dismissed EB-3 Case: Physical Therapy

U.S. Citizenship 
and 'Immigration 
Services 
MATTER OF H-R-1-0-T- LLC ' 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 12,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION ( 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a rehabilitation services provider, seeks to classify the Beneficiary as a professional 
worker under the third preference immigrant category. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). The petition is for a Schedule A, Group I 
occupation. The U.S. Department of Labor (DOL) has determined that there are not sufficient U.S. 
professional nurses and physical therapists who are able, willing, qualified, and available and that the 
wages and working conditions of similarly employed U.S. workers will not be adversely affected by the 
employment of foreign nationals in these occupations. 20 C.F.R. ,§ 656.5. 
The Director, Nebraska Service Center, denied the petition, concluding that the Beneficiary did not 
meet the minimum education listed on ETA Form 9089, Application for Permanent Employment 
Certification. The Director dismissed a subsequent motion to reopen and reconsider, finding that the 
Petitioner did not submit new evidence, provide precedent decisions for consideration or establish 
"that the decision was incorrect based upon the evidence of record at the time." 
The matter is now before us on appeal. Upon de novo review, we will dismiss the appeal.· 
I. LAW 
Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), grants preference classification to 
qualified immigrants who hold baccalaureate degrees and are members of the professions. See also 
8 C.F.R. § 204.5(1)(2). The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in part: 
If the petition is for a professional, the petition must be accompanied by evidence that 
the alien holds a United States baccalaureate degree or a foreign equivalent degree 
and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration 
of study. 
Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain 
a certified ETA Form 9089 from DOL prior to filing the petition with U.S. Citizenship and 
Immigration Services (USCIS). Instead, the petition, including an uncertified ETA Form 9089 in 
Matter of H-R-1-0- T-, LLC 
duplicate, is filed directly with USCIS. 8 C.F.R. § 204.5(a)(2) and (k)(4); see also 20 C.F.R. 
§ 656.15. USCIS determines whether a foreign national meets the job requirements specified on a 
labor certification and the requirements of the requested immigrant classification. 1 
A petitioner must establish that the beneficiary has satisfied all of the educational, trammg, 
experience and any other requirements of the offered position. See Matter of Wing's Tea House, 
16 I&N Dec. 158, 159 (Act. Reg'l Comm'r 1977). In evaluating the job offer portion of the ETA 
Form 9089 to determine the required qualifications for the position, USCIS may not ignore a term of 
the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 
1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra­
Red Commissary of Massachusetts, Inc. v. Coomey, 661 F .2d 1 (1st Cir. 1981 ). Even though the 
labor certification may be prepared with a beneficiary in mind, USCIS has an independent role in 
determining whether the beneficiary meets the labor certification requirements. 
See Snapnames.com, Inc. v. Chertoff, No. CV-06-65.MO, 2006 WL 3491005 *7 (D. Or. Nov. 30, 
2006). 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]" even if the employer 
may have intended different requirements than those stated on the form. Rosedale Linden Park 
Company v. Smith, 595 F. Supp. 834 (D.D.C. 1984) (emphasis added). 
II. ANALYSIS 
The Petitioner indicates on the Form 1-2908, Notice of Appeal or Motion, that it is appealing the 
Director's February 10, 2016, denial of the motion. The Petitioner's appeal brief, however, only 
addresses issues relating to eligibility for the classification sought as discussed in the Director's initial 
denial of the petition on December 21, 2015. The appeal must address the Director's most recent 
decision, which concluded that the filing did not meet the regulatory requirements of a motion to reopen 
or a motion to reconsider.2 
Notwithstanding the above, for the reasons discussed below, the record supports the Director's 
conclusion that the Petitioner has not established that the Beneficiary holds "the required degree as 
stated in the uncertified ETA 9089." 
A. Minimum Requirements of the Offered Position 
The Petitioner indicates on the ETA Form 9089 that the minimum requirements of the offered 
position are a U.S. bachelor's degree in, physical therapy or a foreign educational equivalent and that 
the offered position does not require any training or experience. The form states that there is no 
1 See section 204(b) of the Act (stating that USCIS must approve a petition if the facts stated in it are true and the foreign 
national is eligible for the requested preference classification); see also, e.g., Tongatapu Woodcraft Haw., Ltd. v. 
