Matter of Katigbak

Interim Decision #2125

临时决定第2125号

In Visa Petition Proceedings

在签证申请程序中

This case is before the Regional Commissioner as an appeal from the District Director's decision of January 29, 1971 wherein he denied the applicant's petition for preference classification as an accountant under section 203(aX3) of the Immigration and Nation- ality Act, as amended, as not being academically qualified. No appeal was taken from the District Director's denial. On February 3, 1971 counsel for applicant submitted a motion to the District Drector to reopen and reconsider his denial decision. On February 16, 1971, the District Director denied that motion. On August 23, 1971, counsel filed a petition for review in the United States District Court, Central District of California, and on September 9, 1971 the court dismissed the action, upon stipulation of the parties, to allow the petitioner to apppeal from the District Director's denial deci- sion of January 29, 1971 if such appeal was actually filed within 15 days of the court's order. Appeal was received by the District Director, Los Angeles, within the time set and that appeal will be honored. Oral argument in support of appeal was requested and granted. Counsel appeared as scheduled. The applicant is a 23-year-old single female, a native and citizen of the Philippines. She was admitted to the United States as a

本案因不服地区主任1971年1月29日的决定而提交区域专员，该决定以学历不合格为由，拒绝了申请人依据经修正的《移民与国籍法》第203(a)(3)条作为会计师申请优先类别的申请。地区主任的拒绝决定未遭上诉。1971年2月3日，申请人的律师向地区主任提交动议，要求重新审理并重新考虑其拒绝决定。1971年2月16日，地区主任驳回了该动议。1971年8月23日，律师向美国加利福尼亚中区联邦地区法院提交复审申请，1971年9月9日，法院经当事人合意驳回该诉讼，以允许申请人就地区主任1971年1月29日的拒绝决定提出上诉，前提是该上诉确在法院命令后15天内实际提交。上诉在指定时间内由洛杉矶地区主任收到，该上诉将予以受理。 支持上诉的口头辩论请求已提出并获准。律师按计划出庭。 申请人为23岁单身女性，菲律宾本土出生及公民。她以

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Interim Decision #2125

临时决定第2125号

visitor at San Francisco on December 2, 1967 to June 30, 1968 and was granted a change of status to student at Los Angeles on September 11, 1968 with extensions of stay in student status to June 25, 1971 to attend Woodbury College in Los Angeles. Counsel has advised that the applicant attended Woodbury College until March 1970. She last applied for extension of stay in student status on June 25, 1970, indicating that it was her intention to continue study at Woodbury College. The application for extension of stay was granted with authority to remain until June 25, 1971. The applicant, however, did not again enroll at Woodbury during the period of her last extension. The record shows that she accepted unauthorized employment on September 29, 1970, during the period of her last extension in student status, and on December 6, 1970 filed the instant petition for classification under section 203(a)(3) of the Act as a member of the professions as an accountant to seek work as such with a firm of certified public accountants in Beverly Hills, California. By the filing of the petition, the applicant asserts that she is a member of the professions as an accountant and qualified as such by reason of her bachelor of science degree in business administra- tion from a university in the Philippines, and a major in account- ing achieved at Woodbury College and experience as a junior accountant since September 29, 1970 with the certified public accounting firm. The approval of the petition would give her a visa availability priority date as of the date of filing the petition, i.e., December 6, 1970. Petitions filed prior to February 4, 1971 for the profession of accounting were covered by the blanket Labor certification provided by 29 CFR 60, Schedule A, Group II. The occupation of accountant is recognized as being within the professions. The issue in this case is to determine if the applicant was academically qualified as a member of the professions as an accountant at the time the petition was filed and eligible for the preference sought. The Matter of Asuncion, 11 I. & N. Dec. 660 (modified by the Matter of Panganiban, 13 I. & N. Dec. 581), holds that a characteris- tic common to occupations in the professions is the minimum of a baccalaureate degree, while the Matter of Shin, 11 I. & N. Dec. 686, points out that the acquisition of a degree does not, per so, make the holder thereof a member of the professions. The degree or major must be academically appropriate to the profession for which petitioned. A baccalaureate degree in ac- counting or an academic major in accounting will satisfy the academic qualification requirements for the profession of account- ing. The Service has consistently held that 24 semester units in accounting satisfy the requirements for an academic major.

