sustained EB-2 Case: Orthotics And Prosthetics

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
identifying data deleted to
pevent clearly unwarranted
invasionof personalprivacy
Date: stl)' ~i l'l0011
U.S. Citizenship
and Immigration
Services
Office: NEBRASKA SERVICE CENTERLIN 07 15450332FILE:
INRE: Petitioner:
Beneficiary:
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.
~~?-.Nt-Robert P. Wiemann , Chief
I Administrative Appeals Office
www.uscis.gov
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Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal
will be sustained; the petition will be approved.
The petitioner provides rehabilitation and orthotist services. It seeks to employ the beneficiary
permanently in the United States as an orthotist and prosthetist pursuant to section 203(b)(2) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, an ETA
Form 9089 Application for Alien Employment Certification approved by the Department of Labor
(DOL), accompanied the petition. Upon reviewing the petition, the director determined that the
beneficiary did not qualify for the classification sought. Specifically, the director determined that
the beneficiary did not possess a U.S. baccalaureate or foreign equivalent degree or five years of
experience.
On appeal, counsel asserts that the beneficiary has the foreign equivalent of a U.S. baccalaureate and
submits new employment letters documenting over five years of experience. We find that the
petitioner has overcome the director's bases for denial.
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. § 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." !d.
The beneficiary possesses a 1987 foreign three-year Higher National Diploma (HND) in Orthotics
and Prosthetics and a 1990 Diploma in Orthotics issued by the Orthotic and Prosthetic Training and
Education Council (OPTEC), awarded based on a one-year residency. Thus, the issue is whether the
OPTEC diploma is a foreign equivalent degree to a U.S. baccalaureate and whether the beneficiary
has an additional five years of experience.
EDUCATION
At the outset, we note that federal circuit courts have upheld our authority to evaluate whether the
beneficiary is qualified for the classification sought. 1 See e.g. Madany v. Smith, 696 F.2d 1008,
1012-13 (D.C. Cir. 1983). Counsel's reliance on Snapnames.com, Inc. v. Chertoff, 2006 WL
3491005 (D. Or. Nov. 30, 2006) for the proposition that we must consider the employer's "intent"
when evaluating eligibility for the classification sought is misplaced for two reasons. First,
Snapnames.com is an unpublished decision of the District Court of Oregon and is not a precedent
binding on this case. See Matter of K-S-, 20 I&N Dec. 715, 719 (BIA 1993) (published federal
1 But cf. Hoosier Care, Inc. v. ChertojJ,No. 06-3562 (7th Cir. April 11, 2007) relating to a lesser classification
than the one involved in this matter and relying on the regulation at 8 C.F.R. § 204.5(1)(4), a provision that
does not relate to the classification sought.
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district court cases are not binding on the BIA even on cases arising from within the same district).
Second, the Snapnames.com court discussed the employer's intent as it relates to evaluating whether
a skilled worker meets the requirements of the alien employment certification. Id. at *8. The court,
however, then held that Citizenship and Immigration Services (CIS), when evaluating whether the
alien is eligible for the classification sought, is entitled to interpret the pertinent regulatory definition
of "professional" and "members of the professions holding an advanced degree" without reference to
the employer's intent. Id. at *10 - 11.
A United States baccalaureate degree is generally found to require four years of education. Matter
of Shah, 17 I&N Dec. 244, 245 (Regl. Commr. 1977). 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
professions." H.R. Conf. Rep. No. 955, 101 st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784,1990
WL 201613 at *6786 (October 26, 1990). At the time of enactment of the Act in 1990, it had been
almost thirteen years since Matter of Shah 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 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 Lorilland v.
Pons, 434 U.S. 575, 580 (1978) (Congress is presumed to be aware of existing administrative and
judicial interpretations).
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the
Immigration and Naturalization Service (the Service), 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 ofthe 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.
Employment-Based Immigrants, 56 Fed. Reg. 60897, 60900 (Nov. 29, I 991)(emphasis added).
