dismissed EB-2 Case: International Marketing

(b)(6)
DATE: OFFICE: NEBRASKA SERVICE CENTER 
JAN 2 9 2013 
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 
FILE: 
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. § 1153(b)(2) 
ON BEHALF OF 
PETITIONER: 
INSTRUCfiONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any _further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for· filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
rmo· 
Ron Rosenberg 
Acting Chief, Administrative. Appeals Office 
www.osc~s.gov 
(b)(6)
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Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center (Director). It is now on appeal before the Acting Chief, Administrative 
Appeals Office (AAO). The appeal will be dismissed. 
The petitioner is engaged in trading, distributing, recycling, and compounding post-industrial 
plastics raw materials. It seeks to permanently employ the beneficiary in the United States as a 
senior international marketing analyst and to · classify him 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). As required by statute, the petition is accompanied by an Application for Permanent 
Employment Certification, ETA Form 9089, certified by the Department of Labor (DOL). 
Section 203(b )(2) of the Act provides for immigrant classification to members of the professions 
holding advanced degrees or their equivalent arid whose services are sought by an employer in the 
· United States. The regulation at 8 C.F.R. § 204.5(k)(2) defines "advanced degree" 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. If 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
The Director denied the petition on the ground that the beneficiary did not have the requisite 
. education for the job, as specified on the labor certification. In particular, the petitioner failed to 
establish that the institution which granted the beneficiary a Master of Science' in International 
Business - . _ - is accredited by a 
nationally recognized accrediting agency. The Director indicated that a master's degree from an 
unaccredited institution did not comport with the master's degree requirement on the labor 
. certification, and did not qualify the beneficiary for the proffered position. A timely appeal was 
filed. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 
The immigrant visa petition, Form I-140, was filed on October 3, 2011. 
with the petition included academic records from 
Documentation submitted 
that the beneficiary was awarded a "Master of Science in International 
institution on December 10, 2010. 
J showing 
Business" from that 
In a Request for Evidence (RFE) issued on October 6, 2011, the Director advised the petitioner that 
· is not accredited by a nationally recognized accrediting organization, and requested additional 
evidence that the beneficiary has the requisite education for the proffered position. , 
(b)(6)Page 3 
In response to the RFE the petitioner did not claim that the beneficiary's degree from satisfied 
the master's degree requirement of the labor certification. Instead, the petitioner asserted that the 
beneficiary has the equivalent of a master's degree by virtue of his bachelor of arts degree, with a 
major in general management, from in 2003 and more than five years of 
experience in the field of market research and analysis. Documentary evidence was submitted of the 
beneficiary's degree and job experience, as well as a couple of evaluations of the 
U.S. academic equivalency of the beneficiary's educational and experience credentials. 
The Director denied the petition on December 12, 2011, noting that the ETA Form 9089 submitted 
with the petition specified (in section H.4.) that the position requires a master's degree and did not 
allow (in section H.8.) for an alternative combination of education and experience, such as a 
bachelor's degree and five years of experience. Since is not an accredited institution, and no 
further evidence had been submitted to show that the beneficiary had a U.S. master's degree or a 
foreign equivalent degree, the Director determined that the beneficifiry did not meet the minimum 
educational requirements of the ETA Form 9089 to qualify for the proffered position. 
On appeal counsel for the petitioner does not claim that . the beneficiary's bachelor's degree from 
and five years of experience as a market research analyst are equivalent to 
a master's degree for the purposes of the labor certification. Instead, counsel asserts that the 
beneficiary's Master of Science in International Business from meets the educational 
requirement for the proffered position. The regulation at 8 C.F.R. § 204.5(k)(2), counsel points out, 
does not specifically state that a degree must be from an accredited university or college. Nor did 
the labor certification application or the petitioner's recruitment for the position explicitly state that 
the master's degree must be accredited and that the institution must appear on the U.S. Department 
of Education Database of Accredited Postsecondary Institutions and Programs. 1 In counsel's view, 
requiring that be accredited constitutes the superimposition of a new requirement that was not 
described on the recruitment materials or the ETA Forin 9089. According to counsel, the 
beneficiary's degree from satisfies the recruitment criteria and the labor certification 
requirements because it was issued by an institution authorized by the 
to operate and issue master's degrees. 
