dismissed EB-2 Case: Academia

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 and Immigration 
PUBLIC COPY 
 6 4- 
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Office: NEBRASKA SERVICE CENTER 
LIN 04 030 5 1774 
 Date: OCT 1 6 2008 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
D 0 . 
kobert P. Wiemann, Chlef 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a public university. It seeks to employ the beneficiary permanently in the United 
States as an associate professor' pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 11 53(b)(2). In pertinent part, section 203(b)(2) of the Act provides immigrant 
classification to members of the professions holding advanced degrees or their equivalent and whose 
services are sought by an employer in the United States. As required by statute, a Form ETA 750; 
Application for Alien Employment Certification approved by the Department of Labor (DOL), 
accompanied the petition. Upon reviewing the petition, the director determined that the beneficiary 
did not satisfy the minimum level of education stated on the labor certification. Specifically, the 
director determined that the beneficiary did not possess a Ph.D. as of the priority date. 
On appeal, counsel asserts that section 204(b) of the Act requires Citizenship and Immigration 
Services (CIS) "to consult with the Secretary of Labor before entering any denials." Counsel 
requests that CIS initiate a consultation and that counsel be included in the consultation. Counsel 
further asserts that the same section requires CIS to approve petitions "if all facts stated in the labor 
certification are true." Counsel seriously mischaracterizes section 204(b) of the Act. In addition, 
counsel relies on a federal court case involving the deportation of a nonimmigrant. This case has 
been distinguished by another federal court, which has concluded that it does not relate to the 
adjudication of immigrant petitions. Further, counsel supplemented the appeal with arguments based 
on a recent court decision by the Seventh Circuit. Rather than support counsel's position, the court 
states that while CIS cannot second guess the job requirements, CIS is justified in examining 
whether the alien is qualified for the job certified. 
Ultimately, the alien employment certification requires a Ph.D. and the record reveals that a doctoral 
degree is customarily required for entry into the beneficiary's occupation. There is no indication that 
any equivalence of this degree would be acceptable and, as will be discussed below, the regulation at 
8 C.F.R. 9 204.5(k)(2) does not permit any equivalencies for a doctoral degree other than a foreign 
equivalent degree. The beneficiary had not completed her dissertation and, thus, had not been 
awarded her Ph.D. or even approved to receive her Ph.D. as of the priority date in this matter. Thus, 
the beneficiary was not eligible as of the date of filing. Counsel's attempt to distinguish the leading 
precedent decision on this issue, Matter of Kutigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971), is not 
persuasive. 
Finally, on July 25, 2008, this office issued a notice expressing an intent to invalidate the alien 
employment certification and enter a formal finding of fraud against the beneficiary based on her 
indication on the Form ETA 750B that she already had a Ph.D. 20 C.F.R. 656.30(d). See Matter 
I 
 The job title on the alien employment certification was amended to assistant professor. That is the job title 
ultimately certified. The Department of Labor regulation at 20 C.F.R. 3 656,30(b)(2) provides that a labor 
certification involving a specific job offer is valid only for the particular job opportunity. 
After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Commr. 1986) (invalidating an alien 
employment certification at the appellate stage). In response, counsel asserts that the beneficiary 
provided her Curriculum Vitae to DOL, which indicated that the Ph.D. was only "expected" and that 
any error was not "material" at the time the beneficiary signed the Form ETA 750B because the 
initial education requirement proposed to DOL was a Master's degree.3 While we are not persuaded 
that the petition is approvable, we are persuaded that invalidating the alien employment certification 
and entering a formal finding of fraud against the beneficiary are not appropriate in this case. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. 5 204.5(k)(2). 
Significantly, the regulation further states: "If a doctoral degree is customarily required by the 
specialty, the alien must have a United States doctorate or a foreign equivalent degree." Id. 
(Emphasis added.) 
