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 announce 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.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you, t:/( ~v ~' Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
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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 an IT security consulting firm. It seeks to permanently employ the beneficiary in the United States as a senior information security analyst. The petitioner requests 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).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), aprroved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is June 4, 2008.
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 of Senior Information Security Analyst has the following minimum requirements:
H.4. Education: Bachelor's in Computer Science
H.5. Training: n/a
H.6. Experience in the job offered: 60 months
H.7. Alternate field of study: Information Systems
H.8. Alternate combination of education and experience: Master ' s and 3 years experience H.9. Foreign educational equivalent: Accepted
H.lO. Experience in an alternate occupation: 60 months as senior information systems analyst H.14. Specific skills or other requirements: Responsible for information security/assurance of server and network assets. Design, development, integration, testing and operation of secure network platforms and environments. Anticipating problems and mitigating risk through planning and process. Entrepreneurial approach to solving difficult technical and organizational process problems. Managing a team of technology professionals in a development or operations/maintenance capacity.
Performing the Certification and Accreditation (C&A) of the information systems in accordance with Federal Information Security Management Act (FISMA) requirement and National Institute of Standards and Technology (NIST) guidelines. Prepare 1 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). p. 3 documents for C&A packages by pre-determined deadlines. Provide expert advice to clients regarding C&A Guidance documents. Conducting Security Test and Evaluations (aka Security Control Assessments) including test development and Contingency Plan/Disaster recovery plan creation and testing. Facilitating the development of, and prepare documents for, business continuity planning, risk management, and qualitative risk assessments. Developing security architecture, policies, procedures and security capabilities of major operating systems & platforms such as: Oracle; SOL; Windows Server 2000 and up, Unix Web Apps, Firewalls, Routers &Switches: configuration and test development assisting organization 's information security office to respond to the security data calls.
Part J of the labor certification states that the beneficiary 's highest level of education related to the offered position is a Master's in Computer Science received in 1999 from the The record additionally contains a copy of the beneficiary's diploma and transcript of records from the as well as a transcripts from the indicating that the beneficiary was enrolled in a two-year Bachelor of Commerce program an received a degree following a qualifying examination held in November 1996.
The record also contains an evaluation of the beneficiary 's credentials dated, July 13, 2000, prepared by The evaluation determines that the beneficiary "qualified" for a Bachelor of Commerce degree trom the following attendance of a two-year program, but does not state that the beneficiary received a degree. Mr. then states that the beneficiary's program at represented five semesters of U.S. upper division undergraduate study with a concentration m Computer Science Studies. Mr. mentions a Microsoft credential, but states that it represents a vocational/occupational credential. He concludes that the beneficiary's combined education is considered the U.S. equivalent of a Bachelor of Science in Computer Science. 3 The director's decision denying the petition concludes that the beneficiary's educational credentials do not qualify him for an advanced degree professional visa.
3USCIS 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. Jd. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility. users may evaluate the content of the letters as to whether they support the alien's eligibility. See id. at 795. users may give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. Id. at 795. See also, Matter of Soffici, 22 r&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)).
On appeal, the AAO requested evidence that the was an accredited institution at the time that the beneficiary received his diploma in 1999.
On appeal, the petitioner, through counsel, described its unsuccessful efforts to find evidence of accreditation from the Pakistani University Grants Commission .
The petitioner's 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.5 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 6 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. 7
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
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-4 The AAO initially misidentified the Pakistani accrediting body as the Higher Education Commission in its Notice of Intent to Dismiss (NOID). It subsequently issued a Request for Evidence (RFE) and directed the petitioner to provide proof of accreditation from the predecessor accrediting organization, the University Grants Commission.
(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 significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. 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). 8 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) 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). IfDOL 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). Relying in part on Madany, 696 F.2d at 1008, 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.
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)(14) 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 certified 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 Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. /d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. Id. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008
9th Cir.1983).
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 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought
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. See also 8 C.P.R. § 204.5(k)(1).
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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 a 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 job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.P.R.§ 204.5(k)(4)(i).
Therefore , an advanced degree professional petition 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. Further, an "advanced degree" is 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 this case, the beneficiary possesses a two-year Bachelor of Commerce degree from the and a 1999 Master's in Computer Science from the
In the United States, institutions of higher education are not authorized or accredited by the federal government. 9 Instead, the authority to issue degrees is granted at the state level. However, state approval to operate is not the same as accreditation by a recognized accrediting agency. According to the U.S. Department of Education (DOE), "[t]he goal of accreditation is to ensure that education provided by institutions of higher education meets acceptable levels of quality ."10 Accreditation also ensures the nationwide recognition of a school's degrees by employers and other institutions, and also provides institutions and its students with access to federal funding. Accrediting agencies are private educational associations that develop evaluation criteria reflecting the qualities of a sound educational program , and conduct evaluations to assess whether institutions meet those criteria.
Institutions that meet an accrediting agency's criteria are then "accredited" by that agency. 12
The DOE and the Council for Higher Education Accreditation (CHEA) are the two entities responsible for the recognition of accrediting bodies in the United States. While the DOE does not accredit institutions , it is requir ed by law to publ ish a list of recognized accrediting agencies that are deemed reliable authorities as to the quality of education provided by the institutions they accredit. 13 The CHEA , an association of 3,000 degree-granting colleges and universiti es, plays a similar oversight role. The presidents of American universities and colleges established CHEA in 1996 "to strengthen higher education through strengthened accreditation of higher educ ation institutions . "14 CHEA also recognizes accrediting organizations . "Recognition by CHEA affirm s that standards and processes of accrediting organizations are consistent with quality, improvement, and accountability expectations that CHEA has established." 15 According to CHEA, accrediting institutions of higher education "involves hundreds of self-evaluations and site visits each year, attracts thousands of higher education volunteer professionals, and calls for substantial investment of institutional , accrediting organization, and volunteer time and effort. "16 In summary, accreditation provides assurance of a basic level of quality of the education provided by an institution as well as the nationwide acceptance of its degrees. An unaccredited degree does not provide a sufficient assurance of quality.
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Since a U.S. degree must be from an accredited institution of higher education, a foreign degree must also be accredited by any existing comparable system of accreditation for that country in order to qualify as the foreign equivalent of a U.S. degree under 8 C.F.R. § 204.5(k)(2).
As stated above, the University Grants Commission was the Pakistani accrediting body of degree granting colleges and universities prior to 2002. The petitioner provided no evidence that was accredited by this body in 1999. Therefore, the beneficiary's foreign degree does not qualify as an advanced degree within the meaning of 8 C.P.R. § 204.5(k)(2). It is also noted that the ~valuation fails to addresses that the school was unaccredited, which also undermines the evaluation's conclusion regarding the U.S. equivalency of the beneficiary's educational credentials. After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least 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.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for classification as a member of the professions holding an advanced degree 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 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.