dismissed EB-2 Case: Business Administration

(b)(6)
DATE: APR 0 3 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
·and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the P.rofessions 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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non�precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Noti�e of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form 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. 
Thank you, 
�� .� 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition and the Administrative Appeals Office (AAO) dismissed the subsequent appeal. 
Counsel has filed three motions to reopen and reconsider our decision. We dismissed the motions 
and affirmed our initial decision. Counsel has now filed a fourth motion to reopen and reconsider our 
decision. The fourth motion to reopen and reconsider will be granted. We will treat this motion as a 
motion to reconsider. Our previous decisions ·will be affirmed. The appeal is dismissed and the petition 
remains denied. 
The petitioner describes itself as a low income housing tax credit - residential housing limited 
partnership. It seeks to permanently employ the beneficiary in the United States as a tax credit 
administrator. The petitioner requests classification of the beneficiary as an advanced degree 
professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2).1 
The petition is accompanied by a Form ETA 750, Application for Alien Employment Certification 
(labor certification), certified by the U.S. Department of Labor (DOL). The priority date of the 
petition, which is the date the DOL accepted the labor certification for processing, is July 31, 
2002. See 8 C.F.R. § 204.5( d). 
Our decisions dismissing the appeal and the subsequent motions conclude that the beneficiary's 
education does not meet the minimum requirements of the labor certification or the requested 
immigrant visa preference classification. 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). We consider all �ertinent evidence in the record, including new evidence properly submitted 
upon appeal and motion. 
The procedural history in this case is documented by the record and incorporated into the director's 
decision and our previous decisions on appeal and motions. Further elaboration of the procedural 
history will be made only as necessary. 
The instant motion qualifies for consideration as a motion to reconsider because the petitioner asserts 
an error in the application of law in that the beneficiary possesses a bachelor's degree and five years 
of progressive post-baccalaureate experience. 
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. See also 8 C.P.R. § 204.5(k)(1). 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees, 
whose services are sought by an employer in the United States. 
2 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
\ 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An 
"advanced degree" is defined as: 
[A]ny United States academic or professional 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 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. 
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic 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 United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
In addition, 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 professions holding an advanced degree, and that the offered position requires, at a minimum, a 
professional holding an advanced degree. Further, an "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. 
In evaluating the beneficiary's qualifications, U.S. Citizenship and Immigration Services (USCIS) 
must look to the job offer portion of the labor certification to determine the required qualifications 
for the position. users may not ignore a term of the labor certification, nor may it impose 
additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
users must examine "the language of the labor certification job requirements" in order to determine 
what the petitioner must demonstrate that the beneficiary has to be found qualified for the position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Madany, 696 F.2d at 1015. USCIS interprets the meaning of terms used to describe the 
requirements of a job in a labor certification by "examin[ing] the certified job offer exactly as it is 
completed by the prospective employer." 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 [labor 
certification]" even if the employer may have intended different requirements than those stated on 
the form. !d. at 834 (emphasis added). 
The beneficiary must also meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 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 the instant case, the labor certification states that the offered position has the following minimum 
requirements: 
EDUCATION 
Grade School: N/A. 
High School: N/ A. 
College: 6 years. 
College Degree Required: Master's or equivalent. 
Major Field of Study: Business Administration or relevant field. 
TRAINING: None Required. 
EXPERIENCE: None Required. 
OTHER SPECIAL REQUIREMENTS: None. 
The record demonstrates that the beneficiary possesses a Master's degree in Personnel Management and 
Industrial Relations from India, completed in 1991," and a Master's Degree in 
Economics from India, completed in 1988. 
Our previous decisions discussed our review of the Ele�tronic Database for Global Education 
(EDGE) created by the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO), noting that EDGE's credential advice provides that the beneficiary's Master's Degree 
in Personnel Management and Industrial Relations and his Master of Arts in Economic, represent the 
attainment of a level of education comparable to obtaining two bachelor's degrees in the United 
States. Based on the conclusions of EDGE and the evidence in the record, we conclude that the 
beneficiary possesses the foreign equivalent of two bachelor's degrees earned from an accredited 
U.S. college or university. 
Our previous decisions have further concluded that the terms of the instant labor certification do not 
indicate that a combination of education and experience, such as that defined in 8 C.F.R. § 
204.5(k)(2), is an acceptable alternative to the required Master's degree. Therefore, the beneficiary 
does not meet the minimum requirements for the proffered position as set forth on the labor 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
certification. 
We have also noted that, even if the petitioner had indicated that it would accept a combination of 
education and experience in lieu of a U.S. master's degree or foreign equivalent degree, the record 
does not establish that the beneficiary possesses the equivalent of an advanced degree (a Bachelor's 
degree and five years of progressive post-baccalaureate experience) pursuant to 8 C.P.R. § 
204.5(k)(2), as claimed by the petitioner. 
On motion, the petitioner asserts that we should uphold the appeal because the beneficiary is eligible 
for approval based on the plain language of INA § 203(b)(2) and 8 C.F.K § 204.5(k)(2). Further, the 
petitioner asserts that we should approve the petition because the beneficary can use experience 
earned with petitioner. 
The petitioner asserts that § 203(b )(2) of the Act and 8 C.P.R. § 204.5(k) (2) do not limit the 
application of the term advanced degree professional for individuals possessing a U.S. bachelor's or 
foreign equivalent degree and five years of progressive post-baccalaureate experience only to 
situations where this is specificaily stated on the Form ETA 750. Counsel references letters dated 
January 7, 2003 and July 23, 2003, respectively, from of the INS Office of 
Adjudications to counsel in other cases, expressing his opinion about the possible means to satisfy the 
requirement of a foreign equivalent of a U.S. advanced degree for purposes of 8 C.P.R. 204.5(k)(2). 
As we have noted, private discussions and correspondence solicited to obtain advice from USCIS are 
not binding on us or other USCIS adjudicators and do not have the force of law. Matter of Izummi, 22 
I&N 169, 196-197 (Comm'r 1968); see also, Memorandum from Acting Associate 
Commissioner, Office of Programs, U.S Immigration & Naturalization Service, Significance of Letters 
Drafted By the Office of Adjudications (December 7, 2000). 
Additionally, although 8 C.P.R. § 204.5(k)(2), as referenced by counsel and in Mr. 
correspondence, permits a certain combination of progressive work experience and a bachelor's degree 
to be considered the equivalent of an advanced degree, neither the regulation or the correspondence 
exempts the petitioner from demonstrating that the beneficiary meets all of the requirements of the 
offered position set forth on the labor certification by the priority date of the petition? 
The petitioner asserts that the beneficiary qualifies for the offered position based on experience as: 
• General Manager/ Tax Credit Administrator with the petitioner from January 1999 until 
present. 
• Senior Personnel Manager with 
until February 1996'. 
• Senior Personnel Administrator with 
in India from August 1995 
from July 1991 
3 8 C.F.R. § 103.2(b)(l), (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). 
(b)(6)
. NON-PRECEDENT DECISION 
Page 6 
until July 1995. 
The petitioner relies on an experience letter from . the petitioner's President/General 
Partner stating that the company employed. the beneficiary as a Tax Credit Administrator from 
January 28, 1998 until August 20, 2012. However, we have previously concluded that the letter 
cannot be used to establish the beneficiary's progressive work experience because the work 
experience was earned with the petitioner in the position offered. This position is supported by the' 
Board of Alien Labor Certification Appeals (BALCA). See Delitizer Corp. of Newton, 88-INA-482, 
May 9, 1990 (BALCA). Delitizer determined that 20 C.F.R. § 656.21( b)(6) does require that 
employers establish "the 'dissimilarity' of the position offered for certification from the position in 
which the alien gained the required experience." Delitizer Corp. of Newton, at 4. In its decision, 
BALCA stated that Certifying Officers should consider various factors to establish that the 
requirement of dissimilarity under 20 C.F.R. § 656.21(b )(6) has been met, and that, while Certif ying 
Officers must state the factors considered as a basis for their decisions, the employer bears the 
burden of proof in establishing that the positions are dissimilar. Delitizer Corp. of Newton, at 5. In 
the instant case, the beneficiary did not represent on Form ETA 750, Part B that he had been 
employed with the petitioner in any position other than the proffered position. In order to utilize the 
experience gained with the employer, the employer must demonstrate that the job in which the alien 
gained experience was not similar to the job offered for certification. See Delitizer Corp. of Newton. 
Therefore, we cannot consider the beneficiary's experience gained with the petitioner as qualifying 
experience to meet the requirements of the labor certification by the priority date. 
The petitioner asserts that the adjudication standards applied by the DOL are different than USCIS 
and that "there is nothing that precluded the Beneficiary from meeting the Master's Degree 
requirement before the DOL and the alternate Bachelor's Degree and 5 years of experience 
requirement with experience earned with the Petitioner before USCIS." The petitioner provides no 
legal authority for this assertion. 
Representations made on the certified Form ETA 750 clearly indicate that the actual mmmmm 
requirement for the offered position is a "Master's or equivalent degree in Business Administration or 
relevant field." As the actual minimum requirement is a master's degree, the petitioner could not hire 
workers with less th.an a master's degree for the same position. See 20 C.F.R. § 656.21(b)(5) [2004].4 
/ 
The petitioner asserts in its September 11, 2012 experience letter that the beneficiary's experience 
was gained as a Tax Credit Administrator (the proffered position) with substantially similar job 
duties. Experience gained with the petitioner in the offered position may not be used by the 
beneficiary to qualify for the proffered position without evidence that the DOL conducted a Delitizer 
4 In hiring a worker with less than the required experience for the offered position, in violation of20 C.F.R. § 656.2l(b)(5) 
[2004), the employer indicates that the actual minimum requirements are, in fact, not as stated on Form ETA 750. Rather, in 
that the beneficiary was hired in the offered position with less than a master's degree, it is evident that the job duties of the 
offered position can be performed with less than the education requirement listed on Form ETA 750. Therefore, it is not 
established that a master's degree is the actual minimum requirement for the offered position. 
(b)(6)
·NON-PRECEDENT DECISION 
Page 7 
analysis of the dissimilarity of the position offered and the position in which the beneficiary gained 
experience with the petitioner: 
As discussed above, in order to utilize the experience gained with the employer, the employ�r must 
demonstrate that the job in which the alien gained experience was not similar to the job offered for 
certification. Delitizer Corp. of Newton, 88-INA-482, May 9, 1990 (BALCA). The petitioner failed 
to establish the dissimilarity between the position the beneficiary previously held with the employer 
and the permanent position offered. Therefore/ we carinot consider the beneficiary's experience 
gained with the petitioner as qualifying experience to meet the requirements of the labor certification 
by the priority date. 
In general, experience gained with the petitioner in the offered position may not be used by the 
beneficiary to qualify for the proffered position without invalidating the actual minimum 
requirements of the position, as stated by the petitioner on the Form ETA 750. 
There is no regulatory-prescribed evidence in the record of proceeding demonstrating that the 
beneficiary is qualified to perform the duties of the proffered position, as he does not possess a 
master's or equivalent degree. Even if we accepted that the labor certification allowed the 
beneficiary to qualify based on a bachelor's degree and five years of progressive post-baccalaureate 
experience, a position we do not accept as noted herein, there is also no regulatory-prescribed 
evidence in the record to demonstrate that the beneficiary possesses the required five years of 
experience. 
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. § 103.2(b )(2)(i). 
Beyond the petitioner's experience letter, the record contains the following: 
• An experience' letter from Vice President (Operations) and Factory 
Manager on India letterhead stating that the company employed 
the beneficiary as an Assistant Manager (Personnel) from August 1995 to February 
1996. 
• A copy of the beneficiary's hiring documents with , India. 
These documents establish that the beneficiary was employed as a Personnel and 
Administration Officer from August 1, 1992 to July 28, 1995. 
• Two affidavits drafted by the beneficiary on October 8, 2012, providing his job duties 
with India and India 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
The record does not include any evidence demonstrating that the beneficiary's job duties as Assistant 
Manager (Personnel) and Personnel and Administration Officer represent experience relevant to the 
field of business administration or to the proffered position of Tax Credit Administrator.5 
Therefore, 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 motion is dismissed. The petition remains denied. 
5 Even if we accepted the beneficiary's affidavit describing his prior experience, we note that the beneficiary may have 
earned a total of three years and six months of qualifying experience.