访客身份于1967年12月2日在旧金山入境，至1968年6月30日，并于1968年9月11日在洛杉矶获准转换为学生身份，学生身份的停留期延长至1971年6月25日，以就读洛杉矶的伍德伯里学院。律师告知，申请人就读伍德伯里学院至1970年3月。她最后一次于1970年6月25日申请延长学生身份停留期，表明其意图继续在伍德伯里学院学习。该延长停留期申请获准，授权停留至1971年6月25日。然而，申请人在其最后一次延长期内并未再次注册伍德伯里学院。 记录显示，她在学生身份最后一次延长期内的1970年9月29日接受了未经授权的雇佣，并于1970年12月6日提交了本案申请，依据该法第203(a)(3)条作为职业成员（会计师）申请分类，以寻求在加利福尼亚州比佛利山的一家注册会计师事务所从事此类工作。 通过提交申请，申请人主张其作为会计师是职业成员，并因取得菲律宾某大学工商管理理学学士学位、在伍德伯里学院主修会计以及自1970年9月29日起在该注册会计师事务所担任初级会计师的经验而具备相应资格。申请获批将使其获得自申请提交之日即1970年12月6日起的签证可用优先日期。1971年2月4日之前提交的会计职业申请适用29 CFR 60附表A第II组提供的 blanket 劳工证。 会计师职业被认可属于职业范畴。本案的问题是确定申请人在提交申请时是否作为会计师在学历上符合职业成员资格，并有资格获得所寻求的优先类别。 Asuncion案，11 I. & N. Dec. 660（经Panganiban案，13 I. & N. Dec. 581修改）认为，职业中职业的一个共同特征是至少具有学士学位，而Shin案，11 I. & N. Dec. 686指出，获得学位本身并不使持有者成为职业成员。 学位或专业必须在学术上适合所申请的职业。会计学士学位或会计专业将满足会计职业的学历资格要求。移民局一贯认为，24个学期单元的会计课程满足专业要求。

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Interim Decision #2125 Colleges and universities generally require at least a minimum of 24 units in a specific field to attain a major in that field. The Occupational Outlook Handbook, published by the Depart- ment of Labor, (editions 1966-67, page 29, 1968-69, page 32, and 1970-71, page 28) all state "for beginning accounting positions the Federal Government requires four years of college training, in- cluding 24 semester hours in accounting or an equivalent combina- tion of education and experience." Counsel's statement that the Occupational Outlook Handbook, page 24, shows that from 20 to 24 units in accounting are required for Federal employment as an accountant is not factual. Counsel has also offered a statement of qualifications for the position of accountant-auditor, for the County of Los Angeles, which requires graduation from an accredited course with 24 semester units of accounting, including a course in auditing and if such auditing course has not been taken it may be completed during the first year of employment. This argument has little merit. The Service is not guided or controlled by local county position requirements. In support of the petition the applicant presented evidence of graduation from a university in the Philippines on May 7, 1967 with a baccalaureate degree in business administration. Review of the transcript of credits from this university, which uses the semester unit system, shows that she completed two courses in the field of accounting for a total of six semester units and a three- hour course titled "management accounting" in the field of buk- ness administration. Although this last course is shown to be in the field of business administration, we will, because of its course title, consider it as applicable to the field of accounting, thereby giving the applicant credit for nine semester units in accounting earned at the Philippine university. The applicant also presented a transcript of credits from Wood- bury College relating to her matriculation at this school for the winter quarter of the 1968-69 school year through the winter quarter of the 1969-70 school year. Woodbury College is on the quarter system rather than the semester unit system. The evalua- tion branch of the University of California has advised the service that the quarter units earned at a school using the quarter system are evaluated at two-thirds a semester unit. Review of the tran- script of credits from Woodbury shows that she had enrolled in five accounting courses at Woodbury, each of the courses being four- quarter-unit courses. However, one of the courses is shown as "I" or incomplete, for which she earned no credit. The four four- quarter-unit courses she did complete earned her a total of 16 quarter units. Two -thirds of 16 quarter units gives her the equiva-

