http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2007/Aug152007_02B5203.pdf
U.S. Department ofHomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
Office: NEBRASKA SERVICE CENTER
AUG 15 2007
Date:
u.s. Citizenship
and Immigration
Services
LIN 0615951905
PUBLIC COpy
identifying data deleted to
prevent clearly unwarranted
invasion ofpersonal privacy
FILE:
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 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:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.
~vferrC,,~ Administrative Appeals Office
www.uscis.govLIN 0615951905
Page 2
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 sustained; the petition will be approved.
The petitioner manufactures and sells semiconductor components, systems and equipment. I t seeks to
employ the beneficiary permanently in the United States as a test engineer pursuant to section 203(b)(2)
of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). 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. As
required by statute, an ETA Form 9089 Application for Alien Employment Certification approved
by the Department of Labor (DOL), accompanied the 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. The director's conclusion, however, is based on an analysis of the beneficiary's
undergraduate degree, not his graduate degree.
On appeal, counsel asserts that the beneficiary has the foreign equivalent of a U.S. Master's degree.
The record supports counsel's assertion.
For the reasons discussed below, we find that decisions by federal circuit courts, which are binding
on this office, have upheld our authority to evaluate whether the beneficiary is qualified for the
classification sought.'
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.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 experience in the specialty shall be considered the
equivalent of a master's degree." Id. The petitioner, however, is not asserting that the beneficiary
has a baccalaureate degree plus five years of experience. Rather, the petitioner is asserting that the
beneficiary has an academic or professional degree or a foreign equivalent degree above the
baccalaureate level.
The beneficiary possesses a foreign three-year bachelor's degree and a two-year Master of Science
degree in Electronics Science from the University ofCalcutta. Thus, the issue is whether that degree
can serve to qualify the beneficiary for the classification sought.
As noted above, the ETA Form 9089 in this matter is certified by DOL. Thus, at the outset, it is useful
to discuss DOL's role in this process. Section 212(a)(5)(A)(i) of the Act provides:
1 Cf Hoosier Care, Inc. v. ChertofJ, No. 06-3562 (7th Cir. April 11, 2007) relating to a lesser classification than the one involved in this matter and relying on the regulation at 8 C.F.R. § 204.5(1)(4), a provision that does not relate to the classification sought.LIN 0615951905
Page 3
In general.-Any alien who seeks to enter the United States for the purpose ofperforming
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined
and certified to the Secretary ofState and the Attorney General 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 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 ofworkers in the United States similarly employed.
According to 20 C.F.R. § 656.1(a), the purpose and scope of the regulations regarding labor
certification are as follows:
(a) Under section 212(a)(5)(A) of the Immigration and Nationality Act ( INA or Act)
(8 U.S.C. 1182(a)(5)(A», certain aliens may not obtain immigrant visas for entrance
into the United States in order to engage in permanent employment unless the
Secretary of Labor has first certified to the Secretary of State and to the Secretary of
Homeland Security that:
(1) There are not sufficient United States workers who are able, willing,
qualified and available at the time of application for a visa and admission
into the United States and at the place where the alien is to perform the
work; and
(2) The employment of the alien will not adversely affect the wages
and working conditions ofUnited States workers similarly employed.
I t is significant that none of the above inquiries assigned to 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.
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 CastanedaGonzalez v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). In tum, DOL ha s the authority
to make the two determinations listed in section 212(a)(14) [current section
212(a)(5)].2 Id. at 423. The necessary result of these two grants of authority is that
2 As amended by Sec. 601, and as further amended by Sec. 172 of the Immigration Act of 1990, Ac t of Nov.
29, 1990, Pub. L. 101-649, 104 Stat. 4978; however, the changes made by Sec. 162(e)(1) were repealed by
Sec. 302(e)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991,LIN 06 15951905
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section 212(a)[(S)] 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)[(5)]. I f 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)(l4) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published
decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R.B.
v. Ashkenazy Property Management Corp., 817 F.2d 74, 7S (9th Cir. 1987)(administrative agencies
are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd.
