dismissed EB-2 Case: Speech Language Pathology

(b)(6)
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 
DATE: FEB 0 5 2013 OFFICE: NEBRASKA SE~VICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have cOnsidered, you may file a motion to recOnsider or a motion to reopen in 
accordance with the instructions on Form 1~290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
("ff\Yf't· 
~\R~nberg 
Acting Chief, Administrative Appeals Office 
www.uscis,gov 
(b)(6)
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Servic~ Center (Director). A motion to reopen and reconsider was dismissed by the 
Director. The case is now on appeal before the Acting Chief, Administrative Appeals Office (AAO). 
The appeal will be dismissed. 
The petitioner is a software services company. It seeks to permanently employ the beneficiary in the 
United States as a speech language pathologist pursuant to section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). This section of the Act provides for immigrant 
classification to members of the professions holding advanced degrees whose services are sought by 
employers 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 ~octoral degree is customarily required by the specialty, the alien must have a . 
United States doctorate or a foreign equival~nt degree. 
Case history · 
The 
petitioner filed its Form 1-140, Immigrant Petition for Alien Worker, on November 15, 2010. 
As required by statute, the petition was accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification, which was filed at the Department of Labor (DOL) on 
January 15, 2010, and certified by the DOL on May 19, 2010. The ETA Form 9089 specifies (in 
Part H, boxes 4, 4..,B, 7, 7-A, and 9) that the minimum education required for the proffered position 
is a master's degree in he·aring language and speech or a related . field (such as communication 
disorder), or a foreign educational equivalent. Another requirement specified in Part H (box 14) is 
that the beneficiary have a professional license from the State of California as a speech language 
pathologist. 
As evidence of the beneficiary's educational credentials · the petitioner submitted photocopies of his 
academic records from the .in India, showing that he was awarded the 
following degrees: 
• A Bachelor of Science (Audiology and Speech Rehabilitation) on December 2, 1998, 
following completion of a three-year degree program. 
• A Master of Science (Audiology and Speech Rehabilitation) on December 27, 2001, 
following completion of a two-year degree program. 
Also submitted with the petition was an evaluation of the beneficiary's indian education by the 
a foreign credential evaluation service in 
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California, dated January 25, 2008. According to the the beneficiary's Indian credentials are 
equivalent to a Master of Science in Audiology and Speech Language Pathology from a regionally 
accredited university in the United States~ . 
In addition, the petitioner submitted a photocopy of the beneficiary's Speech-Language Pathologist · 
"Renewal License" from the State of California, valid until September 30, 2010. 
In response to a Request for Evidence issued on April 12, 2011, the petitioner submitted another 
academic evaluation of the beneficiary's Indian degrees, this time from Prof. of 
• • , dated May 13, 2011. Like the evaluation, Prof. 
concluded that the beneficiary's credentials are equivalent to a Master of Science in Speech 
and Language Pathology and Audiology from an accredited U.S. university. 
On August 20, 2011, the Director denied the petition on the ground that the beneficiary did not have 
the requisite education as specified in the ETA Form 9089 (labor certification). The decision relied 
primarily on the Educational Database for Global . Education (EDGE), created by the American 
· Association of Collegiate Registrars and Admissions Officers (AACRAO); which indicated that the 
beneficiary's combined degrees in India were comparable to a bachelor's degree in the United States. 
The Director referred to the evaluation from Prof. but determined that it was outweighed by 
the information in EDGE. The Director also noted that the beneficiary may possess the equivalent 
of a U.S. bachelor's degree in audiology and speech rehabilitation plus five years of progressive 
post-baccalaureate experience in the field, which would constitute an advanced degree as defined in 
8 C.F.R. § 204.5(k)(2), but determined that the beneficiary would still not qualify for the proffered 
position because the labor certification specified that a master's degree was required, with no 
provision for the alternate combination of a bachelor's degree and five years of experience. 
The petitioner submitted a motion to reopen and reconsider on ' September 19, 2011, which was 
dismissed by the Director on November 21, 2011, on the grounds that the motion was not supported 
by new evidence, or precedent decisions, or a shpwing that the decision was legally or factually 
incorrect. 
The petitioner filed a timely appeal, accompanied by a brief from counsel and supporting 
documentation . InCluded with these materials is a copy of the brief submitted by prior counsel with 
the motion to reopen and reconsider, which current counsel asserts was not properly considered by 
the Director. According to counsel, the Director erred by relying "exclusively" on AACRAO and 
"ignoring" the. opinion of Prof. Counsel also contends that the Director should have found 
the beneficiary eligible for classification as an advanced degree professional based on a bachelor's 
degree and five years of post-baccalaureate experience. The AAO conducts appellate review on a de 
novo basis . . See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
The issues before the AAO are the following: 
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Ill Does the beneficiary have the requisite credentials to be eligible for classification as 
an advanced degree professional unde_r section 203(b )(2) of the Act? 
• Does the beneficiary ha~e the requisite credenti'als to qualify for the job of speech 
language pathologist under the terms of the labor certification? 
Is the Beneficiary Eligible for the Classification Sought? 
As previously discussed, the ETA Form 9089 in this case is certified by the DOL. The DOL's role is 
limited to determining whether there are sufficient workers who are able, willing, qualified and 
available and . whether the employment of the alien' will adversely affect the ·wages "and working 
conditions of workers in the United States similarly employed. See Section 212(a)(5)(A)(i) of the Act, 
20 C.F.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 
(9
1
h Cir. 1984); ·Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
A United States baccalaureate degree is generally found to require four years of education. See 
Matter of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). 1 This decision involved a petition filed 
under 8 U.S.C. §1153(a)(3) of the Act, as amended in 1976. At that time, this section provided: 
Visas shall next be made available ... to qualified immigrants who are membersof 
the professions .... 
The Immigration Act of 1990 Act added section 203(b)(2)(A) to the Act, 8 U.S.C. §1153(b)(2)(A), 
which provides: · 
Visas shall be made available ... to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17·I&N Dec. at :?44, 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 
1 In Matter of Shah the Regional Commissioner declined to consider a three-year Bachelor of Science 
degree frqm India as the equivalent of a Urn ted States baccalaureate degree because the degree did not 
require four years of study. /d. at 245. 
(b)(6)Page5 
professions." H.R. Conf. Rep. No. 955, 10151 Cong., 2"d 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 almqst thirteen years 
since Matter of Sfzah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference (advanced degree professional) immigrant visas. We must assume that Congress was 
aware of the agency's previous treatment of a "bachelor's degree" under the Act when the new 
Classification was enacted and did not intend to alter the agency's interpretation of that term. See 
Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (Congress is 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, whenthe final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 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 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 advariced 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 degre~s, 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 statJte 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.· See 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 
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 
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. . . 
advanced degree under section 203(b )(2) of the Act, the beneficiary must" have a single degree that is 
the "foreign equivalent degree" to a United States baccalaureate degree (plus five years of 
progressive experience in the specialty). See 8 C.F.R. § 204.5(k)(2). 
The degree must also be from a college or university. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree" (plus evidence of five years · of progressive 
experience in .the specialty). For classification as a member of the professions, the regulation at 
8 C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration of study." The 
AAO cannot conclude that the evidence required to demonstrate that an alien is an advanced degree 
professional is any less than the evidence required to show that the alien is a professional. To do so 
would undermine the congressionally mandated classification scheme by allowing a lesser 
evidentiary standard for the more restrictive visa classification. See Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2"d 
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. Re~. 30703, 30306 (July 5, 1991).3 
As previous! y discussed, the documentation of record shows that the beneficiary earned two 
educational degrees at the : (1) a Bachelor of Science (Audiology and 
Speech Rehabilitation) on December 2, 1998, after completing a three-year degree program; and (2) 
. a 
Master of Science (Audiology and Speech Rehabilitation) on December 27, 2001, after completing 
a two-year degree program. In the appeal brief, which reflects the earlier brief submitted with the 
motion to reopen and. reconsider, counsel reiterates the petitioner's contention that the beneficiary's 
Indian education is equivalent to a U.S. master's degree. In counsel's view, the AAO arbitrarily 
relied on the EDGE resource of AACRAO instead of the educational evaluation of Prof. in 
finding that this education was· only equivalent to a U.S. bachelor's degree. Counsel characterizes 
AACRAO as a commercial service in competition with other foreign credential evaluation services. 
The motion brief resubmitted on appeal highlights a quote from a U.S. Department of Education 
website stating that the U.S. government does not recommend or endorse any one service over 
another. It also points out that AACRAO provides its own credential evaluations for a fee, which 
renders it "neither independent nor unbiased." Motion, page 6. 
specific combination of education and experience). The regulations pertaining to the immigrant 
· classification sought in this matter do not contain similar language. 
3 Cf 8 C.F.R. § 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission 
of "an official_ academic record showing that the alien has a degree, diploma, certificate or similar 
award from a college, university, school or other institution of learning relating to the area of 
exceptional ability"). 
(b)(6)Page 7 
As explained on its website, AACRAO is "a nonprofit, voluntary, professional association of more 
than 11,000 higher education admissions and registration professionals who represent more than 
2,600 institutions and agencies in the United States and in over 40 countries." 
http://www.aacrao.org'About-AACRAO.aspx. Its mission "is to serve and advance higher education 
by providing leadership in academic and enrollment services." /d. EDGE is "a web-based resource 
for the evaluation of foreign educational credentials." http://edge.aacrao.orglinfo.php. Authors for 
EDGE are not merely expressing their personal opinions. Rather, they must work with a publication 
consultant'and a Council Liaison with AACRAO'.s National Council on the Evaluation ofForeign 
Educational Credentials. 4 If placement recommendations are included, the Council Liaison works 
with the author to give feedback and the publication is subject to final review by the entire Council. 
/d. U.S. Citizenship and Immigration Services (USCIS) considers EDGE to be a reliable, peer­
reviewed source of information about foreign credentials equivalencies. 
In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court 
determined that the AAO provided a rational explanation for its reliance on information provided by 
AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 
(E.D.Mich. August 30~ 2010), the court found that USCIS had properly weighed the evaluations 
submitted and the information obtained from EDGE to conclude that the alien's three-:year foreign 
"baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. 
In Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld 
a USCIS determination that the alien's three-year bachelor's degree was not a foreign equivalent 
degree to a U.S. bachelor's degree. Specifically, the ·court concluded that USCIS was entitled to 
prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The 
court also noted that the labor certification itself required a degree and did not allow for the 
combination of education and experience. 
EDGE states that a Bachelor of Science degree in India is awarded upon completion of two to three 
years of tertiary study beyond the Higher Seco~dary Certificate (comparable to a U.S. high school 
diploma), with the great majority being awarded after three years of tertiary study. The Indian 
degree is comparable to study at a U.S. college or university for the same number of years. 
According to EDGE, therefore, the beneficiary's three-year bachelor's degree from the 
is most likely comparable to three years of study at a U.S. college or university. EDGE 
also states that a Master of Science degree in India is awarded upon completion of two years of study 
beyond the ,three-year bachelor's degree, and is comparable to a bachelor's degree in the United 
States. Therefore, the ·beneficiary's two-year master's degree from the is most 
likely comparable to a bachelor's degree from a U.S. college or university, not a master's degree as 
claimed by the petitioner. 
While the petitioner challenges the AAO's utilization of AACRAO's EDGE as a resource, 
4 See An Author's Guide to Creating AACRAO International Publications available at 
http://www .aacrao.orglpublications/guide _to_ creating_ int~mational _publications.pdf. 
(b)(6)Page 8 
characterizing it as an inappropriate preferential endorsement of its education evaluation service over 
other .credential evaluation services, the AAO does not agree. In reviewing this petition, the AAO 
.· has not relied on . an evaluation by AACRAO of the beneficiary's specific educational credentials 
that was paid for with a fee to AACRAO. Rather, the AAO has utilized information from 
AACRAO's database - EDGE - that has been vetted by a panel of experts and has general 
applicability to all bachelor of science and master of science degrees in India. The evaluations 
submitted by the petitioner from the IIC and Prof. Appel, on the other hand, focus exclusively on the 
beneficiary's 
degrees. . Thus, they are not comparable to the independent, broadly applicable 
credentials analysis offered by EDGE. In short, the AAO considers the AACRAO database a 
reliable resource for information about the U.S. equivalency of foreign degrees. 
Tha't being said, the AAO also considers educational evaluations from private services that are 
specific to the beneficiary. In this case the petitioner has submitted two. One is from the previously 
discussed In its evaluation the set forth the entire course list of the beneficiary's two 
degrees, assigned 5 credits to each course and 10 credits for each "clinical practical" completed, and 
determined that the beneficiary earned a total of 215 credits in his five years of study. The basis of 
these credit numbers, however, is totally unclear. They do not appear on the beneficiary's official 
transcripts, and the does not explain what they represent ·The evaluation states that the. 
beneficiary's Indian studies are · equivalent to a U.S. master's degree, but provides no rationale in 
support of this equivaJency. It simply states its conclusion without analysis. In view of these 
substantive deficiencies, the AAO views the evaluation's closing paragraph as particularly apt: 
The evaluation ... is advisory and in no way limits an agency or institution in 
making its own determination of the level of education and allocation of credits to be 
allowed for these studies ... 
Evaluations of a person's foreign education by credentials evaluation organizations are utilized by 
USCIS as advisory opinions only: Where an·opinion is not in accord with other information or is in 
any way questionable, USCIS is_ not required to accept it or may give it less weight. See Matter of 
Sea, Inc., 19 I&N Dec. 817 (Comm. 1988). For the reasons discussed above, the AAO determines 
that the evaluation has little or no probative value. It is not persuasive evidence that the 
beneficiary's five years of tertiary study in India are equivah~nt to a U.S. master's degree. 
The othereducational evaluation in the record - from Prof. - asserts, based 
on a course-by-course analysis of the beneficiary's degree programs at the 
that the beneficiary's bachelor's and master's degree programs comprised the equivalent of 162 
credits in the United States, which surpassed the normal minimum of 150 credits required to 
complete a bachelor's degree and a master's degree in speech and language pathology and audiology 
at . a U.S. university. Like the evaluation, however, Prof. does not explain how he 
calculated the "U.S. credit equivalent" he assigns to each course. On the beneficiary's transcripts the 
credit hours totaled 108 for his bachelor's degree courses and 35 for his master's degree courses -
which adds up to 143 credit hours for the two programs combined. Since that total is under the 150 
I 
··! . 
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credits cited by Prof. -~ as the normal minimum for a U.S. master's degree in the field, his failure 
to explain how he arrived at the figure of 162 as the "U.S. credit equivalent" is a glaring omission . 
. Prof. notes that the beneficiary's master's . degree program appears to have included two 
calendar years of continuous studies, clinical rotations, and research, rather than two academic years 
of eight months each. This assessment derives from notations on the beneficiary's transcripts that 
Part I of his coursework was completed in the time period of September 1998 to August 1999, Part II 
of his coursework was completed in the time period of September 1999 to August 2000, and his 
clinical practice was performed from September 1998 to October 2000. Prof. concludes tbat 
the· master's degree program comprised the equivalent of three academic years. The problem with 
this claim is that the semester credit hours for the beneficiary's entire master's program totaled 35, 
which is closer to a typicai three-semester total than it is to a three-year total. · The AAO is not 
persuaded that the master's degree should be regarded as more than a two-year program, regardless 
of how the ·studies, clinical time, and research may .· have been organized and scheduled between 
September 1998 and October 2000. 
According to Prof. _ _ the Master of Science (Audiology and Speech Rehabilitation) is unlike a 
generic master of science degree in India, which · is a two-year program that can be entered with a 
three-year bachelor's degree in any field of science. In contrast, the Master of Science (Audiology 
and Speech Rehabilitation) program requires a bachelor's degree in the same specific field of study. 
The resulting master's degree, Prof. asserts, is a professional degree analogous to other Indian 
professional degrees such as Master' of Science (Nursing), Master of Science (Pharmacy), Master of 
Science (Agriculture), and Master of Science (Engineering). There is a crucial difference, however, 
between each of these degree programs and the one at issue in this proceeding. According to EDGE, 
the entry requirement for Indian master of science programs in nur~ing, pharmacy, agriculture, and 
engineering is a four-year bachelor's degree in the same field of study. In contrast, the master of 
science program in audiology and speech rehabilitation requires only a three-year bachelor's degree 
in that field of study. As previously discussed, U.S. baccalaureate degrees are generally four-year 
programs. See Matter of Shah at 244. Prof. does not claim that the beneficiary's Bachelor of 
Science (Audiology and Speech Rehabilitation) is equivalent to a U.S. bachelor's degree. In accord 
with EDGE, he acknowledges that the three-year degree from the _ is 
comparable to three years of study at a U.S. college or university. The beneficiary's lack of a U.S. 
equivalent bachelor's degree eliminates the essential building block of his claim to have a U.S. 
equivalent master's degree, as required to be eligible for classification as an advanced degree . 
professional under section 203(b )(2) of the Act. 
As further evidence of the U.S. e uivalency of the beneficiary's master's degree, Prof. cites 
the beneficiary's licensure ~y the 
which was predicated on his fulfillment of state requirements that include· 
possession of "at least a master's degree in speech-language pathology or audiology from an 
educational institution approved by the board or qualifications deemed equivalent by the board." 
California's Business and Professions Code, Section 2532.2(a). The regulatory language quoted 
above, however, indicates that a master's degree is not an absolute requirement for licensure by the 
I 
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The California state regulations provide that "qualifications deemed equivalent by the 
board" could also suffice, without further specification. It seems entirely possible that educational 
coursework amounting to less than a master's degree in combination with working experience in 
speech language pathology or audiology could .be "deemed equivalent" by the to a master's 
degree in the field. In this case, the record indicates that the beneficiary had several years of post­
education experience as a speech therapist, at least some of which was ~ained before he was licensed 
by the . Accordingly, the AAO does not agree with Prof. claim that the beneficiary's 
licensure in the State of California necessarily means that the accepted his master's degree 
from India, st~nding alone, as equivalent to a U.S. master's degree. 
Even if the AAO did agree with Prof. claim, it would not be dispositive in this proceeding 
because a ruling by a state entity is not binding on the AAO in its interpretation of a federal statute 
or regulation. The AAO is bound by the Act, agency regulations, precedent decisions of the agency, 
and published decisions from the federal 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 APA, even when they are published in private publications or widely circulated). Even 
internal memoranda of USCIS do not establishjudicially enforceable rights. See Loa-Herrera v. 
Trominski, 231 F.3.d 984, 989-(Sth Cir. 2000) (An agency's internal guidelines "neither confer upon 
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely.") Therefore, the 
beneficiary's licensure by the State of California has no' bearing on_ the AAO's determination, in the 
context of this immigrant visa petition, as to whether the ·beneficiary's foreign education is 
equivalent to a U.S. master's degree. 
Prof. asserts that some U.S. colleges and universities have initiated three-year bachelor's 
degree programs, and that some U.S. universities recognize certain three-year bachelor's degrees 
from India as a sufficient qualification for entry into a U.S. master's degree program. While assorted 
documentation submitted by the petitioner corroborates these claims generally, the information 
therein is too vague and anecdotal to draw any firm . conclusions that favor the petitioner in this 
proceeding. For example, the requirements a student must fulfill for admission into a three-year 
bachelor's degree program in the United States (such as advanced courses in high school and grade 
point average) may vary among U.S. colleges and universities. Similarly, U.S. universities 
considering three-year bachelor's degree holders for admission into advanced degree programs may 
require s~ch applicants to have a higher grade poiQt average, class standing, and/or advanced course 
· content in their undergraduate studies. It is not clear from the beneficiary's academic record in India 
that he would satisfy such criteria. In any event, the fact remains that the standard length of a 
bachelor's degree p~ogram in the .United States is four academic years. 
For all of the reasons discussed above, the AAO determines that the evaluation of Prof. has 
limited evidentiary weight. It is not persuasive evidence that the beneficiary's five years of tertiary 
study in India are equivalent to a U.S. master's degree. ·USCIS may, in its discretion, use as advisory 
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opinions statements submitted as expert testimony.· However, where an opinion is not in accord with 
other information or is in any way questionable, USCIS is not required to accept or may give less 
weight to that evidence. See Matter of Caron International, 19 I&N Dec. 791 (Comm.1988). 
The petitioner cites the beneficiary's certification on June 19, 2007 by the 
, as having "met all of the requirements of section 212(a)(5)(C) of the Immigration 
and Nationality Act, as specified in Title 8, Code of Federal Regulations section 212.15(f) for the 
Profession of: Speech-Language Pathologist." The statutory provision cited above provides that a 
health-care worker seeking to enter the United States must present a certificate from the 
verifying, among other things, that his or her education "meet[ s] all applicable statutory and 
regulatory requirements for entry into the United States under the Classification specified in the 
application." Section 212(a)(5)(C)(i)(I) of the Act, 8 U.S.C. § 1182(a)(5)(C)(i)(I). The regulatory 
provision cited above provides that an organization authorized to issue health care certificates must 
verify, among other things, that the alien's education "meet[ s] all applicable statutory and regulatory 
requirements for admission into the United States. This verification is not binding on the DHS." 
(Emphasis added.) 8 C.F.R. § 212.15(f). 
As the liniitation in the regulation makes clear, the AAO, as part of the Department of Homeland 
Security, is not bound by any verification by the regarding an alien's educational 
credentials. Thus, even if the certificate stated . that the beneficiary's . Indian master's degree was 
equivalent to a U.S. master's degree, it would have no legal consequence for the AAO in its adjudication 
of the instant petition. In fact, the certificate does not indicate that the viewed the 
beneficiary's master's degree from the as comparable to a U.S. master's degree. 
Compliance with the statutory and regulatory provisions cited in the certificate does not require an alien 
to have a master's degree (U.S. or foreign equivalent), since cl~ssification as an "advanced degree 
professional" can be met with a bachelor's degree (U.S. or foreign equivalent) and five years of 
progressive experienCe in the specialty. While this combination of education and experience is 
considered equivalent to a master's degree under the regulatory definition of "advanced degree 
professional" in 8 C.F.R. § 204.5(k)(2), it does not comport with the labor certification in this case, 
which requires a master's degree without any experience component. 
For all of the reasons discussed in this decision, the AAO determines that the petitioner has failed to 
establish that the beneficiary has a foreign educational equivalent to a U.S. ·master's degree in 
hearing language and speech or a related field, as required by the labor certification. In accord with 
EDGE, the AAO concludes that the beneficiary's education is more likely than not comparable to a 
U.S. bachelor's degree in that field. 
As an alternative basis for relief, counsel asserts that the beneficiary is eligible for classification as 
an advanced degree professional based on the foreign equivalent of a U.S. bachelor's degree plus 
five years of progressive experience in the specialty, which meets the definition of "advanced 
degree" in 8 C.F.R. § 204.5(k)(2). The beneficiary is not eligible for classification on this basis, 
however, . because the labor certification co-signed by him and the petitioner's director specifically 
(b)(6)
Page 12 
·requires a master's ·degree or a foreign educational equivalent (Part H, lines 4 and ·9, of ETA Form 
9089), and does not allow for any alternate combination of education and experience (Part H, line 8,­
of ETA Form 9089). To be eligible for a given classification, the beneficiary must meet all the 
requirements set forth on the labor certification as of the petition's priority · date.5 See Matter of 
Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm 'r 1977). 
Furthermore, even if the labor certification allowed for this alternate combination of education and 
experience, the record does not establish that the beneficiary meets both criteria. The AAO agrees that 
the beneficiary likely has the foreign educational equivalent of a U.S. bachelor's degree. However, 
the record does not show that the beneficiary had five years of progressive experience by the priority 
date of January 15, 2010. While the petitioner has submitted letters from three school officials who 
claim that the beneficiary was employed as a speech therapist/language specialist during the school · 
years of 2006-07, 2007-08, and 2008-09, the total time of this employment falls well short of the 
five-year requirement in the above regulation. Therefore, the beneficiary is not eligible for. 
classification as an advanced degree professional on the basis of a foreign educational equivalent to 
a U.S. bachelor's degree and five years of progressive experience in the specialty. 
Based on the foregoing analysis, the AAO concludes that the beneficiary is not eligible for 
classification as an advanced degree professional under 
section 203(b )(2) of the Act because he lacks 
the requisite educational degree. Accordingly, the petition cannot be approved. 
2. Is the Beneficiary Qualified for the .Job Offered? 
Relying in part on Madany, 696 F.2d at 1008, the U.S. 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 
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 (91h Cir. 1983); The court relied on an amicus brief 
from DOL th;1t stated the following: 
5 The priority date of the petition is the date the underlying labor certification application (ETA 
Form 9089) was received for processing by the DOL. See 8 C.F.R§ 204.5(d). If the petition is 
approved, the priority date is also used in conjunction with the Visa Bulletin issued by the 
Department of State to determine when a beneficiary can apply for adjustment of status of for an 
immigrant visa abroad. · 
(b)(6)Page 13 
· 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 workersfor 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, citing K.R.K. Irvine, ./nc~, 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 in ETA Form 9089, Part H. This part of the 
application describes the terms and conditions of the job offered. It is important that the application 
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 V. 
Smith, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to det~rmine what the job ~equires. /d. The only rational manner by which 
USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification, must involve reading and applying the plain language of the alien employment 
certification application form. /d. at 834. USCIS cannot and should not reasonably be expected to 
look beyond the plain language of the labor certification that the DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. · 
The petitioner specified the following educational, training, and experience requirements for the 
speech language pathologist: 
• The minimum educational requirement is a master's degree or a foreign educational 
equivalent in hearing language and speech or a related field, such as communication 
disorder. (Part H, line 4, 4-B, 7, and 9.) 
• No training or experience in the job offered is required. (Part H, lines 5 and·6.) 
• No alternate combinat~on of education and experience is acceptable. (Part H,.line 8.) 
• A license in speech language pathology is required. · (Part H, box 14.) 
(b)(6)
Page 14 
While the beneficiary has the requisite license from the State of 
California, he does not have the 
requisite educational degree because his master's degree · from India is not equivalent to a U.S. 
master's degree in the field. Therefore, the beneficiary does not satisfy the minimum educational 
requirement of the labor certification to qualify for the proffered position. For this reason as well, 
the petition cannot be approved. 
Conclusion 
The petition is deniable on two grounds: 
'1. The . beneficiary· does not have the requisite educational degree - specifically, a U.S. 
master's degree or a foreign equivalent degree - to be eligible for classification as an 
advanced degree professional under section 203(b )(2) of the Act. 
2. The beneficiary does not qualify for the proffered position of speech language pathologist 
under the terms of the labor certification because he does not have the requisite 
educational degree - specifically, a U.S. master's degree or a foreign educational 
equivalent. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. Accordingly,the appeal will be dismissed. 
The burden of.proof in these proceedings rests solely with the petitioner. See section 291 of the Act, 
8 u.s.c. § 1361. -The petitioner has not met thatburden. 
ORDER: The appeal is ~ismissed.