dismissed EB-2 Case: Speech Language Pathology

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DATE: OFFICE: NEBRASKA 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 
'APR 0 8 2014 
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 (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 you, 
&A -fVr 
~~;'Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
PageL 
DISCUSSION: The Director, Nebraska Service Center (the director), denied the immigrant visa 
petition. Upon a subsequent motion to reconsider the director affirmed his decision to deny the petition 
and the Administrative Appeals Office (AAO) summarily dismissed the appeal. The matter is again 
before the AAO on a motion to reopen. The motion will be granted, the previous decision of the 
director will be affirmed, and the petition will remain denied. 
The petitioner describes itself as a health care business. It seeks to permanently employ the beneficiary 
in the United States as a speech language pathologist. 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).1 On March 12, 2013, the director denied the petition 
because the petitioner failed to establish that the beneficiary met the minimum educational requirements 
stated on the labor certification. The director granted a motion to reconsider and on May 16, 2013, the 
director affirmed his decision to deny the petition. 
On November 27, 2013, the AAO summarily dismissed the appeal pursuant to 8 C.F.R. 
§ 103.3(a)(1)(v), as the appeal failed to identify specifically any erroneous conclusion of law or 
statement of fact. The record did not contain referenced correspondence from the petitioner more than 
five months past the filing of the Form I-290B. 
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. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon motion. A petition that fails to comply with the technical requirements of 
the law may be denied by the AAO even if the director does not identify all of the grounds for denial 
in the initial decision? On motion, counsel submits a brief, tracking records and copies of Form I-
290B instructions. 
8 C.F.R. § 103.5(a) provides, in pertinent part: 
(2) Requirements for motion to reopen. 
A motion to reopen must state the new facts to be provided in the reopened 
proceeding and be supported by affidavits or other documentary evidence ... 
On motion, counsel states that the petitioner submitted additional documentation to the record no 
later than August 1, 2013 and provides copies of tracking records to support counsel's assertion. 
Counsel asserts that the brief and additional evidence in support of the appeal were submitted 
directly to the Nebraska Service Center (NSC). Although the instructions to Form I-290B state that a 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees, whose services are sought by an employer in the United States. 
2 See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 
345 F.3d 683 (9th Cir. 2003). 
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NON-PRECEDENT DECISION 
brief and evidence not submitted with the Form I-290B must be submitted directly to the AAO, 
counsel asserts that the Form instructions were confusing when read with the instructions on the U.S. 
Citizenship & Immigration Services (USCIS) website. Counsel asserts that the supporting 
documents were delivered to the NSC on August 1, 2013 and not returned. Although the record does 
not include the documents received by the NSC on August 1, 2013, the motion contains a copy of a 
brief dated May 29, 2013, which contends that the director erred in concluding that the petitioner 
failed to establish that the beneficiary met the minimum requirements of the instant labor 
certification. Therefore, the petitioner's motion qualifies for reopening. 
At issue in this case is whether the beneficiary possesses an advanced degree as required by the 
terms of the labor certification and the requested preference classification. 
I. PROCEDURAL HISTORY 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL). 3 The priority date of the petition is May 4, 2011. 
Part H of the labor certification states that the offered position has the following m1mmum 
requirements: 
H.4. Education: Master's degree in Audiology/Speech Language Pathology or related field. 
H.S. Training: None required. 
H.6. Experience in the job offered: None required. 
H.7. Alternate field of study: None accepted. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.lO. Experience in an alternate occupation: None accepted. 
H.l4. Specific skills or other requirements: License in Speech Language Pathology required. 
Part J of the labor certification states that the beneficiary possesses a Master's degree in Audiology and 
Speech Language Pathology from completed in 2007. The 
record contains a copy of the beneficiary's Master of Science in audiology and speech language 
oatholo2:v dioloma and transcripts from and transcripts from 
issued in 2007. The record also contains a co y of the 
beneficiary's Bachelor of Science in Speech and Hearing diploma and transcripts from 
issued in November 2000. 
3 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
4 
The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
5 Affiliated with 
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Page 4 
The record contains a June 3, 2010 academic transcript from 
reflecting that the beneficiary earned 3.0 semester hours in Social Communication Issues in Spring 
2010. The record contains a May 25, 2010 academic transcript from the at 
, reflecting that the beneficiary earned 3.0 semester hours in Voice Disorders in 
Spring 2009-2010. The record contains an August 24, 2009 academic transcript from 
reflecting that the beneficiary earned a total of 9.0 semester 
hours in Neuroanat Spch/Swallow/Lang, Neuropath Lang and Cognition, and Neuropath of Swallow 
& Speech in 2009. 
