3/21/2007

The issue in this case is focused on a narrow issue of interpretation of "equivalent." Accordingly, should the Service Center deny I-140 petition based on the labor certification application which required a Bachelor's degree and the alien does not have a bachelor's degree, this decision will have no affect on the standards which the Service Centers have been denying I-140 for lack of a single bachelor's degree. 

However, if the labor certification required a bachelor's degree or "equivalent," those who try to use this decision have a good chance to win as the employer can argue that "equivalent" included not only combination of education and experience but combination of two different educational degrees or diplomas, even though it will constitute a dicta.

Accordingly, this case gives an important lesson to the labor certification filers that if the alien beneficiary does not have a four-year college degree but has an equivalent multiple foreign degrees, the labor certification application should always require "bachelor's degree or equivalent."

In 1996 the Church filed an Application for Alien Employment Certification, commonly known as "labor certification," with the Oregon Employment Department. The Church specified in the application that it was seeking certification for the position of Director of Adult Activities and that a prospective employee must have a bachelor’s degree (B.A.) “or equivalent” in the field of theology. The application was received by the Oregon Employment Department (OED), the State Employment Service Agency responsible for overseeing the processing of the applications. OED reviewed the application to ensure that the requirements were not overly narrow or tailored, and directed and supervised advertising and recruitment for the position. On December 30, 1998, the Department of Labor (DOL) issued the labor certification, certifying that qualified U.S. workers were recruited for the position but that none were available.

After DOL issued the labor certification, the Church filed an I-140 immigrant visa petition on behalf of Park. The petition was filed with the Nebraska Service Center (NSC), an agency within CIS. On the petition, the Church requested classification under either the "skilled worker" or "professional" categories pursuant to 8 U.S.C. § 1153(b)(3)(A)(i)&(ii). To demonstrate that Park met the requirements of the position, the Church submitted evidence:

1) Park had a four year degree in Home Economics from the Catholic University of Korea, plus two years of theological seminary in Korea.

2) Park’s education1 and relevant experience, and degree equivalency determinations attesting that Park’s combined education and experience constituted the equivalent of a bachelor’s degree.

The NSC denied the I-140 petition on the grounds that the petition failed to demonstrate that Park had the equivalent of a bachelors degree in theology based on formal education alone, and therefore failed to demonstrate that Park met the minimum educational requirements for the position.

The Church appealed the NSC's decision, and submitted a letter from Dong Hwan Lim, D. Min., the Dean of the Graduate School of Bethesda Christian University and Bethesda Theological Seminary. Dean Lim's letter stated that based solely on Park's Korean education, Bethesda Christian University would admit Park into its Masters of Divinity program as if she had the equivalent of a bachelor's degree in theology. The Administrative Appeals Office (AAO) dismissed the appeal.

The Church filed a motion for reconsideration, arguing that the Church's open position was a "skilled worker" position and that the NSC director improperly interpreted the phrase "B.A. or equivalent" to mean "B.A. or equivalent foreign degree" rather than "B.A. or the equivalent of a B.A." The AAO affirmed its previous decision, stating that the labor certification requires a candidate with a specific degree, and that Park did not possess that degree.

The Church filed another motion for reconsideration, arguing that the AAO was incorrect in concluding that a combination of education and experience may not be accepted in lieu of a degree where the labor certification requires a "B.A. or equivalent." Again, the AAO affirmed its prior decision, stating that degree equivalency will not suffice when the labor certification requires a candidate with a specific degree.

Under the APA, a reviewing court may not set aside an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." 5 U.S.C. § 706(2)(A) (2001); Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002). Agency action may be reversed under the arbitrary and capricious standard only if the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Safari Aviation Inc., 300 F.3d at 1150. An abuse of discretion may be found where the agency decision is based on an improper understanding of the law.