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)(i)
I
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 matter 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 be made to that office.
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional inforn;aation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be subntitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Thank you,
Avcfb,
. Ron Rosenberg
Acting Chief, Administrative Appeals Office www;USCis;gov
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a software development business. It seeks to employ the beneficiary permanently in the United States as a programmer analyst 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 United States Department of Labor (DOL), accompanied tlie petition. Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. Specifically, the director determined that the beneficiary did not possess a master's degree from an accredited United States college or university or a foreign equivalent as required by the terms of the labor certification. ·Degree not shown to be a U.S. advanced degree equivalent
On appeal, the petitioner asserts that the beneficiary possesses the equivalent of a master's degree from an accredited university in the United States. The petitioner continues that even if the beneficiary only possessed the equivalent of a bachelor's degree, the beneficiary's five years of experience coupled with that degree would qualify her as a professional holding an advanced degree. The petitioner asserts that the director's decision requiring the beneficiary to meet the minimum terms of the labor certification, instead of the minimum 'definition of a professional holding an advanced degree in 8 C.F.R. § 204.5(k)(2) was arbitrary and capricious. Finally, the petitioner asserts that the director wrongfully relied on the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) when evaluating the beneficiary's credentials.
The record shows that the appeal is properly filed and timely 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. 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.P.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 aliren must have a United States doctorate or a foreign equivalent degree." /d.
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 ·
1.
The beneficiary possesses a foreign three-year Bachelor of Science degree in Physics and a two- ear Master of Science degree in Information Technology, both fro Thus, the issue is whether these degrees are a foreign degree equivalent to a U.S. master's degree. We must also consider whether the beneficiary meets the job requirements of the proffered job as set forth on the labor certification.
Eligibility for the Classification Sought
As noted above, the ETA Form 9089 in this matter is certified by DOL. 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)(5XA)(i) of the Act; 20 C.P.R.§ 656.1(a). It !s significant that none of the above inquiries assigned to DOL, or the remaining regulations implementing these duties under 20 C.P.R. § 656, involve a determination as to 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
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 whe_n 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 not intend to 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 ~east a bachelor's degree).
In 1991, when the final rule for 8 C.P.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 the1 Committee of Conference, the Service specifically noted that both the Act a~d 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 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.
PageS the "foreign equivalent degree" to a United States baccalaureate degree (plus· the requisite five years of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2).
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree" (plus . evidence of five 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 concentration of study." We cannot conclude that the evidence required to demonstrate that an alien is an advance9 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 commep.tary 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 official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability"). As noted above, the beneficiary possesses both a three-year Indian Bachelor of Science degree and a two-:year Indian Master of Science degree. · The record contains evaluations from Universal Evaluations and Consulting Inc. and the Trustforte Corporation. The Universal evaluation opines that the beneficiary possesses the equivalent of a master's degree from a United States university. The Trustforte evaluation opines that the beneficiary possesses the equivalent of a bachelor's degree from an accredited college or university in the United States. Matter of Ho, 19 I&N Dec. 582, 591-592 {BIA 1988), states:Inconsistencies in the record
[i]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the conflicting accounts, absent competent objective evid~nce pointing to where the truth, in fact, lies, will not suffice.
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988); Matter of Sea, Inc., 19 I&N Dec. 817 (Comm'r 1988). See also 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 director consulted EDGE, which advised that the beneficiary's educational credentials are the equivalent of a bachelor's degree from an accredited United States college or university. According p. 6 to its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world." http://www.aacrao.org/About-AACRAO.aspx (accessed January 6, 2013). Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." /d. According to the registration page for EDGE, EDGE is "a web-based resource for the evaluation of foreign educational credentials." http://edge.aacrao.org/info.php (accessed January 6, 2013). Authors for EDGE work with a publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials.3 If placement recommendations are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire Council. /d. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 4 On appeal, counsel argues that the beneficiary qualifies for the proffered job because he possesses the equivalent of a bachelor's degree plus five years of experience. Even if counsel were correct, and the labor certification allowed for a beneficiary to qualify for the proffered job based upon such credentials, the petitioner has not established that the instant beneficiary has the required minimum experience. The beneficiary's claimed qualifying experience must be supported by letters from employers giving the name, address, and title of the employer, and a description of the benefichgy's experience. See 8 C.F.R. § 204.5(g)(1 ). The record contains letters from:
Because the beneficiary does not have a U.S. master's degree or foreign equivalent degree in Computer Science, Computer Applications, Information Technology or related field, he does not qualify for preference visa classification as an advanced degree professional under section 203(b )(2) of the Act. ·
Qualifications for the Job Offered
Relying in part on Madany, 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 t)le 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 se'eks sixth preference status. Th~t 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 {91h Cir. 1983). The court relied on an amicus brief from 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 tbe 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, citingK.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, 736 F. 2d at 1309.
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. It is important that the ETA Form 9089 be read as a whole. Moreover, 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 imp'ose additional requirements. See Madany, 69q 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 p. 8 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 labor 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 DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. ·
In this matter, Part H, line 4, of the 'la~or certification reflects that a master's degree is the minimum level of education required. Line 8 reflects that no combination of education or experience is acceptable in the alternative. Line 9 reflects that a foreign educational equivalent is acceptable. The petitioner, when filling out the applicationfor labor certification, had the option of stating that an alternate combination of education and e~perience could be substituted for a master's degree. However, the petitioner indicated that only a master's degree was acceptable. · The AAO concurs with the director that the beneficiary possesses the equivalent of a bachelor's degree from an accredited college or university in the United States. Thus, the beneficiary does not meet the minimum requirements of the labor certification which requires a master's degree. For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved. .
Ability to Pay the Proffered Wage
Beyond the decision of the director,5 the petitioner has also failed to establish its continuing ability to pay the proffered wage as of the priority date. See 8 C.F.R. § 204.5(g)(2).
According to USCCIS records, the petitioner has filed more than 100 1-140 and 1-129 petitions on behalf of other beneficiaries. Accordingly, the petitioner must establish that it has had the continuing ability to pay the combined proffered wages to each beneficiary from the priority date of the instant petition. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 {Acting Reg'l Comm'r 1977).
Although the petitioner provided a Form W-2 showing that it employed and paid the petitioner in 2009, the record does not contain evidence that it was able to pay the full proffered wage in 2010, the year containing the priority date, or any time since. Additionally, we note that the petition states that the petitioner employs 80 people. However, according the USCIS records, the petitioner has filed over one 5 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. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). p. 9 hundred petitions for alien workers. This is an inconsistency in the record which the petitioner has not reconciled. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). -The evidence in the record does not document the priority date, proffered wage or wages paid to each beneficiary, or whether any of the other petitions have been withdrawn, revoked, or denied, or whether any of the other beneficiaries have obtained lawful permanent residence. Thus, it is also concluded that the petitioner has not established its continuing ability to pay the proffered wage t9 the beneficiary and the proffered wages to the beneficiaries of its other petitions.
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.