H1B Visa Lawyer Blog
The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the employment based immigrant petition.
The Petitioner is a hospital. The Petitioner sought to employ the beneficiary permanently in the position of Interventional Radiologist. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation 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.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from the University of Poona in India. Upon review of the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on Form ETA 9089. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.
The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations. On appeal, counsel for the employer submitted a cover letter and two new evaluations of the alien beneficiary’s credentials.
Upon review by the AAO, 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. Therefore, USCIS’s interpretation of the job’s requirements, as stated on the labor certification must involve reading and applying the plain language of the ETA form 9089. As stated above, two new credential evaluations were submitted for review by the AAO. The first credential evaluation from Megan Mittelstaedt of the Foundation for International Services, Inc. equated the beneficiary’s degrees to that of a U.S. Doctor of Medicine degree. Ms. Mittelstaedt indicated that she relied upon the P.I.E.R. Workshop Report on South Asia, a publication prepared by AACRAO. (To read more about AACRAO, please read the decision located above.) Specifically, the credential evaluation provided that an MBBS from India “represents the attainment of a level of education comparable to a first professional degree in medicine in the United States.” Accordingly, a first professional degree within the United States includes a Doctor of Medicine (M.D.). The second credential evaluation was prepared by Dr. Keith Harrow of Silvergate Evaluations, Inc, and he also found that the beneficiary’s foreign degrees equated to a U.S. Doctor of Medicine degree. The credential evaluations support a conclusion that the alien beneficiary’s foreign education is equivalent to a medical degree from a regionally accredited institution in the United States.
Accordingly, the burden rested with the petitioner, and the petitioner was able to sustain his burden. The petition was thereafter approved.