USCIS Memorandum, Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017)

U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000 April 17, 2017 PM-602-0144 Policy Memorandum SUBJECT: Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017) This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of O-A-, Inc. as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases.

Matter of O-A-, Inc. clarifies that USCIS must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree. If the provisional certificate does so demonstrate, USCIS will consider the date of the provisional certificate for purposes of calculating post-baccalaureate experience. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

Contact Information Questions or suggestions regarding this PM should be addressed through appropriate directorate channels to the AAO. U.S. Citizenship and Immigration Services Administrative Appeals Office 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 ADOPTED DECISION MATTER OF O-A-, INC. ADMINISTRATIVE APPEALS OFFICE U.S. CITIZENSHIP AND IMMIGRATION SERVICES DEPARTMENT OF HOMELAND SECURITY April 17, 2017[1] (1) U.S. Citizenship and Immigration Services (USCIS) must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree. USCIS must consider evidence presented regarding the individual nature of each university’s or college’s requirements for each program of study and each student’s completion of those requirements. (2) If a petitioner establishes that, as of the date the provisional certificate was issued, the beneficiary had met all substantive requirements for the degree and that the degree was approved, USCIS will consider the date of the provisional certificate for purposes of calculating post-graduate experience.

FOR THE PETITIONER: Monica M. Bathija, Esquire, San Francisco, California The Petitioner, a computer software business, seeks to employ the Beneficiary as a software developer. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This “EB-2” classification allows a U.S. employer to sponsor a professional with an advanced degree for an immigrant visa to pursue lawful permanent resident status.

A bachelor’s degree alone does not qualify as an “advanced degree,” but a bachelor’s degree and an additional five years of post-baccalaureate progressive experience will suffice for EB-2 classification purposes. 1 On March 15, 2017, we issued this decision as a non-precedent decision. We have reopened this decision on our own motion under 8 C.F.R. § 103.5(a)(5)(i) for the purpose of making revisions in preparation for U.S. Citizenship and Immigration Services designating it as an Adopted Decision. Matter of O-A-, Inc. Adopted Decision The Director of the Nebraska Service Center found that, based on the issuance date of the Beneficiary’s bachelor’s degree diploma, the Beneficiary could not show, as required, a minimum of five years of post-baccalaureate experience to establish that she possesses the equivalent of an advanced degree.

On appeal, the Petitioner contends that the Beneficiary does have the five years of post- baccalaureate experience, when measured from the date she received a provisional certificate demonstrating her degree was complete and approved and not from the date when the diploma itself was later issued. Upon de novo review, we will sustain the appeal.

I. LAW

Employment-based immigration generally follows a three-step process. First, an employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of workers similarly employed.

Section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer may file an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(1)(F). Third, if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States.

See sections 221 and 245 of the Act, 8 U.S.C. §§ 1201, 1255. For this advanced degree professional position, the labor certification must provide that the job requires an advanced degree or its equivalent. See 8 C.F.R. § 204.5(k)(4)(i). In pertinent part, Department of Homeland Security regulations define the term “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.” 8 C.F.R. § 204.5(k)(2) (emphasis added). To be eligible for this EB-2 classification solely on the basis of a foreign degree equivalent of a U.S. bachelor’s degree, a beneficiary must also possess five years of qualifying post-baccalaureate experience. 8 C.F.R. § 204.5(k)(3)(i)(B). II.

ANALYSIS

The Beneficiary possesses a bachelor’s degree in electronic engineering from Jawaharlal Nehru Technological University (JNTU) in India. The issue presented here is not whether the Beneficiary’s degree counts or whether her post-degree experience qualifies as progressive experience. The only remaining issue is when JNTU conferred the “degree” to the Beneficiary, after which date we may credit her progressive experience to qualify for EB-2 classification. More 2 Matter of O-A-, Inc. Adopted Decision specifically, we explore here whether the five years of experience can only be measured from when she received the formal diploma itself, or earlier, when she completed all the requirements for the degree and received what is commonly termed a provisional certificate reflecting that her degree was approved.

We conclude that, based on the specific circumstances and evidence in this case, the provisional certificate constitutes her official academic record of her “degree” for purposes of calculating the five-year period of post-graduate experience. Several dates are critical to this case. The date the labor certification is filed, in cases such as this one, is called the “priority date.” See 8 C.F.R. § 204.5(d). A beneficiary must be eligible as of that date, and so in this case the Beneficiary must have had the five years’ requisite experience by the date the labor certification was filed.

See 8 C.F.R. § 103.2(b)(1). The Beneficiary’s priority date is October 23, 2014. JNTU issued her a provisional certificate on May 17, 2006, but she did not receive her formal diploma until March 30, 2007. The record establishes that she accrued four years and eight months of qualifying experience from a combination of three employers during this period between her diploma date and her priority date.

The Director thus concluded that the Beneficiary fell just short of the five year requirement and denied the petition. On appeal, the Petitioner maintains that the Beneficiary did accrue the requisite five years of post- baccalaureate experience if we recognize that her “degree” was conferred on the earlier date of her provisional certificate, or May 17, 2006. The Beneficiary began working in a qualifying capacity a few weeks later, in June 2006, and nearly a year before she received her formal diploma. So the Beneficiary has the required five years of experience if measured from the date of her provisional certificate, but not if measured from the date of her diploma.

