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-prece dent 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 recon sider or a motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 day s 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 .
Thank you,
;l:;\_// ..
Ron Ros~nbirrg
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 is a church. It seeks to permanently employ the beneficiary in the United States as an education department director. The petitioner requests classification of the beneficiary as an advanced degre e 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, an ETA Form 9089, Application for Permanent Employment Certification approved by the Department of Labor accompanied the petition. The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is November 6, 2012. See 8 C.F.R. § 204.5(d).
The director determined that the petitioner failed to demonstrate that the beneficiary had the education required by the terms of the labor certification. Specifically, the director found that the beneficiary's master 's degree was not issued by an accredited institution. The director denied the petition accordingly. On appeal, the AAO identified an additional issue of whether the petitioner demonstrated its ability to pay the proffered wage from the priority date onwards.
The record shows that the appeal is properly filed 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. 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.
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.F.R. § 204.5(k)(1).
At the outset, it is important to discuss the respective roles of the DOL and 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-The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). 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).
(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.F.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). 2 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). 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). 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. !d. § 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. The regulation at 8 C.F.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 p. 5 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.F.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.F.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 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. Education: Master's (theology, divinity or related field).
H.5. Training: None required.
H.6. Experience in the job offered: None required.
H.8. Alternate combination of education and experience: Not Accepted.
H.9. Foreign educational equivalent: Accepted.
H.10. Experience in an alternate occupation: Not Accepted.
H.14. Specific skills or other requirements: None
The labor certification states that the beneficiary qualifies for the position based on a 2012 master 's degree in religion from California. The beneficiary submitted a Master of Arts degree , awarded on January 10, 2012 from p. 6 The director noted in his decision that was unaccredited at the time the beneficiary received her degree. Specifically, the director noted that the U.S. Department of Education (DOE) did not accredit Evangelia University until April 4, 2012.
The AAO will not consider a degree from an unaccredited college or university to satisfy the definition of an advanced degree. As stated by the DOE on its website:
The (DOE] does not accredit educational institutions and/or programs. However, the Secretary of Education is required by law to publish a list of nationally recognized accrediting ag~ncies that the Secretary determines to be reliable authorities as to the quality of education or training provided by the institutions of higher education and the higher education programs they accredit. An agency seeking [recognition must meet the] procedures and criteria for the recognition of accrediting agencies, as published in the Federal Register . ...
The United States has no ... centralized authority exercising ... control over postsecondary educational institutions in this country .... [I]n general, institutions of higher education are permitted to operate with considerable independence and autonomy . As a consequence, American educational institutions can vary widely in the character and quality of their programs.
(T]he practice of accreditation arose in the United States as a means of conducting nongovernmental, peer evaluation of educational institutions and programs. Private educational associations of regional or national scope have adopted criteria reflecting the qualities of a sound educational program and have developed procedures for evaluating institutions or programs to determine whether or not they are operating at basic levels of quality .
. . . Accreditation of an institution or program by a recognized accrediting agency provides a reasonable assurance of quality and acceptance by employers of diplomas and degrees. p. 7 education. Recognition by CHEA affirms that standards and processes of accrediting organizations are consistent with quality, improvement, and accountability expectations that CHEA has established. CHEA will recognize regional, specialized, national, and professional accrediting organizations.
Accreditation, as distinct from recognition of accrediting organizations, focuses on higher education institutions. Accreditation aims to assure academic quality and accountability, and to encourage improvement. Accreditation is a voluntary, non governmental peer review process by the higher education community . . . . The work of accrediting organizations 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. http://www.chea.org/pdf/Recognition_Policy-June _ 28 _ 2010-FINAL.pdf (accessed February 19, 2014).