As evidence of standing in California, counsel submits a series of photocopied documents on 
the letterhead of the 
, , . ·· in 
accordance with the provisions of sections 94900 and/or 94915 of the California Education Code 
(Cal. Ed. Code). The approval language reads as follows: 
This institution has received approval to operate from the 
-~---' 
An approval to operate means 
has determined and certified that the institution meets the minimum 
1 On this website the accreditation status of every college and university in a U.S. state or outlying 
possession can be searched. See http://ope.ed.gov/accreditation/Search.aspx 
(b)(6)Page4 
standards for integrity, financial stability, and educational quality, including the 
offering of bona fide instruction by qualified faculty and the appropriate assessment 
of students' achievement prior to, during, and at the end of its programs. 
The document stated that the effective date of the Approval was January 1, 2004, and its expiration 
date was December 31, 2008. A letter to from a official, dated January 14, 2010, advised 
that the had succeeded the on January 1, 2010, 2 and that approval to operate 
had been extended to December 31, 2011. Printouts from website indicate that was still 
an approved institution as of January 5, 2012. Other documentation shows that Master of 
Science in International Business degree received program approval by the in accordance 
with the provisions of Cal. Ed. Code sections 94900 and/or 94915 on January 1, 1991, and that the 
degree still had program approval from the as of January 5, 2012. 
The issues on 
appeal are twofold: 
• Whether the beneficiary's degree from makes him 
eligible 'for classification as an "advanced degree professional" under section 
203(b )(2) of the Act. 
• Whether the beneficiary's degree from accords with the job requirements set forth 
on the ETA Form 9089 (labor certification) to qualify him for the proffered position. 
Is the Beneficiary Eligible for the Classification Sought? 
.The ETA Form 9089 in this case was accepted for processing by the DOL on July 5, 2011, and certified 
by the DOL on September 13, 2011. The 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. See Section 212(a)(5)(A)(i) of the Act; 20 C.P.R.§ 656.1(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 whetheror 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 (91h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
A United States baccalaureate degree is generally found to require four years of education. See 
Matter of Shah, 17 I&N Dec. 244 (Reg1. Comm'r. 1977). This decision involved a petition filed 
under 8 U.S.C. §1153(a)(3) of the Act, as amended in 1976. At that time, this section provided: 
2 The California Education Code was amended, and the pursuant to 
the Private Postsecondary Education Act of 2009, Assembly Bill (AB) 48, enacting Title 3, Division 
10, Part 59, Chapter 8, of the Cal. Ed. Code, signed into law by the Governor of California on 
October 11, 2009, effective January 1, 2010. 
(b)(6)
Page5 
Visas shall next be made · available ... to qualified iinmigrants who are members ·of 
the professions .... 
The Immigration Act of 1990 Act added section 203(b)(2)(A) to the Act, 8 U.S.C. §1153(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. Cont. Rep. No. 955, 101
51 
Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at 6786 (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 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 (advanced degree professional) 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 presume~ 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. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (INS, or 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. Mter reviewing section 121 of the 
Immigration Act of 1990, Pub. L. 101-649 (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 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 
(b)(6)Page6 
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 (plus five years of progressive experience in the 
specialty). 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. "3 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 (plus five years of progressive experience 
in the specialty). See 8 C.F.R. § 204.5(k)(2). 
The degree must also be from a college or university. The regulation at 8 C.F.R. § 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" (plus evidence of five years of progressive 
experience in the specialty). 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." The 
AAO 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. See Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3rd .Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2nd 
Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give effect to all provisions, is 
equally applicable to regulatory construction). Moreover, the co'mmentary 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).4 
3 Compare 8 C.F.R. § 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. 
4 Cf. 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, certificate or similar 
award from a college, university, school or other institution of learning relating to the area of 
exceptional ability"). 