Feldman, 736 F. 2d 1305, 1309 (9th Cir: 1984); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both 
holding that the immigration service has authority to make preference classification decisions). 
2 An appeal of the original decision would be rejected as late pursuant to 8 C.F.R. § I 03.8(b). 
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Matter of H-R-1-0-T-, LLC 
other acceptable field of study and no other acceptable combination of education and experience. 
Part H.l4 of the form reads as follows: "Must have state PT [physical therapist] license. Foreign 
degree acceptable provided that there is an independent educational evaluation." 
The Petitioner indicated that the Beneficiary's highest level of relevant education is a bachelor' s 
degree in kinesiology from the Chile, conferred in 2007. Included with 
the initial filing was a revised "Report of Evaluation of Educational Credentials" (report) and a 
revised 1 from the 
which conclude that the 
Beneficiary's overall education "is substantially equivalent to" a U.S. master's degree in physical 
therapy, and a printout from the 
According to the documents, they were revised based upon additional coursework taken by 
the Beneficiary at the in 2012 and at the 
from 2012-2013, and 
credits received in 2012. The Petitioner did not provide transcripts relating to the 
Beneficiary's additional coursework, and the record does not include a translation of his transcript 
from the in accordance with the regulation at 8 C.P.R.§ 103.2(b)(3). 
The Director issued a request for evidence to establish that the Beneficiary 's bachelor's degree in 
kinesiology satisfies the requirement of a U.S. bachelor's degree in physical therapy or foreign 
equivalent degree listed on the labor certification
, as the two fields "are similar in nature, but are in 
fact two different fields of study." In response, the Petitioner submitted a brief, along with an 
evaluation from and a copy of 
the relevant portions of the Arizona licensing statute. After reviewing the Petitioner's response, the 
Director found that kinesiology, the field of study stated on the Beneficiary's diploma, is not the 
same as physical therapy, the field of study specified on the labor certification. The Director 
asserted that kinesiology "is the scientific study of human movement," while physical therapy "is the 
actual treatment of impairments and disabilities and the promotion of mobility, functional ability, 
quality of life and movement potential through examination, evaluation, diagnosis, and physical 
intervention." 
On appeal, the Petitioner correctly states that the Director did not cite any authority for his assertion that 
kinesiology is not an equivalent field to physical therapy. Given that the Beneficiary's degree is not in 
the field listed on the ETA Form 9089, however, an explanation is warranted. While the Beneficiary's 
degree may be in a related field, the ETA Form 9089 did not indicate that the Petitioner would accept 
such a degree. Without evidence that his degree in kinesiology is the foreign equivalent of a U.S 
bachelor's degree in physical therapy, the Beneficiary cannot be found to meet the minimum 
educational requirements for the offered position as set forth on the labor certification. 
The Petitioner contends on appeal that the evaluations from and establish that the 
Beneficiary's degree "is equivalent to a U[.]S[.] bachelor's degree in physical therapy." The 
evaluation, however, concludes that the degree, combined with additional coursework and 
credits, "is substantially equivalent to the first professional degree in physical therapy" which is a 
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Matter of H-R-1-0-T- , LLC 
"master's degree or higher." did not evaluate whether the Beneficiary's degree from Chile is a 
single foreign equivalent degree to a U.S. bachelor's degree in physical therapy, the degree listed on the 
ETA Form 9089. See Snapnames.com, Inc., 2006 WL 3491005 at *11 (finding USCIS was justified in 
concluding that the combination of a three-year degree followed by the coursework required for 
membership in the of India, was not a single college or university 
"degree.") Where the analysis of an individual's credentials relies on "equivalence to completion of a 
United States baccalaureate or higher degree," the result is the "equivalent" of a bachelor's degree 
rather than a "foreign equivalent degree."3 looked at the Beneficiary's coursework from 
multiple sources, and not his degree alone, to determine substantial equivalence, which is a different 
standard. 
The Petitioner also argues that because is one of only two organizations authorized to perform 
healthcare worker certifications, it should therefore "be given substantial deference." The regulatory 
authority of approved credentialing organizations to issue certificates for foreign health care workers is 
for the limited purpose of overcoming the inadmissibility provision pursuant to 8 C.F .R. § 212.15( e). 
