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 PETITT ON ER:
INSTRUCTIONS :
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case . This is a non-precedent decision . The AAO does not announce new construction s of law nor establi sh agency policy throu gh non-precedent decisions . If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen , respectivel y. Any motion must be filed on a Notice of Appeal or Motion (Form l-2908) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/for ms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO.
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JG;;R.osenberg
Chief , Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a non-profit long-term rehabilitation care provider. It seeks to employ the beneficiary permanently in the United States as an occupational therapist. As required by statute, an ETA Form 9089, Application for Permanent Employment Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition , the director determined that the petitioner failed to demonstrate that the beneficiary satisfied the minimum level of education stated on the labor certification and denied the petition, accordingly.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 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
In pertinent part, section 203(b )(2) of the Act 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.
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy , cultural or educational interests , or welfare of the United States." The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" . as "a degree of expertise significantly above that ordinarily encountered."
As set forth below, the ETA Form 9089 does not require an alien with exceptional ability and does not permit an alternate master's degree educational equivalency of a baccalaureate degree plus five years of progressive experience in the specialty. 2 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1).Five years of progressive experience not documented The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter oJSoriano, 19 I&N Dec. 764 (BIA 1988).
To be eligible for approval, a beneficiary must have all the education, training, and experience specified on the labor certification as of the petition's priority date. See Matter of Wing 's Tea House , 16 I&N 158 (Act. Reg. Comm. 1977). Here, the ETA Form 9089 was accepted for processing on January 20, 2011, which establishes the priority date.3 The Immigrant Petition for Alien Worker (Form I-140) was filed on May 27, 2011.
The director denied the petition on August 25, 2011, finding that the beneficiary does not have a U.S. Master ' s degree in Occupational Therapy , or a foreign equivalent degree, as required by the terms of the labor certification.
Visa Classification
At the outset, it is noted that section 212(a)(5)(A)(i) of the Act and the scope of the regulation at 20 C.F.R. § 656.1(a) describe the role of the DOL in the labor certification process as follows: In generaL-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed .
It is left to U.S. Citizenship and Immigration Services (USCIS) to determine whether the proffered position and alien qualify for a specific immigrant classification or even the job offered. This fact has not gone unnoticed by Federal Circuit Courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14). 4 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) nine months.
determinations are not subject to review by INS absent fraud or willful misrepresentation , but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies ' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 5 Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the 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.
NON-PRECEDENTDEC§JON
K. R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983 ). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)[5] 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 cert(fied job opportunity is qualified (or not qualified) to perform the duties of that job .
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer." Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d atl309.
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, qualifications, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 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 a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer." Rosedal e 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 [labor certification application form]." See !d. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to infer the employer 's intentions through some sort of reverse engineering of the labor certification.
ETA Form 9089
The required education , training, experience and skills for the offered position are set forth at Part H of the labor certification. In the instant case, the labor certification states that the offered position has the following minimum requirements:
H.4. Education : Master's in Occupational Therapy .
H.5. Training: None required .
H.6. Experience in the job offered: None required.
H. 7. Alternate field of study: None accepted .
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.1 0. Experience in an alternate occupation: None accepted.
H.14. Specific skills or other requirements: Georgia OT License is required. Alien must also possess a Master's Degree or foreign equivalent degree as defined in 8 C.F.R. Section 204 .5(k)(2) in Occupational Therapy. As proof that the Alien's foreign degree is equivalent to a U.S. Master's degree (U.S. Advanced Degree), Employer will accept a credentials evaluation that has been performed by an independent credentials ~valuator who has provided a credible, logical and well-documented case for such an equivalency determination that is based solely on the alien's foreign degree.
