dismissed EB-2 Case: Business Analysis

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PUBLI(1 mpy 
I1.S. Department or tfumelsnd Securit! 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
 Office: NEBRASKA SERVICE CENTER Date: JAN 2 8 2010 
LIN 07 195 50930 
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. 5 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 oflice 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 ofice 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 
Chief, Administrative Appeals Oflice 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is in the wholesale diamond jewelry business. 
 It seeks to employ the beneficiary 
permanently in the United States as a business analyst pursuant to section 203(b)(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). As required by statute a Form ETA 750, 
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 satis@ the minimum level of education necessary for classification as a member of the 
professions holding an advanced degree. Specifically, the director determined that the beneficiary 
did not possess at least a U.S. baccalaureate or foreign equivalent degree. The director fhther 
determined that the petitioner had not demonstrated that the beneficiary had five years of experience 
in the job offered as required by the Form ETA 750. The director denied the petition accordingly. 
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. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. 5 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
The beneficiary possesses a foreign three-year bachelor's degree fiom the University of Bombay and 
is an Associate Member of the Institute of Chartered Accountants of India (ICAI). Thus, the issue is 
whether either of these credentials is a foreign degree equivalent to a U.S. baccalaureate degree. 
As noted above, the Form ETA 750 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)(S)(A)(i) of the Act; 20 C.F.R. 5 656.1 (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. 5 656, 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 (9h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 101 2-1 01 3 (D.C. Cir. 1983). 
Page 3 
The petitioner initially submitted an evaluation of the beneficiary's credentials from -~ 
of the Trustforte Corporation. concludes that the beneficiary's three- 
year baccalaureate is equivalent to three years of post-secondary education towards a baccalaureate 
in the United States. then notes that the beneficiary completed the Final 
Examination of the ICAI and was admitted as an Associate Member of the ICAI in 1992. Mr. 
concludes that the combination of the beneficiary's three-year baccalaureate and 
membership in the ICAI is equivalent to a Bachelor of Business Administration degree, with a 
concentration in accounting, awarded by an accredited institution of higher education in the United 
States. 
On appeal, counsel has submitted additional evaluations of the beneficiary's credentials. 
 An 
evaluation from International Educational Evaluations, Inc. states that "Passing [the final 
examination] of The Institute of Chartered Accountants of India following the completion of the 
Bachelor of Commerce degree compares to completing a U.S.A. undergraduate major in business 
administration and graduate major in accounting." An evaluation from of the 
Foundation for International Services, Inc. states that the beneficiary's Bachelor of Commerce 
degree is "equivalent to three years of university-level credit in business and accounting from a 
regionally accredited college or university in the United States." The evaluation concludes that the 
beneficiary has the equivalent of a bachelor's degree in accounting from a regionally accredited 
college or university in the United States, based on the combination of his three-year bachelor's 
degree and ICAI membership. Therefore, the evaluations submitted on appeal appear to be 
consistent with the evaluation from The Trustforte Corporation in concluding that the combination 
of the three-year bachelor's degree and membership in the ICAI is equivalent to a United States 
bachelor's degree. 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Cornrn'r. 1977). This decision involved a petition filed under 
8 U. S.C. $ 1 153(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 201 61 3 at *6786 (Oct. 26, 1990). 
Page 4 
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 
not intend to alter the agency's interpretation ofthat 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 (1 990), 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. 
' Compare 8 C.F.R. 8 214.2(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. 
Page 5 
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. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. 3 204.5(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." (Emphasis added.) For classification as a 
member of the professions, the regulation at 8 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 professional regulation 
specifically states that a '%accalaureate 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). 
Compare 8 C.F.R. $ 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, certifzcate 
or similar award from a college, university, school or other institution of learning relating to the 
area of exceptional ability"). (Emphasis added.) 
While ICAI may offer courses and examinations, there is no evidence that ICAI is a college or 
university or that membership is a "degree." See Snapnames.com, Inc. v. Michael Chertoff, 2006 
WL 3491 005 * 1 1 (D. Ore. Nov. 30, 2006) (finding U.S. Citizenship and Immigration Services 
(USCIS) was justified in concluding that ICAI membership was not a college or university "degree" 
for purposes of classification as a member of the professions holding an advanced degree). 
Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent 
degree" fiom a college or university 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. 
As noted above, the director also denied the instant petition based on the petitioner's failure to 
demonstrate that the beneficiary had five years of experience in the job offered as required by the 
Form ETA 750. In evaluating the beneficiary's qualifications, USCIS must look to the job offer 
portion of the alien labor certification to determine the required qualifications for the position. 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Cornrn. 1986). See also, 
Mandany v. Smith, 696 F.2d 1008; K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1" Cir. 1981). A labor 
certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate 
the approval of the relating petition. To be eligible for approval, a beneficiary must have all the 
education, training, and experience specified on the labor certification as of the petition's priority date. 
8 C.F.R. § 103.2(b)(l), (1 2). See Matter of Wing 's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. 
Comrn. 1977); Matter of Katigbak, 14 I. & N. Dec. 45,49 (Reg. Comm. 1971). 
In the instant case, the Form ETA 7504 item 14, states that the minimum experience for a worker to 
satisfactorily perform the duties of business analyst is five years of experience in the job offered, or in 
accounting in the diamond or jewelry industry, if the employee has a bachelor's degree. If the 
employee has earned a master's degree, the employee need only have two years experience. 
The regulation at 8 C.F.R. 8 204.5(k)(3) provides: 
Initial evidence. The petition must be accompanied by documentation showing that the 
alien is a professional holding an advanced degree or an alien of exceptional ability in 
the sciences, the arts, or business. 
(i) To show that the alien is a professional holding an advanced degree, the petition 
must be accompanied by: 
(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 support of the petition, the petitioner submitted the following evidence to establish that the 
beneficiary possessed five years of experience: 
worked with the firm as a Manager fiom Februarv 1993 to October 1993. 
w 
Aletterfiom , stating that 
the beneficiary worked for the organization as a Manager-Finance & Accounts from July 4, 
1994 to December 24. 1998. 
An appointment letter &om - confuming the beneficiary's service 
as an Accounts Officer beginning January I, 1 995. 
A letter fiom in which the author claims to have knowledge that the 
beneficiary worked for - in financial and tax accounting from 
December 1993 to July 1994. 
The director found that the letters were inadequate to establish that the beneficiary had the required 
five years of experience. 
On appeal, counsel has submitted additional evidence relating to the beneficiary's experience. 
Specifically, counsel has submitted the following: 
Page 7 
A letter fromconfming the beneficiary's employment with - 
from February 1993 to October 1993. The letter 
the beneficiary's job duties during his employment with 
A letter fiom attesting to the 
The letter states that, during his employment, the beneficiary was engaged in the 
audit and nrenaration and filing of income tax returns. 
.. - .~ ~ - ..-.. ~ - .= ..- -... - -- ----.. C7 - - -.. - - .--- .-.~. - -. ... 
A letter fiom confirming the 
beneficiary's employment with the company fiom July 1994 to December 1998. The letter 
provides additional details regarding the beneficiary's job duties during his employment with 
- 
Based on the additional evidence submitted in support of the appeal, this office finds that the 
petitioner has established that the beneficiary had five years of experience as of the priority date as 
required by the Form ETA 750. Therefore, that portion of the director's decision relating to the 
beneficiary's experience is withdrawn. However, as discussed above, 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. 
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 dismissed.