dismissed EB-2 Case: Business Analysis

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
Date: 
jUL 272012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
LJ.S.l)epartment of Homeland Securit\ 
U.S. (:itizenship and lmmigral ion Sen h.'L" 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 21)'11) 
Washington. DC 20.;;29-2()9() 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ahility Pursuant to Section 203(h)(2) of the Immigration and 
I\ationality Act, K U.s.c. § 1153(b)(2) 
ON IlEH:\LF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase find the decision of thc Administrative Appeals Office in your case. All of the documenh 
relaled 10 Ihis mailer have heen returned to the office that originally decided your casco Please he advised thai 
any further inquiry that you might have concerning your case must be made to that office. 
If you helieve the AAO inappropriately applied the law in reaching its decision, or you have additi,,,,al 
information that you wish to have considered, you may file a motion to reconsider or a motion to rCDpen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fcc of $630. TIll' 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any mot;nn 
directly with the AAO. Please he aware that 8 C.F.R. § !03.5(a)(1)(i) requires any motion to hc filed wilhin 
30 days ill Ihe decision that the motion seeks to reconsider or reopen. 
~;F' '.th' 0 .1"\ ('I' 
~ ,~, 
Perry Rhew " " 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page .2 
niSCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. Thl" 
petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on January 2h. 
2010, the AAO dismissed the appeal. Counsel filed a motion to reopen and a motion to reconsider 
(MTR) the AAO's decision in accordance with 8 C.F.R. § 103.5. The motion to reopen will he 
granted. the motion to reconsider will be denied, the previous decision of the AAO will be affirmed. and 
the petition remains denied. 
The petitioner is a wholesaler of diamond jewelry. It seeks to employ the beneficiary permanent" in 
the United States as a business analyst pursuant to section 203(b)(2) of the Immigration and Nationalit\ 
Act (the Act), S U.S.c. § JJ53(b)(2). As required by statute, the petition is accompanied by a Form 
ETA 750. Application for Alien Employment Certification, approved by the United St~ltes 
Department of Labor (DOL). Upon reviewing the petition, the director determined that the 
beneficiary did not satisfy the minimum level of education stated on the labor certification. The 
AAO affirmed this determination on appeal. 
In pertinent part. 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 or their equivalent and whose 
services arc 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. ~ 
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 specialt, 
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. 
In dismissing the appeal, the AAO concluded that the beneficiary did not satisfy the minimum level 
of education stated on the labor certification. 
The regulation at S C.F.R. § 103.5(a)(2) states in pertinent part: 
Requirements jilr motion to reopen. A motion to reopen must state the new facts to be 
provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence .... 
The regulation at S C.F.R. § 103.5(a)(3) states: 
Nl''IIIirl'IIl('fl(S jilr motion to reconsider. A motion to reconsider must state the reasons 
for reconsideration and be supported by any pertinent precedent decisions to establish 
that the decision was based on an incorrect application of law or [U.S. Citizenship and 
Immigration Services (USCIS)] policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect 
based on the evidence of record at the time of the initial decision. 
On motion to reconsider, the petitioner failed to support the motion with any pertinent precedellt 
decisions establishing that the AAO's decision was based on an incorrect application of la" ur 
policy. Therefore, the motion, to the extent it is a motion to reconsider, will be denied for failing to 
meet applicahle requirements. 8 C.F.R. § 103.5(a)(3).1 
On motion to reopen. counsel submits new evidence to estahlish that the beneficiary satisfied the 
minimum level of education stated on the labor certification. The motion thus qualifies fill 
consideration under K C.F.R. § 103.5(a)(2). 
The beneficiary possesses a foreign three-year bachelor's degree from 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 the DOL. The DOL's role is limited tll 
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 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.I(a). 
It is significant that none of the above inquiries assigned to the 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 TongataplI Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
UOS. !:lO,) (')lh Cir. 19S4); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1')83). 
A United States baccalaureate degree is generally found to require four years of education. Maller 
of Shah. 17 1&1'\ Dec. 244 (Reg'!. Comm'r. 1977). This decision involved a petition filed under 
K U.s.C. ~ 115J(a)(J) 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, S U.S.c. §1153(b)(2)(A), which provides: 
Visas shall be made available ... to qualified immigrants who arc members of the 
professions holding advanced degrees or their equivalent .... 