The statute and regulations governing the EB-2 classification speak in terms of “degrees,” not diplomas. So, from the outset, it is clear that we cannot simply limit our analysis to the date on which a university confers a formal diploma on its newest alumni. Applicable EB-2 regulations reflect this distinction. For these EB-2 “bachelor plus five” petitions, the “initial evidence” rule requires submission of an “official academic record” showing the beneficiary has a foreign equivalent “degree.” 8 C.F.R. § 204.5(k)(3)(i)(B).

An “official academic record” is not limited to a formal diploma.2 In fact, in the very next provision – relating to EB-2 exceptional ability petitions – the initial evidence rule expressly distinguishes between degree and diploma: “[a]n official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university,….” 8 C.F.R. § 204.5(k)(3)(ii)(A) (emphasis added).3 2 See also USCIS Adjudicator’s Field Manual, Appendix 22-1, Memorandum from Michael D. Cronin, Acting Associate Commissioner, USCIS HQ 70/6.2, Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants (March 20, 2000), https://uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0- 31107.html (last visited Mar. 15, 2017), (“Whether the alien beneficiary possesses the advanced degree should be demonstrated by evidence in the form of a transcript from the institution that granted the advanced degree. An adjudicator must similarly consider the baccalaureate transcript….”) (emphasis added). 3 While this provision helps clarify that the terms degree and diploma are not equivalent, we note generally that, in contrast to the advanced degree category, the EB-2 exceptional ability category is not grounded entirely in an academic award and thus its initial evidence rule is more expansive than that of the advanced degree category.

3 Matter of O-A-, Inc. Adopted Decision Accordingly, we must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, the individual has completed all substantive requirements to earn the degree and the college or university has approved the degree. We must consider evidence presented regarding the individual nature of each university’s or college’s requirements for each program of study and each student’s completion of those requirements. A petitioner will bear the burden to establish that a beneficiary’s provisional certificate reflects that, at the time the certificate was issued, all of the substantive requirements for the degree were met and the degree was in fact approved by the responsible college or university body.4 Here, the record contains the following university documents contemporaneous with the relevant events: (1) a copy of the Beneficiary’s statement of marks showing that she passed the final exams; (2) a copy of the Beneficiary’s provisional certificate issued on May 17, 2006, which states that the Beneficiary passed the “B.Tech Electronics and Communication Engineering Examination,” and that the Beneficiary “has satisfied all the requirements for the award of the B.Tech Degree of the [JNTU];” and (3) a copy of the Beneficiary’s diploma that the JNTU issued on March 30, 2007. In addition, the Petitioner submitted a February 2016 letter from JNTU’s director of evaluation stating that the Beneficiary’s provisional certificate is proof of her completion of all the degree requirements in May 2006 and that issuance of her diploma was delayed for administrative reasons.

The record therefore demonstrates that, as of May 2006, the Beneficiary had completed all substantive requirements for the degree and the university had in fact approved the degree. Finally, we have turned to information publicly available from the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE),5 and note that it accords with the Petitioner’s claim and evidence. On the matter of provisional certificates issued by recognized Indian universities, AACRAO EDGE states: The Provisional Degree Certificate is evidence of completion of all requirements for the degree in question, the name of the degree and the date upon which it was approved by the responsible university governing body, and is comparable to an official US academic transcript with a degree statement certifying completion of all requirements for the degree, the name of the degree and the date upon which it was approved by the academic senate at universities in the United States.6 4 Along with any other proffered evidence, petitioners must also submit a copy of a beneficiary’s statement of marks or transcript to demonstrate years of study, and coursework completed, along with a copy of the provisional certificate. See 8 C.F.R § 204.5(k)(3) (requiring the submission of an official academic record as evidence of a beneficiary’s possession of an advanced degree or equivalent of an advanced degree).

5 AACRAO is “a nonprofit, voluntary, professional association of more than 11,000 higher education professionals who represent approximately 2,600 institutions in over 40 countries.” http://www4.aacrao.org/centennial/about.htm (last visited Mar. 15, 2017). According to its registration page, EDGE is “a web-based resource for the evaluation of foreign educational credentials.” http://edge.aacrao.org/info.php (last visited Mar. 15, 2017).

6 See India: Provisional Degree Certificate, AACRAO, http://edge.aacrao.org/country/credential/provisional-degree- certificate (last visited Mar. 15, 2017). 4 Matter of O-A-, Inc. Adopted Decision EDGE additionally notes that some students never receive their “final Degree Certificate,” but instead rely on the provisional degree certificate as evidence of degree completion.7 III.

CONCLUSION

The provisional certificate, together with her statement of marks, demonstrates that the Beneficiary completed all the substantive requirements for her degree and that the university approved her degree. Issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. Applying the provisional certificate date, we also find that she obtained at least five years of qualifying post-baccalaureate experience. Accordingly, the Petitioner has established that the Beneficiary meets the minimum education and experience requirements of the labor certification and of EB-2 classification.

ORDER: The appeal is sustained. Cite as Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017) 7 Id. 5