(b)(6)
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While the regulatory language of 8 C.F.R. § 204.5(k)(2) does not specifically state that a degree 
must come from an accredited college or university to qualify as an "advanced. degree," that 
requirement is implicit in the regulation. As stated by the DoEd on its website: 
The U.S. Department of Education does not accredit educational institutions and/or 
programs. However, the Secretary of Education is required by law to publish a list of 
nationally recognized accrediting agencies that the Secretary determines to be reliable 
authorities as to the quality of education or training provided by the institutions of 
higher education and the higher education programs they accredit. An agency 
seeking national recognition ... must meet the Secretary's procedures and criteria for 
the recognition of accrediting agencies, as published in the Federal Register .... 
The Secretary ... makes the final determination regarding recognition. 
The United States has no . . . centralized authority exercising . . . control over 
postsecondary educational institutions in this country .... [I]n general, institutions of 
higher education are permitted to operate with considerable independence and 
autonomy. As a consequence, American educational institutions can vary widely in 
the character. and quality of their programs. " 
... [T]he practice of accreditation arose in the United States as a means of conducting 
nongovernmental, peer evaluation of educational institutions and programs. Private 
educational associations of regional or national scope have adopted criteria reflecting 
the qualities of a sound educational program and have developed procedures for 
evaluating institutions or programs to determine whether or not they are operating at 
basic levels of quality. 
. . . Accreditation of an institution or program by a recognized accrediting agency 
provides a reasonable assurance of quality and acceptance by employers of diplomas 
and degrees. 
www .ed.gov /print/admins/finaid/accred/accreditation.html (accessed January 18, 2013 ). 
The DoEd's purpose in ascertaining the accreditation status of U.S. colleges and universities is to 
determine their eligibility for federal funding and student aid, and participation in other federal 
programs. Outside the federal sphere, the Council for Higher Education Accreditation (CHEA), an 
association of 3,000 degree-granting colleges and universities, plays . a similar oversight role. As 
stated on its website: 
Presidents of American universities and colleges established CHEA [in 1996] to 
strengthen higher education through strengthened accreditation of higher education 
institutions .... 
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CHEA ~arries forward a long tradition that recognition of accrediting organizations 
should be a key strategy to assure quality, accountability, and improvement in higher 
education. Recognition by CHEA affirms that standards and processes of accrediting 
organizations are consistent with quality, improvement, and accountability 
expectations that CHEA has established. CHEA will recognize regional, specialized, 
national, and professional accrediting organizations. 
Acereditation, as distinct from recognition of accrediting organizations, focuses on 
higher education institutions. Accreditation aims to assure academic quality and 
accountability, and to encourage improvement. Accreditation is a voluntary, non­
governmental peer review process by the higher education community . . . . The 
work of accrediting organizations involves hundreds of self-evaluations and site visits 
each year, attracts thousands of higher education volunteer professionals, and calls for 
substantial investment of institutional, accrediting organization, and volunteer time 
and effort. 
www.chea.org/pdf/Recognition Policy-June 28 2010-FINAL.pdf (accessed January 18, 2013). 
The DoEd and CHEA recognize six regional associations - covering the entire United States and its 
outlying possessions - that accredit U.S. colleges and universities. One of these is the Western 
Association of Schools and Colleges (W ASC), Accrediting Commission for Senior Colleges and 
Universities- whose geographical scope includes California, Hawaii, and other U.S. possessions in 
the Pacific, and whose membership represents a broad range of public and private schools in the 
region and other education-related organizations. The W ASC website includes a list of all the higher 
educational institutions in its jurisdiction that are either accredited or candidates for accreditation. 
does not appear on that list. See 
www.wascsenior.org/apps/institutions/ (accessed January 18, 2013). Thus, has not been 
accredited by the applicable accrediting agency recognized by the DoEd and CHEA - the WASC's 
Accrediting Commission for Senior Colleges and Universities - and there is no evidence that 
has requested accreditation by that agency. · 
The State of California acknowledges the qualitative difference between accredited and unaccredited 
educational institutions. The California Postsecondary Education Commission (CPEC), the state's 
planning and coordinating body for higher education from 1974 to 2011,5 includes the following 
language regarding the "benefits associated with accreditation" on its website: 
Both the federal government and the states use accreditation as an indication of the 
quality of education offered by American schools and colleges. 
