur with EDGE that the beneficiary does not have a foreign degree equivalent to a U.S. bachelor's degree based on his education.Degree not shown to be a U.S. advanced degree equivalent
The AAO has concluded that the beneficiary's education "represents attainment of a level of education comparable to completion of senior high school in the United States'' which is not a single degree that is the "foreign equivalent· degree" to a U.S. baccalaureate degree. Therefore. the beneficiary does not meet the job requirements on the labor certification.
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.