I On motion. counsel suhmits a copy of a letter dated January 7, 2003 of thL' 
INS Office of Adjudications to counsel in other cases, expressing his opinion about the possible me'llls 
to satisfy the requirement of a foreign equivalent of a U.S. advanced degree for purposes of 8 c:.F.R. 
204.5(k)(2). The AAO notes that private discussions and correspondence solicited to obtain advice 
from USCIS are not binding on the AAO or other USCIS adjudicators and do not have the force of law. 
Malter or Izl/lI1mi. 22 I&N 169, 196-197 (Comm'r 1968); see also, Memorandum from Thomas Cook. 
Acting Associate Commissioner, Office of Programs, U.S Immigration & Naturalization Service. 
Sigili/1Clillce of'/.,vers Drafted By the Office of Adjudications (December 7, 2(00). 
Page -+ 
Significantly, the statutory language used prior to Matter a/Shah, 17 I&N Dec, at 244, is identical t" 
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 oj 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that ,,[ in 1 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 thl' 
professions," H.R. Conr. Rep. No. 955, lor' Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 67H4, I l)l)t I 
WL20lfliJ at "67H6 (Oct 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matta o/,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 "hachelor'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 Larillard v. POllS, 434 U.S. 575, 51-111-
HI (llJ7S) (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. 60H97, 60900 (~O\. 
2'1. Il)l) II (an alien must have at \east a bachelor's degree). 
In Il)l)I, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, Ihl' 
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 allo" I()r 
the subslitution of experience for education. After reviewing section 121 of the Immigration Acl oj 
1990, Puh. L. 10 I -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 
hm'e at least a hachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members 
or 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 musl have aI/east a bache/or's degree. 
56 Fed. Reg. hOH97. flOl)()O (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 (plus the requisite five years of progressive experience 
in the specialty). More specifically, a three-year bachelor's degree will not be considered to he the 
"foreign equivalent degree" to a United States baccalaureate degree. Matter of Shah, 17 I&N Dec. al 
Pagl: :) 
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 ··t(Heign equivalent degree.,,2 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 i, 
the ··t()reign eljuivalent degree" to a United States baccalaureate degree (plus the requisite live ye,m 
of progressive experience in the specialty). Il C.F.R. ~ 204.S(k)(2). 
For this cias,ification. advanced degree professional, the regulation at Il C.F.R. § 204.5(k)(3)(i)(B) 
requires the suhmission of an "otlicial academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree" (plus evidence of five years of progres,i\ e 
experience in the specialty). For classification as a member of the professions, the regulation at :-\ 
C.F.R. ~ ::'04.5(i)(3)(ii)(C) requires the submission of "an otlicial college or university record 
showing the date the hacealaureate 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 Ic"er 
evidentiary standard for the more restrictive visa classification. Moreover, the commentan 
accompanying the proposed advanced degree professional regulation specifically states that a 
"haccalaureate means a hachelor's degree received from a college or university, or an equivalent 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare H C.F.R. 
* 204.5(k)())(ii)(A) (relating to aliens of exceptional ability requiring the submission of"an ofticial 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college. university, school or other institution of learning relating to the area of exceptional abilit\ "). 
Relying in part on Madany, 090 F.2d at 1O01l, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
lilt appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domcstic labor market. It does not appear that the DOL's role extends to 
detCfmining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
H U.s.c. * IIS4(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Irvilll!, Illc v. Lundon, 099 F.2d 1006, 1O01l (9'h Cir. 19113). The court relied on an amicus briel 
from DOL that stated the following: 
COll1pare Il C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant v'Sa 
classilication. the "equivalence to completion of a college degree" as including, in certain case'. a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language, 
PagL: () 
The labor certification made by the Secretary of Labor '" pursuant to section 
212(a)[ (5)J 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 that the alien offered the 
certified joh opportunity is qualified (or not qualified) to perform the duties of that 
joli. 
