Degree or ~n Alien of Exceptional Ability Pursuant to Section 203(b )(2) of th_e Inm:tigration and Nationality Act, 8 U.S.C. § 1153(b)(2) -
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Adniinistrative Appe1tls Office (AAO) in your case. Tbis is ~ non ... precedent Qe<;ision. The AAO does not announce new constructions of law nor establj~h agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your ca8e or if you seek to present new facts for consideration, you may file a motion to reconsider or a l'i;lqtion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Mo~ion(Fof1Tl I-290B) within 33 days of the date of this decision. Please review tbe Fo~ 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. on :Rosenperg
/ Chief, Administrative Appeals Office www-.uscis;gov
DISCUSSION: The Director, Nebraska Service Center, denied the illlilligrant 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 a computer softwa_re and hardware development business. It seeks to permanently employ the beneficiary in the United States as an electronics engineer. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the IIiliiligration and Nationality Act (the Act), 8 U .S.C.§ 1153(b )(2). At is·sue 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, Appli~tion for Permanent Employmen_t Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition i_s August 17, 2012.2 Part H of the labor certification states that the offered position has the following minimum requirements:
H.4. Ed11catjon: Bachelor's degree, Electronic Engineering, or related degree.
H.5. Training: None required. ·
H.6. Experience in thejob offered: 60 months.
· H.7. Alternate field o.f s.t.lldy: None accepted.
H.8. · Alternate combination of education and e:x:perience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.10. Experience in an alternate oceupation: 60 months, any related occupation.
H.14. Specific skills or other requirementS·: Must have professional experience with: high volume consumer eiectronics manufacturing; hands-on test lab experience; soldering skills; · PCB. ·repair; creating handy mechanical proto typing; antenna and OT A testing; RF theories; wireless connnupjcation systems; RF instruments and components such as network analyzer, spectrum analyzer, high-frequency signal generator, filters, couplers; and GUI based SW to ruii tests. ** Professional experience must be post-ba~aureate and progressive in [sentence unfinished] . Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in ·E.Iectronic· Engineering from . The record contains a copy of the beneficiary's "Certificate of Completion" and transcripts from the 1 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § Z04.5(a)(Z). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. ;§ 204.5(d). .
The record also contains an evaluation of the beneficiary's educational crede11tials prepared by _ on January 13, 2009. The evaluation states that the beneficiary attained the foreign equivalent of a four"-year Bachelor of Science degree in Electronic Engineering from an accredited U.S. college or univet~ity based on the beneficiary's studies at the
- • The record ·also contains an eva.luat_ion of the benefiCiary's educational credentials prep~red by : on .February 11, 2013. The evaluation states that the beneficiary attained the eq1,1ivalent of a Bachelor of Science degree in Electr911ic EiJ.gineering.
Part K of the labor certification states that the beneficiary possesses the following employment e~petience:
- Electronics E.ngineer with
- Test
Engineer with
July 11, 2008.
. from July 14, 2008 until present.
=====...... from April 7, 2008 until
- Jig's Engineer with
2008.
~ ---------- -------- from May 25; 1998 until March 19, The record contains an experience letter from Specialist E11gineer on letterhead stati.llg thCit employed the beneficiary as a Jig's Engineer from Mav 25. 1998 until Match 19, 2008. itates tbat :_ _ : was bought by _ The record contains an experience letter from
HR Manager on _ _ letterhead stating that the· company employed the beneficiary as a Test Engineer from April 7, 2008 until July 11, 2008.
The director's deci~i()n denying the petition states that the beneficiary has five years of experience in the job offered, but the beneficiary does not have a foreign degree equivalent to a U.S. bachelor's degree. The director therefore found that the beneficiary is not a member of the professions holding an advanced degree as he does not have the education to ineet the terms of the certified labor certification. ·
On appeal, the petitioner states the director's denial is contrary to 8 C.P.R. § 204.5(k) and asserts that the evidence clearly eStablishes that the beneficiary holds a foreign equiv(l}el1t degree to a U.S. baccalaureate degree. Petitioner's counsel stated that it would Submit a briefwithill30 days, However, as of three months (l[ter the appeal's filing nothing further has been submitted. The decision will be issued based on the teoord as it currently stands.