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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 as a member of the professions holding an advanced degree 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.
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.t" In order to have experience and
education equating to an 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.
8 C.F.R. § 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may
qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than
two years of training and experience. Employment-Based Immigrants, 56 Fed. Reg. at 60900.
In response to the director's request fo-.radditional evidence the petitioner submitted an evaluation of
the beneficiary's credentials from I at the Trustforte Corporation. ..
notes that under the Britis system, stu ents complete 13 years of study prior to
commencing undergraduate studies and that the 13 th year is equivalent to one year of baccalaureate
study in the United States. _concludes that the beneficiary's HND involved courses
and credit hours equivalen~of study "leading to a Bachelor of Science Degree in
Physical Therapy with a concentration in Orthotics, from an accredited institution of higher
education in the United States." _then concludes that the beneficiary's OPTEC
diploma "is evidence that he comp~bachelor's level studies" at OPTEC.
The director, relying on "information available to the public," concluded that HNDs are vocational
and cannot equate to a U.S. baccalaureate.' The director noted that "there is no provision in the
statute or regulations for combining education of less than a baccalaureate degree to meet the
requirements of the classification," and declined to consider the beneficiary's OPTEC diploma.
On appeal, the petitioner submits new evaluations from
International Services, Inc. and Professo
University of New York (CUNY).
[of the Foundation for
of Medgar Evers College of the City
xplains that the program of study at
2 Compare 8 C.F.R. § 2l4.2(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
specific combination of education and experience). The regulations pertaining to the immigrant
classification sought in this matter do not contain similar language. Thus, counsel's assertion that
the prior approvals of nonimmigrant petitions in behalf of the beneficiary are indicative of prior
findings that the beneficiary's OPTEC diploma is equivalent to a U.S. baccalaureate is not
persuasive.
3 The record does not indicate that the director furnished the petitioner with a copy of the
"information available to the public" cited in his decision and we have not relied on this information
in our adjudication of the appeal.
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Paddington College was "under the auspices of BTEC [the Business and Technician Education
Council] and OPTEC. " The pro am as a wh Ie i a four-year "sandwich" program that includes
both academic work and trainin . further notes that , prior to 1992, HNDs were
less vocational concludes that the OPTEC diploma is "widely regarded by
academics and professionals in the field of Orthotics and Prosthetics as equivalent to a bachelor 's
degree in Orthotics and Prosthetics from accredited universities in the United States and the United
Kingdom." _then evaluates the beneficiary's credits and reaches a similar
conclusion. ~ncludes that the beneficiary's OPTEC diploma is equivalent to a
bachelor's degree in prosthetics and orthotics from an accredited college or university in the United
States.
Finally, the petitioner submits an application for membership in the British Association of
Prosthetists and Orthotists (SAPO) reflecting that membership is open to those with a British
baccalaureate in the field or an OPTEC Diploma , suggesting that the OPTEC diploma is an
equivalent degree.
CIS uses an evaluation by a credentials e valuation organization of a person's foreign education as an
advisory opinion only. Matter of Sea, Inc., 19 I&N Dec. 817 , 820 (Commr . 1988). Where an
opinion is not in accord with previous equi valencies or is in any way questionable, it may be
discounted or given less weight. Id. We have no reason to question or discount the evaluations
submitted in this case . We concur with the director that the alien must have a single degree that is
the foreign equivalent to a U.S . baccalaureate degree rather than multiple lesser degrees . It does not
follow, however, that a postgraduate diploma that requires a lesser post-secondary degree for
admission can never be considered a degree equivalent to a U.S. baccalaureate. The question is the
equivalency of the final degree. The petitioner has provided three consistent and reasonable
evaluations finding that the beneficiary's OPTEC diploma is a foreign equivalent degree to a U.S.
baccalaureate degree. These evaluations are supported by the BAPO membership requirements.
Thus, we are persuaded that the beneficiary holds a foreign equivalent degree to a U.S.
baccalaureate.
