Degree or anAJien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(h)(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 mancr 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 he made to that office .. If you believe the AAO inappropriately applied the law in reaching its det:ision, or you have additional information that you wish to have considered, you may file a motion to reeonsider or a motion to reopen in accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fcc uf $630. The specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion directly with the AA.O. Please he aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he riled within 30 days of the decision that the motion seeks to reconsider or reopen.
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Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The, Director, Texas Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on May 11, 2012, the AAO dismissed the appeal. Counsel filed a motion to reconsider (MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion will be. denied and the previous decision of the AAO will be affirmed.
The petitioner is a rug sales business. It seeks to employ the beneficiary permanently in the United States as a Vice President (Finance & Operation) 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, an ETA Form lJ08Y; Application for Permanent Employment Certification, approved by the Department of Labor (DOL), accompanied the petition. Upon revi.ewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The AAO affirmed this determination on appeal.
In pertinent part, section 203(b)(2) of 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. In dismissing the appeal, the AAO concluded that the beneficiary's combined education and professional certification was not a foreign degree equivalent to a U.S. baccalaureate degree, and thus, did not qualify for preference visa classification under section 203(b)(2) of the Act.Degree not shown to be a U.S. advanced degree equivalent The regulation at-8 C.F.R. § 103.5(a)(3) states:
Requirements for motion to reconsider . A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
On motion, counsel cites several unpublished AAO decisions for the proposition that, according to counsel, the beneficiary's education is comparable to a U.S. bachelor'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). The unpublished AAO decisions are not pertinent precedent decisions. Therefore , the motion does not meet the requirements for a motion for reconsideration. Nevertheless, the AAO will consider the evidence in the record, including the evidence submitted on motion, in its de novo review of the matter. p. 3 The heneficiarv nossesses a foreign three-year Bachelor of Commerce degree from the and a Certificate of Practice from the
(!CAl). Thus, the issue is whether either of these credentials, or both, is a foreign degree equivalent to a U.S. baccalaureate degree.
The ETA Form 9089 in this ma~ter 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) .ofthe Act; 20 C.F.R. § 656.l(a). II is significant that none of the above inquiries assigned to the DOL, or the remaining regulations implementing these duties under 20 C.F.R. § 656, involve a determination as t_o 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. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. .l983). A United States baccalaureate degree is generally found to require four years of education. Mauer of Shah, 17 I&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 tive years progressive experience in the professions." 1-l.R. Conf. Rep. No. 955, 101s
Cong., 2"d 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 p. 4 not intendto 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 tive years progressive experience in the professions." Because neither the Act nor its legisl::ltive. 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, ari alien must have at least a bachelor's degree.
baccalaureate degree or a foreign equivalent degree" (plus evidence of tive 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 concentra~ion 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 ofticial academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, w.:h~Jol or other institution of learning relating to the area of exceptional abi I i ty"). Relying in part on Mackmy, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the . Ninth Circuit (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.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9 h Cir. 19~3). The court relied on an amicus brief
F.2d at 1015. USClS must examine "the language of the labor certification job requirements" in order to determine what the job req'uires. /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. See 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 J'he alien employment certification application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that the DOL has formally issued or otherwise attempt to divine the employer's intent)ons through some sort of reverse engineering of the labor certification.
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 m~ster's degree, or foreign educational equivalent, in business administration, finance, or accounting and 36 months of experience in the job offered or 3 months in the alternate occupation of general operations manager. The petitioner will also accept a bachelor's degree and five years of experience. 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 has a three-year Bachelor of Commerce degree from the and that he has a Certificate of Practice from the
Counsel submits the following educational evaluations:
- An evaluation from _ _ __ -, rhe evaluation· is dated December 3, 2008. The evaluation is signed by The evaluation concludes that the beneficiary's combined education and certification is equivalent to a U.S. Bachelor of Science degree in Accounting.
- . An evaluation from
December 3, 2008. The evaluation is signed by
The evaluation is dated
The evaluation r
.. ·: .
- An evaluation from the American Association of Colllge Registrars and Admissions ' Officers (AACRAO), The evaluation is dated December 19, 2008. The evaluation concludes that the beneficiary's combined education and certification . is equivalent to a U.S. Bachelor of Science degree.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Mutter 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 ofSojfici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of Californici, 14 I&N Dec·. 190 (Reg. Commr. 1972)); Mutter 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).
Here, the evaluations are not persuasive in establishing that a three-year Bachelor of Commerce degree from alone or combined with associate membership in the is a foreign degree equivalent to a U.S . bachelor's degree. While may offer courses and examinations, there is no evidence that is a college or university or that membership is a "degree." See Smzpnames .com, Inc. V: Michael Clzertoff, 2006 WL 3491005 *11 (D. Ore. Nov .. 30, 2006) (finding U.S. Citizenship and Irnmigration Services (USCIS) was justified in concluding that membership was not a single college or university "degree" for purposes of classification as a member of the professions holding an advanced degree).
The AAO has concluded that the beneficiary's combined education and professional certification is not a foreign degree equivalent to a U.S. bachelor's degree and, thus, does not qualify for preference visa classification under section 203(b )(::2.) of the Act. In addition, the. beneficiary does not meet the job requirements on the labor certification , For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 u.s.c. § 1361.
ORDER: - The motion to reconsider is denied and the decision of the AAO dated May 11, 2012 is affirmed. The appeal is dismissed, and the petition is·denied.