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), af f 'd 273 F.3d 874 (9
th Cir. 2001)(unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in private publications or widely circulated). Even CIS internal
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 231 F.3d
984,989 (Sth Cir. 2000)(An agency's internal guidelines "neither confer upon [plaintiffs] substantive
rights nor provide procedures upon which [they] may rely.")
A United States baccalaureate degree is generally found to require four years of education. Matter
of Shah, 17 I&N Dec. 244, 245 (Reg. Comm. 1977). The Joint Explanatory Statement of the
Committee of Conference, published as part of the House of Representatives Conference Report on
the Immigration Act of 1990, 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. 95S, 101 st Cong., 2 nd Sess. 1990,
1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (October 26, 1990). At the time of enactment
of the Act in 1990, it had been almost thirteen years since Matter ofShah 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 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 Lorilland v. Pons, 434 U.S. 575, 580 (1978)(Congress is presumed to be aware of administrative
and judicial interpretations).
Pub. L. No. 102-323, 105 Stat. 1733, effective as though that paragraph had not been enacted.LIN 06 15951905
Page 5
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
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 the Committee ofConference,
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 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.
Employment-Based Immigrants, Final Rule, 56 Fed. Reg. 60897, 60900 (November 29,
1991)(emphasis added).
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under
section 203(b)(2) of the Act as a member of the professions holding an advanced degree with
anything less than a full baccalaureate degree. More specifically, a three-year bachelor's degree will
not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree.
Matter of Shah, 17 I&N Dec. at 245. 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.t" 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 equivalent degree" to a United States baccalaureate degree.
8 C.F.R. § 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may
qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than
two years oftraining and experience. 56 Fed. Reg. at 60900.
In this matter, contrary to the implication in the director's decision, the petitioner is not attempting to
classify the beneficiary as a member of the professions holding an advanced degree through a
combination of multiple lesser degrees or education. Rather, it is the petitioner's contention that the
beneficiary's Master of Science degree from the University of Calcutta constitutes a foreign
3 Cf 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(defining for purposes of a nonimmigrant visa classification,
the "equivalence to completion of a college degree" as including, in certain cases, a specific
combination of education and experience). The regulations pertaining to the immigrant
classification sought in this matter do not contain similar language.LIN 0615951905
Page 6
equivalent degree to a U.S. academic or professional degree above the baccalaureate level. The
petitioner initially submitted a credential's evaluation from the Trustforte Corporation. The
evaluation indicates:
Admission to the graduate-level programs of the University of Calcutta is based on
the completion of bachelor's-level studies and competitive entrance examinations.
[The beneficiary] completed the requisite graduate-level studies, with a concentration
in Electronics Science. In addition, she was required to prepare and defend a
master's-level thesis in her field ofconcentration.
Based on her coursework at the University of Calcutta, the evaluation concluded that the beneficiary
"attained the equivalent of a Master of Science Degree in Electronics from an accredited US college
or university." On appeal, the petitioner submitted three new evaluations , each consistently finding,
based on the length of her studies and the number of credits, that the beneficiary's Master 's degree is
a foreign equivalent degree to a U.S. Master 's degree.
Citizenship and Immigration Services (CIS) uses an evaluation by a credentials evaluation
organization of a person' s foreign education as an advisory opinion only. Where an 'opinion is not in
accord with previous equivalencies or is in any way questionable, it may be discounted or given less
weight. See Matter ofSea, Inc., 19 I&N Dec. 817, 820 (Comm., 1988). The petitioner submitted the
beneficiary's transcript for her Master's degree, which reflects two years of coursework. This
transcript is consistent with the evaluations provided. Moreover, the petitioner has provided four
consistent and reasonable evaluations all finding that the beneficiary's Master ' s degree is a foreign
equivalent degree to a U.S. Master's degree. Thus, we are persuaded that the beneficiary qualifies
for the classification sought.
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 met that burden.
ORDER: The appeal is sustained. The petition is approved.
