dismissed EB-2 Case: Marketing

(b)(6)
DATE: AUG 0 2 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with thcrAAO. 
on Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner describes itself as an insurance claims adjustment business. It seeks to employ the 
beneficiary permanently in the United States as an international marketing manager 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 Permanent Employment Certification, approved by the 
United States Department of Labor (DOL), accompanied the petition. 1 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 
U.S. bachelor's degree or a foreign degree which is the foreign equivalent to a U.S. bachelor's 
degree as required by the ETA Form 9089. The director also determined that the petitioner had 
failed to establish its continuing ability to pay the proffered wage from the priority date onward. 2 
On appeal, counsel asserts that the beneficiary is fully qualified for the proffered position as required 
by the labor certification, and that the petitioner has established its continuing ability to pay the 
proffered wage from the priority date onward. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
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. § 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." /d. 
1 
The petitioner provided a copy of the ETA Form 9089 with the instant petition. The original ETA 
Form 9089 was submitted with a previously filed Form I-140 petition and is in file of this action. 
2 
The director noted in his February 28, 2013 decision denying the present petition that the 
petitioner had failed to respond to a Notice of Intent to Deny (NOID). On appeal, the petitioner 
submitted documentation showing that it filed a timely response to the director's NOID. The 
documentation provided in response 
to the director's NOID shall be fully considered in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page3 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly 
submitted upon appeal.3 
The petitioner claims that the beneficiary possesses the equivalent of a bachelor's degree in business 
administration from an accredited college or university in the United States based upon the 
beneficiary's prior work experience. Thus, the issue is whether it is appropriate to consider the 
beneficiary's years of experience as equivalent to an advanced degree. 
In the instant case, Part H of the labor certification submitted with the petition states that the offered 
position has the following minimum requirements: 
H.4. 
H.5. 
H.6. 
H.7. 
H.8. 
H.9. 
H.10. 
H.14. 
Education: Bachelor's degree. 
Training: None required. 
Experience in the job offered: 
60 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: Master's degree. 
Foreign educational equivalent: Accepted. 
Experience in an alternate occupation : 60 months in a related international marketing 
position. 
Specific skills or other requirements: 
"Any suitable combination of this education and experience will be considered acceptable. 
Will accept education equivalency evaluation prepared by a qualified credential evaluation 
service." 
As noted above, the ETA Form 9089 in this matter is certified by DOL. 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 adverse! y affect the wages and working conditions of workers 
in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
3 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. §1153(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. §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. Conf. Rep. No. 955, 101 st Cong., 2nct 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 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.P.R. § 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 (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 
(b)(6)
PageS 
NON-PRECEDENT DECISION 
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, 1991) (emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b )(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree (plus the requisite five years of progressive experience 
in the specialty). More specifically, a three-year bachelor's degree will not be considered to 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."4 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 the requisite five years 
of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2). 
For this classification, advanced degree professional, 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." 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). Compare 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"). 
The etitioner submitted an experiential evaluation from 
dated January 21, 2003, which 
states that the beneficiary has the equivalent of a bachelor's 
degree in business administration from an accredited college or university in the United States based 
4 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
solely on the beneficiary's employment experience, including 40 years of experience from 1963 to 
the date of the evaluation. As noted above, 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 beneficiary may not qualify for member of the professions 
classification based upon his work experience alone. 
The petitioner also submitted a diploma from (graduation date June 15, 2006) 
indicating that the beneficiary held a Bachelor of Business Administration degree. Submitted with 
the diploma was a transcript which indicated that the petitioner completed six semesters of course 
work with a grade point average (GPA) of 3.19. The transcripts do not state any dates of class 
attendance. The director questioned the accreditation of and asked the petitioner 
to address the issue in response to a Notice of Intent to Deny (NOID). In response to the director's 
NOID, the petitioner acknowledged 
that the beneficiary found this institution on line and submitted 
his credentials for evaluation (high school transcripts, resume and experience/recommendation 
letters). After payment of a fee, he then received the diploma and transcripts in the mail. The 
beneficiary did not attend classes (online or otherwise) at the university and the diploma was issued 
solely based on the aforementioned documentation submitted to the institution and payment of a fee. 