As set forth above , the proffered position requires a Master 's degree in Occupational Therapy or a foreign equivalent degree , as well as a Georgia license to be an occupational therapist. That the beneficiary possesses the necessary licensure in Georgia as set forth in H.14 is not an issue. The petitioner must establish , however , that the beneficiary not only is a member of the professions holding an advanced degree , but also satisfied all of the educational, training, experience and any other requirements of the offered position as ofthe priority date. 8 C .F.R. §§ 103.2(b)(l), (12). See Matter of Wing's Tea Hous e, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977); see also Matter of Katigbak , 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the job offer portion of the ETA Form 9089 to determine the required qualifications for the position, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany v. Smith , 696 F.2d 1008 (D.C . Cir. 1983); K.R.K. Irvine, Inc. v. Landon , 699 F.2d 1006 (9th Cir. 1983); Stewart Infi'a Red Commissary ofMassachus etts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames. com, Inc. v. Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006) .
Beneficiary's Credentials
Part J of the labor certification signed by the beneficiary and the petitiOner, states that the beneficiary's highest level of education related to the offered position is a Master's degree in Occupational Therapy fron
Philippines, completed in 2001. ()
The record of proceeding contains a copy of the beneficiary's diploma and transcripts from Philippines, as well as evidence of the beneficiary's occupational therapy licensure in Georgia. The beneficiary's diploma, however, states that she received a Bachelor of Science in Occupational Therapy on March 24, 2001 from The accompanymg transcript of grades states that the beneficiary's Bachelor's degree was awarded 6 We accept the petitioner 's explanation that on Part J.ll ofthe ETA Form 9089, it was attempting to represent its position that the beneficiary possesses the U.S. equivalency of a Master's degree and was not intentionally misrepresenting the beneficiary's Bachelor's degree as a Master's degree. Any assertion of misrepresentation or fraud is retracted, as such assertion is not warranted in this matter. p. 7 following a five-year course of study. The transcript reflects that the final year of the program consisted of an internship, a seminar and an undergraduate thesis.
The record also contains a copy of the beneficiary's certificate as an "Occupational Therapist Registered OTR," from the in
Maryland, for the period from November 27, 2007 to March 31 , 2010 and a copy of the beneficiary's Visa Credential Verification Certificate for the Occupational Therapist issued by Jn June 11 , 2008.7 The record additionally contains a copy of the beneficiary's Georgia license as an occupational therapist with an expiration date ofMarch 31,2012 .
The record also contains three evaluations of the beneficiary's credentials, dated December 27, 2010, June 28, 2011, and October 12, 2012 from the , as well as a copy of an August 27, 2013 memo sent to the petitioner's counsel b) Evaluator, for prepared the earlier evaluation and Ms. mthored the June 28, 2011 and October 12, 2012 evaluations, as well as the memo . All conclude that the beneficiary's Bachelor of Science degree in Occupational Therapy from 1s the U.S. equivalent of a Master 's degree in Occupational Therapy. Ms 1sserts that the name ofthe beneficiary 's degree is not relevant to its U.S. equivalency. She sets forth her summary of the beneficiary's courses and a list of the asserted U.S. credit equivalency for the courses and determines that this equates to a U.S. Master 's degree in Occupational Therapy.
We issued a Notice of Intent to Dismiss (NOID) to the petitioner on August 1, 2013.8 We notified the petitioner that we had consulted the website maintained by the American Association of Collegiate Registrars and Admissions Officer (AACRAO). Founded in 1910, AACRAO is a nonprofit, voluntary, professional association of approximately 11,000 higher education admissions and registration profession als who represent approximately 2,600 institutions and agencies in the United States.9 Its mission is to serve and advance higher education by providing leadership and academic and enrollment services. Id According to the login page, EDGE is a "web-based resource for the evaluation of foreign educational credentials " that contains 232 country profiles and is 7 An occupational therapist ultimately seeking admission based on an approved immigrant petition must present a ce1tificate from a credentialing organization listed at 8 C.F.R. § 212.15(e). 8 C.F.R. §§212.15(a)(l), (c). The provisions at 8 C.F.R. § 212.15(f)(l)(i) and (iii) require that approved credentialing organizations for health care workers verify "[t]hat the alien's education , training, license, and experience are comparable with that required for an American health care worker of the same type" and "[t]hat the alien 's education , training , license, and experience meet all applicable statutory and regulatory requirements for admission into the United States." As stated above, the latter verification , however, is not binding on the Department of Homeland Security (DHS). 8 C.F.R. § 212.15(f)(1)(iii).
8Counsel is correct in noting our error in the NOlO in referring to the National Council on the Evaluation of Foreign Educational Credentials, which ceased to operate in 2006.
updated and expanded regularly as educational systems change. 10 USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 11 According to the EDGE overview of the Philippines educational system, authored by Assistant Director of Admissions in graduate international admissions at the at Austin: 12
The Philippine Government essentially kept the American educational model though one major exception was made. Strong central control over the educational system, reminiscent of the Spanish model, provides a stark contrast to the situation prevalent in the United States.
Admission to higher education is based on high school graduation and other internal institutional requirements . Two and four-year colleges exist offering programs varying from 1-year Certificates, two-year Associates degrees, to bachelor's, master's , and doctoral degrees. Very reflective of their similarly-named U.S. counterparts, the post-secondary degrees/diplomas require specific units and types of coursework as mandated by CHED [Commission on Higher Education]. The units are defined identical to American semester units (and Philippine schools operate on a semester calendar) , however, the large average number of units per semester (20-24 per term) leads most U.S. evaluators to count them as equal to .75 a U.S. semester credit hour. 13
10See Dale E. Gough, Director of International Education Services, "AACRAO EDGE Login" http:/edge-preview.aacrao.org/(accessed June 10, 2014).
According to EDGE, a Bachelor of Science from the Philippines represents attainment of a level of education "comparable to a bachelor's degree in the United States." 14 Additionally , it describes the Filipino Bachelor of Science as representing:
Four to five years beyond the high school diploma (except Law which is an advanced degree as in the USA) with four being ilie most common length (Architecture , Engineering, Physical Therapy and Occupational Therapy for example, require five years ofstudy). 15
As noted above, EDGE recognizes that the Filipino Bachelor of Science in Occupational Therapy may represent a five-year program of study. Our NOID stated that based on the conclusions of EDGE, the evidence in the record is not sufficient to establish that the beneficiary possesses the foreign equivalent of a U.S. Master's degree in Occupational Therapy as required by the terms of the labor certification.Degree not shown to be a U.S. advanced degree equivalent As set forth above, section 203(b)(2) of the Act provides that a Bachelor's degree followed by five years of progressive experience is considered the equivalent of a Master's degree. However; in this matter, the ETA Form 9089 does not provide for this alternate equivalency and counsel specifically states that the petitioner relies on the Master's degree only, and requires an actual Master's degree or a foreign equivalent degree.
On appeal and in response to our NOID, counsel asserts that the credential evaluations provided by FIS establish that the beneficiary's Bachelor of Science in Occupational Therapy is the U.S. equivalent of a Master's degree in Occupational Therapy. Counsel also asserts that the certification supports this determination and the state of Georgia accepted these findings in issuing a license to the beneficiary. Counsel maintains that the AACRAO EDGE evaluation did not individually recognize the individual beneficiary's credentials. Further, as noted above, counsel submitted a copy of a memo from Ms. to counsel defending the position she took with regard to the beneficiary's Bachelor's degree from as equivalent to a U.S. Master's degree; copies of e-mails from counsel's office to (author of EDGE report on Philippines) in which Mr.
from the Office of the President Commission on Higher Education of the Republic of the Philippines in which the policies and standards of programs in physical therapy and occupational therapy are described, including the Bachelor of Science program in occupational therapy.
We do not concur with counsel's assertion that the beneficiary's Bachelor of Science in Occupational Therapy is the U.S. equivalent of a Master's degree in Occupational Therapy. It is noted that we directly consulted with AACRAO in this matter to ask them to consider whether the beneficiary's degree would not be regarded as comparable to a U.S. Master's degree in Occupational Therapy. Representatives of AACRAO responded that the Philippine educational system follows the U.S. system with respect to degree structure and is entirely comparable to degree names in the United States system, with the only significant difference being the past duration of the primary/secondary education (which was 10 years in the Philippines and 12 years in the United States but is being eliminated with the introduction of grades 11 and 12 in the Philippines).
