dismissed EB-2 Case: Physical Therapy

(b)(6)
DATE:. APR 0 9 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenshi p and Immig ration Servi ces 
Administrati ve Appeals Office (AAO ) 
20 Massachu se tts Ave., N.W ., MS 2090 
Was hington , DC 20529- 2090 
U.S. Citizenship 
and Immigration 
Services 
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)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
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 the AAO. 
Thank yo~ 
~r;/J ,-----
~osenberr 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks to employ the beneficiary permanently in the United States as a physical therapist, 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
The director denied the petition concluding that "the petitioner has not shown that the beneficiary 
possesses an advanced degree or the five years of progressive experience in the specialty required with 
the baccalaureate degree." 
The petition is for a Schedule A, Group I occupation. The U.S. Department of Labor (DOL) has 
determined that there are not sufficient U.S. workers who are able, willing, qualified, and available 
and that the wages and working conditions of similarly employed U.S. workers will not be adversely 
affected by the employment of aliens in Schedule A occupations. 20 C.F.R. § 656.5. Only 
professional nurses and physical therapists are on the current list of Schedule A, Group I 
occupations. 20 C.F.R. § 656.5(a). 
Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a 
certified ETA Form 9089, Application for Alien Employment Certification, from DOL prior to filing 
the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the petition is filed 
directly with USCIS with an uncertified ETA Form 9089, in duplicate. 8 C.F.R. §§ 204.5(a)(2) and 
(k)(4); see also 20 C.F.R. § 656.15. 
On appeal, the petitioner submitted a brief and additional evidence. On July 15, 2013, the AAO 
issued a notice of intent to dismiss the appeal (NOID) in accordance with the regulation at 8 C.F.R. 
§ 103.2(b)(16). The NOID advised the petitioner, in part, of 1) information which was not consistent 
with a conclusion that the beneficiary's bachelor's degree in physical therapy from the Philippines is the 
foreign equivalent of an advanced degree, 2) inconsistencies in the beneficiary's employment history 
and 3) failure to comply with the notice of filing regulations. The petitioner did not respond to the 
NOID . 
For the reasons discussed below, upon review of the entire record, the petitioner has not established 
that the beneficiary is eligible for the classification sought or that the beneficiary meets the minimum 
job requirements listed on the ETA Form 9089. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. --
(A) In general. -- Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
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NON-PRECEDENT DECISION 
because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States, and whose services in the sciences, arts, 
professions, or business are sought by an employer in the United States. 
In addition, for the classification at issue, the job offer portion of the labor certification must 
demonstrate that the job requires a professional holding an advanced degree. 8 C.F.R. § 204.5(k)(4)(i). 
The regulation at 8 C.F.R. § 204.5(k)(2) defines an "advanced degree" as: 
[A]ny 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 regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
A physical therapist ultimately seeking admission based on an approved immigrant petition must 
present a certificate from a credentialing organization listed at 8 C.P.R. § 212 .15(e) . 8 C .P.R. 
§§ 212.15(a)(l), (c). The provisions at 8 C.F.R. §§ 212.15(f)(l)(i) and (iii) require that approved 
credentialing organizations for health care workers verify "[t]hat the alien's education , training, 
license, and experience are comparable with that required for an American health care worker of the 
same type" and "[t]hat the alien's education , training, license, and experience meet all applicable 
statutory and regulatory requirements for admission into the United States. " The latter verification , 
however, is not binding on the Department of Homeland Security (DHS). 8 C.F.R. 
§ 212.15(f)(l)(iii). 
II. ANALYSIS 
In order to be eligible for the requested classification as a member of the professions holding an 
advanced degree, the petitioner must establish that the beneficiary possesses either a U.S. academic 
or professional degree or a foreign equivalent degree above that of a baccalaureate ora United States 
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Page 4 
baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty. On appeal, the petitioner asserted that the beneficiary "does indeed 
possess well over five years of progressive experience." However, as discussed in the NOID, the 
employment verification letters did not "provide sufficient information to determine the number of 
hours worked by the beneficiary." In addition, the letters are inconsistent with the employment 
information listed on the ETA Form 9089. As the AAO did not receive any response to its NOID, 
these issues remain unresolved. Therefore, the petitioner must demonstrate that the beneficiary is 
eligible for the classification by virtue of his degree alone. 
The beneficiary's eligibility to practice in the United States is not at issue. Similarly, that the 
beneficiary possesses the necessary credentials for licensure is also not an issue. The petitioner must 
establish, however, that the beneficiary not only is a member of the professions holding an advanced 
degree, but also satisfied all of the educational, training, experience and any other requirements of 
the offered position as of the priority date. 8 C.P.R. §§ 103.2(b )(I), (12). See Matter of Wing's Tea 
House, 16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). In evaluating the job offer portion of the ETA Form 9089 to 
determine the required qualifications for the position, USCIS may not ignore a term of the labor 
certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. 
Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red 
Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor 
certification may be prepared with the beneficiary in mind, USCIS has an independent role in 
determining whether the beneficiary meets the labor certification requirements. See Snapnames. com, 
Inc. v. Chertoff, No. CV-06-65.MO, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006). 
On the ETA Form 9089, Part H, the petitioner indicated on line H.4 that the minimum education 
level for the position is a master's degree in physical therapy. The petitioner further indicated on 
line H.8 that an alternate combination of 5 years of progressive experience in addition to a 
bachelor's degree in physical therapy would be acceptable. On line H.9, the petitioner indicated that 
a foreign educational equivalent would be acceptable. On line H.lO, the petitioner indicated that 
experience in an alternate occupation is not acceptable. As previously stated and discussed in the 
NOID, the petitioner has not demonstrated that the beneficiary has 5 years of progressive experience. 
Thus, the petitioner must establish that the beneficiary meets the minimum educational requirement 
of the offered position, a U.S. master's degree in physical therapy or the foreign equivalent of that 
degree, by virtue of his degree alone. 
The petition included a copy of the beneficiary's 1998 Bachelor of Science in Physical Therapy 
degree and transcript from the in the Philippines, a duplicate revised "Report of 
Evaluation of Educational Credentials" (report) dated May 23, 2011 from the Foreign Credentialing 
Commission on Physical Therapy (FCCPT), and a duplicate revised "FCCPT Course Work 
Evaluation Checklist" (evaluation) also dated May 23, 2011. The FCCPT report states that the 
beneficiary's degree program consisted of four years of "[ c]lassroom time" and ten months of 
"[ c]linical time" and that the school "is comparable to a regionally accredited college or university in 
the U[ nited] S [ tates]." The report also states that the program's admission requirement is the 
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equivalent of a diploma from a U.S. high school. The report also indicates that courses from 
----~ ____ . -- - -~ ~ were included in the evaluation. The report found that the 
beneficiary's "education is substantially equivalent to the first professional degree in physical 
therapy in the United States, at the time of graduation. The report also states that "[t]he first 
professional degree in physical therapy is the master's degree or higher." 
In a letter dated May 23, 2011, _ _______ _ _ , Managing Director of Credentialing Services at 
FCCPT, explained that, in 2001, the Commission on Accreditation in Physical Therapy Education 
(CAPTE) discontinued the accreditation of baccalaureate degree programs in the United States. Dr. 
____ __ _ __ further explained that U.S. accredited programs have converted to post-baccalaureate 
programs. concluded that the current first professional degree in the United States is 
at least a master's degree or higher. 
As stated in the NOID, the fact that, after 2001, the United States no longer 
awards baccalaureate 
degrees in physical therapy is not, by itself, persuasive evidence that the beneficiary's 1998 
bachelor's degree in physical therapy from the Philippines is the foreign equivalent of a U.S. 
master's degree in physical therapy. Furthermore, the first professional degree in physical therapy in 
the United States at the time of the beneficiary's graduation in 1998 was a bachelor's degree, not a 
master's degree. 
On appeal, the petitioner stated that "FCCPT is the only agency approved by USCIS to evaluate the 
credentials of physical therapists for visa screen purposes." As previously stated, the regulatory 
authority of approved credentialing organizations to issue certificates for foreign health care workers 
is for the limited purpose of overcoming the inadmissibility provision pursuant to 8 C.F.R. 
§ 212.15(e). FCCPT's authority, which USCIS granted pursuant to 8 C.F.R. § 212.15(e)(3), does 
not extend to determining whether (1) the beneficiary's education satisfies the regulatory definition 
of "advanced degree" or (2) the beneficiary's education satisfies the minimum requirements stated 
on the ETA Form 9089, the issues in the instant petition. Regardless, a credentialing organization's 
verification of the beneficiary's education, training, license and experience for admission into the 
United States is not binding on DHS. 8 C.F.R. § 212.15(f)(l)(iii). 
In addition, 8 C.F.R. § 212.15(f)(i) authorizes FCCPT to look at all of the individual's credentials in 
the aggregate when it is considering the individual's suitability for health care worker certification 
for admissibility purposes. As FCCPT looks at coursework and credentials beyond the beneficiary's 
degree, it does not evaluate whether the beneficiary's degree from the Philippines is a single foreign 
equivalent degree above that of a baccalaureate, the requirement for this classification, or a single 
foreign equivalent degree to a U.S. master's degree in physical therapy, the degree listed on the ETA 
Form 9089. See Snapnames.com, Inc., 2006 WL 3491005 at *11 (finding USCIS was justified in 
concluding that the combination of a three-year degree followed by the coursework required for 
membership in the was not a single college or university 
"degree" for purposes of classification as a member ot he protessions holding an advanced degree). 
