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:
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 be advised 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 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 I-290B, Notice of Appeal or Motion, with a fee of $630. 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 be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Perry Rhew
Chief, Administrative Appeals 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 an advanced software development and consulting company. It seeks to employ the beneficiary permanently in the United States as a programmer analyst. 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 qualify for the preference category sought or satisfy the minimum level of education stated on the labor certification. 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 February 26, 2010 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. 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. 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.l(a). It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations The submission of additional evidence on appeal is allowed by the 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 submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). p. 3 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. Sinith, 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 ofShah, 17 l&N Dec. 244 (Reg'!. 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 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., 2nd Sess. 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 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 th~ 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 adv1anced 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 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)(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 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 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 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 otlicial 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 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 requires a master's degree, or foreign educational equivalent, in computer applications, engineering (any), computer science, technology, math, physics, any sciences, or information systems and 12 months experience in the job offered, or in the alternate occupations of software engineer, systems analyst, technical staff, consultant, or related. 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., Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm'r 1986).
I
The record contains a copy of the beneficiary's Bachelor of Science degree in mathematics, statistics, and computer science from and a Master of Science degree in computer science from the
The record contains the following educational evaluation of the beneficiary's credentials:
- An evaluation from The evaluation is dated February 3, 2010. The evaluation is signed by . The evaluation describes the beneficiary's combined master's and bachelor's degrees as being the equivalent of a . u.s~ bachelor's degree in computer science.
On May 29, 2012, the AAO sent a Request for Evidence (RFE) to the petitioner. The AAO referred to the Electronic Database for Global Education (EDGE), created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO), as an additional resource for determining the U.S. equivalen~y· of the beneficiary's academic credentials from India. The petitioner was advised that, according to EDGE, a Bachelor of Science degree in India is awarded upon completion of two to three years of tertiary study beyond the Higher Secondary Certificate (equivalent to a U.S. high school degr~e) and is comparable to two to three years of university study in the United States. The petitioner was also advised that a master's degree from India represents attainment of a level of education comparable to a bachelor's degree in the United States. In response to the AAO's RFE, counsel submits the following educational evaluations of the beneficiary's credentials:
- An evaluation from
2012. The evaluation IS signed by
The evaluation is dated June 25,
The evaluation describes the p. 6 beneficiary's master's degree as being the equivalent of a U.S. Master of Science degree in computer science.
- An evaluation from The evaluation is dated June 21, 2012. The evaluation is signed by _ The evaluation describes the beneficiary's master's degree as being the equivalent of a U.S. Master of Science ·degree in computer science.
- An evaluation from The evaluation is dated July 10, 20p.
The evaluation describes a three-year bachelor's degree in India as being the equivalent of a U.S. bachelor's degree.
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 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 corroborated, in accord with other information or is in any way questionable. !d. at 795. See also Matter of Sojjici, 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 qualifications 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 do not explain how the evaluators determined the number of credit hours for each course and do not define a number of credit hours for the beneficiary's completed education overall. Additionally, none of the evaluations is peer-reviewed or relies on peer-reviewed materials in reaching their unsubstantiated conclusions.
The evaluation goes on at length about Carnegie Units and Indian degrees in general, concluding that the beneficiary's master's degree is equivalent to a U.S. Master of Science degree but makes no attempt to assign credits for individual courses. Finally, also relies on a UNESCO document. The UNESCO recommendation relates to admission to graduate school and training programs and eligibility to practice in a profession. Nowhere does it suggest that a three year degree must be deemed equivalent to a four-year degree for purposes of qualifying for inclusion in a class of individuals defined by statute and regulation as eligible for immigration benefits. More significantly, the recommendation does not define "comparable qualification." At the heart of this matter is whether the beneficiary's degree is, in fact, the foreign equivalent of a U.S. baccalaureate. The UNESCO recommendation does not address this issue.
In fact, UNESCO's publication, "The Handbook on Diplomas, Degrees and Other Certificates in Higher Education in Asia and the Pacific" 82 (2d ed. 2004) (accessed on July 27, 2012 at p. 7 http://unesdoc.unesco.org/images/0013/001388/138853E.pdf and incorporated into the record of proceedings), provides:
Most of the universities and the institutions recognized by the UGC or by other authorized public agencies in India, are members of the Association of Commonwealth Universities. Besides, India is party to a few UNESCO conventions and there also exists a few bilateral agreements, protocols and conventions between India and a few countries on the recognition of degrees and diplomas awarded by the Indian universities. But many foreign universities adopt their own approach in finding out the equivalence of Indian degrees and diplomas and their recognition, just as Indian universities do in the case of foreign degrees and diplomas. The Association of Indian Universities plays an important role in this. There are no agreements that necessarily bind India and other governments/universities to recognize, en masse, all the degrees/diplomas of all the universities either on a mutual basis or on a multilateral basis. Of late, many foreign universities and institutions are entering into the higher education arena in the country. Methods of recognition of such institutions and the courses offered by them are under serious consideration of the government of India. UGC, AICTE and AIU are developing criteria and mechanisms regarding the same.
/d. at 84. (Emphasis added.)
Finally, the evaluations conflict with each other. The evaluations conclude that the beneficiary has the equivalent of a U.S. Master of Science degree, while the evaluation concludes that the beneficiary has the equivalent of a U.S. bachelor's degree. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988)(states that the petitioner must resolve any inconsistencies in the record by independent, objective evidence). Accordingly, in this matter, the AAO 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 July 23, 2012 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. p. 8 t I ' •
Director of , "AACRAO EDGE Login," http://aacraoedge.aacrao.orglindex.php (accessed July 23, 2012 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 Rehab 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 Indian educational system, EDGE provides that a 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 a
Master of Science "represents attainment of a level of education comparable to· a bachelor's degree in the United States."
On appeal, counsel references minutes from an American Immigration Lawyers Association (AILA) teleconference liaison meeting with the Nebraska Service Center on April 19, 2006 that provides statements by the Acting Service Center Director as to means to determine a beneficiary's educational equivalency. These minutes are not binding on the AAO. The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published decisions from the circuit court of appeals within the circuit where the action arose. See N.L.R.B. v. Askkenazy Property Management Corp. 817 F. 2d 74, 75 (9th Cir. 1987) (administrative agencies are. not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd, 273 F.3d 874 (9th Cir. 2001) (unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published m private publications or widely circulated).
Counsel cites an unpublished AAO decision for the proposition that, according to counsel, the beneficiary's education is comparable to a U.S. master's degree. While 8 C.F.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a) .
. Based on the juried opinion of EDGE, the AAO has concluded that the beneficiary's education 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 certification as of the priority date. 8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Co!llm.
- • t ..
1971). Therefore, the beneficiary does not meet the job requirements on the labor certification and 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. T~e petitioner has not met that ,burden.
ORDER: The appeal is dismissed.