dismissed EB-2 Case: Finance

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)=vent clee3y xlwamted 
wasion of personal privacy 
U.S. Department of EIomeiand Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
n ,- 
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. 3 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. 
L 
kbert p. wiW 
Administrative Appeals Office 
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 an international investment bank. It seeks to employ the beneficiary permanently in 
the United States as an assistant vice president, financial control, pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 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 baccalaureate or foreign 
equivalent degree. 
On appeal, counsel submits a brief and resubmits previously submitted evidence. For the reasons 
discussed below, we concur with the director that the beneficiary does not have a foreign equivalent 
degree to a U.S. baccalaureate. We note that the record does not support the claims advanced by 
counsel and two of the evaluators regarding the length of study leading to the beneficiary's relevant 
credential. Thus, the beneficiary cannot qualify as a member of the professions. 
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. 9 204.5(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 is an associate member of the Institute of Chartered Accountants of India. The 
membership was awarded based on examinations. Counsel asserts that this membership was the 
culmination of four years of study at the institute. The unsupported assertions of counsel do not 
constitute evidence. 
 Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). The beneficiary's "Statement of Marks," discussed in more detail below, does not 
support this assertion. The issue is whether the beneficiary's membership is a foreign equivalent 
degree to a U.S. baccalaureate degree. 
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL's role, however, 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 212(a)(5)(A)(i) of the Act; 20 
C.F.R. 5 656.1(a). 
Page 3 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. 4 656, 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 (9"' Cir. 1984); Madany v. Smith, 696 F.2d 1008,1012-1 01 3 (D.C. Cir. 1983). 
The petitioner 
evaluation from 
professor at H 
 e beneficiary completed 
classes and examinations in the final examination program of the Institute of Charted Accountants 
and that the curriculum includes "advanced bachelor's-level classes and examinations in 
Accounting, Auditing, Management Accounting, Financial Analysis, Corporate Law, Cost 
Accounting, Business Law and related subjects." further asserted that the 
completion of the examination program at the institute ''IS widely reco ized as equivalent to at least 
a bachelor's academic credential in the field of Accounting." concludes that the 
beneficiary "attained the equivalent of a Bachelor of Science D 
 ing from an 
accredited US college or university." 
 In his second evaluation, 
 asserts that 
members of the institute "must pass one hundred and eighty hours of classes and intermediate 
examinations in Accounting." further asserts that the beneficiary completed a 
"four-year program of study at the Institute of Chartered Accountants of India" but then states that 
while the examination itself is equivalent to a U.S. baccalaureate, the beneficiary "entered the Final 
Examination program at an advanced level of bachelor's study, following his completion of five 
years of post secondary-studies in Business and Accounting." 
and provide similar evaluations 
 however, acknowledges that the 
institute "is not a 'university' in the traditional sense." 
 states that in order "to qualify to 
take the Final Examination of the Institute of Chartered Accountants of India, an individual must 
have completed a Bachelor of Commerce Degree, or the e uivalent thereof, and must have passed 
the Intermediate Examination of the Institute." q further asserts that the beneficiary 
received a three-year Bachelor of Commerce Degree from the University of Bombay. The record, 
however, does not contain this degree or a transcript documenting this education. 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Commr. 1988). However, CIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795. CIS may even 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 of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
As stated above, the record contains no evidence that the beneficiary completed a Bachelor of 
Commerce Degree. Rather, the sole credential provided is the beneficiary's membership in the 
Institute of Chartered Accountants. Moreover, the "Statements of Marks" provided reveal that in 
May 1991, the beneficiary passed Group I and failed Group I1 of the Intermediate Examination. In 
November 1991, the beneficiary passed Group I1 of the Intermediate Examination. In May 1994, the 
beneficiary passed Group 11, Combination A, of the Final Examination. In May 1995, the 
~rou~1 of the Final Examination. These statements of marks do not support Mr. 
assertion that the beneficiary completed four years of education at the institute, which 
can be presumed to mean progressive education (not retaking previously failed examinations) that 
entails four years of academic study, not a lesser amount of study that ended four years after it 
began. 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals fiom whatever circuit that the action arose. See N.L.R.B. 
v. Ashkenazy Property Management Corp., 8 17 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 Lou-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5"' 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. § 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, 10ISt Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 20161 3 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 
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 (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, 199l)(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 
1 
 Compare 8 C.F.R. tj 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 6 
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. 9 204.5(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). 
Moreover, it is significant that both the statute and relevant regulations use the word "degree" in 
relation to professionals and members of the professions holding an advanced degree. A statute 
should be construed under the assumption that Congress intended it to have purpose and meaningful 
effect. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. 
United States, 819 F.2d. 1289, 1295 (5th Cir. 1987). It can be presumed that Congress' narrow 
requirement of a "degree" for members of the professions holding an advanced degree is deliberate. 
Significantly, in another context, Congress has broadly referenced "the possession of a degree, 
diploma, certificate, or similar award fi-om a college, university, school, or other institution of 
learning." 
 Section 203(b)(2)(C) (relating to aliens of exceptional ability). 
 Thus, Congress' 
exclusive use of the word "degree" in defining members of the profession holding an advanced 
degree reveals that the advanced degree must be a degree and that a diploma or certificate from an 
institution of learning other than a college or university is a potentially similar but distinct type of 
credential. 
As stated above, concedes that the Institute of Chartered Accountants of India is not a 
university. Thus, the beneficiary does not have a foreign equivalent degree from a college or 
university as required for members of the professions pursuant to 8 C.F.R. 4 204.5(1)(3)(ii)(C) and 
applied to members of the professions holding an advanced degree pursuant to 56 Fed. Reg. at 
30306. 
Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent 
degree," 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. fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.