sustained EB-2 Case: Manufacturing

dentifying data deleted to 
prevent clearly unwarranted 
invasion of pemml privacy 
HJmC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Wobert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: 
 The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained; the petition will be approved. 
The petitioner is a glass container manufacturer. It seeks to employ the beneficiary permanently in the United 
States as a manufacturing support manager pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2). In pertinent part, section 203(b)(2) of the Act provides immigrant classification 
to members of the professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. As required by statute, a Form ETA 750,' Application for Alien Employment 
Certification approved by the Department of Labor (DOL), accompanied the petition. Upon reviewing the 
petition, the director determined that the job did not require a baccalaureate degree. 
On appeal, counsel asserts that the director failed to read the labor certification application as a whole. For 
the reasons discussed below, while the citation to the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(D) on the labor 
certification application creates unnecessary ambiguity, we are persuaded that the job requires an advanced 
degree professional. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees or their equivalent and whose services are sought by an employer in the United 
States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree 
above the baccalaureate level. 8 C.F.R. 5 204.5(k)(2). The regulation further states: "A United States 
baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily 
required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." Id. 
The beneficiary possesses a foreign bachelor's degree and a foreign Master's of Business Administration. 
The director did not contest that the beneficiary qualifies as an advanced degree alien or that the beneficiary 
meets the job requirements set forth on the labor certification. The only issue in contention is whether the job 
requires an advanced degree alien. 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is useful to discuss DOL's 
role in this process. Section 212(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing skilled 
or unslalled 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 slulled or unslulled labor, and 
(11) the employment of such alien will not adversely affect the wages and worlung 
conditions of workers in the United States similarly employed. 
1 
 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. 
Page 3 
DOL has issue regulations that expand on this authority. 20 C.F.R. 9 656. It is significant, however, that none of 
the above inquiries assigned to DOL 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, including the 9' Circuit that covers the jurisdiction for this matter. 
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 turn, DOL has the authority to make the two 
determinations listed in section 212(a)(14). 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). 
The regulation at 8 C.F.R. 9 204.5(k)(4) provides that the "job offer portion of the individual labor 
certification . . . must demonstrate that the job requires a professional holding an advanced degree or the 
equivalent or an alien of exceptional ability." The key to determining the job qualifications is found on Form 
ETA-750 Part A. This section of the application for alien labor certification, "Offer of Employment," 
describes the terms and conditions of the job offered. It is important that the ETA-750 be read as a whole. 
The instructions for the Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job Duties. Do 
not duplicate the time requirements. For example, time required in training should not also 
be listed in education or experience. Indicate whether months or years are required. Do not 
include restrictive requirements which are not actual business necessities for performance on 
the job and which would limit consideration of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this matter, 
Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: Bachelor's degree* 
Experience: 
 5 years in job offered** 
Block 15: 
 * Will accept educational equivalency evaluation prepared by qualified 
evaluation service or in accordance with 8 CFR 5 214.2(h)(4)(iii)(D). 
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** Bachelor's degree in Engineering, Physics, Chemistry, Materials Science 
plus 5 years of progressive experience (will accept Master's degree* plus 3 
years of experience). 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(D) provides: 
Equivalence to completion of a college degree. For purposes of paragraph (h)(4)(iii)(C)(4) of 
this section, equivalence to completion of a United States baccalaureate or higher degree shall 
mean achievement of a level of knowledge, competence, and practice in the specialty 
occupation that has been determined to be equal to that of an individual who has a 
baccalaureate or higher degree in the specialty and shall be determined by one or more of the 
following: 
(I) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training and/or 
work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and that 
the alien has achieved recognition of expertise in the specialty occupation as a result 
of such training and experience. For purposes of determining equivalency to a 
baccalaureate degree in the specialty, three years of specialized training and/or work 
experience must be demonstrated for each year of college-level training the alien 
lacks. For equivalence to an advanced (or Masters) degree, the alien must have a 
baccalaureate degree followed by at least five years of experience in the specialty. If 
required by a specialty, the alien must hold a Doctorate degree or its foreign 
equivalent. It must be clearly demonstrated that the alien's training and/or work 
experience included the theoretical and practical application of specialized 
knowledge required by the specialty occupation; that the alien's experience was 
gained while working with peers, supervisors, or subordinates who have a degree or 
its equivalent in the specialty occupation; and that the alien has recognition of 
expertise in the specialty evidenced by at least one type of documentation such as: 
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(i) Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association or 
society in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, 
trade journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a 
foreign country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
As can seen from the language quoted above, the regulation at 8 C.F.R. 8 214.2(h)(4)(iii)(D) permits several 
alternatives to a U.S. bachelor's degree or a foreign equivalent degree. In 1991, when the final rule for 
8 C.F.R. 3 204.5 was published in the Federal Register, legacy Immigration and Naturalization Service 
(legacy INS) now Citizenship and Immigration Services (CIS), responded to criticism that the regulation 
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the 
substitution of experience for education. After reviewing section 121 of the Immigration Act of 1990, Pub. L. 
101-649 (1990)' and the Joint Explanatory Statement of the Committee of Conference, the Service 
specifically noted that both the Act and the legislative history indicate that an alien must have at least a 
bachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members of the 
professions must hold "advanced degrees or their equivalent." As the legislative history . . . 
indicates, the equivalent of an advanced degree is "a bachelor's degree with at least five years 
progressive experience in the professions." Because neither the Act nor its legislative history 
indicates that bachelor's or advanced degrees must be United States degrees, the Service will 
recognize foreign equivalent degrees. But both the Act and its legislative history make clear 
that, in order to qualify as a professional under the third classification or to have experience 
equating to an advanced degree under the second, an alien must have at least a bachelor's 
degree. 
56 Fed. Reg. 60897,60900 (November 29,199l)(emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under section 
203(b)(2) of the Act with anything less than a full baccalaureate degree. More specifically, a three-year 
bachelor's degree will not be considered to be the "foreign equivalent degree" to a United States 
baccalaureate degree. A United States baccalaureate degree is generally found to require four years of 
education. 
 Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). 
 Where the analysis of the job 
requirements 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." In order to consider that the job 
requires experience and education equating to an advanced degree under section 203(b)(2) of the Act, the job 
must require a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 
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Thus, in order to determine that the job requires the experience and education equating to an advanced degree 
under section 203(b)(2) of the Act, the labor certification must require a single degree that is the "foreign 
equivalent degree" to a United States baccalaureate degree. 
Noting the language following the single asterisk, the director concluded that the labor certification allowed 
for less than a bachelor's degree. While we understand the director's concern given the express language in 
8 C.F.R. 9 214.2(h)(4)(iii)(D) that allows for less than a bachelor's degree, subparagraph (5) of that provision 
also states: "For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree 
followed by at least five years of experience in the specialty." Significantly, the asterisks that reference the 
regulation 8 C.F.R. fj 214.2(h)(4)(iii)(D) follow both the bachelor's and Master's degree requirements. Thus, 
while the citation to this provision unnecessarily complicated the evaluation of the job requirements, we are 
persuaded by counsel's assertion on appeal that the reference to the regulation at 8 C.F.R. 
g 214.2(h)(4)(iii)(D) "is relevant to the issue of whether the alien possesses the requisite advanced degree, and 
not to the threshold issue of the requirements for the position." 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.