· The provisions at 8 C.F.R. §§ 212.15(f)(1)(i) and (iii) require that approved credentialing organizations 
for health care workers verify "[t]hat the alien's education, training, license, and experience are 
comparable with that required for an American health care worker of the same type" and "[t]hat the 
alien's education, training, license, and experience meet all applicable statutory and regulatory 
requirements for admission into the United States." The latter verification, however, is not binding on 
the Department ofHomeland Security (DHS). 8 C.F.R. § 212.15(f)(l)(iii). authority does not 
extend to determining whether an individual's education satisfies the minimum requirements stated on 
the ETA Form 9089, the issue in the instant petition. 
Regarding the evaluation, it concluded that the Beneficiary "satisfied similar requirements to 
the completion of a Bachelor of Science Degree in Physical Therapy from an accredited institution 
of tertiary education in the United States." The evaluation, however, does not sufficiently address 
the equivalency of the fields of study, nor does it provide a detailed explanation of or comparison 
between the Beneficiary's university coursework in kinesiology and the curriculum of a U.S. 
baccalaureate program in physical therapy. See Matter of Caron Int 'l, Inc., 19 I&N Dec. 791 
(Comm'r 1988) (holding that we may discount or afford less evidentiary weight to expert testimony 
3 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (defining for purposes of a nonimmigrant visa classification, the "equivalence 
to completion of a United States baccalaureate or higher degree. ") The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. In addition, legislative history indicates Congress's 
intention to require professionat.workers to possess at least a single U.S. baccalaureate or foreign equivalent degree , 
without combining educational credentials or education with experience. In responding to criticism that proposed 
regulations barred the substitution of experience for education, the former Immigration and Naturalization Service (INS) 
reviewed the Immigration and Nationality Act of 1990, Pub. L. I 01-649, and its legislative history, concluding that "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." 
Final Rule for Immigrant Visa Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991); see also SnapNames .com, Inc. v. 
Chertoff, No. CV 06-65-MO , 2006 WL 3491005, *10 (D. Or. Nov. 30, 2006) (affirming USCIS' determination that a 
professional worker position must require 
at least a U.S. bachelor's degree or a foreign equivalent degree). 
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Matter ofH-R-1-0-T- , LLC 
that is questionable in any way). Further, as stated previously, the record does not include a 
translation of the Beneficiary's bachelor's degree transcript to demonstrate the subjects he studied. 
The Petitioner also contends that the Beneficiary's physical therapist license from Arizona 
demonstrates the equivalency of his university diploma to a U.S. bachelor's degree in physical 
therapy. The record indicates that Arizona licensure requires a foreign educated applicant to 
establish that his or her "education is substantially equivalent to the requirements of physical 
therapists educated in accredited educational programs" and allows for "the person to complete 
additional coursework." See< Ariz. Rev. Stat. § 32-2022. The record does not establish that the 
only considered the Beneficiary's degree, or whether, like 
the evaluation, they considered the diploma in combination with the additional education 
and credits obt~ined by the Beneficiary. 
The Petitioner notes that "[a] degree in the field of study of physical therapy is not a requirement for 
employment as a Physical Therapist under Schedule A." The regulation at 20 C.F.R. § 656.5, 
however, does state that an individual must "possess all the qualifications necessary to take the 
physical therapist licensing examination in the state in which they propose to practice physical 
therapy." Similarly, the regulation at 20 C.F.R. § 656.15( c )(1) requires evidence that the "the alien 
is qualified to take that state's written licensing examination." Even though the regulation does not 
reference a specific degree, the Petitioner is not relieved from demonstrating the Beneficiary's 
possession of the requirements for the offered position specified on the accompanying labor 
certification. See Wing's Tea House, ) 6 I&N Dec. at 159. In light of the above, the Petitioner has 
not established that the Beneficiary's degree in kinesiology is the foreign equivalent of a U.S . 
. bachelor's degree in 
in physical therapy, the minimum education requirement specified on the labor 
certification. 
B. Minimum Education Requirements for a Physical Therapist 
Although not addressed by the Director, according to the information from "[t]he first 
professional degree in the United States is the master's degree or higher," not a bachelor's degree. It 
is therefore unclear whether the labor certification accurately reflects !_he actual minimum education 
requirements for a.physical therapist. This issue must be addressed in any future filings. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not met its burden to establish eligibility 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). 
ORDER: The appeal is dismissed. 
Cite as Matter of H-R-1-0-T-, LLC, ID# 7974 (AAO Oct. 12, 2016) 
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