The petitioner's appeal is properly filed and makes a specific allegation of error in law ot fact. The AAO conducts appellate review on a de novo basis.3 The AAO considers all pertinent evidence in 3 See 5 U.S.C. 557{b) ("On appeal from or review of the illitia). decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Jank!J, v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). p. 4 (b)(6) NON-PRECEDENT IJECISION tp~ record, including new evidence properly submitted upon appeaL 4 A petitjoQ tb.at fails to comply with the technical requirements of the law maybe denied by the AAO even if the director does not identify all of the grounds for denial in the initial dec:ision. 5
Law Anj) Analysis
Tbe ,R~Ies Qftbe 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 Itmn_lgration Services (USCIS) in the employment-based iinmigrant vis_a 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 s_kjlled or unskilled labor is inachnissible, unless the Secretary of Labor has · determined and certified to the Secretary of State and the Attorney Gener<ll that-(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 Cl,t the place Where the alien js to perform such skilled or unskilled labor, and
(11) the employment of such alien will not adversely affect t)le wages and wm:kjng conditions of workers iri the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or tbe re.gul~tions 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 d_ecisions res_ts_ with JNS. The langmtge of section 204 cannot be read otherwise. See Castaneda- · .- Gonzalez v. INS, 564 F.Zd 417, 429 (D.C. Cir. 1977). In tum, DOL has the authority The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Solume v, DOJ, 381 F.3d 143, 145 (3d Cir. 2004). --
PageS
NON-PRECEDENT DECISION to make the two determinations listed in section 212(a)(14). 6 /d. at 423. The necesSary result of these two grants of authority is that section 212(a)(14) d.~terminations are not subject to review ·· by INS a,bse11t fraud or willful misrepresentatiol.l, but all matters relating to preference classification eligibility not expressly delegated to DOL re1Ila,in within INS' authority.
Given the language ofthe Act, the totality of the legislative history, and the agencies' . own interpretations of their duties under the Act, we 11l~St conclude that CongresS did 110t int~nd DOL to have primary authority to make any determinations other than the ·two stated in section 2l2(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 tMtit will then be "in a position to me.et the requirement of the law," namely the · sectioQ Z12(a,)(14) determinations .
.Marlg.ny 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:
[t]t appears that .the DOL is responsible only for deter:mining the availability of suttagi.e American workers for a job and the impact of alien employment upon the domestic labor ma.rket. It does not appear that the: DOL's role extends to determining if the alien is qualified for the job for which by seeks sixth preference status. That detepnination appears to be delegated to the INS under section 204{t:, ), 8 U.S.C.
~ - 1l54(b ), a,s one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
KR,J( ;./rvine, .Inc. v. Landon, 699 F.2d 1006, 1()08 (9th Cir. 1983). The court relied. on at1 .amicus brief from the DOL that stated the followi_ng:
. The labor certification made by the Secretary ·of Labo.r . . . 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 thg.t the alien offered the certifi~4 job opportunity is qualified (or not qualified) to perform · the duties of that .job. ..
(Emphasis added.) Id, a.t 1009. The Ninth Circuit, citingK.R.K.I,;ine, 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 entitlelllent 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.l983). .
The INS, therefore, may make a de novo detefll.lination of whether the alien is in fact qu~l_ified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v.' Feldman, 736 F. 2d 1305, 1309 (9th Cit. 1984).