The DOE recognizes the Transnation al Association of Christian Colleges and Schools , Accreditation Commission, which accredits "Christian postsecondary institutions in the United States that offer certificates, diplomas , and associate, baccalaureate, and graduate degrees, including institutions that offer distance education." The website indicates that was pre-accredited on NoVf~mher and accorded full accreditation on April See (accessed February 19,
2014). The beneficiary 's degree was awarded in January 2012, prior to full accreditation . The State of California acknowledges the qualitative difference between accredited and unaccredited educational institutions . The California Postsecondary Education Commission (CPEC), the state's planning and coordinating body for higher education from 1974 to 2011, 3 includes the following language regarding the "benefits associated with accreditation" on its website:
Both the federal government and the states use accreditation as an indication of the quality of education offered by American schools and colleges.
At the federal level, colleges and universities must be accredited by an agency recognized by the United States Secretary of Education in order for it or its students to receive federal funds.
At the state level, California allows colleges and universities that are accredited by the Western Association of Schools and Colleges (the recognized regional accrediting 3 · The CPEC ceased operations on November 18, 2011, after its funding was eliminated . See http://www.cpec.ca.gov (accessed February 19, 2014). p. 8 agency for California) to grant degrees without the review and approval of the Bureau for Private Postsecondary Education (BPPE). A list of approved institutions IS available at the California Bureau for Private Postsecondary Education (BPPE).
In some states, it can be illegal to use a degree from an institution that is not accredited by a nationally recognized accrediting agency, unless approved by the state licensing agency. This helps prevent the possibility of fraud .... http://www.cpec .ca.gov/x_collegeguide_old/accreditation.asp (accessed February 19, 2014). Accreditation is intended "to assure academic quality and accountability" (CHEA) and to provide "a reasonable assurance of quality and acceptance by employers of ... degrees" awarded by the accredited institutions (DOE). Moreover, the imprimatur of a regional accrediting agency guarantees that a school's degrees will be recognized and honored nationwide.
The Act is a federal statute with nationwide application. The regulations implementing the Act -including 8 C.P.R.§ 204.5(k)(2) defining "advanced degree" for the purposes of section 203(b)(2) of the Act - also have nationwide application. As defined in 8 C.P.R. § 204.5(k)(2), an "advanced degree" includes "any United States academic or professional degree . . . above that of baccalaureate" (or a foreign equivalent degree), "[a] United States baccalaureate degree" (or a foreign equivalent degree) and five years of specialized experience (considered equivalent to a master's degree), and "a United States doctorate" (or a foreign equivalent degree). (Emphases added.) Similarly, "professional" is defined in 8 C.P.R. § 204.5(1)(2) as "a qualified alien who holds at least a United States baccalaureate degree" (or a foreign equivalent degree). (Emphasis added.) The repeated usage of the modifier "United States" to describe the different levels of (non-foreign) degrees makes clear the intention of the rulemakers that the regulations apply to degrees issued by U.S. educational institutions that are recognized and honored on a nationwide basis . The only way to assure nationwide recognition for its degrees is for the educational institution to secure accreditation by a regional accrediting agency approved by the DOE and CHEA.
As previously discussed, the school that issued the beneficiary's degree - m California - was not accredited at the time the beneficiary earned her degree.
Accordingly, the beneficiary's Master of Arts degree from cannot be deemed to have nationwide recognition. Therefore, it does not qualify as an advanced degree within the meaning of 8 C.P.R. § 204.5(k)(2).
On appeal, counsel states that is currently accredited and that "pre accreditation" status is sufficient to demonstrate that the degree issued should be accepted by USCIS as a valid degree. The petitioner specifically cited INA § 214(g)(5), 8 U.S.C. 1184(g)(5), which states:
The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who --
(C) has earned a master's or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.
The petitioner further notes that 20 U.S.C. § 1001(a)(5) defines higher education as an educational institution in any State that:
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
As stated above, the beneficiary earned her degree on January 10, 2012. Although __ was pre-accredited at the time the beneficiary earned her degree, as stated above , the imprimatur of a regional accrediting agency guarantees that a school's degrees will be recogniz ed and honored nationwide. Without the accreditation, the petitioner cannot demonstrate that the beneficiary's degree would or should be recognized and honored nationwide. The provisions of INA § 214(g)(5) apply to H-1B non-immigrant petitions, not to immigrant petitions.