The record also contains a course-by-course evaluation dated February 18, 2008, of the beneficiary's 
educational credentials prepared by The evaluation 
states that the beneficiary's Bachelor of Science in Speech and Hearing is equivalent to completion 
of three years of undergraduate work in the United States. The evaluation states that the 
beneficiary's provisional certificate for the Master of Science in Audiology and Speech Language 
Pathology, is equivalent to a Bachelor's degree in Communication Sciences and Disorders and a 
Master's degree in Speech-Language Pathology and Audiology in the United States. 
The record contains an evaluation dated August 22, 2009, of the beneficiary's educational 
credentials prepared by the . _ e evaluation states that the 
beneficiary's Bachelor's degree and Master's degree may be considered comparable in level to a 
Master of Science degree in Audiology and Speech Language Pathology awarded by a regionally 
accredited college/university in the United States. 
Part K of the labor certification 
states that the beneficiary possesses the following employment 
experience: 
• Speech Pathologist/ Audiologist with 
March 31,2002. 
• Lecturer with 
India, from April1, 2002 to December 22, 2004. 
• Audiologist/Speech Language Pathologist with 
lndia, from July 16, 2007 to November 30, 2007. 
from December 1, 2000 to 
• Speech Language Pathologist with India, from January 9, 
2008 to October 8, 2008. 
• Speech Language Pathologist with the petitioner from December 14, 2008 to May 4, 2011, the date 
on which the labor certification was submitted. 
The record contains an October 8, 2008 experience letter from , Assistant General 
Manager, on _ letterhead stating 
that the company employed the beneficiary as a Speech Language Pathologist and Audiologist from 
January 9, 2008, until October 8, 2008, the date of the letter. 
The record contains a December 19, 2007 certificate from Dr. Executive Director, 
on letterhead stating that the company employed the beneficiary as an Audiologist and Speech 
Language Pathologist from July 16, 2007 to November 30, 2007. 
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rage 
The record contains a December 22, 2004 experience letter from Dr. Project Director, 
on letterhead stating that the company employed the beneficiary as a Lecturer in Speech 
Pathology from April 1, 2002 to December 22, 2004, the date of the letter. 
The record contains a March 31, 2002 experience certificate from Bro. 
Director, on letterhead stating that the hospital employed the beneficiary as an 
Audiologist and Speech Pathologist from December 1, 2000 to March 31, 2002. 
The director's decision denying the petition states that the beneficiary's Bachelor of Science degree 
and Master of Science degree are not equivalent to a Master of Science degree in the United States. 
The director found that, even though the beneficiary holds a speech language license in the State of 
California, the International Institute of California (IIC) evaluated the beneficiary to hold the 
equivalent of a U .S. Master's degree in Audiology and Speech Language Pathology and the 
beneficiary had been successfully screened by the program, these opinions were not in 
accordance with information provided by Electronic Database for Global Education (EDGE) and the 
petitioner had not demonstrated that the beneficiary met the minimum requirements at the time the 
labor certification was filed. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies 
will not suffice unless the petitioner submits competent objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The director's decision granting the motion to reopen and affirming his prior decision finds that 
counsel's assertion that the beneficiary's California State license in speech pathology necessetates 
the beneficiary's possession of a master's degree or its equivalent is incorrect. The director states 
that, while the licensure requires a finding that an applicant must possess a master 's degree in speech 
language pathology or "qualifications deemed equivalent by the board," Title 16 of the California 
Code of Regulations, section 1399.152(a) defines "qualification deemed equivalent by the board" to 
include "in lieu of a master's degree an applicant may present evidence of completion of at least 30 
semester units acceptable toward a master 's degree while registered as a graduate student in a degree 
program in speech language pathology and/or audiology." As such, the licensing board did not 
necessarily find the beneficiary's master's degree to be equivalent to a U.S. master 's degree. 
