dismissed EB-2 Case: Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 23548521 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV . 22, 2022 
Form 1-140, Immigrant Petition for Advanced Degree Professional 
The Petitioner seeks to employ the Beneficiary as a quality control chemist under the second­
preference (EB-2), immigrant classification for members of the professions holding advanced degrees 
or equivalents . Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. 
§ 1153(b)(2)(A). This employment-based "EB-2" immigrant classification allows a U.S. employer to 
sponsor a professional with an advanced degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary has the requisite educational credential to qualify for classification as an 
advanced degree professional. On appeal, the Petitioner provides a brief and additional evidence, 
asserting that the Director erred in denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 l&N 
Dec. 369, 375 (AAO 2010). Upon de nova review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) 
of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that 
there are insufficient U.S. workers who are able, willing, qualified, and available for the offered 
position and that employing a noncitizen in the position will not adversely affect the wages and 
working conditions of U.S. workers similarly employed . See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, 
the noncitizen may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United 
States. See section 245 of the Act, 8 U.S.C. § 1255. 
The term "advanced degree" is defined in the regulation at 8 C.F.R. § 204.5(k)(2) as follows: 
Advanced degree means any 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. 
The regulations at 8 C.F.R. § 204.5(k)(3)(i) state that a petition for an advanced degree professional 
must be accompanied by either: 
(A) An official academic record showing that the [noncitizen] has a United States 
advanced degree or a foreign equivalent degree; or 
(B) An official academic record showing that the [noncitizen] 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 [noncitizen] has at least 
five years of progressive post-baccalaureate experience in the specialty. 
II. ANALYSIS 
The issue raised on appeal is whether the Petitioner has established that the Beneficiary possesses a 
U.S. master's degree or foreign equivalent degree in order to qualify for the EB-2 classification and 
the terms of the labor certification. For the following reasons, we conclude that the Petitioner has not 
done so here. 1 
As a preliminary matter, we acknowledge that on appeal the Petitioner asserts that the Director erred 
by failing to address this issue in a request for evidence (RFE) prior to denying the petition. The 
regulation at 8 C.F.R. § 103.2(b)(8) permits the Director to deny a petition for failure to establish 
eligibility without having to request evidence regarding the ground or grounds of ineligibility 
identified by the Director. Further, even if the Director had erred as a procedural matter, it is not clear 
what remedy would be appropriate beyond the appeal process itself, which provided the Petitioner an 
opportunity to supplement the record and establish the Beneficiary's eligibility for the immigration 
benefits sought in the petition. Therefore, it would serve no useful purpose to remand the case simply 
to afford the Petitioner another opportunity to supplement the record with new evidence. 
A. Advanced Degree Professional 
The Petitioner requests classification of the Beneficiary as an advanced degree professional pursuant to 
section 203(b )(2) of the Act. 2 As required by statute, the petition is supported by an ETA Form 750, 
Application for [] Employment Certification ("labor certification"), which was filed with the DOL on 
January 3, 2005 and certified in February 2007. 3 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 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 The Petitioner does not assert, nor does the record establish that the Beneficiary qualifies for the EB-2 classification as 
an individual of exceptional ability. See section 203(b )(2)(A) of the Act. 
3 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. 
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priority date (January 3, 2005, in this case).4 See Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. 
Comm. 1977). In assessing a beneficiary's qualifications, USCIS must examine the job-offer portion 
of an accompanying labor certification to determine a position's minimum requirements. The key to 
determining the job qualifications is found in Part A, Items 14 and 15 of ETA Form 750, where the 
Petitioner specified the following education, training, and experience requirements: 
14. Education: 
Minimum level required: Master's (or foreign equivalent) 
Major Field of Study: Chemistry or closely related field 
Experience: 3 years in the job offered or a closely related occupation: Quality 
Control Lab. Experience as Chemist in GMP environment. 
15. Other Special Requirements: 
( 1) 2 years' experience monitoring the shelf life of 20+ drug products to identify 
impurities and developing and validating assays; 
(2) 1 year of experience operating, maintaining and calibrating High 
Performance Liquid Chromatography (HPLC), Gas Chromatography (GC), 
Total Carbon Analyzer, Walk-in Stability Chambers, and Datalogger; and, 
(3) experience can be concurrent. 
Thus, the labor certification specifies that a master's degree in chemistry or a related field, or a foreign 
education equivalent, is required for the job. No alternate combination of education and experience is 
acceptable. 
Part B, Item 11 of the labor certification states that the Beneficiary's education related to the offered 
position is a bachelor's degree in math, physics, and chemistry froml !University, India -
completed in 1994, and a master's degree in applied chemistry from the same university - completed 
in 1996. The Petitioner provided a copy of the Beneficiary's college diplomas and course transcripts 
as evidence of his foreign education credentials. 
The record contains an evaluation of the Beneficiary's credentials prepared by International 
Credentials Evaluation and Translation Services (I-) in October 2000, in which the evaluator 
determined that the Beneficiary's bachelor's degree is equivalent to the completion of three years of 
study towards a bachelor's degree in the United States, and that this degree when combined with his 
master's degree is equivalent to a bachelor's degree obtained in the United States. 
The Petitioner also submitted an August 2004 credential evaluation prepared by Trustforte 
Corporation (T-), which similarly concludes that the Beneficiary's bachelor's degree is equivalent to 
three years of academic studies towards a bachelor's degree from an accredited university in the United 
States. The T- evaluator further opines that the Beneficiary's master's degree when considered 
together with his bachelor's degree is equivalent to a U.S. master's degree. 
4 The priority date of the immigrant petition is the date the underlying labor certification application was accepted for 
processing by DOL. See 8 C.F.R. § 204.S(d). 
3 
On appeal, the Petitioner provides a February 2009 credential evaluation from Morningside 
Evaluations and Consulting (M-) which also concludes that the Beneficiary's bachelor's degree is 
equivalent to three years of undergraduate coursework in the United States. The Morningside 
evaluator further asserts that on its own, the Beneficiary's master's degree is equivalent to a master's 
degree from an accredited institution of higher learning in the United States. 
To qualify as an advanced degree professional, a beneficiary relying on foreign education must have 
a single, foreign degree that equates to at least a U.S. baccalaureate degree. The regulations do not 
allow baccalaureate equivalents based on combinations of lesser educational credentials or of 
education and experience. See Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 
(Nov. 29, 1991) (stating that "both the Act and its legislative history make clear that, in order to .... 
have experience equating to an advanced degree under the second [preference category], a [ noncitizen] 
must have at least a bachelor's degree") ( emphasis added). 
Collectively considering the education credential evaluations in the record, we note that all three 
evaluators agree with the Director's ultimate conclusion that the Beneficiary's bachelor's degree - by 
itself, is not the foreign degree equivalent of a bachelor's degree obtained at an accredited institution 
of higher learning in the United States. Based on the evidence of record, we also agree that the 
Beneficiary does not possess a singular foreign degree equivalent to a U.S. Bachelor's degree. 
Moreover, the regulation at 8 C.F.R. § 204.5(k)(2) defines an advanced degree as "any United States 
academic or professional degree or a foreign equivalent degree above that of baccalaureate." 
( emphasis added.) Since the record does not show that the Beneficiary possesses the requisite singular 
foreign degree equivalent of a U.S. bachelor's degree, we conclude that the Petitioner has not 
established that the Beneficiary's foreign master's degree is "above that of a [U.S.] baccalaureate 
degree" and thus his master's degree does not meet the regulatory definition of an advanced degree 
for EB-2 classification purposes. 
Further, the Petitioner has submitted education credential evaluations that put forth contradictory 
opinions regarding what the Beneficiary's foreign master's degree is equivalent to in the United States. 