5 The CPEC ceased operations on November 18, 2011, after its funding was eliminated. See 
http:ijwww.cpec.ca.gov/ (accessed January 23, 2012) and associated Press Release. 
(b)(6)
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At the federal level, colleges and universities must be accredited by an agency 
recognized by the United States Secretary of Education in order for it or its students 
to receive federal funds. 
At the state level, California allows colleges and universities that are accredited by 
the Western Association of Schools and Colleges (the recognized regional accrediting · 
agency for California) to grant degrees without the review and approval of the 
A list of approved institutions is 
available at the 
In some states, it can be illegal to use a degree from an institution that is not 
accredited by a nationally recognized accrediting agency, unless approved by the state 
licensing agency. This helps prevent the possibility of fraud .... 
www.g>ec.ca.gov/CollegeGuide/Accreditation.asp (accessed January 18, 2013). 
The CPEC website goes on to warn about state laws in Illinois, Indiana, Maine, Michigan, Nevada, 
New Jersey, North Dakota, Oregon, Texas, and Washington regarding degree/diploma mills. See id. 
The qualitative difference between accredited and unaccredited educational institutions, 
acknowledged by the CPEC, is also recognized by the State of California in its Education Code. 
Cal. Ed. Code section 94813 defines "accredited" as follows: -
"Accredited" means an institution is recognized or approved by an accrediting agency 
recognized by the United States Department of Education. 
With respect to unaccredited institutions that are approved to operate in California, Cal. Ed. Code 
section 94817.5 provides the following basic definition: 
"Approved to operate" or "approved" means that an institution has received 
authorization pursuant to this chapter to offer to the public and to provide 
postsecondary educational programs. 
Cal. Ed. Code section 94887 sets the following guideline for the BPPE's grant of an approval to 
operate: 
An approval to operate shall be granted only after an applicant has presented 
sufficient evidence to the bureau and the bureau has independently verified 
the information provided by the applicant through site visits or other methods deemed 
appropriate by the bureau, that the applicant has the capacity to satisfy the minimum 
operating standards .... 
As the foregoing authorities indicate, accreditation of a college or university by a regional 
accrediting body recognized by the DoEd and CHEA is a badge of quality. As stated on their 
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respective websites, accreditation is intended i'to assure academic quality and accountability" 
(CHEA) and to provide "a reasonable assurance of quality and acceptance by employers of ... 
degrees" awarded by the accredited institutions (DoEd). Moreover, the imprimatur of a regional 
accrediting agency guarantees that a school's degrees .u:n &...~ recognized and honored nationwide. 
By comparison, an approval to operate by California's s a lower level endorsement that an 
educational institution "has the capacity to satisfy the minimum operating standards" (Cal. Ed. Code 
section 94887) with no guarantee that degrees awarded by that school in California will be 
recognized and honored nationwide. 
The Immigration and Nationality Act is a federal statute with nationwide application. The 
regulations implementing the Act- including 8 C.F.R. § 204.5(k)(2) defining "advanced degree" for 
the purposes of section 203(b )(2) of the Act, as well as 8 C.F.R. § 204.5(1)(2) defining "professional" 
for the purposes of section 203(b)(3) of the Act- also have nationwide application. As defined in 8 
C.F.R. § 204.5(k)(2), an "advanced degree" includes "any United States academic or professional 
degree ... above that of baccalaureate" (or a foreign equivalent degree), "[a] United States 
baccalaureate degree" (or a foreign equivalent degree) and five years of specialized experience 
(considered equivalent to a master's degree), and "a United States doctorate" (or a foreign 
equivalent degree). (Emphases added.) Similarly, "professional" is defined in 8 C.F.R. § 
204.5(1)(2) as "a qualified alien who holds at least a United States baccalaureate degree" (or a 
foreign equivalent degree). (Emphasis added.) The repeated usage of the modifier "United States" 
to describe the different levels of (non-foreign) degrees makes clear the intention of the rulemakers 
that the regulations apply to degrees issued by U.S. educational institutions that are recognized and 
honored on a nationwide basis. The only way to assure nationwide recognition for its degrees is for 
the educational institution to secure accreditation by a regional accrediting agency approved by the 
DoEd and CHEA. 
