dismissed EB-2 Case: Mechanical Engineering

ident1fying data deleted to 
prevent dearly unwarranted 
invasion ~f personal privacy 
Date: Office: TEXAS SERVICE CENTER 
DEC 0 2 20" 
INRE: Petitioner: 
Beneficiary: 
V.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin~on, DC 205~9-2090 
U.S. Litizenship 
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 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
kAMCL~. s \~Ol-- L\~ ~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.go\' 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a school bus repair company. It seeks to permanently employ the beneficiary in the 
United States as a mechanical engineer. The petitioner requests classification of the beneficiary 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, an ETA Form 9089, Application for 
Alien Employment Certification, approved by the Department of Labor (DOL) accompanied the 
petition. Upon reviewing the petition, the director determined that the beneficiary did not satisfy the 
minimum level of education stated on the labor certification. Specifically, the director determined 
that the beneficiary did not possess the requisite education at the time the labor certification was 
submitted. 
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." Id. 
The AAO conducts appellate review on a de novo basis. See Solfane 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' 
As noted above, the ETA Form 9089 in this matter is certified by DOL. Here, the ETA Form 9089 was 
filed on March 26, 2008 and certified by DOL on May 22, 2008. To be eligible for approval, a 
beneficiary must have the education and experience specified on the labor certification as of the 
petition's filing date. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). 
, The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, 
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). 
Page 3 
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. 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). 
Rather, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the AP A, even 
when they are published in private publications or widely circulated). 
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, 101st 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 immigrant visas. We must assume that Congress was aware of the agency's previous 
Page 4 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
In 1991, when the final rule for 8 C.F.R. § 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 
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. 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. 8 C.F.R. § 204.5(k)(2). As explained in the preamble to the final rule, persons 
who claim to qualify for an immigrant visa by virtue of education or experience equating to a 
bachelor's degree may qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled 
worker with more than two years of training and experience. 56 Fed. Reg. at 60900. 
2 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. 
Page 5 
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." For classification as a member of the 
professions, the regulation at 8 C.F.R. § 204.5(l)(3)(H)(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). 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"). 
Because the beneficiary has neither (1) a U.S. degree above a baccalaureate or foreign equivalent 
degree nor (2) a U.S. baccalaureate degree or foreign equivalent degree and five years of progressive 
experience in the specialty, he does not qualify for preference visa classification as an advance 
degree professional under Section 203(b )(2) of the Act. 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the 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 
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 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. 
-Page 6 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.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 that the ETA Form 9089 be read as a whole. 
Moreover, 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. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. 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 alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this matter, Part H, line 4 of the ETA Form 9089 reflects that the minimum level of education is a 
Bachelor's degree in Mechanical Engineering, line 6 reflects that 60 months of experience in the job 
offered are required, and line 8 reflects that no alternate combination of education and experience 
would be acceptable. Line 9 reflects that a foreign educational equivalent is acceptable. 
The record of proceeding contains a Certificate from the Israeli Air Force that the beneficiary 
completed a three-month technological course in heavy helicopter mechanics. The ETA 9089, Part 
J, Line 11 states that the beneficiary holds a bachelor's degree, however, no such degree appears in 
the record.3 No other evidence of education for the beneficiary was submitted. 
The petitioner here relies upon the conclusion of one credential evaluation from 
••••••••••••• which states that the beneficiary has the equivalent of a Bachelor 
of Science degree in Mechanical Engineering "based exclusively on work experience." _ 
_ stated that he used the beneficiary's "more than sixteen years of professional training and 
work experience" in reaching his conclusion. Specifically, states that the beneficiary 
worked from 1989 to 1992 as an airplane mechanic and base rifleman Israeli Army; and from 
1993 to 2007, the beneficiary worked for Blue White Garage as a mechanical engineer. _ 
~sed the rule to equate three years of experience for one year of education, but that 
equivalence applies to non-immigrant H-IB petitions, not to immigrant petitions. See 8 C.P.R. 