I- concluded that the combination of the Beneficiary's two foreign degrees is equivalent to a U.S. 
bachelor's degree, while T- opined that the Beneficiary's master's degree when considered together 
with his bachelor's degree is equivalent to a U.S. master's degree. Lastly, M- indicates that on its 
own, the Beneficiary's master's degree is equivalent to a U.S. master's degree. While M- asserts that 
the Beneficiary's enrollment in the master's degree program was "based on the completion of a 
bachelor of science degree and a competitive entrance examination," it does not reconcile this assertion 
with its contradictory determination that the Beneficiary's bachelor's degree is only equivalent to three 
years of undergraduate coursework in the United States. The Petitioner must resolve these 
inconsistencies in the record with independent, 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 
[evidence] may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Id. 
In cases involving foreign degrees, USCIS may favorably consider a credentials evaluation performed 
by an independent credentials evaluator who provides a credible, logical, and well-documented case 
for an equivalency determination that is based solely on the individual's foreign degree(s). Opinions 
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rendered that are merely conclusory and do not provide a credible roadmap that clearly lays out the 
basis for the opm10ns are not persuasive. See 9 USCIS Policy Manual F.5, 
https ://www.uscis.gov/policy-manual/volume-6-part-e-chapter-9. 
On appeal, the Petitioner asserts that "the [ submitted] independent credential evaluations [provide] 
ample evidence supporting [the Beneficiary's] EB-2 petition," but it has not acknowledged or provided 
an explanation to address the contradictory opinions presented within the evaluations. Notably, the 
evaluation from M- which was submitted on appeal, also does not discuss the inconsistent conclusions 
offered in the previously submitted evaluations, nor does it address its own contradictory 
determinations regarding what the Beneficiary's foreign degrees are equivalent to in terms of 
education obtained in the United States. 
When considered together, these evaluations do not credibly offer an analytical roadmap that 
persuasively lays out the basis for the evaluators' opinions. It is important to understand that any 
educational equivalency evaluation performed by a credentials evaluator or school official is solely 
advisory in nature and that the final determination continues to rest solely with USCIS. Id. (See also 
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988), Matter of Sea, Inc. 19 I&N Dec. 817 
(Comm 1988), and Matter of Ho, 19 I&N Dec. 582 (BIA 1988).) Thus, we conclude that the 
evaluations are of little probative value to the matter here. Matter of Chawathe, 25 I&N Dec. at 376. 
The Petitioner also provided several of our non-precedent decisions in which we made foreign 
equivalent degree determinations to support his assertions regarding the Beneficiary's qualifications. 
The Petitioner has not furnished evidence sufficient to establish that the facts of the instant petition 
are analogous to those in the unpublished decisions. 5 These decisions were not published as 
precedents and therefore do not bind USCIS officers in future adjudications. See 8 C.F.R. § 103 .3( c ). 
Non-precedent decisions apply existing law and policy to the specific facts of the individual case and 
may be distinguishable based on the evidence in the record of proceedings, the issues considered, and 
applicable law and policy. 
On appeal, the Petitioner submits a copy of a January 2003 letter from Efren Hernandez III, of the INS 
Office of Adjudications, 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.F.R. 204.5(k)(2). It is noted that 
private discussions and correspondence solicited to obtain advice from USCIS, such as Mr. 
Hernandez' letter, are not binding on the AAO or other USCIS adjudicators and do not have the force 
oflaw. Matter of Izwnmi, 22 I&N 169, 196-197 (Comm. 1968); see also, Memorandum from Thomas 
Cook, Acting Associate Commissioner; Office of Programs, U.S Immigration & Naturalization 
Service, Sign[ficance of Letters Drafted by the Office of Adjudications (December 7, 2000). 
Moreover, the regulation at 8 C.F.R. § 204.5(k)(3)(i) is clear in allowing only for the equivalency of 
one foreign degree to a U.S. baccalaureate, not a combination of degrees, diplomas or employment 
expenence. 