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Where the analysis of the beneficiary's credentials relies on "equivalence to completion of a United 
States baccalaureate or higher degree," the result is the "equivalent" of an advanced degree rather 
than a "foreign equivalent degree." 1 The provided evaluation and report make it clear that FCCPT 
relied on coursework from multiple sources, and not the individual 's Bachelor of Science in Physical 
Therapy degree alone, to determine "substantial equivalence," which is a different standard. Based 
upon FCCPT's methodology, the evaluation is not a proper basis to determine whether the 
beneficiary holds the foreign equivalent of a U.S. master's degree in physical therapy, the 
requirement listed on the ETA Form 9089 or the foreign equivalent of an advanced degree as 
required by the classification where the petitioner has not documented that the beneficiary has five 
years of experience. 
According to the Electronic Database for Global Education (EDGE), the Bachelor of 
Arts/Science/Commerce, · etc. degree in the Philippines "represents attainment of a level of education 
comparable to a bachelor's degree in the United States." Under the credential description section, 
EDGE states that the bachelor's degree is "four to five years beyond the high school diploma (except 
Law which is an advanced degree as in the USA) with four being the most common length," but that 
"(Architecture , Engineering, Physical Therapy and Occupational Therapy for example , are five). " 
EDGE further states that the Master of Arts/Sciences degree in the Philippines "represents 
attainment of a level of education comparable to a master's degree in the United States." 
In its NOID, the AAO advised the petitioner of the information from EDGE and provided 
information about the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO), which created EDGE. The AAO also provided a copy of a letter from Dale Gough, 
Director, AACRAO International Education Services, explaining the conclusions in EDGE. The 
AAO noted that USCIS considers EDGE to be a reliable source of information about foreign 
credential equivalencies. 2 The AAO provided the petitioner with copies of all of the relevant 
information. 
The information from EDGE and FCCPT is inconsistent with a finding that the beneficiary holds the 
foreign equivalent of a U.S. master's degree in physical therapy, the degree required on the ETA 
Form 9089 or a single foreign equivalent degree above that of a baccalaureate , the requirement for 
this classification in the absence of five years of experience . It is incumbent upon the petitioner to 
submit relevant and probative evidence to establish the beneficiary 's eligibility. Matter of Chawathe, 
22 I&N Dec. 369, 376 (AAO 2010). Where an opinion is not in accord with other information, 
USCIS is not required to accept or may give less weight to that evidence. Matter of Caron 
1 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (defining for purposes of a nonimmigrant visa classification, the 
"equivalence to completion of a United States baccalaureate or higher degree.") The regulations pertaining to 
the immigrant classification sought in this matter do not contain similar language. 
2 See Confluence Intern., Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 
2009); Tiseo Group, Inc. v. Napolitano, No. 09-cv-10072, 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); 
Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 3325442 (E.D. Mich. Aug. 20, 2010). See also Viraj, 
LLC v. Holder, No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga. May 18, 2013). 
(b)(6)
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International, 19 I&N Dec. 791, 795 (Comm'r 1988). USCIS is ultimately responsible for making 
the final determination regarding an alien's eligibility for the benefit sought. !d. 
In the instant petitiOn, the petitioner has not submitted relevant and probative evidence that 
establishes by a preponderance of the evidence that (1) the beneficiary's degree is a foreign 
equivalent degree above that of a baccalaureate degree, as required by the classification and (2) the 
beneficiary's bachelor's degree in physical therapy from the Philippines is the foreign educational 
equivalent of a U.S. master's degree in physical therapy, as required by the ETA Form 9089 in the 
absence of five years of experience. 
In addition, as stated in the NOID, "the petitioner has not demonstrated that it complied with the 
notice requirements," specifically that "the notice 'be provided between 30 and 180 days before 
filing the application,"' pursuant to 20 C.F.R. § 656.10(d)(iv). 
As the AAO did not receive a response to its NOID, the petitioner has not overcome the issues 
discussed above. Therefore, the petitioner has not established that the beneficiary meets the 
minimum requirements set forth on the ETA Form 9089 or that the beneficiary holds an advanced 
degree as defined by the regulation at 8 C.F.R. § 204.5(k)(2). In addition, the petitioner has not 
demonstrated that it complied with the notice of filing requirements. Therefore, the petitioner has not 
established that the beneficiary qualifies for classification as an advanced degree professional under 
section 203(b )(2) of the Act. 
III. CONCLUSION 
The petitioner has not established that the beneficiary meets the minimum requirements of the job 
offered, as listed on the ETA Form 9089. In addition, the petitioner has not established that the 
beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to section 
. 203(b )(2) of the Act, and the implementing regulation at 8 C.F.R. § 204.5(k)(2). Finally, the petitioner 
has not established compliance with the notice of filing requirements. Accordingly, the petition may 
not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.