Degree or an Alien of Exceptional Ability Pursuant to Section 203(h)(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 in your case. All of the docum cnis related to this matter have been returned to the office that originally decided your case. Please he advised I hat any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have adJitional information that you wish to have considered, you may file a inotion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fcc of $630. The specific requirements for filing such a motion can be found at 8 C.F.R . § 103.5. Do not tile any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he filed within 30 pays of the decision that the motion seeks to reconsider or reopen.
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center, and is no~ b~fore the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. · ·
The petitioner is a software development services company .. It seeks to employ the beneficiary permanently in the United States as a software engineer II 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, a labor certification accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification or as required by the advanced degree professional classification. The director denied the petition accordingly.
I
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in J 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. As set forth in the director's May 23, 2012 denial, the single issue in this case is whether the beneficiary possessed the minimum level of education stated on the labor certification and as required by the advanced degree professional visa category.
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 eq~ivalent 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 exper.ience 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. 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 1 . properly submitted upon appeal. ,
The beneficiary is an Associate Member of the Institution of ElectroniCs and Telecommunications Engineers (IETE formerly, AMIETE), India. Thus, the issue is whether the beneficiary's professional certification is a foreign degree equivalent to a U.S. baccalaureate degree. 1 The submission of additional evidence on appeal is allow~d by the instructions to the Form 1-2908, which are incorporated into the regulations at 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).
Eligibility for the Classification Sought
As noted above, the ETA Fonn 9089, Application for Permanent Employment Certification, in this matter is certified by the Department of Labor (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) of the Act; 20 C.F.R. § 656.1(a). It 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 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 h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
A United States baccalaureate degree is generally found to require four years of education. Maller of Shah, 17 I&N Dec. 244 (Reg'l. 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 five years progressive experience in the professions." H.R. Conf. Rep. No. 955, 101
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 vis~s. 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. SeeLorillard v.· Pons, 434 U.S. 575,580-81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it p. 4 adopts a new law incorporating sections of aprior 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 t_he substitution of experience for education. After reviewing section 121 ofthe 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 se~ond 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 d~gree under the second, an alien must have at least a bachelor ·s degree.
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 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 professiona! regulation spedfically states that a "baccalaureate means a bachelor's degree received from a college or university, or an equiv alent 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 oflicial 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") . Because, as explained ~nfra, the beneficiary does not have a bachelor's degree, the beneficiary does not qualify for preference visa classification under section 203(b)(2) of the Act as he does not have the minimum level of education required for the equivalent of an advanced degree.
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 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 (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 s~ction 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 the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified joh 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. fn,ine, Inc., 6l)9 F.2d at 1006, revisited this issue, stating: "The INS, therefore, may make a de novo determiiuttion of whether the alien is in fact qualified to till the certified job offer." Tongatapu, 736 F. 2d at 1309.
W~en determining whether a beneficiary is eligible for a pref~rence 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. llJ84) (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. See id. at 834. USCIS cannot and should not reasonably be expec1ed 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 ~hrough 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, section H, items 4 through 14 indicate that the position requires a master's degree, or foreign educational equivalent, in engineering, electronics, computer science, CIS, math, business, management, or technology. The petitioner will also accept a U.S. bachelor's degree, or foreign ·equivalent 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, and elsewhere in the record, eliciting information of the beneficiary's education he indicates that he is an
The record contains the following educational evaluations of the beneficiary's credentials :
- An evaluation from Evaluations Inc. The evaluation is dated July 4, 2012.
The evaluation is signed by The evaluation describes the beneficiary's ·membership in as being the equivalent of a U.S. bachelor's degree in electronic engineering.
- An evaluation from The Corporation. The evaluation is dated January 12, 2012. The evaluation is signed by . The evaluation describes the beneficiary's membership in as being the equivalent of a U.S. Bachelor of . Science degree in electronic engineering.
USCIS 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. llJ88). However, USCIS is p. 7 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 of Soffic:i, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)); 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).
Here, the evaluations are not persuasive in establishing that membership in the is equivalent to a four-year U.S. bachelor's degree. The evaluations make no attempt to assign credits for individual courses. Further, the evaluations fail to provide any explanation as to how they evaluated the beneficiary's degree, what materials were relied on, or what methodology was used in evaluating the beneficiary's degree. Additionally, the evaluations make no attempt to evaluate the courses taken by the beneficiary or compare then to a U.S. program. Moreover, none of the evaluations show that the is an academic institution .that can confer an actual degree with an official college or university record. It is not a college or university. Therefore, this credential will not lead to a beneficiary being classified as an advanced degree professional pursuant to the Act and regulations.
According to its website, the American Association of Collegiate Registrars and Admissions Officers (AACRAO), which created the Electronic Database for Global Education (EDGE) is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent approximately 2,600 institutions and agencies in the United States and in over 40 countries." See http://www.aacrao.org!About-AACRAO.aspx (accessed February 6, 2013 and incorporated into the record of proceeding). Its mission "is to provide professional development, guidelines and voluntary standards to be used by higher education officials regarding the best practices in records management, admissions, enrollment management, administrative information technology and student services." /d. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational explanation for its reliance on infor:mation provided by AACRAO to support its decision.
According to the login page, EDGE is "a web-based resource for the evaluation of foreign educational credentials" that is continually updated and revised by statf and members of AACRAO. Director of International Education Services, "AACRAO EDGE Login," http://aacraoedge.aacrao.orglindex.php (accessed February 6, 2013 and incorporated into the record of proceeding). In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D,Mich. August 30, 2010), a federal district court found that USCIS had properly weighed, the evaluations submitted and the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc., 2010 WL 3325442 (E.D.Mich. August 20, 2010), a federal district court upheld a USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the p. 8 information in EDGE and did not abuse its discretion in reaching iis.conclusion. The court also noted that the labor certification itself required a degree and did not allow for the combination of education and experience. The reasoning in these decisions is persuasive.
EDGE confirms that an Associate Certificate from upon passing the final examination represents attainment of a level of education comparable to a bachelor's degree in the United States . The record contains documentary evidence showing the beneficiary in the instant case passed the final exam and was awarded a certificate of membership as an associate member of the However, as explained above, the regulation contains a degree requirement in the form of an official college or university record. The is not an academic institution that can confer an actual degree with an official college or university record. The beneficiary is not eligible for classification as an advanced degree professional because he has not earned a U.S. bachelor's degree or a toreign equivalent degree even though his membership in the represents a combination of education and experience comparable to a U.S. bachelor's degree. See Snapnames.com, Inc. v. Michael Chertoff, CV 06-65-MO (D. Ore. November 30, 2006). In that case, the labor certification application specified an educational requirement of four years of college and a 'B.S. or foreign equivalent.' The district court detennined that 'B.S. or foreign equivalent' relates solely to the alien's educational background, precluding consideration of the alien's combined education and work experience. Snapnames.com, Inc. at 11-13. In professional and advanced degree professional cases, where the beneficiary is statutorily required to hold a baccalaureate degree, the court determined that USCIS properly concluded that a single foreign degree or its equivalent is required. Snapnames.com, Inc. at 17, 19.
In summary, although the petitioner has submitted evaluations stating that the beneficiary's membership is equivalent to a four-year U.S. bachelor's degree, the petitioner has not established that it is a "foreign equivalent degree" as required by 8 C.F.R. § 204.5(k)(2). is a professional engineering organization, not a college or university.Degree not shown to be a U.S. advanced degree equivalent Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree" from a college or university, the'beneficiary does not qualify for preference visa classification under section 203(b )(2) of the Act. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is !iismissed.