5 Any suggestion that USCIS must review unpublished decisions and possibly request and review each case file relevant 
to those decisions, while being impractical and inefficient, would also be a shift in the evidentiary burden in these 
proceedings from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
5 
In summary, the regulations state that a beneficiary must have either (A) "a United States advanced 
degree or a foreign equivalent degree," or (B) "a United States baccalaureate degree or a foreign 
equivalent degree" plus "at least five years of progressive post-baccalaureate experience in the 
specialty" to be eligible for classification as an advanced degree professional. 8 C.F.R. 
§ 204.5(k)(3)(i)(A) and (B) ( emphasis added). No U.S. or foreign equivalent education is acceptable, 
under either alternative, unless it includes the specified degree. As discussed above, the Beneficiary 
does not possess the foreign equivalent of a U.S. master's degree and is therefore not eligible for 
classification as an advanced degree professional under 8 C.F.R. § 204.5(k)(3)(i)(A). 
Additionally, the evidence in the record does not establish that the Beneficiary has a single, foreign 
degree that equates to at least a U.S. baccalaureate degree. The August 2007 work experience letter 
from the Beneficiary's employer only documents 3 years and 7 months of work experience at the time 
of filing of the petition, and the Petitioner has not shown that this experience qualifies as "progressive 
post-baccalaureate experience in the specialty." Therefore, even if the labor certification allowed for 
such a combination of education and experience, the record does not demonstrate that the Beneficiary 
would be eligible for classification as an advanced degree professional under 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
Based on the evidence of record, we agree with the Director's conclusion that the Beneficiary is not 
eligible for classification as an advanced degree professional under section 203(b )(2) of the Act. 
Accordingly, the petition cannot be approved. 
B. Qualifications Under the Terms of the Labor Certification 
To be eligible for approval as an advanced degree professional a beneficiary must have all the education, 
training, and experience specified on the labor certification as of the petition's priority date. See Matter 
of Wing's Tea House, 16 I&N at 158. On appeal, the Petitioner provides a letter from the vice president 
of human resources. He explains: 
We had a number of Indian nationals on our payroll who had master's degrees from 
Indian universities that had been evaluated by recognized U.S. credential evaluators as 
the equivalent of master's degrees from American universities. Most of these already 
were in the positions so it was clear in our minds that they had the minimum educational 
requirements for these positions. 
Under these circumstances, we intended to confirm that we would accept this type of 
education credential when we indicated in Part A, Item 14 of [the Beneficiary's labor 
certification] that we would accept a [m]aster's degree or foreign equivalent. At the 
time we assumed that this meant that [we] would agree to accept any [b ]achelor and 
[ m ]aster degree combination from India that had been evaluated by a recognized 
credential evaluation service as the foreign equivalent to a master's degree in 
[c]hemistry, from an accredited university in the United States. 
While this letter offers insight into the Petitioner's intentions regarding the minimum requirements of 
the proffered position, we conclude that the plain language put forth in the instant labor certification 
does not reflect these asserted intentions. Here, the Petitioner indicated that a master's degree or 
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foreign equivalent degree was required for entry into the position in Part A, Item 14 of the labor 
certification and did not provide clarifying language therein to reflect these nuanced intentions. 
USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g., Madany 
v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears authority for setting the 
content of the labor certification") ( emphasis added). The key to determining the job qualifications is 
found in Part A of the ETA Form 750 as outlined above. 
In this case, the labor certification states that the position requires a master's degree in chemistry or a 
closely related field, or a foreign equivalent degree. For the reasons previously discussed, the 
Beneficiary does not have a U.S. master's degree or an equivalent foreign degree in chemistry or a 
closely related field. While we acknowledge that the labor certification also requires three years of 
specialized experience, which the Beneficiary possessed at the time of filing, the Petitioner has not 
established that the Beneficiary satisfies the minimum educational requirement of the labor 
certification to qualify for the job offered. 
III. CONCLUSION 
The Beneficiary does not possess a U.S. master's degree or a foreign equivalent degree, as required to 
be eligible for classification as an advanced degree professional under section 203(b )(2) of the Act 
and to qualify for the job offered under the terms of the labor certification. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
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