Therefore, it is the POL's responsibility to determine .whether there are qualified U.S. workers available to perfortil the offered position, and whether the employment of the beneficiary will iidver.sely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficia,ry qualifi~s for the offered position, and whether the offered position and the beneficiary are eligible for the requested elllployment-based immigrant visa classification. Eligibility for Ule Cl~sification Sought
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides in:lnJigrant classification to members of the profe$Sion.s bplding advanced degrees. See als'o 8 C.ER. § 204,5(k)(l ).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms ''advanced degree'' and "profession." An "adv~~d degree" is defined as:
[A]ny United States academic or profession~ 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 Iilastet's degree. If a doctQriil 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 10l(a)(34) of the Act, as well .as any OCC11Pl:!Jion for wbich a United States . baccalaureate degtee or its foreign equivalent is the minimum requirement Jot entry into the occupation/ The occupations listed at section 101(a)(32) of the Act ar.e ·"architects, engineers, lawyers, physicians, surgeons, · a,n.d teachers in elementary ot 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) Art offiCial acadeniic 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 Uilited States baccalaureate degree or a foreign equivalent degree, and evidence in the form of . letters from current or former employer(s) showing that the alie_n has at least five years of progressive post-bacal1cmreate experience in the specialty. m add}tjon, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.f.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the pt:ofessiotlS holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advat.Iced degree. Further, an r:'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. When , the beneficiary relies on a bachelor's degree (and five years of progressiVe experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foteigrt
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held tltat, in professional ~d advanced degree professional ca.Ses, where the beneficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary's credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree.''7 In order to have experience and education equating to an advanced degree under section 203(b )(2) ·of the Act, the beneficiary must have a single degree that is the "foreign equivalept degree" of a United States baccalaureate degree. See 8 C,F.R. § 204.5(k)(2).
In the instant case, the petitioner relies on the beneficiary's Certificate of Completion from ~ _ and five years of experience in the job offered as being eq:u:ivale~t to a U.S. bachelor's degree plus five · years of progressive experience as the regulatory equivalent of a Master's degree. ·
.As is :poted above, the record contains an evaluation of the beneficiary's educational credeptials prepared by • ~ _ on January 13, 2009. The evaluation states that the beneficiary attained the "foreign equivalent" of a four-year Bachelor of Science degree in Electronic Engineering from an accredited U.S. college or unive(sity. The .credentials evaluation from . states that in otdet to earn a degree certificate in Mexico students must complete a protracted period of social or military . service a,nd pass a professional licensing examination; Mexiean students who do not COillplete the additional non-coursewo* requirements are issued a Pasante certificate indicating that all of the bachelor's level co1.lrseWotk has been completed; a,nd the Pasante certificate is widely regarded by accredited U.S. colleges and universities as representing fulfillment of a four;..yea,r bachelor's-level degree for purpo$es of admission to U.S. master's programs. However, cle::J..rly ' states that "the Pasante credential awarded ... does not confer the degree designation "Licertciatuta" or "Titulo Profesional."" Instead, he states that the Pasante effectively, ''functions as a bachelor's . level degree in the Mexican educational system."
The AAO ba.s reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a nonprofit, voluntary, professional associ~tion of more than 11,000 higher education . admissions and registration professionals who represent more than 2,600 ht.stjtutions aiJd. agencies in the United States and in over 40 countries around the world," See http://www.aacrao.otg!About-AACRAO.aspx. Jts mission "is to serve and advance higher education by providingleadership in academic and enrollment services." /d. EDGE is "a web-based resource 7 Compare 8 C.P.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of H-lB nonimmigrant visa classification, tbe "equivalence to completion of a college degree" as including, in certain cases, a speCific combination of education and experience). The regulatiOJ:IS pertaining to the immigrant classification sought in p. 9 for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.pbp. USCIS . considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 8
As cited by the director in his decision, according to .EDGE, a Certificate of Program Completion "represents completion of 3 to 5 years of post-secondary coursewofk for a licenciatura program, but doe$ pot represent completion of all degree requirements." According to EDGE "Regardless of the number of years of study, the Carta de Pasante is insufficient to detertnine degree completion. Always requite the submission of the licenciatwa or titulo which shows that the degree was awarded. If the student cannot provide such documentation, credit may be awarded on a course-by cou,r~e basis."
EDGE States, "LicenciaturatTitulo de Licenciado(a.)tTitulo de (field of study or profession such as lngeniero/Engineer, Contador ·· Publico/Public Accountant) Licentiat~tTitle of Licentiate/Title of (field of study or profel)sion). Represents completion of 3 to 5 years ofposhsecondary coursework." EDGE further states, "The Licenciatura/Titulo de Licenciado(a)tTftulq de (field of study ot profession such as lngeniero/Engineer, Contador Publico/Public Accountant) Licel}tiatetTitle of Licentiate/Title of (field of study or profession) represents attainment of a level of education comparable to a bachelor's degree in the United States. NOTE: This applies only to programs of at least 4 years' duration. A 3 year Licenciatura I Titulo. de Licenciado(a.) is not equivalent to a U.S. ba.<:helor's degree."