EXPERIENCE
The regulation at 8 C .F.R. § 204.5(g)(I) provides, in pertinent part:
Evidence relating to qualifying e xperience or training shall be in the form of letter(s)
from current or former employer(s) or trainer(s) and shall include the name , address,
and title of the writer , and a specific description of the duties performed by the alien
or of the training received. If such evidence is unavailable , other documentation
relating to the alien 's experience or training will be considered .
The priority date in this matter is January 24 , 2007, the date the ETA Form 9089 was filed. See
8 C.F.R. § 204.5(d). Thus, the petitioner must establish that the beneficiary had the necessary
experience as of that date. See 8 C.F.R. § 103.2(b)(12); Matter of Wing 's Tea House, 16 I&N Dec.
158, 160 (Reg!. Commr. 1977); Matter ofKatigbak , 14 I&N Dec. 45 , 49 (Reg!. Comrnr. 1971) . On
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part K of the ETA Form 9089, the beneficiary indicated that he had worked for the petitioner since
December 2006. Prior to that employment, the beneficiary indicated that he worked for Eastside
Orthotics Prosthetics from June 2003 to December 2006, East Coast Orthotic Prosthetic from
February 2002 to October 2004 and was self-employed as an orthotist and orthotics consultant from
July 1999 through February 2002.
In response ~for additional evidence, the petitioner submitted a May 16, 2007
letter from ........- a professor at Columbia University College of Physicians and
Surgeons, asserting that the beneficiary "has been a valuable member of our multidisciplinary team
since February 2002." _ Business Manager at Halo Healthcare, Ltd. in Liverpool, England,
asserts in a letter dated November 6, 2001, that the beneficiary has had a "rel~ with Halo
Healthcare "over the past six years," subsequently defined as a "freelance role."_elaborates
that the beneficiary was placed into several clinics during this time. The petitioner also submitted
three other letters from British clinics attesting to the beneficiary's services but failing to provide
dates of employment.
The director concluded that the employment letters did not provide sufficient information to support
a conclusion that the beneficiary had at least five years of post-baccalaureate experience. On appeal,
the petitioner submits a contract with Eastside Orthotics and Prosthetics, Inc. dated April 8, 2002 and
an undated employment offer from that corporation. The petitioner also submits a 2002 Form W-2,
Wage and Tax Statement issued by East Coast Orthotic to the beneficiary for $75,144.18 and a 2003
Form W-2 from the same company for $24,673.02. In addition, the petitioner submits a new letter
from _ explaining that while the beneficiary has been directly employed by East Coast
Orthotics and Prosthetics and East Side Orthotics and Prosthetics, he provides services at the
Columbia University Medical Center, Morgan Stanley Children's Hospital. Thus,
confirms that the beneficiary has worked at that hospital since 2002.
The petitioner also submits an offer of employment as an orthotist from Halo Healthcare dated May
8, 1996 and a letter acknowledging the termination of a formal employment relationship as of June
30, 1999, to be replaced by work "on a contract basis" through December 31, 2002. As stated
above,_wrote in 2001 confirming the beneficiary's "relationship" with Halo Healthcare over
the past six years.
Finally, IClinicalDirector at Dacey Ltd. in South Glarnorgan, England, confirms the
beneficiary's employment as an orthotist for Dacey from January 6, 1992 through his final day on
August 30, 1996.
The petitioner has now documented that the beneficiary has more than four years of experience as an
orthotist for Dacey and at least three years as a directly employed orthotist for Halo Healthcare.
That employment alone is more than five years. In addition, the petitioner has submitted evidence
that he has continued working as an orthotist for various employers who contracted his services to
Morgan Stanley Children's Hospital.
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In summary, the petitioner has established that the beneficiary is a member of the professions
holding an advanced degree as defined at 8 C.F.R. § 204.5(k)(2) through a foreign equivalent degree
to a u.s.baccalaureate plus at least five years of post-baccalaureate experience.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has met that burden.
ORDER: The appeal is sustained. The petition is approved.