Counsel also states on appeal that as pre-accreditation standards through TRACS are virtually identical to the accreditation standards, the notable difference being the time that has elapsed while in compliance, a degree from a pre-accredited institution should be accorded the same weight as a degree from an accredited institution. Although the underlying criteria may have similarities, as stated above, without accreditation, the petitioner cannot demonstrate that the beneficiary's degree would or should be recognized and honored nationwide. The unaccredited degree is insufficient to establish eligibility under the immigrant visa category listed on the petition.
Based on the foregoing analysis, the AAO determines that the beneficiary is not eligible for preference visa classification as an advanced degree professional under section 203(b )(2) of the Act and 8 C.F.R. § 204.5(k)(2). Thus, the petition cannot be approved.
The beneficiary must also meet all of the requirements of the offered position set forth on the labor certification by the priority date of the petition . 8 C.F.R. § 103.2(b )(I), (12). See Matter of Wing's p. 10 Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971) .
When determining whether a beneficiary is eligible for a preference immigrant visa, 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. 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 the alien employment certification application form. 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 intentions through some sort of reverse engineering of the labor certification.
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of the application for alien labor certification - "Job Opportunity Information" - describes the terms and conditions of the job offered. In this case, Part H, lines 4 and 4-B of the labor certification state that the minimum educational requirement to qualify for the proffered position is a master's degree in theology, divinity or a related field and that no alternate qualifications would be accepted. Line 9 states that a "foreign educational equivalent" is acceptable.
The beneficiary does not meet the above requirements. As previously discussed , the beneficiary's degree from California, though called a Master of Arts, does not qualify as a U.S. master ' s degree because it was not awarded by an educational institution that has been accredited by a regional accrediting agency recognized by the DOE. Nor does the beneficiary have a foreign educational equivalent to a master's degree.
The beneficiary does not have an "advanced degree" within the meaning of 8 C.F.R. § 204.5(k)(2), and thus is not eligible for preference visa classification under section 203(b )(2) of the Act. Nor does the beneficiary meet the educational requirements on the labor certification to qualify for the job offered.
Beyond the decision of the director, 4 the petitioner has also failed to establish its ability to pay the proffered wage. The petitioner must demonstrate its continuing ability to pay the proffered wage An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOl, 381 F.3d 143 , 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). p. 11 from the priority date and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R . § 204.5(g)(2). Evidence of ability to pay "shall be in the form of copies of annual reports, federal tax returns, or audited financial statements." !d.
The record before the director closed on April 1, 2013 with the receipt by the director of the petitioner's original submissions. As of that date, the petitioner's 2012 federal income tax return was the most recent return available. In a Notice of Intent to Dismiss and Derogatory Information (NOID) sent on January 2, 2014, the AAO specifically requested evidence of the ability to pay the proffered wage in the form of annual reports, federal tax returns, or audited financial statements. In response, the petitioner submitted Internal Revenue Service Forms W-2 demonstrating that it paid the beneficiary in excess of the proffered wage in 2013. The IRS Form W-2 for 2012, however, states that the petitioner paid the beneficiary $7,200, which is less than the proffered wage of $42,764.80. In response to the AAO's NOID, counsel requests that USCIS prorate the proffered wage for the portion of the year that occurred after the priority date. We will not, however, consider 12 months of income towards an ability to pay a lesser period of the proffered wage any more than we would consider 24 months of income towards paying the annual proffered wage. While USCIS will prorate the proffered wage if the record contains evidence of net income or payment of the beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and only that period), such as monthly income statements or pay stubs, the petitioner has not submitted such evidence.Not eligible at the time of filing
The petitioner did not submit any annual reports, federal tax returns, or audited financial statements for the petitioner even though the AAO's NOID specifically requested that evidence. The petitioner's failure to submit these documents cannot be excused. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14).
The petitioner's failure to provide complete