临时决定第2125号 学院和大学通常要求至少在特定领域修满24个单元才能获得该领域的专业。 劳工部出版的《职业展望手册》（1966-67年版第29页、1968-69年版第32页、1970-71年版第28页）均指出，“对于初级会计职位，联邦政府要求四年大学教育，包括24个学期的会计学时或教育与经验的同等组合。”律师关于《职业展望手册》第24页显示联邦政府会计职位要求20至24个会计单元的说法不符合事实。 律师还提供了洛杉矶县会计师-审计员职位的资格说明，该职位要求从经认证的课程毕业并修满24个学期单元的会计课程，包括一门审计课程，若未修该审计课程，可在受雇第一年内完成。该论点价值不大。移民局不受地方县职位要求的指导或控制。 为支持申请，申请人提交了证据，证明其于1967年5月7日从菲律宾某大学毕业，获得工商管理学士学位。审查该大学（采用学期单元制）的成绩单显示，她在会计领域完成了两门课程，共计六个学期单元，并在工商管理领域完成了一门名为“管理会计”的三学时课程。尽管最后一门课程显示属于工商管理领域，但鉴于其课程名称，我们将视其适用于会计领域，从而给予申请人在菲律宾大学修得的九个学期单元的会计学分。 申请人还提交了伍德伯里学院的成绩单，涉及她于1968-69学年冬季学期至1969-70学年冬季学期在该校的注册。伍德伯里学院采用学季制而非学期单元制。加利福尼亚大学评估部门已告知移民局，在采用学季制的学校修得的学季单元按三分之二个学期单元评估。审查伍德伯里的成绩单显示，她在伍德伯里注册了五门会计课程，每门课程均为四学季单元课程。然而，其中一门课程显示为“I”即未完成，她未获得该课程学分。她确实完成的四门四学季单元课程共获得16个学季单元。16个学季单元的三分之二给予她相当于

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Interim Decision #2125

临时决定第2125号

lent of 10 2/3 semester units earned at Woodbury. The nine semes- ter units earned at the Philippine university, added to the 10 2/3 semester units earned at Woodbury, give her a total of 19 2/3

在伍德伯里修得的10又2/3个学期单元。在菲律宾大学修得的九个学期单元，加上在伍德伯里修得的10又2/3个学期单元，合计为19又2/3

semester units. This is short of the required semester units. The applicant's statement as contained in her Form ES 575, "State- ment of Qualifications of Alien", executed December 4, 1970, accom- panying her petition, that she receved an "accounting major" from Woodbury College in 1970, is not supported by the evidence. School officials at Woodbury College have advised that 57 quarter units in accounting are required at that school for a major in that field. This is the equivalent of 28 semester units. Applicant did not achieve a major in accounting at Woodbury. At the time the petition was originally filed on December 6, 1970 it was accompanied by a letter dated November 23, 1970 from a member of the certified public accounting firm employing the applicant which states: "This is to certify that Fe Corozon Katig- bak has been employed with us since September 29, 1970. We consider her to be a full-time, permanent employee. A portion of her duties are those of a junior accountant." The letter fails to describe her duties and responsibilities and certainly does not satisfactorily establish that she is employed as an accountant. It is noted that in the Form ES 575 previously mentioned the applicant describes her title at the certified public accounting firm as "junior accountant" and describes her duties as "verifies additions, checks audits, postings and vouchers, analyzes accounts and prepares statements." This description of her duties is self-serving and unsupported and is wording extracted exactly word for word, from the description of the occupation of junior accountant as defined in Volume 1 of the Dictionary of Occupational Titles. No more credence can be given this description of her duties than is to be given to her claim, also contained in the Form ES 575, that she had received a major in accounting from Woodbury College in 1970. The District Director denied the petition on January 29, 1971 and denied the motion to reopen on February 16, 1971. The applicant, at the very most, had but 19 2/3 semester units in accounting and was academically not qualified as a professional accountant. Further- mbre, her academic preparation, coupled with her limited work experience, cannot be equated to the equivalent of a baccalaureate degree or a major in the field of accounting. The denial of the petition and denial of the motion by the District Director were well-founded and correct decisions. Counsel, with his brief presented in support of his appeal dated September 22, 1971, presented evidence that the applicant attended California State College, Los Angeles, during the spring quarter of 1971 and completed a course titled "auditing 1", earning four

学期学分。这未达到所要求的学期学分。申请人于1970年12月4日签署的、随其申请一并提交的ES 575表“外国人资格声明”中所载的陈述，即她于1970年从Woodbury College获得“会计专业”，没有证据支持。Woodbury College的学校官员表示，该校该领域专业要求57个学季学分。这相当于28个学期学分。申请人在Woodbury并未取得会计专业。 在申请最初于1970年12月6日提交时，随附一封日期为1970年11月23日的信函，来自雇用申请人的注册会计师事务所的一名成员，该信函称：“兹证明Fe Corozon Katigbak自1970年9月29日起受雇于我们。我们视她为全职、永久雇员。她的部分职责为初级会计的职责。”该信函未能描述她的职责和责任，当然也不能令人满意地证明她受雇为会计。值得注意的是，在上述ES 575表中，申请人将其在注册会计师事务所的职称描述为“初级会计”，并将其职责描述为“核对加总、检查审计、过账和凭证、分析账目并编制报表”。这一对其职责的描述是自利且无支持的，并且是逐字逐句摘自《职业名称词典》第1卷中对初级会计职业的描述。对这一职责描述所能给予的可信度，不能高于对她同样载于ES 575表中的声称，即她于1970年从Woodbury College获得了会计专业。 地区主任于1971年1月29日拒绝了该申请，并于1971年2月16日拒绝了重新开放的动议。申请人至多只有19 2/3个会计学期学分，在学术上不具备专业会计的资格。此外，她的学术准备，加上其有限的工作经验，不能等同于学士学位或会计领域专业的同等学历。地区主任拒绝该申请和拒绝该动议是证据充分且正确的决定。 律师在其1971年9月22日支持其上诉的辩护状中提交了证据，证明申请人于1971年春季学季就读于California State College, Los Angeles，并完成了一门名为“auditing 1”的课程，获得四个

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Interim Decision #2125 quarter units. At the time of oral argument in support of the appeal (October 12, 1971), counsel also presented a "notification of grade change" dated September 29, 1971 from California State College, Los Angeles, addressed to "Dear Student", stating that "your grade in Bus. 321 (tax acctg) has been changed from Inc. to B. This notice does not indicate to whom addressed or the number of quarter units earned in the related course. Counsel argues that these units, earned subsequent to filing of the petition and subsequent to the District Director's denial decision, should be totalled with the units applicant had previously earned prior to the time of filing her petition. We do not agree. When a third preference petition is filed, it seeks to establish that the beneficiary is a qualified member of the professions at that time eligible for preference. If the petition is approved, he has established a priority date for visa number assignment as of the date that petition was filed. A petition may not be approved for a profession for which the beneficiary is not qualified at the time of its filing. The beneficiary cannot expect to qualify subsequently by taking additional courses and then still claim a priority date as of the date the petition was filed, a date on which he was not Qualified. Section 204 of the Act requires the filing of a visa petition for classification under section 203(a)(3). The latter section states, in pertinent part: "Visas shall next be made available to qualified immigrants who are members of the professions." (Emphasis added.) It is clear that it was the intent of Congress that an alien be a recognized and fully qualified member of the professions at the time the petition is filed. Congress did not intend that a petition that was properly denied because the beneficiary was not at that time qualified be subsequently approved at a future date when the beneficiary may become qualified under a new set of facts. To do otherwise would make a farce of the preference ystem and priorities set up by statute and regulation. Counsel also argues that the Service has failed to give due credit to the applicant's work experience and quotes a number of pub- lished decisions wherein an alien was found qualified as a member of the professions by a combination of education and work experi- ence. The applicant in the present case had only two months of limited work experience prior to the filing of her petition when she had, at most, 19 2/3 academic semester units in accounting. This very limited experience does not make up for the lack of her academic credits. In the published decisions cited by counsel the petitioners generally had many years of responsible experience in supervisory and executive positions; some had taken additional vocational and/or specialized training in their fields, others had

临时决定第2125号 学季学分。在支持上诉的口头辩论时（1971年10月12日），律师还提交了一份日期为1971年9月29日的来自California State College, Los Angeles的“成绩变更通知”，收件人为“亲爱的学生”，其中称“你在Bus. 321（税务会计）课程中的成绩已从Inc.变更为B。该通知未表明收件人是谁，也未表明相关课程所获得的学季学分数。 律师主张，这些在提交申请之后以及在地区主任拒绝决定之后获得的学分，应与申请人在提交其申请之前所获得的学分合计。我们不同意。当提交第三优先申请时，它寻求确立受益人在当时是符合优先资格的专业合格成员。如果申请获得批准，他即确立了自该申请提交之日起分配签证名额的优先日期。申请不得因受益人在提交时并不具备该专业资格而获得批准。受益人不能期望随后通过修读额外课程而取得资格，然后仍主张以提交申请之日为优先日期，而在该日他并不合格。 该法第204条要求提交签证申请以根据第203(a)(3)条进行分类。后一条款的相关部分规定：“签证应接下来提供给作为专业成员的专业合格移民。”（着重号为后加。）显然，国会的意图是外国人必须在提交申请时即为公认且完全合格的专业成员。国会不打算让一项因受益人当时不合格而被适当拒绝的申请，在受益人可能根据新的事实情况变得合格的未来日期获得批准。否则将使法规和条例所建立的优先制度和优先顺序成为笑柄。 律师还主张，移民局未对申请人的工作经验给予应有的认可，并引用了若干已公布的裁决，其中外国人通过教育和经验的结合被认定符合专业成员资格。本案中的申请人在提交其申请之前仅有两个月有限的工作经验，当时她至多只有19 2/3个会计学科学期学分。这一非常有限的经验不能弥补其学术学分的不足。在律师所引用的已公布裁决中，申请人通常在其领域拥有多年担任监督和行政职务的负责任经验；一些人接受了其领域的额外职业和/或专门培训，另一些人则

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Interim Decision #2125 received honors in their field and were recognized as authorities in their professions. All had constantly enhanced their skills and progressively acquired greater responsibilities in their chosen en- deavors. Considering all the factors discussed above, we find that the denial decisions of the District Director were proper. The applicant has not established that she is eligible for the preference classifica- tion she seeks. The Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden of proof to establish eligibility for a desired preference rests with the petitioner. That burden has not been met. The applicant has not etablished that she is eligible for preference classification under section 203(a)(3) of the Act. The appeal will be dismissed. The denial of this petition is without prejudice to the applicant submitting a new petition setting forth the new facts as they now exist. ORDER: It is ordered that the appeal be dismissed.

临时决定第2125号 在其领域获得荣誉，并被公认为其专业的权威。所有人都在其选定的努力中不断增强技能并逐步承担更大的责任。 考虑到上述所有因素，我们认定地区主任的拒绝决定是适当的。申请人未确立其有资格获得其所寻求的优先分类。 Matter of Brantigan, 11 I. & N. Dec. 493一案认定，确立所期望优先资格的责任由申请人承担。该责任未被履行。申请人未确立其有资格根据该法第203(a)(3)条获得优先分类。上诉将被驳回。 拒绝本申请不影响申请人根据目前存在的新事实提交新的申请。 命令：兹命令驳回上诉。

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