II. LAW 
AND ANALYSIS 
The Roles of the DOL and USCIS in the Immigrant Visa Process 
At the outset, it is important to discuss the respective roles of the DOL and USCIS in the 
employment-based immigrant visa process. r As noted above, the labor certification in this matter is 
certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, 
which provides: 
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NON-PRECEDENT DECISION 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that-
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
of application for a visa and admission to the United States and at the place 
where the alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing 
these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are 
qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit 
courts: 
There is no doubt that the authority to make preference classification decisions rests 
with INS. The language of section 204 cannot be read otherwise. See Castaneda­
Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In tum, DOL has the authority 
to make the two determinations listed in section 212(a)(14).6 Id. at 423. The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d 
at 1008, 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 
6 Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
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NON-PRECEDENT DECISION 
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 the DOL that stated the following: 
The labor certification made by the Secretary of Labor . . . pursuant to section 
212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, 
qualified, and available United States workers for the job offered to the alien, and 
whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) /d. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: 
The Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. /d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own 
determination of the alien's entitlement to sixth preference status. /d. § 204(b), 
8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir.1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and the 
beneficiary are eligible for the requested employment-based immigrant visa classification. 
Eligibility for the Classification Sought 
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.P.R.§ 204.5(k)(l). 
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Page 1:1 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An 
"advanced degree" is defined 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. 
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.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. 
In addition, the job offer portion of the labor certification must require a professional holding an 
advanced degree. See 8 C.F.R. § 204.5(k)(4)(i). 
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of 
the professions holding an advanced degree, and that the offered position requires, at a minimum, a 
professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or 
professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a 
foreign equivalent degree) followed by at least five years of progressive experience in the specialty. 
In the instant case, the petitioner relied on the beneficiary's three-year Bachelor of Science degree 
from India, followed by a Master of Science degree from India as 
being equivalent to a U.S. master's degree. 
As is noted above, the record contains evaluations of the beneficiary's educational credentials 
prepared by ECE and IIC stating that the beneficiary's Bachelor's degree and Master's degree may 
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Page 9 
be considered comparable in level to a Master of Science degree in Audiology and Speech Language 
Pathology in the United States.7 
The AAO has reviewed EDGE created by the American Association of Collegiate Registrars and 
Admissions Officers (AACRAO). According to 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 around the world." See http://www.aacrao.org/About-AACRAO.aspx. Its mission 
"is to serve and advance higher education by providing leadership in academic and enrollment 
services." I d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." 
See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source 
of information about foreign credentials equivalencies. 8 · 
According to EDGE, the beneficiary's three-year Bachelor of Science is comparable to three years of 
university study in the United States, and her Master of Science is comparable to a bachelor's degree 
in the United States. 
In the appeal brief submitted with the motion, counsel contends that, because the California licensing 
board granted the beneficiary a license, it found that the beneficiary's education is equivalent to a U.S. 
master's degree. Counsel contends that, contrary to the director's findings, the licensing board did not 
7 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 (Commr. 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. I d. at 795. See also Matter of Soffici, 
22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Commr. 1972)); Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (expert witness testimony 
may be given different weight depending on the extent of the expert's qualifications or the relevance, 
reliability, and probative value of the testimony). 
8 In Confluence International, Inc. v. Holder, 2009 WL825793 (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 beneficiary'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. v. USCIS, 2010 WL 3325442 (E.D.Mich. August 20, 
2010), the court upheld a USCIS determination that the beneficiary'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 required a degree and did 
not allow for the combination of education and experience. 
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Page lU 
grant the beneficiary her license based on the Title 16 section 1399.152(a) exception regarding 
qualifications deemed equivalent to a master's degree because she was not a graduate student in a 
degree program in speech language pathology and/or audiology. Counsel asserts that the licensing board 
directed the beneficiary to engage in "coursework" to cure the deficiency between her Indian master's 
degree and a U.S. master's degree. Counsel contends that 
that the AAO should find the beneficiary's 
Indian education combined with her completion of 14 semester hours in the United States to be the 
equivalent of a master's degree in the United States. 
Counsel's assertions are unpersuasive. While counsel contends that the board found the beneficiary's 
education to be equivalent to a U.S. master 's degree, an April 14, 2008 letter from the licensing board 
clearly states that the board did not find the beneficiary's Indian credentials to be equivalent to a U.S. 
master's degree. The board stated that they were only able to identify 16 semester units in speech­
language pathology of the required 30 units at the graduate level, requesting that the beneficiary provide 
evidence of 14 semester units to meet the 30 hour requirement. While the beneficiary's U.S. transcripts 
indicate that she completed those additional 14 semester units by November 1, 2010, the date on which 
she was issued her temporary Required Professional Experience (RPE) license, those transcripts do not 
reflect that the beneficiary was awarded a U.S. master's degree. The beneficiary does not hold a U.S. 
master's degree or a foreign equivalent degree. 
Therefore, based on the conclusions of EDGE, the evidence in the record on appeal is not sufficient 
to establish that the beneficiary possesses the foreign equivalent of a U.S. master's degree. 
However, as noted above, 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." According to EDGE, the beneficiary holds the equivalent 
of a U.S. bachelor's degree. As the beneficiary must possess five years of experience attained after 
May 2007, it would not be possible for the beneficiary to accumulate five years of experience prior 
to May 4, 2011. Therefore, the beneficiary does not qualify for classification as an advanced degree 
professional under section 203(b )(2) of the Act. 
The Minimum Requirements of the Offered Position 
The petitioner must also establish that the beneficiary satisfied all of the educational, training , 
experience and any other requirements of the offered position by the priority date. 8 C.F.R. 
§ 103.2(b)(I), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 
1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
In evaluating the job offer portion of the labor certification to determine the required qualifications 
for the position, users may not ignore a term of the labor certification, nor may it impose additional 
requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra­
Red Commissary of Massachus etts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
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Page 11 
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by regulation, USCIS must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 
Madany, 696 F.2d at 1015. 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." Rosedale 
Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emphasis added). USCIS's 
interpretation of the job's requirements, as stated on the labor certification must involve "reading and 
applying the plain language of the [labor certification]." !d. at 834 (emphasis added). USCIS 
cannot and should not reasonably be expected to look beyond the plain language of the labor 
certification or otherwise attempt to divine the employer's intentions through some sort of reverSe 
engineering of the labor certification. 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. Michael Chertoff, 2006 WL 3491005 *7 
(D. Or. Nov. 30, 2006). 
In the instant case, the labor certification states that the offered position requires a Master's degree in 
Audiology/Speech Language Pathology or related field and a license in Speech Pathology. 
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses a 
U.S. master's degree or the foreign equivalent of a U.S. master's degree and cannot, therefore, meet the 
minimum educational requirements of the instant labor certification. The labor certification does not 
permit an alternate combination of education and experience. 
In addition, the petitioner has also failed to establish that the beneficiary held the required special 
skills prior to May 4, 2011, the date on which the instant labor certification was filed. While the 
record contains a temporary RPE license issued to the beneficiary on November 1, 2010, this license 
is for the sole purposes of permitting the holder to obtain the required supervised clinical experience 
necessary to obtain a license under section 2532.2 of the California Business and Professional Code 
(CBPC). Section 2532.3 of the CBPC provides a temporary license for individuals who hold an 
unrestricted license from another state, however, the. license issued to the beneficiary was issued 
under section 2532.7 of the CBPC and is only an RPE license. The record reflects that the 
beneficiary was not issued a license in speech pathology until December 15, 2011, after the May 4, 
2011 priority date. 
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the 
offered position set forth on the labor certification by the priority date. Accordingly, the petition must 
be denied for this reason. 
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Page 12 
The Ability to Pay the Proffered Wage 
Beyond the decision of the director,9 the petitioner has also failed to establish its ability to pay the 
proffered wage. The petitioner must demonstrate its continuing ability to pay the proffered wage 
from the priority date and continuing until the beneficiary obtains lawful permanent residence. 
8 C.P.R. § 204.5(g)(2). Evidence of ability to pay "shall be in the form of copies of annual reports, 
federal tax returns, or audited financial statements." ld. 
The record does not any contain annual reports, federal tax returns, or audited financial statements 
for the petitioner for 2011 and 2012 and does not contain 2011 and 2012 Internal Revenue Services 
(IRS) Forms W-2, Wage and Tax Statements for the beneficiary. Accordingly, the petitioner has also 
failed to establish its continuing ability to pay the proffered wage to the beneficiary since the priority 
date. With any future filings, the petitioner must submit evidence to demonstrate its ability to pay the 
proffered wage from the priority date onwards. 
III. CONCLUSION 
In summary, the petitioner failed to establish that the beneficiary qualifies for classification as a 
professional holding an advanced degree. The petitioner also failed to establish that the beneficiary 
possessed the advanced degree and license required by the terms of the labor certification. Therefore, 
the beneficiary does not meet the minimum requirements of the instant labor certification. The 
director's decision denying the petition is affirmed. 
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 eligibiiity 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, that burden has not been met. 
ORDER: The motion is granted. Upon reopening, the AAO affirms the director's decision. The 
petition will remain denied. 
9 An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis).