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 (AAO) in your case.
This is a non-precedent decision. The AAO does not announc e new constructions of law nor establish agency policy through 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 , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms 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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Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska 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 discount retail store chain. It seeks to permanently employ the beneficiary in the United States as a senior software engineer. On the Form I-140, Immigrant Petition for Alien Worker, the petitioner requested classification of the beneficiary as an advanced degree professional 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, the petitiOn is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL).
The director's decision denying the petition concluded that the petition cannot be approved because the labor certification does not require a member of the professions holding an advanced degree, since the minimum requirements of the proffered position is not at least a Master's degree, or a Baccalaureate degree followed by at least five years of progressive experience in the specialty.Five years of progressive experience not documented On appeal, the petitioner states that the director erred, and asserts that the labor certification does require a minimum of an advanced degree for the offered position, where the minimum educational requirement for the offered position on the labor certification is a U.S. Bachelor's degree, or the equivalent based on a combination of degrees, followed by five years of employment experience. The appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis.1 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.Z A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision?
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.
Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees or aliens of exceptional ability, whose services are sought by an employer in the United States. See also 8 C.P.R.§ 204.5(k)(l).
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer( s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the regulation at 8 C.P.R. § 204.5(k)(4)(i) states, in part:
The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.
In summary, a petition for an advanced degree professional must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Specifically, for the offered position, the p. 4 petitioner must establish that the labor certification requires no less than a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany , 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by regulation, USCIS must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 F.2d at 1015. 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." 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 (labor certification]." !d. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. 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. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
In the instant case, Part H of the labor certification submitted with the petition states that the offered position has the following minimum requirements:
H.4.
H.4-A.
H.4-B.
H.5.
H.6.
H.7.
H.8.
H.9.
H.lO.
H. lO-A.
H. lO-B.
Education: Other.
If Other is indicated in question 4, specify the education required:
"Bachelor's. Employer will accept a combo of degrees to meet the Bachelor's."
Major Field of Study: Computer Science, Physics, or related field.
Training: None required.
Experience in the job offered: None required.
Alternate field of study acceptable?: No.
Alternate combination of education and experience acceptable? No.
Foreign educational equivalent: Accepted.
Experience in an alternate occupation: Accepted.
If Yes, number of months experience in alternate occupation required: 60 Acceptable alternate occupation: Experience in software engineering or related experience.
H.14. Special Skills or other requirements : Java, UNIX, JMS, Spring, Struts, Hibernate, SOAP , WSDL, Oracle, PL/SQL, Integration Patterns, UML, Object Oriented Programming, XML, XSD, Servlet, JSP, Enterprise Service Bus, MQ Series, Tomcat, AOP, Service Oriented Architecture, JAX-RS , JAX-WS, JUnit, Perl, Shell Script, Maven, Design Patterns, JDBC. System analysis and design skills. Unix and Perl scripting. Debugging and analysis skills. Database technologies for web environment. Oracle lOg, OLTP, Oracle Collections , and knowledge of CVS/Subversion.
As set forth in the labor certification in this case, an individual can qualify for the offered position based on "other" education, which the petitioner specified as "Bachelor 's. Employer will accept a combo of degrees to meet the Bachelor ' s" in Computer Science, Physics, or related field. See Question H.4-A. The petitioner had the option to select "Bachelor's" in question H.4, but did not do so, and instead, qualified the educational requirement as "other. " Therefore, the labor certification does not require that a single degree Bachelor's degree (or foreign equivalent), followed by five years of progressive experience, be the minimum education requirement to establish the advanced degree equivalency required for the visa classification sought.Degree not shown to be a U.S. advanced degree equivalent This conflicts with 8 C.F.R. § 204.5(k)(2), which specifically provides that 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 ." (Emphasis added).
In summary, a petition for an advanced degree professional must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Specifically , for the offered position, the petitioner must establish that the labor certification requires no less than a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. Where the labor certification allows for a Bachelor's degree (followed by five years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. 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. Cont. Rep. No. 955, 10151 Cong., 2nct Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990).
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the legacy INS 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: p. 6 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 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. 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. In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30 , 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. Where the terms of the labor certification or the analysis of the beneficiary's credentials rely 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." In order to have experience and education equating to an advanced degree under section 203(b )(2) of the Act, the labor certification must require and the beneficiary must have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 8 C.F.R. § 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify for an immigrant visa by virtue of education or experience equating to a bachelor's degree may quality for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than two years of training and experience. 56 Fed. Reg. at 60900.
The AAO observes that the director did issue a Request for Evidence (RFE) on October 17, 2012, requesting an explanation as to why the petitioner checked the box for "other" as the minimum education required in question H.4 and then indicated Bachelor's in question H.4-A, rather than simply checking the box for "Bachelor's" in question H.4. The AAO observes that the petitioner's response did not clarify the issue raised by the director. However, the petitioner did submit the recruitment materials, including job advertisements for the offered position, as requested by the director, which confirm that the offered position was advertised as allowing a minimum of combined education equating to a Bachelor's degree, in combination with five years of experience, to qualify. Therefore, since an individual can qualify for the offered position with a degree less than a baccalaureate (followed by five years of progressive experience in the specialty), the petition does not qualify for advanced degree professional classification.
As set forth above, to qualify as a professional, or member of the professions, the labor certification must require at least a Bachelor's degree and the beneficiary is required to have a Bachelor's degree from a college or university. While a combination of education might be accepted in the skilled worker category, there is no provision in statute or regulation that compels users to readjudicate a petition under a different preference classification once the director has rendered a decision. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to users requirements. 4 See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). .
In summary, the offered position does not require an advanced degree. Therefore, the petition cannot be approved under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
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 of Otiende, 26 r&N Dec. 127, 128 (BrA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.
The AAO notes, however, that the record contains a subsequent Form r-140 by the petitioner for the beneficiary based on the same labor certification. The petition was approved by users on December 10, 2012 under the skilled worker visa classification.