The credentials evaluation from The Trustforte
Corporation states that the beneficiary "completed
ExamiAation."
Therefore, based on the conclusions of EDGE and the notation on the bel_leficiary's Certificate of Completion, . the evidence in the record on appeal is not sufficient to establish that the beneficiary posse~~es the foreign equivalent of a U.S. bachelor's degree in Ele.ctronie Engineering, or related degree.Degree not shown to be a U.S. advanced degree equivalent Nothing shows that the beneficiary was issued a /icen.c:iatura or titulo to evidence that he completed all of the degree reql!ire_rnents and was awarded the actual degree to .establish that he has the required foreign equivalent of a U.S. Bachelor's degree. .
After reviewing all of tbe evi<ience in the record, it is concluded th_a't the petitioner has failed to establish that the beneficiary possessed at leru;t a tJ .s. academiC or professional degree (or a. foreign eql1iva1ent degree) -above a baccalaureate, ot a U.S. ba{Xa}aureate ·(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 fot classification as an advanced degree professional · under section 203(b )(2) of the Ad.
The Minimum RequireQlents oftheOffered Positi-on
The petitioner must also establish that the beneficiary satisfied all of the educational, training, experience <md any other requirements of the offered positio~ ·by the priority date. · 8 C.F.R. § 103 .. 2(b )(1), (12) . . · See Matter of Wing's 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). .
In evaluating the jQl_J of:fer portion of the labor certification to determine tbe required qualifica'tions _ for the position, USCIS may not· ignore a tertn of the labor certification, not may it im,pos.e additional requirements. See Madany, 696 F.2d at J008; .K.R.K. Irvine,. Inc., 699.F.2d at 1006; Stewart Infra-· R,eg Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1stC1r. 1981).
- Where thejob req-uirements in a labor certification are not otherwise unambignously prescribed, e.g;, by regulation, tJSCiS must examine "the laJ1grtage of the labor certification job requirements" in order . to geteqnine "what the petitioner must deiDons.tra~e about the. beneficiary's qualifications. Madtzny, 696 f.4Q at 1015. The only rational ma:ililer by which USCIS cap be expected to interpret the. meaning · of . tettns . used to describe the requirements of a job in a lCJ,bor certifiGa.tioP is to ''examine the certified job offer exactly as jt is completed by the prospective empl6yet.'' Ros_e(Jale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's_ jnterpr.e.t.ation of the job's requirements, as st(!,ted on the labor certificat_ion, mlJ_st involve ''reading and applying th.e plain language of the [l~bor certification]." Id. at 834 {emphasi~ agded). · tJSCIS cannot and should not reasonably be expected to look beyond the plain langliage of the _labor certificatio_n or otberwise . attempt to divine the employer's intentions through-some sort· of reverse engineering . of the Ia bot certification. Even though the labor certification. may be prepa;Tc;!d witb the. beneficiary in mind, USClS has an independent role in determining wh,ether the beneficiary meets the labor certification reql1ir¢ments. SeeSnapnames.com,Inc. v. Michael Chertoff, 2006 WL 3491005 */ (D. Or. Nov.30, 2006).
(b)(6) NON-PRECEDENTDECISION
In tbe instant <4Se, the labor certification states that the offered position requires a Bachelor's degree, or foreign equivalent, in Electronic Engineering, or a related degree, and 60 months of experience in tbe job offered or a related occupation.
The petitioner failed to establish that the beneficiary possessed the minimum education requirements of the offered position set forth on the labor certification by the priority date. Accordrngly, the petition tnl.J.St also .be denied for this reason. · ·
Conclusion
IIl summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the tefuis of the labor certification aQd 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.
The appeal will be dismissed for the above stated reaSons, with each considered as an independent and alternate basis for the decision. In vi_sa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. SectioQ .291 of the Act, 8 tJ.S.C. § 1361; Matter ofOtiende, 26 '1&N Dec. 127, 128 (BIA 2013). Here, that burden has not beeJ1 met. ORDER: The appeal is dismissed.