Degree or an AJien of Exceptional Ability Pursuant to S.cction 203(11)(2) of the Immigration and Nationality A..:t, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Endosed please find the decision of the Administrative Appeals Office in your case. All of the docun11.:n1s related to this mailer have been returned to the office that originally decided your case. Please he advised I hat any further inquiry that you might have concerning your case must be made 10 that offi..:c. · · If you believe the AAO inappropriately applied· the law in reaching its decision, or you have aLh.lititlnal information that .you wish to have considered, you inay file a motion to reconsider or a motion to reopen in accordance with the instructions on Form J-290B, Notice of Appeal or Motion, with a fcc of $fiJO. 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 he aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion tn he filed within 30 days of the decision that the motion seeks to reconsider or reopen. crrw·
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.usci~.gov
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, . I and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is the administration office of the It seeks to employ the beneficiary permanently in the United States as a senior programmer analyst. As required by statute , the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, appro\'ed by the United States Department of Labor (DOL). Upon rev)ewing the 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 retard 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 January 23, 2012 and December 5, 2011 denials, the primary 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 or a master's degree. 11· 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.Jd 143, 145 (Jd Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submilled 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). 1 The subm.ission 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. § l03.2(a)(l ). 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 abqve inquiries assigned io the DOL, or the remaining n.:gulat ions 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, 73fJ 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 de'cision but for the requirement that the immigrant hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Commiltce 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, 10151 Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. fi784 , 1990 WL 20lfil3 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 fC.lr 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, 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 c'riticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow !'or 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 leasta 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 pro less ions." 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 equivaknt 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 equaling 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 thai 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)(J)(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 live years of progressive experience in the specialty). For classification as a member of the professions, the regulation at 1:{ 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 thai 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 master · s degree, or foreign educational equivalent, in computer science or computer science software and 36 months of experience in the job offered or in the alternate occupations of IT analyst or software engineer. Part H-8 asks the employer if there is an alternate combination of education and experience that is acceptable. The petitioner answered this question "no." Therefore, the minimum education required by the labor certification is a master's degree or foreign educational equivalent. The petitioner did not permit a bachelor's degree plus five years of experience as an alternative combination of education and experience. 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 his credentials on the labor certification and signed his name, under a declaration that the contents of the form are 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, he states that he received a Bachelor of Science degree in physics, mathematics, and chemistry and a Master of Science degree in computer science from in India.
The record contains the following educational evaluations of the beneficiary's credentials:
- An evaluati-on from Morningside Evaluations and Consulting. The evaluation is dated November 1, 2011. The evaluation is signed by The evaluation describes the beneficiary's Bachelor of Science and Master of Science degrees as being the equivalent of a U.S. Master of Science degree in computer science.
- An evaluation from Morningside Evaluations and Consulting. The evaluation is dated July 13, 2010. The evaluation is signed by The evaluation describes the beneficiary's Bachelor of Science and Master of Science degrees as being the equivalent of a U.S. Master of Science degree in computer science.
- An evaluation from Baruch College. The evaluation is dated November 7, 20 II. The evaluation is signed by . The evaluation describes the beneficiar-y"s Master of Science degree as being the equivalent of a U.S. Master of Science degree in computer science.
USCIS may, in its discretion, use as advisory opinions statements . submitled 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 eligibilii "y lor the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive p. 6 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 a/s(J Matter of So!Jici, 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 (BlA 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 evaluations are not persuasive in establishing that the beneficiary's education from India is equivalent to a U.S. master's degree. The evaluations fail to address the actual courses of study followed by the beneficiary. The evaluation attempts to compare the beneficiary's Master of Science degree to a U.S. master's degree program but the rationale behind these credit assignments is not substantiated. The evaluator provides no explanation for how the individual course credit numbers were determined. Moreover, the evaluation fails to establish that the beneficiary's master's program following a three-year bachelor's degree program truly equals the depth of a U.S. master's program in computer science following a four-year U.S. bachelor's degree . 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. master'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 January I~. 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. "AACRAO EDGE Login."' http://aacraoedge.aacrao.org/index.php (accessed January 18, 2013 and incorporated into the record of proceeding). In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 2010), 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 Relzah 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 ro prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The court also p. 7 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 Indian educational system, EDGE provides that a three-year Bachelor of Science degree "represents attainment of a level of education comparable to two to three years of university study in the United States. Credit may be awarded on a course-by -course basis. " EDGE further states that the Master of Science "represents attainment of a level of education comparable to a bachelor's degree in the United States."
Based on the juried opinion of EDGE, the AAO has concluded that the beneliciary's·educatinn is more likely than not comparable to a bachelor's degree in the. United States . Since the ETA Form 9089 required a master's degree as the minimum level of education, the petitioner has failed to establish that the beneficiary possessed all the education, training, and experience specified on the labor cerlificationas of the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Maller of Wing's Tea House, 16 I&N Dec. at 159; see also 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. Beyond the decision of the director, the petitioner has also failed to submit requested evidence that precludes a material line of inquiry. The regulation at 8 C.F.R. § 204.5(g)(2) states that the director may request additional evidence in appropriate cases. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. * 103.2(b)(14).
In the AAO's Notice of Intent to Dismiss (NOID) dated January 28, 2013, the AAO requested that the petitioner submit a statement confirming the petitioner's continuing intent and desire to employ the beneficiary in the certified job. 8 C.F.R. § 204.5(c).
In response to the AAO's NOID, the petitioner stated that the beneficiary resigned in 2012. The petitioner did ~ot submit the requested statement of its continuing intent and desire to employ the beneficiary in the certified job. Therefore, the petition must also be denied because the petitioner failed to comply with the AAO's RFE. See 8 C.F.R. § 103.2(b)(14). It is more likely than not that the petitioner no longer intends and desires to employ the beneficiary. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § l03.2(b)(2)(i). 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.