For an educational institution in California, the regional accrediting agency is W ASC's Accrediting 
Commission for Senior Colleges and Universities. As previously discussed, the school that issued 
the beneficiary's Master of Science in International Business - m 
Los Angeles - is not on the W ASC list of accredited institutions. Nor is listed as a candidate 
for accreditation. Accordingly, the beneficiary's master's degree from cannot be deemed to have 
nationwide recognition. Therefore, it does not qualify as an advanced degree within the meaning of 
8 C.F.R. § 204.5(k)(2). 
Based on the foregoing analysis, the AAO determines that the beneficiary is not eligible for 
preference visa classification as an advanced degree professional under section 203(b )(2) of the Act 
and 8 C.F.R. § 204.5(k)(2). Therefore, the petition cannot be approved. 
Is the Beneficiary Oualifed for the Job Offered? 
Relying in part on Madany, 696 F.2d at 1008, the Federal Court of Appeals for the Ninth Circuit 
(Ninth Circuit) stated: 
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Page 11 
[I]t 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 
domestic labor market. It does not appear that the DOL's role extends to determining 
if the alien is qualified for the job for which he seeks sixth preference [visa category] 
status. That determination appears to be delegated to the INS under section 204(b ), 
8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Irvine, Inc. v. Landon, 699·F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from the DOL that stated the following: 
The labor certification made by the Secretary of Labor .. . pursuant to section 
212(a)[(5)] 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, 
a~d 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 job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) /d. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification - "Job Opportunity Infomiation" - describes the terms 
and conditions ·of the job offered. It is important that the ETA Form 9089 be read as a whole. 
When determinmg 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 Madany, 696 
F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in 
order to determine what the job requires. /d. The only rational manner by which USCIS can be 
expected to interpret the meaning of terms used to describe the requirements of a job in a labor 
certification is to examine the certified job offer exactly as it is completed by the prospective 
employer. See 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 certifjcation 
application, as certified by the DOL. /d. at 834. 
In this case, Part H, lines 4, 4-B, 7, and 7 A of the labor certification state that the minimum 
educational requirement to qualify for the proffered position is a master's degree in business 
administration or international business. Une 9 states that a "foreign educational equivalent" is 
acceptable. Une 6 states that six months of experience in the job offered is required. 
(b)(6)
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Page 12 
While the. beneficiary appears to meet the experience requirement, he does not meet the educational 
requirement. As previously discussed, the beneficiary's degree from California, 
though called a "Master of Science in International Business," does not qualify as a U.S. master's 
degree under the "advanced degree" definition of 8 C.P.R. § 204.5(k)(2) because it was not awarded 
by an educational institution that has been 
accredited by a regional accrediting agency recognized by 
the DoEd and CHEA. Nor does the beneficiary have a foreign educational equivalent to a master's 
degree in business administration or international business. 
· Since the beneficiary does not fulfill the educational requirement in Part H of the labor certification, 
he does not qualify for the job offered. For this reason as well, the petition .cannot be approved. 
Conclusion 
The petition is deniable on the following grounds: 
• The 
beneficiary does not have an "advanced degree" within the meaning of 8 C.P.R. 
§ 204.5(k)(2), and thus is not eligible for preference visa classification under section 
203(b )(2) of the Act. 
', 
• Nor does the beneficiary meet the educational requirement o,n the labor certification to 
qualify for the job offered. 
For the reasons stated above, considered both in sum and as separate grounds for denial, the petition 
may not be approved. Accordingly, the appeal will be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. See Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. · 
ORDER: The appeal is dismissed.