In addition, it should be noted that length of study does not necessarily translate to an advanced degree determination. For example, an individual could complete five or six years of a bachelor's level education, but the additional coursework, if only at the bachelor's level, will not translate to the equivalent of a bachelor's and a Master's degree. Instead, the additional coursework would represent only additional bachelor' s level courses.
EDGE describes a "Master of Arts/Science degree gained in the Philippines as 1-2 years of graduate study usually requiring a thesis." 17 EDGE considers this degree to be the equivalent of a U.S. Master's degree. The petitioner presented no diploma from the Philippines indicating that the beneficiary possesses a Master's degree in Occupational Therapy representing 1-2 years of graduate study. (Emphasis added.) 18
Counsel's associate claims that he sought consultation with Mr. because Mr. "has found in the past that five (5) year Philippine Bachelor[] of Science in Physical Therapy [d]egrees do meet the Texas legal standard of 'substantially equivalent to an entry-level degree in physical therapy granted by programs in the U[nited] S[tates.]." The record does not contain evidence that Mr. has issued evaluations
Counsel asserts that the educational requirements of licensed healthcare professionals should be analyzed based on the state requirements for licensing in the profession. In Georgia, the state in which the beneficiary is licensed, occupational therapy licensing is governed by the Georgia State Board of Occupational Therapy. Applicants for an occupational therapist license must complete "the academic requirements of an educational program in occupational therapy recognized by the board , ... Such a program shall be accredited by a recognized accrediting agency acceptable to the board." See Georgia State Occupational Therapy Licensing Act, Georgia Code §43-28-9(a)(2). Foreign educational credentials must be approved by the Georgia Code §671-3-10. The Occupational Therapy Eligibility Determination (OTED) is used to analyze whether applicants without a U.S. accredited entry-level Master's degree in Occupational Therapy have completed education that meets the eligibility requirements to take the certification exam. While the uses the OTED process to verify that graduates of non-U.S. schools have completed education deemed comparable to current U.S. entry-level standards , the does not make a determination on the equivalency of a specific foreign degree to a U.S. degree . In some cases, the may require additional coursework to satisfy the requirements of U.S. entry-level standards. o Therefore , it cannot be concluded that the certification by the is a determination that the beneficiary's foreign Bachelor of Science in Occupational Therapy is the foreign equivalent to a U.S. Master's degree in Occupational Therapy. Rather , the certification is solely a determination that an individual is qualified to be a registered occupational
Based upon all of the information above , it is found that the beneficiary has a Bachelor of Science degree in Occupational Therapy from Philippines, representing a five-year undergraduate program but not representing the U.S. equivalent of a Master's degree (or even a Fil!Qino Master's degree) . In this, we do not find the credential evaluation by Ms. or the determination to be probative of the beneficiary' s-US. educational equivalency or her eligibility for an advanced degree second preference visa classification. Nor has counsel demonstrated that the issuance of a certificate is binding on USCIS or meets the regulatory definition of an advanced degree required by the second preference visa classification. As set forth in the NOID, and after considering all the evidence and evaluations, we find the EDGE evaluation of a U.S. equivalency to a Bachelor of Science degree in Occupational Therapy issued in the Philippines to be a reliable, peer-reviewed somce of information about foreign credential equivalencies.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. Matter of Caron International, 19 I&N Dec. 791 (Comm. 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 no presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien ' s eligibility. See id. at 795. 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 Sofjici, 22 I&N Dec. 158, 165 (Commr. 1998)(citing Matter ofTreasure 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 beneficiary does not have a United States Master's degree in Occupational Therapy or a foreign equivalent advanced degree , and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act, and does not meet the terms ofthe certified labor certification. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here , that burden has not been met.
ORDER: The appeal is dismissed.