sustained EB-2 Case: Medicine

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prevent clearly unwananted 
invasion of pewnal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
ce: TEXAS SERVICE CENTER Date: 
SRC 08 219 53365 
 JAN 2 9 2009 
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. $ 1 153(b)(2) 
IN 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
L[&JJ~IY 'lk 
ckCc"ohn F. Grissom, Acting Chief 
' Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on certification pursuant to 
8 C.F.R. 5 103.4. The director's decision will be withdrawn and the petition will be approved. 
The petitioner provides health care services. It seeks to employ the beneficiary permanently in the 
United States as a family practice physician pursuant to section 203@)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153@)(2). As required by statute, an ETA Form 9089 
Application for Alien Employment Certification, ETA Form 9089, approved by the Department of 
Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that 
the beneficiary did not qualify for classification as a member of the professions holding an advanced 
degree or satisfy the minimum level of education stated on the labor certification. Specifically, the 
director determined that the beneficiary did not possess a United States "Medical Degree'' or foreign 
educational equivalent. 
On appeal, counsel asserted that the beneficiary's five-year Bachelor of Medicine & Bachelor of 
Surgery (MBBS) is the foreign equivalent of a U.S. medical degree. On December 1 9, 2008, this 
office advised counsel of the requirements for medical licensure in Mississippi that the AAO 
planned to take into consideration. Counsel responded. For the reasons discussed below, we 
withdraw the director's adverse findings. 
At the outset, it must be emphasized that the issue is not whether the beneficiary qualifies as a 
physician, or his eligibility to practice medicine in the United States. The beneficiary is currently 
employed as a family practice physician at a clinic in Mississippi, and he possesses a Mississippi 
State Board of Medical Licensure, valid until June 30,2009. The sole issue is whether the petitioner 
has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree 
professional pursuant .to section 203(b)(2) of the Act, and the implementing U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. 5 204.5(k)(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. An advanced degree is defined in the pertinent regulation as "any 
United States academic or professional degree or a foreign equivalent degree above that of 
baccalaureate." 8 C.F.R. 204.5(k)(2). 
The regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
The beneficiary possesses a foreign five-year MBBS from Islarnia University Bahawalpur in 
Pakistan. Thus, the issue is whether that degree is an "advanced degree" as defined at 8 C.F.R. 
5 204.5@)(2) or, if not, whether the petitioner has established that the beneficiary has five years of 
progressive post-baccalaureate experience. We will also consider whether the beneficiary meets the 
job requirements set forth on the alien employment certification. 
Page 3 
As noted above, the ETA Form 9089 in this matter is certified by DOL. Thus, it is usefbl to discuss 
DOL's role in this process. Section 21 2(a)(5)(A)(i) of the Act provides: 
In general.-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 
(11) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
According to 20 C.F.R. 8 656.1(a), the purpose and scope of the regulations regarding labor 
certification are as follows: 
(a) Under section 212(a)(5)(A) of the Immigration and Nationality Act (INA or Act) 
(8 U. S. C. 1 1 82(a)(S)(A)), certain aliens may not obtain immigrant visas for entrance 
into the United States in order to engage in permanent employment unless the 
Secretary of Labor has first certified to the Secretary of State and to the Secretary of 
Homeland Security that: 
(1) There are not sufficient United States workers who are able, willing, 
qualified and available at the time of application for a visa and admission into 
the United States and at the place where the alien is to perform the work; and 
(2) The employment of the alien will not adversely affect the wages and 
worlung conditions of United States workers similarly employed. 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. 5 656, 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. 
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) [current section 
Page 4 
212(a)(5)].' Id. at 423. The necessary result of these two grants of authority is that 
section 212(a)[(5)] 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)[(5)]. 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 2 12(a)[5] determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). See also Tongatapu Woodcraft 
Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9" Cir. 1984). 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R.B. 
v. Ashkenazy Property Management Corp., 8 1 7 F.2d 74, 75 (9" Cir. 1 987) (administrative agencies 
are not fiee to refuse to follow precedent in cases originating within the circuit). 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 
F.2d at 1015. USCIS must examine ''the language of the labor certification job requirements" in 
order to determine what the job requires. Id. The only rational manner by which USCIS can be 
expected to interpret the meaning of terms used to describe the requirements of a job in a labor 
certification is to examine the certified job offer exactly as it is completed by the prospective 
employer. 
 See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984)(emphasis added). USCIS's interpretation of the job's requirements, as stated on, the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this case, the petitioner stated in Part H, section 4-A of the Department of Labor (DOL) ETA 
Form 9089 that the educational requirements for the occupation are an "M.D." The DOL regulations 
1 
 As amended by Sec. 601, and as fwther amended by See. 172 of the Immigration Act of 1990, Act of Nov. 