§ 214.2(h)(4)(iii)(D)(5). The letter from Israel's Defense Force states that the beneficiary was 
3 The notation at line 14 of Part J states: "Exclusively based on professional experience." 
Page 7 
certified as an airplane mechanic and base rifleman and served for 35 months as an airplane 
The petitioner submitted a 
who verified that the 
1993 until the date of the letter, 
mechanic, but provides no details as to his job duties or 
letter from Business Owner of 
beneficiary worked as a mechanical engineer from February 1, 
March 23, 2008. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of the letters as to whether they support the 
alien's eligibility. See id. at 795. USCIS may give less weight to an opinion that is not corroborated, 
in accord with other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
In the instant case, the priority date is March 26, 2008, which is the date the labor certification was 
accepted for processing by the DOL. See 8 C.F.R. § 204.5(d). In evaluating the requirements for the 
offered position, USCIS must look to the job offer portion of the labor certification. USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Matter of 
Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm'r 1986). See also, Madany v. 
Smith, 696 F.2d 1008; K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006; Stewart Infra-Red Commissary 
of Massachusetts, Inc. v. Coorney, 661 F.2d 1 (1st Cir. 1981). 
It is noted that the labor certification explicitly requires an individual with a bachelor's degree in 
mechanical engineering or foreign equivalent and sixty months of experience in the job offered. The 
labor certification does not allow for an alternate combination of education and experience. As is 
explained in detail above, the petitioner has not established that the beneficiary possesses a foreign 
degree that is equivalent to a U.S. bachelor's degree. On appeal, counsel states that the beneficiary's 
experience is sufficient to establish the equivalence of a U.S. bachelor's degree. In support of this 
assertion, counsel cites regulations located at 8 c.F.R. § 214.2(h)(4)(iii)(D), which she accurately 
states apply to H-IB petitions. Contrary to counsel's assertion, USCIS is not departing from the 
statutory language and is not departing from previous findings, instead, these regulations are specific 
to H-IB petitions and do not apply to immigrant petitions. The regulations governing immigrant 
petitions for advanced degrees provides no such equivalence. See 8 C.F.R. § 204.5(k)(2). To that 
end, the evaluation equating the beneficiary's work experience to a bachelor's degree is insufficient 
to establish that the beneficiary holds such a degree for the purposes of this classification. Counsel 
cites to Grace Korean United Methodist Church v. Cherto.ff, 437 F. Supp. 2d 1174 (D. Or. 2005), in 
support of her proposition that an "equivalence" should be accepted, but this case concerned a 
different immigrant classification with different governing regulations that do not apply to 
immigrant petitions for workers with advanced degrees. Counsel also cites Snapnames.com v. 
Cherto.ff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), however, the Court in that case upheld 
interpretation of USCIS regulations in finding that the worker's three year bachelor's degree plus 
-Page 8 
membership in a professional society is not the equivalent of a U.S. baccalaureate and upheld the 
denial of the advanced degree professional petition. 4 Counsel cites Hoosier Care Inc. v. Chertoff, 
482 F. 3d 987 (7th Cir. 2007), for the premise that DOL determines the requirements of the proffered 
position. However, Hoosier Care stands for the limited interpretation of what constitutes "relevant" 
post-secondary education under the skilled worker regulation and has no applicability to the facts of 
the current case. The regulations concerning immigrant petitions for workers with advanced degrees 
do not provide that an equivalent to a degree is sufficient, but instead require that the beneficiary 
hold an actual bachelor's degree or higher. In any event, the plain language of the statute requires 
that the beneficiary possess the actual requirements of the labor certification, which in this case state 
that a bachelor's degree is required and states that no alternate combination of education and 
experience would be acceptable in Question 8, Block H. 
The record does not establish that the beneficiary has a "United States baccalaureate degree or 
foreign equivalent degree" and, thus, does not qualify for preference visa classification under 
Section 203(b )(2) of the Act.. The record also does not establish that the beneficiary meets the 
minimum requirements of the offered position as set forth in the labor certification. The petition will 
be denied for the above stated reasons, with each considered as an independent and alternative basis 
for denial. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4 In reaching its conclusions, the federal district court in Snapnames.com determined that "B.S. or 
foreign equivalent" relates solely to the alien's educational background, precluding consideration of 
the alien's combined education and work experience. Id. at *11-13. In professional and advanced 
degree cases where the alien is statutorily required to hold a bachelor's degree, the federal district 
court determined that USCIS properly concluded that a single foreign degree or its equivalent is 
required. Id. at *17, 19.