The documentation provided by does not state that the diploma was issued based 
on an evaluation of the beneficiary's work ex erience and does not indicate upon what basis the 
transcript of classes was prepared. is not a regionally accredited university in the 
United States as listed by the U.S. Department of Education 
The AAO will not consider a degree from an unaccredited college or university to satisfy the 
definition of an advanced degree. As stated by the Department of Education (DOE) on its website: 
The [DOE] 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 [recognition must 
meet the] procedures and criteria for the recognition of accrediting agencies, as 
published in the Federal Register .... 
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 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
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. 
The DOE'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 accrediting 
organizations are consistent with quality, improvement, and accountability 
expectations that CHEA 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. 
The DOE and CHEA recognize six regional associations that accredit U.S. colleges and universities. 
None of these regional associations list as an accredited institution. As nothing 
shows that is accredited, or that the beneficiary attended any classes to obtain the 
degree, the documentation is deemed to be of no evidentiary value and will not 
be considered in these proceedings. 5 
5 Even if the degree were accepted, and it is not, the degree was issued on June 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Because the beneficiary has neither (1) a U.S. master's degree or foreign equivalent degree in 
business administration nor (2) a U.S. baccalaureate degree or foreign equivalent degree in business 
administration and five years of progressive experience in the specialty, or the related field of 
international marketing as permitted by the ETA Form 9089, he does not qualify for preference visa 
classification as an advanced degree professional under section 203(b )(2) of the Act. On this ground 
alone, the petition cannot be approved. 
The petition is therefore deniable on two grounds: 
1. The beneficiary does not have a U.S. master's degree or a foreign equivalent degree, 
or a U.S. bachelor's degree or foreign equivalent degree and five years of qualifying 
experience, and thus is not eligible for classification as an advanced degree 
professional under section 203(b )(2) of the Act. 
2. The beneficiary does not meet the minimum educational requirement(s) of the labor 
certification to qualify for the job offered. 
The director also determined that the petitioner had failed to submit sufficient documentation to 
establish its continuing ability to pay the proffered wage from the priority date onward. As 
previously noted, the director did not have at his disposal the petitioner's response to the director's 
NOID when he issued his February 28, 2013 decision denying the petition. The documentation 
submitted with the petitioner's response to the director's NOID, which is now being considered, 
would show the petitioner's ability to pay the proffered wage from the March 28, 2009 priority date 
onward. 
In determining the petitioner's ability to pay the proffered wage, US CIS first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the 
petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine 
whether the petitioner had sufficient net income or net current assets to pay the difference between 
the wage paid, if any, and the proffered wage.6 If the petitioner's net income or net current assets is 
15, 2006. The priority date of the labor certification is March 28, 2009. Thus, it would not be 
possible for the beneficiary to have obtained five years of progressively responsible experience as 
required by the labor certification between the date the degree was issued and the priority date. 
Additionally, nothing in the record shows the exact dates the beneficiary served as Consul General 
for the Republic of Ecuador, experience upon which the beneficiary relies in claiming his degree 
equivalence. . 
6 See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1
51 
Cir. 2009); Elatos Restaurant Corp. 
v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 
736 F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Stipp. 
647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983); and Taco Especial v. Napolitano, 696 F. 
Supp. 2d 873 (E.D. Mich. 2010). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
not sufficient to demonstrate the petitioner's ability to pay the proffered wage, US CIS may also 
consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg. Comm'r 1967). 
In the instant case, the petitioner submitted W-2 Forms for years 2009 through 2012 which show that it 
paid the beneficiary wages in excess of the $50,190 proffered wage in each year. Further, the 
petitioner's tax returns for years 2009 through 2011 state either net income or net current assets which 
exceed the beneficiary's proffered wage. Thus, the petitioner's tax returns would also establish its 
ability to pay the proffered wage in this instance. 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed.