dismissed EB-2 Case: Accounting

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
u. S. Citizenship 
and Immigration 
LIN 07 120 52593 
IN RE: 
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. 6 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Lw@- 
%oh F. Grissom, Acting Chief 
Administrative ~~~eal~~ffice 
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 jewelry importerlexporter and distributor. 
 It seeks to employ the beneficiary 
permanently in the United States as a controller pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153(b)(2). 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 foreign equivalent degree to a U.S. 
baccalaureate. 
On appeal, counsel submits a brief and a new credentials evaluation and resubmits previously 
submitted evidence. For the reasons discussed below, we find that the petitioner has not established 
that the beneficiary's documented education qualifies her 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. 8 204.5(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 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
The beneficiary possesses a foreign three-year bachelor's degree and is a member of the Institute of 
Chartered Accountants for India (ICAI). Thus, the issue is whether those credentials are a foreign 
degree equivalent to a U.S. baccalaureate degree. 
The petitioner has submitted two evaluations, one hom of the 
and the other from 
 Director of International Evaluation Services, LLC. 
asserts that the beneficiary's three-year Bachelor of Commerce degree from the University of Rajasthan 
is the equivalent of "three years of academic studies leading to a Bachelor's Degree in Business and 
Accounting from an accredited institution of higher education in the United States." - 
then concludes that the beneficiary's ICAI membership, based on examination results, considered 
together with the beneficiary's Bachelor of Commerce degree "is analogous to the attainment of a 
Bachelor of Science Degree in Accounting at an accredited US college or university." 
reaches a similar conclusion. 
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 21 2(a)(5)(A)(i) of the Act; 20 C.F.R. 8 656.1 (a). 
It 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. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (gth Cir. 1984); 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 th'e 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, 75 (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), afd 273 F.3d 874 (9" 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, 23 1 F.3d 984, 989 (5th 
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 (Reg. Comm. 1977). This decision involved a petition filed under 
8 U.S.C. 5 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. § 1 153(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., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at "6786 (October 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 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 
Page 4 
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 least a bachelor's degree). 
In 1991, when the final rule for 8 C.F.R. 5 204.5 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 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 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. 
56 Fed. Reg. 60897,60900 (Nov. 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."' 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. 5 204.5(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 of training and experience. 56 Fed. Reg. at 60900. 
' 
 Compare 8 C.F.R. 9 2 14.2(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. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. 5 204.5(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." For classification as a member of the 
professions, the regulation at 8 C.F.R. 5 204.5(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 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). CJ: 8 C.F.R. 
5 204.5(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, certzjcate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
The record contains no evidence that ICAI is a college or university. 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 as she does not have the minimum level of education required for the equivalent of an 
advanced degree. We note that an AAO decision reaching the same conclusion on similar facts (a 
three-year degree plus ICAI membership seeking classification pursuant to section 203(b)(2) of the 
Act) was upheld in federal court. Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *11 
(D. Ore. Nov. 30,2006). 
Beyond the decision of the director, we note the following inconsistencies that reduce the credibility 
of the evidence submitted. First, the petitioner indicated on the ETA Form 9089, Part C, line 5, that 
it had 58 employees. The petitioner filed the ETA Form 9089 electronically on January 19, 2007 
and signed the certified form on March 2,2007. On the Form 1-140 petition, signed by the petitioner 
on March 12, 2007, the petitioner indicated that it had only 21 employees. We note that the 
petitioner has filed 109 nonimmigrant and immigrant petitions in recent years. 
In addition, on the ETA Form 9089, Part J, signed by the beneficiary, the beneficiary indicated that 
she was a housewife and student from September 1,2002 through January 1,2005. On August 16, 
2007, the beneficiary filed a Form 1-485 Application to Register Permanent Residence or Adjust 
Status. On the accompanying Form G-325A Biographic Information, the beneficiary, who signed 
the form on August 10, 2007, indicated that she had worked as an accountant for - 
MD from October 2004 through January 2005. The record does not resolve this discrepancy. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Id. at 59 1. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.