29, 1990, Pub. L. 101 -649, 104 Stat. 4978; however, the changes made by Sec. 162(e)(l) were repealed by 
Sec. 302(e)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 
Pub. L. No. 102-323, 105 Stat. 1733 (1 991), effective as though that paragraph had not been enacted. 
Page 5 
at 20 C.F.R. $ 656.17(h)(l) state that the job requirements "must be those normally required for the 
occupation." The abbreviation "M.D." stands for "Doctor of Medicine." Webster's New College 
Dictionary 1324 (3" ed. 2008). The instructions for the ETA Form 9089 specifically state that an 
"M.D." is one of the options that would fall under "other" degrees. In the alternative, the petitioner 
indicated in part H, section 9 of the ETA 9089 that it would accept the foreign educational 
equivalent to a U.S. medical degree. 
As stated above, the beneficiary possesses an MBBS from Pakistan. The petitioner did not initially 
submit an evaluation of the beneficiary's credentials. On certification, the petitioner submitted a 
Inc. The evaluation concludes that the beneficiary's MBBS is the equivalent of a U.S. Doctor of 
Medicine. The evaluation, however, cites no references and is not supported by relevant pages of 
publications supporting their conclusion. 
We have reviewed the Electronic Database for Global Education (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 10,000 higher 
education admissions and registration professionals who represent approximately 2,500 institutions 
in more than 30 countries." AACRAO, http://www.aacrao.ordabout/ (last accessed January 8,2008) 
(copy incorporated into the record of proceeding). Its mission "is to provide professional 
development, guidelines and voluntary standards to be used by higher education officials regarding 
the best practices in records management, admissions, enrollment management, administrative 
information technology and student services." Id. According to the login page, EDGE is "a web- 
based resource for the evaluation of foreign educational credentials" that is continually updated and 
revised by staff and members of AACRAO. 
 Director of International Education 
Services, "AACRAO EDGE Login," http 
 php (last accessed January 
8,2008) (copy incorporated into the record of proceeding). 
Authors for EDGE are not merely expressing their personal opinions. Rather, authors for EDGE 
must work with a publication consultant and a Council Liaison with AACRAO's National Council 
on the Evaluation of Foreign Educational ~redentials.~ 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. Id. at 1 1 - 12. 
In the section related to the educational system in Pakistan, EDGE provides that an MBBS from 
Pakistan "represents the attainment of a level of education comparable to a first professional degree 
in medicine in the United ~tates.'~ A first professional degree within the United States includes a 
2 
See "An Author's Guide to Creating AACRAO International Publications7'5-6 (First ed. 2005), available for 
download at www.aacrao.org/publications/guide to creating international ~ublications.pdf. 
3 
 See placement recommendation for an MBBS fiom Pakistan in EDGE, accessed on January 29,2009, copy 
incorporated into the record of proceeding. 
Page 6 
Doctor of Medicine (M.D.).~ 
 This peer-reviewed opinion is consistent with and supports the 
evaluator's conclusion that the beneficiary's education in this matter is equivalent to a medical 
degree from a regionally accredited institution in the United States. 
As indicated in our previous notice, in order to obtain permanent licensure as a physician within the 
state of Mississippi, foreign medical graduates (FMGs) must complete three years of ACGME- 
approved postgraduate training in the United States, or postgraduate training in Canada approved by 
the Royal College of Physicians and Surgeons, whereas graduates of accredited U.S. medical 
colleges need only complete one year of such post-graduate training. See Title 30, Part 11, Chapter 
02, pp. 1-4, Licensure Requirements for the Practice of Medical Doctors and Osteopathic 
~h~sicians.~ As noted by counsel in response, however, this additional training in Mississippi is 
solely in the form of practical or clinical training, such as a residency or fello~shi~.~ There is no 
requirement that an FMG complete any additional education for Mississippi licensure. Accordingly, 
the level of education required for issuance of an MBBS fiom Pakistan should be deemed to be the 
equivalent of that required for a United States M.D., and an MBBS degree fiom Pakistan should be 
deemed to be the equivalent of that required for a United States M.D. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $j 1361. The petitioner has sustained that burden. Accordingly, the decision of the director 
denying the petition will be withdrawn and the petition will be approved. 
ORDER: The petition is approved. 
4 
 See http://www.ed.~o.t~/intemtionaYusnei/edlite-index.ht, accessed on January 22, 2009, copy 
incorporated into the record of proceeding. 
See http://www.rnsbml.state.ms.us/re~lations~ accessed on January 29, 2009, copy 
incorporated into the record of proceeding. 
6 
See htt~://www.msbml.state.ms.us/lil/training.PDF, accessed on January 29, 2009, copy incorporated into 
the record of proceeding.