The petitioner must demonstrate the beneficiary's eligibility as of the priority date, the day the Form 
ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 C.F.R. 9 204.5(d); 8 C.F.R. 5 103.2(b)(12) and Matter of Katigbak, 14 
I&N Dec. at 49. Counsel's assertions as to why Matter of Katigbak is not applicable will be 
discussed below. It is important to note at this point, however, that the Form ETA 750 in this matter 
was accepted for processing on November 24, 1999. 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is useful to 
discuss DOL7s role in ths process. Section 212(a)(5)(A)(i) of the Act provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing 
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined 
and certified to the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or 
equally qualified in the case of an alien described in clause (ii)) and available 
at the time of application for a visa and admission to the United States and at 
the place where the alien is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
According to 20 C.F.R. 5 656.1(a), the purpose and scope of the regulations regarding labor 
certification are as follows: 
Counsel also asserts that CIS has no authority to make a finding of fraud against the petitioner, a public 
university and, thus, part of a sovereign state. We need not address any of these assertions as we never 
proposed to enter a finding of fraud against the petitioner. 
Page 4 
Under 5 212(a)(5)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 
1 182(a)(5)(A)) certain aliens may not obtain a visa for entrance into the United States in 
order to engage in permanent employment unless the Secretary of Labor has first 
certified to the Secretary of State and to the Attorney General that: 
(1) There are not sufficient United States workers, who are able, willing, 
qualified and available at the time of application for a visa and admission 
into the United States and at the place where the alien is to perform the work, 
and 
(2) The employment of the alien will not adversely affect the wages and 
working conditions of United States workers similarly employed. 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. 5 656, involve a determination as to whether or not the alien 
is qualified for the job offered. 
Section 204(b) of the Act states: 
After an investigation of the facts in each case, and after consultation with the Secretary 
of Labor with respect to petitions to accord a status under section 203(b)(2) or 203(b)(3), 
the Attorney General shall, if he determines that the facts stated in the petition are true 
and that the alien in behalf of whom the petition is made is an immediate relative 
specified in section 201(b) or is eligible for preference under subsection (a) or (b) of 
section 203, approve the petition and forward one copy thereof to the Department of 
State. The Secretary of State shall then authorize the consular officer concerned to grant 
the preference status. 
(Emphasis added.) On appeal, counsel asserts that this provision requires CIS to approve the petition if 
all facts on the alien employment certification are true. Counsel also interprets this provision as 
requiring some type of official face-to-face consultation between CIS and DOL, including the parties to 
the petition, prior to denial. The plain language of section 204(b) of the Act does not support counsel's 
interpretation on either point. 
First, section 204(b) of the Act states that if the facts stated in the petition are true and the alien is 
eligible for preference classification, then CIS shall approve the petition. Section 291 of the Act 
provides: 
Whenever any person makes application for a visa or any other document required for 
entry, or makes application for admission, or otherwise attempts to enter the United 
States, the burden of proof shall be upon such person to establish that he is eligible to 
receive such visa or such document, or is not inadmissible under any provision of this 
Page 5 
Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special 
immigrant, immediate relative, or refugee status claimed, as the case may be. 
The law goes on to assert that the evidence must establish eligibility "to the satisfaction" of the 
adjudicating officer. This burden is confirmed in Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
Regardless, as will be discussed below, the facts stated on the ETA 750B, signed under penalty of 
perjury by the beneficiary, are not true. Specifically, the beneficiary indicated that she received her 
Ph.D. in July 1999 when she had not, in fact, completed her dissertation at that point. Rather, the 
beneficiary received her Ph.D. on May 12, 2001, a fact she clearly understands as she lists 2001 as the 
year in which she received her Ph.D. on her current curriculum vitae. 
Second, the law does not require CIS to arrange a comprehensive consultation meeting with DOL every 
time CIS denies a Form 1-140 petition supported by an alien employment certification. In fact, section 
204(b) of the Act relates to "each case" and, by its plain language, states what is required before 
approval, without directly addressing denials. Most significantly, there is no suggestion in section 
204(b) of the Act that the petitioner and its counsel are entitled to participate in any consultations. 
On the broader question of the concept of "consultation," it is instructive to consider how Congress has 
used this term in other contexts. For example, section 214(c)(3) of the Act provides that CIS can only 
approve a nonimrnigrant petition under section 10 1 (a)(l5)(O)(i) of the Act after "consultation." Section 
214(c)(6) of the Act explains that the consultation requirement is met through a written advisory 
opinion from the alien's peer group or similar entity, depending on the alien's field. Thus, it is clear 
that Congress does not always use the word "consultation" in a manner requiring an actual meeting of 
parties. 
Relating to the matter at hand, unlike section 214(c) of the Act, section 204(b) of the Act does not 
further define "consultation," suggesting that Congress did not feel it necessary to elaborate on this 
issue because it was self-evident from the division of authority between the legacy Immigration and 
Naturalization Service (INS), now CIS, and DOL. Congress designed the alien employment 
certification process whereby DOL would certify "to the Secretary of State and the Attorney General" 
(now the Secretary of Homeland Security) that there are insufficient workers and the employment of the 
alien will not adversely affect wages and working conditions in the United States. The fact that DOL is 
issuing the certification to us, not in a general sense or to Congress, and the fact that Congress failed to 
specify any additional type of consultation support our contention that, in most situations, the 
certification by DOL can serve as the consultation. As the alien certification certified by DOL would 
appear to be akin to a written advisory opinion, it would appear that, in most circumstances, a review of 
the alien employment certification certified by DOL would suffice as a "consultation." 
This is further supported by the fact that alien employment certification is used to make a determination 
of an individual alien's admissibility under section 2 12(a)(5)(A) of the Act. Visa petition procedures 
are generally not the forum for determining substantive questions of admissibility under the 
immigration laws. When eligibility for the claimed status is established, the petition should be 
granted. 
 Matter of 0, 8 I&N Dec. 295 (BIA 1959). 
 The fact that Congress has required this 
determination prior to approval of a petition rather than solely at the adjustment stage, however, further 
suggests the reading that the alien employment certification itself is the consultation. 
In Matter of Wing S Tea House, 16 I&N Dec. 158 (Regl. Commr. 1977), the Regional Commissioner 
characterized the alien employment certification as an advisory opinion. Significantly, the regulation at 
8 C.F.R. 5 204.5(g) as in effect at the time of Wing's Tea House stated that the alien employment 
certification constituted DOL's endorsed "advisory opinion." The Regional Commissioner emphasized 
that DOL's "opinion of the alien's qualifications is only advisory in nature. Issuance of a labor 
certification is not simply a determination that the alien has been found to possess the requirements 
outlined" on the alien employment certification. 
 While 8 C.F.R. 
 204.5(g) no longer contains 
language characterizing the alien employment certification as an "advisory opinion," no additional 
procedure for consultation is provided as an alternative. Thus, it is clear that CIS and its predecessor 
agency, legacy INS, have always viewed the alien employment certification as the proper 
consultation with DOL in the vast majority of cases. 
That said, we acknowledge that the federal court in Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 
1983), stated: 
We recognize that the statutory division of authority between DOL's labor 
certification determination and INS' preference classification decision can lead to 
some discontinuity insofar as DOL-imposed job requirements are subject to 
interpretation by INS in its review of the alien's qualifications. Accordingly, INS will 
need the sensitivity to coordinate DOL and INS interpretations and to follow the 
Act's directive to consult with DOL when correctable discrepancies between the 
alien's qualifications and the labor certification job requirements appear. INS 
must also recognize that DOL bears the authority for setting the content of the labor 
certification and that it cannot impose job qualifications beyond those contemplated 
therein. However delicate that task may be in future cases, we have no reason to 
upset the decision of INS in this case. 
Id. (Bold emphasis added.) We are not persuaded that "correctible discrepancies between the alien's 
qualifications and the labor certification job requirements" exist in this matter. Rather, we find that this 
matter involves a straightforward finding that the beneficiary did not possess the degree explicitly 
required on the alien employment certification as of the date of filing, despite claiming that she did. 
Notably, federal courts have upheld our authority to review the alien's qualifications without inquiring 
into any formal, face-to-face "consultation" between legacy INS, now CIS, and DOL. See K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9~ Cir. 1983); Tongatapu Woodcraji Hawaii, Ltd v. 
Feldinan, 736 F. 2d 1305, 1309 (9th Cir. 1984). Most significantly, the court in Tongatapu stated 
that once DOL certifies the alien employment certification: 
The INS then makes its own determination of the alien's entitlement to sixth 
preference status. Id. 5 204(b), 8 U.S.C. tj 1 154(b). See generally K. R. K. Irvine, Inc. 
v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
Page 7 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu, 736 F. 2d at 1309. Notably, while the court specifically cited section 204(b) of the Act, 
the court did not suggest that legacy INS was bound to have arranged a face-to-face consultation 
with DOL prior to denying the petition. 
Next, counsel asserts that Castaneda-Gonzalez v. INS, 564 F. 2d 417,428 n.25 (DC Cir. 1977) holds 
that CIS is precluded from revoking an alien employment certification "unless it is shown that the 
misreprsentation was willful as well as material." Counsel asserts that there was no 
misrepresentation on the alien employment certification because the beneficiary had the equivalent 
of a Ph.D. when the alien employment certification was filed with DOL. 
Castaneda-Gonzalez v. INS, 564 4. 2d at 417, however, deals with the deportation of a 
nonimmigrant who entered the United States based on a certification from DOL. In this matter, 
contrary to counsel's assumption, the director did not invalidate the alien employment certification. 
Rather, the director denied the Form 1-140 petition because the beneficiary did not meet the job 
qualifications as of the date of filing. 
The court in Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1, 5-6 (1 st 
Cir. 1981), makes this distinction eloquently. 
 Specifically, the court in Stewart Infra-Red 
Commissary noted that Castaneda-Gonzalez did not specifically state that DOL7s function was to 
evaluate the alien's job qualifications. The court continued: 
It is important to understand that in Castaneda-Gonzalez INS was not passing upon an 
application for visa preference status. Instead, INS was seeking to deport an alien for 
entering the United States to perform labor without possession of a labor certification. 
Since the clear language of section 212(a)(14) vests sole authority in the Secretary of 
Labor to issue a labor certification and since an alien to whom such a certification has 
been issued cannot be excluded or deported under that particular section, the court in 
that case was on firm statutory ground in holding that INS could not reevaluate the 
alien's qualifications for the certification. By contrast, this case involves the grant or 
denial of visa preference status, authority for which is equally clearly vested in INS 
under sections 203(a) and 204(b). The Castaneda-Gonzalez court itself recognized 
that the visa preference problem is "an entirely different legal issue" from that of 
exclusion and deportation under 8 U.S.C. s 1182. 564 F.2d at 428-29. [Footnote 
omitted.] Indeed far from disputing the authority of INS to determine an alien's 
qualifications in the context of a petition for visa preference status, the court 
explicitly acknowledged "the authority of the numerous cases cited by the Service for 
the proposition that (INS) may deny ... preference requests without reference to the 
Secretary of Labor because (it) determines that the applicant alien does not qualify for 
the preference category relied on." 564 F.2d at 428 (footnote omitted). 
Stewart Infa-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d at 5-6. 
 (Emphasis 
added.) 
Ultimately, federal circuit courts have upheld our authority, without formally meeting with DOL, to 
review the alien's eligibility for the classification sought and the job offered. 
There is no doubt that the authority to make preference classification decisions rests 
with INS. The language of section 204 cannot be read otherwise. 
 See Castaneda- 
Gonzalez v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). In turn, DOL has the authority 
to make the two determinations listed in section 212(a)(14). 
 Id. at 423. 
 The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 2 12(a)(14) determinations. 
Madany v. Smith, 696 F.2d at 1012-1013 (D.C. Cir. 1983). 
Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to determining 
if the alien is qualified for the job for which he seeks sixth preference status. That 
determination appears to be delegated to the INS under section 204(b), 8 U.S.C. 5 
11 54(b), as one of the determinations incident to the INS'S decision whether the alien 
is entitled to sixth preference status. 
K. R.K. Irvine, Inc. v. Landon, 699 F.2d at 1008. The court relied on an amicus brief from DOL that 
stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)(14) of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certzfied job opportunity is qualijied (or not qualijied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. See also Tongatapu Woodcraft Hawaii, Ltd., 736 F. 2d at 1309 
(quoted above). 
The court in Hoosier Care Inc. v. Chert08 482 F. 3d 987 (7'" Cir. 2007) cites both K.R.K. Irvine, 
688 F. 2d at 1006, and Tongatapu, 736 F. 2d at 1305, and does not challenge their holdings. 
Hoosier, 482 F. 3d at 990-91. Specifically, Hoosier involved facts where CIS questioned the alien's 
eligibility for the job because while the alien had the required level of education, the education was 
wholly unrelated to the position. The court in Hoosier acknowledges that CIS has the responsibility 
to determine "if the alien is qualified for the job," but finds that this inquiry is different "from 
whether the qualifications set by the employer are proper, which is the responsibility of the 
Department of Labor." We are not usurping the responsibility of the Department of Labor in this 
matter. 
 Specifically, we are not questioning the certified job requirements. 
 Rather, we are 
upholding the director's finding that the petitioner did not possess the required education as of the 
priority date in this matter. Moreover, the court in Hoosier did not suggest that CIS was required to 
engage in a face-to-face consultation with DOL in every case where the alien does not meet the clear 
and unambiguous job requirements certified by DOL. 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instmctions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. 
 Do not duplicate the time requirements. 
 For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: Ph.D. in Special Education 
Training: 
 Two years as a student teacher 
Experience: 
 One year in the job offered 
Block 15: Blank 
Moreover, to determine whether a beneficiary is eligible for a preference immigrant visa, CIS must 
ascertain whether the alien is, in fact, qualified for the certified job. CIS will not accept a degree 
equivalency or an unrelated degree when a labor certification plainly and expressly requires a 
candidate with a specific degree. In evaluating the beneficiary's qualifications, CIS must look to the 
job offer portion of the labor certification to determine the required qualifications for the position. 
CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also 
Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
Finally, where the job requirements in a labor certification are not otherwise unambiguously 
prescribed, e.g., by professional regulation, CIS must examine "the language of the labor 
certification job requirements" in order to determine what the petition beneficiary must demonstrate 
to be found qualified for the position. Madany, 696 F.2d at 1015. The only rational manner by 
which CIS can be expected to interpret the meaning of terms used to describe the requirements of a 
job in a labor certification is to "examine the certified job offer exactly as it is completed by the 
prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). CIS'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 
application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
As noted by counsel, the original application for alien employment certification only required a 
Master's degree in Special Education. DOL accepted an amendment to Form ETA 750A on 
February 14, 2002, requiring a Ph.D. rather than a Master's degree. For the reasons discussed 
below, it would appear that this amendment was initiated after the Illinois Department of 
Employment Security (IDES) required the petitioner to re-advertise the position as requiring a Ph.D. 
Regardless, we must look at the educational requirements actually certified rather than the 
requirements initially submitted. Thus, the job as certified by DOL requires a Ph.D. Nowhere on 
the form, including Box 15, suggests that the petitioner would accept the equivalent of a Ph.D. As 
stated above, the regulation at 8 C.F.R. tj 204.5(k)(2) expressly states that if a doctoral degree is 
customarily required by the specialty, as would presumably be apparent from the requirement of 
such a degree on the alien employment certification, then the alien must have a United States Ph.D. 
or a foreign equivalent degree. In this matter, the record contains even more evidence that a doctoral 
degree is customarily required as the 2002 job advertisements submitted all indicate that a Ph.D. is 
required. Counsel explains that these new advertisements were mandated by IDES. If a doctoral 
degree is customarily required, the beneficiary must possess that degree as of the priority date. The 
Page 11 
regulation at 8 C.F.R. 5 204.5(k)(2) does not suggest that a combination of education and experience 
can be substituted for the actual Ph.D. 
On the Form ETA 750B, signed by the beneficiary on November 4, 1999, the beneficiary provided 
the following information: 
Name and address of Schools, Colleges Field of Study From To Degrees or 
and Universities Attended (Include Month Year Month Year Certificates 
trade or vocational training facilities.) 
 Received 
Virginia Polytech Institute 
Blacksburg, Virginia 
Special Aug. 1994 July 1999 Ph.D. Special 
Education Ed. Administration 
Initially, the petitioner submitted the beneficiary's transcript from Virginia Polytech revealing that 
the beneficiary defended her dissertation in the spring semester of 2001 and received her Ph.D. on 
May 12, 2001. The beneficiary received a "Certificate of Advanced Graduate Studies" from 
Virginia Polytechnic Institute on May 1 1,2001 and her Master of Arts degree from the University of 
Toronto on November 24, 1994. The record contains a letter from Virginia Polytech indicating that 
the beneficiary left Virginia Polytech in August 1997 having completed her coursework, passed her 
examples and completed her prospectus for her dissertation. In January 2001, the beneficiary came 
back to Virginia Polytech, presented and defended her dissertation and received her diploma in May 
2001. 
We acknowledge the submission of an evaluation of the beneficiary's credentials from New York 
University concluding that the beneficiary had the equivalent of Ph.D. as of November 24, 1999 
based on her Master's degree and over five years of experience. CIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795-796. CIS 
may even give less weight to an opinion that is not corroborated, in accord with other information or 
is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Crap of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The ETA 750A does not suggest that the equivalent of a Ph.D. degree would be acceptable. All of 
the advertisements submitted indicate that a Ph.D. in Special Education is required for the position. 
A final draft of one's dissertation is an integral part of obtaining a Ph.D. The beneficiary did not 
complete the writing of her dissertation and receive her degree until after the priority date. As such, 
she did not meet the requirements of the job offer as of the priority date. This finding is consistent 
with Matter of Katigbak, 14 I&N Dec. at 49 and Matter of Wing's Tea House, 16 I&N Dec. at 159. 
On appeal, counsel asserts that Matter of Katigbak, 14 I&N Dec. at 49 is distinguishable. Counsel 
states: 
In Matter of Katigbak, 14 I&N Dec. 45, the alien did not have the academic credits or 
experience equivalent at the time of filing. Here the alien did have a MA or the 
equivalent of a PhD. 
Counsel is not persuasive. Matter of Katigbak, 14 I&N Dec. at 49 is precisely on point. In that 
matter, the alien was relying on education credits obtained after the date of filing. In this matter, the 
beneficiary did not complete her dissertation, an integral part of obtaining a Ph.D., until after the 
priority date. The beneficiary did not even return to present and defend her dissertation until January 
2001, also after the priority date. Thus, the beneficiary did not have the necessary degree as of the 
priority date. 
In response to our July 25, 2008 notice, counsel asserts that the beneficiary was qualified for the job 
as of the priority date because on that date, the educational requirement was only a Master's degree. 
According to counsel, the amendment in 2002 "represented a 'fundamental change' in the job 
offered because it changed the minimal educational qualification." Counsel notes that in Century 
Wilshire Hotel, 2007-INA-00022, 6 (BALCA 2007), the Board of Alien Labor Certification Appeals 
(BALCA) "affirmed a denial of an application where the Petitioner has sought to submit 
amendments to the application which operated 'a fundamental change in the job requirements' after 
the application had been denied." Counsel asserts that no legal authority addresses the issue of 
eligibility as of the priority date where there has been a "fundamental change in the job 
requirements." 
Counsel cites several authorities for the proposition that DOL sets the job requirements, a 
proposition that it is not in contention. Counsel then asserts that because DOL can set the job 
requirements, it can change them while the Form ETA 750 is pending. Counsel asserts that holding 
the beneficiary to the amended job requirements as of the initial filing date would essentially be 
rewriting the initial job requirements. 
DOL, however, did not write the initial job requirements, the petitioner did. Upon review, those 
requirements were found by IDES to be incorrect. DOL only certified the amended requirements. 
The petitioner, upon learning that a Master's degree educational requirement would not support an 
alien employment certification for the position being certified, could have filed a new Form ETA 
750A and obtained a new priority date. Instead, it chose to continue with its current filing. The 
BALCA case cited by counsel is not persuasive. 
 In that situation, BALCA declined to accept 
amendments. In this matter, DOL did accept the amended Form ETA 750A. The job requirements 
DOL certified are the job requirements that are binding upon us. To hold otherwise would be to 
allow employers to secure priority dates for currently unqualified aliens by using inadequate job 
requirements that will need to be amended prior to approval, by which time the alien may have 
acquired the necessary job requirements. 
We find that the reasoning behind Matter of Katigbak, 14 I&N Dec. at 49 is widely applicable. That 
decision provides: 
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 qualijied 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 
hlly 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 system and priorities set up by statute and regulation. 
Id. The Regional Commissioner continued this reasoning in Matter of Wing's Tea House, 16 I&N Dec. 
158, 160 (Regl. Comrnr. 1977). That decision reemphasizes the importance of not obtaining a priority 
date prior to being eligible based on future experience. 
Beyond meeting the job requirements on the ETA 750B, the beneficiary was not eligible for the 
classification sought as of the priority date. As stated above, if a doctoral degree is customarily 
required, the beneficiary must possess that degree as of the priority date. 8 C.F.R. tj 204.5(k)(2). 
The regulation at 8 C.F.R. tj 204.5(k)(2) does not suggest that a combination of education and 
experience can be substituted for the actual Ph.D. It is clear that the petitioner had to amend the 
ETA 750A and recruit a second time because IDES determined that the job being offered 
customarily requires a doctoral degree. Thus, according to the regulation at 8 C.F.R. fj 204.5(k)(2), 
the beneficiary was required to have that degree as of the priority date and did not. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.