(Emphasis added.) Id. at lO09. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issLie. stating: "The INS, therefore, may make a de novo determination of whether the alien is ill 
fact qualilied to till the certified job offer." Tongatapu, 736 F. 2d at 1309. 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Madam', hl)C, 
F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" ill 
order to determine what the job requires. Id. The only rational manner by which USClS call bl' 
expected to interpret the meaning of terms used to describe the requirements of a job in a labol 
certification is to examine the certified job offer exactly as it is completed by the prospectiVe' 
employer. SCI' Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. I y~-+) 
(emphasis added). lJSCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certificatioll application form. See id. at 834. USC[S cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that the DOL has formally issued ()[ 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering ()I 
the labor certification. 
The required education, training, experience and special requirements for the offered position arc set 
forth at Part A. Items 14 and 15, of Form ETA 750. [n the instant case, the labor certification state.' 
that the position has the following minimum requirements: 
Block 14: 
Education: 
Experience: 
13lock IS: 
Masters or equivalent* 
2 years in the job offered or 2 years accounting experience III 
the diamond or jewelry industry. 
*Equivalent means Bachelor's degree plus 5 years ofcxperiencc 
in lieu of the Master's degree and 2 years of experience. 
The bcncJ'iciary possesses a foreign three-year bachelor's degree from the University of Bombay and 
is an Associate Member of the Institute of Chartered Accountants of India (ICA[). 
Pagt: 7 
On motion, counsel submits the following educational evaluation: 
• An ~valuation from World Education ~ The evaluation is dated April 
Ill. 2008. The evaluation is signed by--. The evaluation describes the 
combination of the beneficiary's three-year bachelor's degree and ICAI membership 
as being the equivalent of a U.S. bachelor's degree in accounting. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimolly. 
See Maller ol Carlin Intf'rnational, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility j(lr th~ 
benefit sought. I". The submission of letters from experts supporting the petition is not presumptive 
evidence or eligibility. USCIS may evaluate the content of the letters as to whether they support th~ 
alien's eligibility. See id. USCIS may give less weight to an opinion that is not corroborated. in 
accord with other information or is in any way questionable. Id. at 795. See also Matter ofSof/ici. 
22 I&N J)~c. 15K. IA5 (Commr. 1998) (citing Matter of Treasure Cralt of California, 14 I&N J)~l'. 
IYO (Reg. Commr. 1972»; Matter oID-R-, 25 I&N Dec. 445 (BIA 2011)(expert witness testimoll\ 
may be given difTercnt weight depending on the extent of the expert's qualifications or the relevance. 
reliability, and probative value of the testimony). 
The WES evaluation concludes that the beneficiary's three-year bachelor's degree and IC;\I 
membership is the equivalent of a U.S. bachelor's degree in accounting. However, the evaluation does 
not compare the beneficiary's education in India to a U.S. bachelor's degree program. The evaluator 
also fails to address the actual courses of study taken by the beneficiary. Most crucially, the 
evaluation is neither peer-reviewed nor relies on peer-reviewed materials in reaching the 
unsubstantiated conclusions. Further, the WES evaluation fails to provide any explanation as to hm' 
it evaluated the beneficiary's degree, what materials were relied on, or what methodology was used 
in evaluating the beneficiary's degree. 
While ICAI Inay offer courses and examinations, there is no evidence that ICAI is a college lH 
university or that membership is a "degree." See Snapnames.com, Inc. v. Michael Chertojj: 2t10h 
WI. .1491005 * II (D. are. Nov. 30, 2(06) (finding U.S. Citizenship and Immigration Services 
(USCIS) was justified in concluding that ICAI membership was not a college or university "degrec" 
for purposes of classification as a member of the professions holding an advanced degree). 
The ;\;\() has concluded that the beneficiary'S combined education and professional certification is 
not equivalent to a U.S. bachelor's degree and, thus, does not qualify for preference visa 
classification under section 203(b)(2) of the Act. In addition, the beneficiary does not meet the joh 
requirements on the labor certification. For these reasons, considered both in sum and as separate 
grounds for denial, the petition may not be approved. 
The hurden of proof in these proceedings rests solely with the petitioner. Section 2<) I of the Act. S 
U.s.c. ~ DA 1. 
Page ~ 
ORDER: The motion to reconsider is denied. The motion to reopen is granted and the deci,ioll 
of the AAO dated January 26, 2010 is affirmed. The appeal is dismissed, and the 
petition is denied.