dismissed EB-2 Case: Market Research

(b)(6)
lJ.s; DepartiDe~t or HoD1eland :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 IIilmigration 
Services 
DATEM!tR 8 8 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or ari 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: 
INSTRUCTIONS: 
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 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordanCe with the instructions on Fonn . I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such 
a moti~n 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 reopeg. 
Tiro 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
WlVW~oscis.goy 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center (Director). It is now on appeal before the Chief, Administrative Appeals 
Office (AAO). The appeal will be dismissed. · 
The petitioner is an importer and marketer of footwear products . . It seeks to employ the beneficiary 
permanently in the United States as a market research analyst 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 
was accompanied by . an Application f~r Permanent Employment Certification, ETA Form 9089, 
certified by the United States 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 and 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. · 
In denying the petition the Director found that in 
. California - the institution that awarded the beneficiary a "Master of Business 
· Administration" in 2010 - is not accredited by an accrediting agency or association recognized by 
the U.S. Department of Education (DoEd). The Director concluded, therefore, that the beneficiary's 
degree does not qualify her for classification as an advanced degree professional. 
..J 
Factual and Procedural History · 
The immigrant visa petition, Form 1-140, was filed on March 1~, 2011. ·Documentation submitted 
with the petition . included copies of a· diploma and a transcript showing that the beneficiary was 
awarded a Master of Business Administration (MBA) by in 
of June 28, 2010, following her completion of a three-:semester, ten-course degree 
program from the summer of 2009 through the spring of 2010. 
In a Request for Evidence (RFE) iss.ued on December 1, 2011, the Director requested the etitioner 
to submit evidence of the 'beneficiary's education prior to her master's degree program at as well 
as evidence that is an accredited institution with international recognition. The Director also 
requested an advisory evaluation of the U.S. equivalency of the beneficiary's educational credentials. 
Finally, the Director requested additional evidence of the petitioner's ability to pay the proffered 
wage to supplement the documentation submitted with the petition. 
In response to the RFE the petitioner submitted educational rerords showing that the beneficiary was 
awarded a "Bachelor of Arts and ·Science with Majors in Mathematics-Applied Science and 
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Page3 
Economics" by the _ . on December 16, 2005. As 
evidence of status counsel for the petitioner submitted a document from the Bureau for Private 
Postsecondary Education (BPPE) in California listing the school's approved programs, which 
included an MBA degree program as of July 6, 2006. Counsel .stated that : has been approved by 
U.S. Citizenship and Immigration .Services (USCIS) to enroll foreign students,1 that is 
recognized by distinguished foreign universities, and that is a member of multiple educational 
organizations such as the California Business Education Association (CBEA), the Consortium of 
American Schools, Colleges and Universities (CASCU), the Council for Adult and Experiential 
Learning (CAEL), and the American Association for School Personnel Administrators (AASPA). 
Counsel also submitted an "Educational Credentials Evaluation" of the beneficiary's studies at 
from a U.S. educator, In addition, counsel submitted a copy of the 
petitioner's federal income tax re'tum (Form 1120S}for 2010. 
The Director denied the petition on April 4, 2012, stating that . USCIS does not recognize a degree 
from an institution not accredited by an . agency or association recognized by the DoEd. The 
beneficiary's MBA, the Director pointed out, comes from an institution -
- that does not appear 
in the DoEd's Database of Accredited Postsecondary Institutions and Programs. Nor was 
accredited by an accreditation body recogirized by the Council on Higher Education Accreditation. 
approval by DHS to enroll foreign students and by California's BPPE to conduct particular 
degreeprograms did not constitute accreditation by a DoED recognized accrediting body. · Nor did 
membership in various educational organizations involve any accreditation of the school. The 
Director found little or no evidentiary weight in the evaluation of the beneficiary's educational 
credentials by . The Director concluded · that the beneficiary did not qualify for 
classification as an advanced degree professional under the Act. 
Counsel for the petitioner filed a timely appeal, Form I-290B, and supporting · documentation. 
Counsel claims that approval by the State of California's BPPE amounts to accreditation, and 
that approval by DHS to enroll foreign students in the Student Exchange and Visitor Program 
(SEVP) along with its 
membership in myriad educational organizations attests to the quality of the 
institution. · 
\. 
. ~ 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d ~43, 145 (3d 
Cir. 2004). The issues on appeal are twofold: 
• Whether the beneficiary's educational credential from 
makes her 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 her for the proffered position . 
. 1 Actually, it is not USCIS, but another component within the Department of Homeland Security­
U.S. Immigration and Customs Enforcement (ICE)- that performs this function. 
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Eligibility for the Classification Sought 
The ETA Fonn 9089 in this case was accepted for processing by the DOL on October 24, 2010, and 
certified by the DOL on December 2, 2010. 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 Section212(a)(5)(A)(i) ofthe.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.P.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 Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (91h Cir. 1984); Madany v. Smith, 696F.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 (Reg'l. Comm'r. 1977). This f]ecision 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: 
Visas shall next be made available . . . 
. to qualified immigrants 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 .... 
l . 
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 1degrees, 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, 10151 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 "bach~lot's degree" under the Act when the new 
classification was enacted and did not intend to alter the agency's interpretation of that tenn. See 
Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (Congress is presumed to be aware of administrative 
(b)(6)
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and judicial interpretations where it adopts a new law incorporating sections of a prior law). See 
also 5~ Fed. Reg. 60897, 60900 (Nov. 29, 1991) (an alien must have at least a bachelor's degree). 
In 1991, when the fmal rule for 8 C.P.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (INS) 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 (1990), and the ioint Explanatory Statement of the Committee of Conference, 
the INS 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 "abachelor's 
degree with aU east 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, arz 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."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 is 
the "foreign equivalent degree" to a United States baccalaureate degree (plus five years of 
progressive experience in the specialty). See 8 C.P.R.§ 204.5(k)(2). 
The degree must also be from a college or university. The regulation at 8 C.P.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 
2 Compare 8 C.P.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. 
(b)(6). Page 6 
experience in the specialty). For classification as a member of the professions, the regulation at 
8 C.P.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 
~videntiary standard fonhe 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 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).3 
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 
require~ent 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 tlris country ... .. [I]n general, institutions. of 
higher edueation are permitted ·to .operate with considerable independence and 
autonomy. As a consequence, American educatio'nal 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 
3 Cf. 8 C.P.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)Page 7 
evaluating institutions ·or programs to determine whether. or not they ar~ 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 29, 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 . . . . · 
CHEA carries 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 acc·rediting 
organizations . are consistent with quality, improvement, and accountability 
expectations that C:IffiA has established. CHEA will recognize regional, specialized, 
national, ·and professional accrediting organizations. · 
Accreditation, 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 29, 2013). 
The DoEd and CHEA recognize six regional associations- covering the entire United States and its 
outlying possessions - that accredit U.S. colleges imd 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 WASC website includes a list of all the higher 
educational institutions in its jurisdiction that are either accredited or candidates for accreditation. 
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; California, does not appear on that list. See 
www.wascsemor.org/apps/institutions/ (accessed February 20, 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 aecredited and unaccredited 
educational institutions .. The California Postsecondary Educatimi Commission (CPEC), the state's 
planning and coordinating bo<:ly for higher education from 1974 to 2011,4 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. 
·At the federal level, colleges and universities must be accredited by an agency 
recognized by the United . Sta~es 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 Bureau 
for Private Postsecondary Education (BPPE). A list of approved institutions is 
available at the California Bureau for Private Postsecondary Education (BPPE). 
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 ihe pQssibility of fraud. . . . · 
Www.cpec.ca.gov/CollegeGuide/Accreditation.asp (accessed January 18, 2013). 
The CPEC website goes on to warn about state laws i~ 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 
recognize.d by the United States Department of Education. 
4 The CPEC ceased operations on November 18, ZOll, after its funding was eliminated. See 
http://www.cpec.ca.gov/ (accessed January 23, 2~13) and associated Press Release. 
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Page 9 . 
With respect to unaccredited institutions that are approved to qperate)n California, Cal. Ed. Code 
section 94817.5 provides the following basic definition: -' 
"Approved to operate" or "approved" means that an institution has received 
authorization p~rsuant 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. ev.idence to the bureau [BPPE], and the bureau has independently ·verified 
the information provided by the applicant through site visits or other methods deemed 
appropriate by the bt,ueau, 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 
respective websites, accreditation is intended "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 will be recognized and honored nationwide. 
By comparison, an approval to operate by California's BPPE is a lower level endorsemtmt 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 Califoniia will be 
recognized and honored nationwide. 
The Immigration and Nationality Act is a federal s~atu.te 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 cle.ar 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. nie 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. 
(b)(6)Page 10 
~ . 
For an educational institution in California, tpe regional accrediting agency i.s WASC's Accrediting 
· Commission for Senior Colleges and Unive.rsitjes. As previously ~iscussed; the school that issued 
the beneficiary's degree - - is .not on the WASC 
list of accredited institutions. Nor is listed as a candidate for accreditation. Accordingly, the 
beneficiary's "Master of Business Administration" 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). . 
The record shows that the beneficiary ha:s a bachelor's degiee from , which IS an accredited 
institution. For an alien to be eligible· for classification. under section 203(b )(2) of the Act, however, 
the regulation at 8 C.F.R. § 204.5(k)(2) makes clear that a bachelor's degree must be "followed by at 
least five years of progressive experience in the specialty" to be considered equivalent to a master's 
degree. There is no evidence in the record that the beneficiary has five years of post-baccalaureate 
experience in the field(s) of mathematics-applied science or economics. To be eligible for 
classification under section 203(b )(2) of the Act, 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 158 (Act. Reg. Comm. 1977). The priority date of the petition is the date the 
labor certification application was accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). In 
this case, the priority date is October 24, 2010. Since the record does not show that the beneficiary 
had five years of qualifying experience as of October 24, 2010,5 she is not be eligible for 
classification as an advanced degree professional based on her bachelor's degree. Regardless, the 
labor certification does not permit this alternate combination of education and experience. See infra. 
. . . 
In accordance with 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). Thus, the petition cannot be approved. 
Qualifications for the Job Offered . 
Relying in part on Madany, 696 F.2d at 1008, the Federai Court of Appeals for the Ninth Circuit 
(Ninth Circuit) stated: ·· 
[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 
5 In fact, the beneficiary could not have had fiv~ years of qualifying post-baccalaureate experience 
because the time period between the awarding of her bachelor's degree on December 16, 2005, and 
the priority date of the petition, October 24, 2010~ was less than five years. 
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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 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, 
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 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 Information" - describes the terms 
and conditions of the job offered. It is important tha:t the· ETA Form 9089 be read as a whole. 
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 Madany, 696 
F.2d at 1015. users 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 USCrS 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 if 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 certification 
application, as certified by the DOL. /d. at 834. 
. . 
In this case, Part H, lines 4 and 4-B of the labor certification state that the minimum educational 
requirement to qualify for the proffered position is a master's degree in business administration. 
· Line 9 states that a "foreign educational equivalent" is acceptable. Lines 5 and 6 state that no 
training or experience in the job offered is required. Line 8 states that no alternate combination of 
education and experience is acceptable. Thus, the labor certification requires a U.S. master's degree 
in business administration or a foreign educational equivalent. 
·, 
The -beneficiary does not meet this requirement. As previously discussed, the beneficiary's degree 
from . _ ___, though called a "Master of Business 
Administration," does not qualify as _a U.S. master's .degree in . business administration under the 
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."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 accreditiqg agency recognized by the 
DoEd and CHEA. Since she does not fulfill the educational requirement in Part H of the labor 
certification, the beneficiary does not qualify for the job offered. For this reason as well, the petition 
cannot 
be approved. 
Conclusion 
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 requirements on 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. · 
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.