dismissed EB-2 Case: Computer Science

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prevent ckariy inwan;mted 
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pueL1C COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: - Office: NEBRASKA SERVICE CENTER Djb~ 7 2010 
- 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center on September 5, 2007. The petitioner filed an appeal on October 5, 2007, 
which is now before the Administrative Appeals Office (AAO). The appeal will be dismissed. 
The petitioner is an express delivery service. It seeks to employ the beneficiary permanently in the 
United States as a senior technical analyst pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153(b)(2). 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 four-year bachelor's degree. 
On appeal, counsel asserts that the beneficiary possesses the equivalent of a United States bachelor 
of science degree in math, physics, and computer science. Counsel also asserts that the labor 
certification explicitly states that the equivalent to a bachelor's or foreign degree equivalent in 
computer science, math, MIS, engineering, or a related field plus five years experience in the 
proffered position or in systems/applications development would be acceptable. Thus, counsel 
asserts that the beneficiary possesses the requisite education for the position. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
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. 8 204.5(k)(2). The 
regulation further 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." Id. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.2 
' After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
The submission of additional evidence on appeal is allowed by the instructions to the U.S. 
Citizenship and Immigration Services (USCIS) Form I-290B, which are incorporated into the 
regulations by the regulation at 8 C.F.R. 8 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
The beneficiary possesses a foreign three-year bachelor of science degree in math, physics, and 
computer science a one-year certificate in computer applications. The issue in this case is whether 
the beneficiary's foreign three-year bachelor of science degree in math, physics, and computer 
science is a foreign degree equivalent to a U.S. baccalaureate degree. 
Eligibility for the Classification Sought 
As noted above, the ETA 750 in this matter is certified by DOL. DOL's role is limited to determining 
whether there are sufficient workers who are able, willing, qualified and available and whether the 
employment of the alien will adversely affect the wages and working conditions of workers in the 
United States similarly employed. Section 2 12(a)(5)(A)(i) of the Act; 20 C.F.R. $ 656.1 (a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. $ 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
Rather, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N. L. R. B. v. Askkenazy Property Management Corp. 817 F. 2d 74, 75 (9th Cir. 1987) (administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), afd 273 F.3d 874 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even 
when they are published in private publications or widely circulated). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. $1 153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available . . . to qualified immigrants who are members of 
the professions . . . . 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. 51 153(b)(2)(A), which provides: 
Visas shall be made available . . . to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent . . . . 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 10 1'' Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at *6786 (Oct. 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580- 
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
In 1991, when the final rule for 8 C.F.R. 5 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (the Service), responded to criticism that the regulation 
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for 
the substitution of experience for education. After reviewing section 121 of the Immigration Act of 
1990, Pub. L. 101-649 (1 990), and the Joint Explanatory Statement of the Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members 
of the professions must hold "advanced degrees or their equivalent." As the 
legislative history . . . indicates, the equivalent of an advanced degree is "a bachelor's 
degree with at least five years progressive experience in the professions." Because 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be United States degrees, the Service will recognize foreign equivalent degrees. 
But both the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
56 Fed. Reg. 60897,60900 (Nov. 29,1991) (emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b)(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree. More specifically, a three-year bachelor's degree will 
not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. 
Matter of Shah, 17 I&N Dec. at 245. Where the analysis of the beneficiary's credentials relies on 
work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a 
bachelor's degree rather than a "foreign equivalent degreeeV3 In order to have experience and 
Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
Page 5 
education equating to an advanced degree under section 203(b)(2) of the Act, the beneficiary must 
have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 
8 C.F.R. 5 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify 
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may 
qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than 
two years of training and experience. 56 Fed. Reg. at 60900. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. 5 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree." For classification as a member of the 
professions, the regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) requires the submission of "an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the 
commentary accompanying the proposed advanced degree professional regulation specifically states 
that a "baccalaureate means a bachelor's degree received from a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 
8 C.F.R. 5 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an 
official academic record showing that the alien has a degree, diploma, certificate or similar award 
from a college, university, school or other institution of learning relating to the area of exceptional 
ability"). 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (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 1154(b), as one of the determinations incident to the INS'S decision 
whether the alien is entitled to sixth preference status. 
K. R. K. Iwine, Inc. v. Landon, 699 F.2d 1 006, 1 008 (9~ Cir. 1 983). 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 
21 2(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
classification sought in this matter do not contain similar language. 
Page 6 
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 
certljied job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K. R. K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "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. 
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 instructions 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. 
Moreover, 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. 
See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
USCIS 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. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS 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. 
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: Master's or foreign degree equivalent in computer science, 
math, MIS, engineering, or a related field or a bachelor's or 
foreign degree equivalent in computer science, math, MIS, 
engineering, or a related field plus five years experience in the 
offered position or in systems/applications development 
including programming. 
Experience: Three years in the proffered position or three years in the related 
occupation of systems/applications development including 
programming. Stated experience must have included two years 
with J2EE, two years with Oracle database administration, and 
three years with Java Swing. 
In support of the beneficiary's educational qualifications, the record contains a copy of the 
beneficiary's three-year bachelor of science degree in math, physics, and computer science from 
Osmania University in India. 
The record also contains two evaluations regarding the beneficiary's education. The petitioner has 
submitted one evaluation from , dated October 3, 
2006. The evaluation states that the beneficiary completed the equivalent of a bachelor of science 
degree with a concentration in computer science. Mr. bases his analysis primarily upon the 
credit hours that the beneficiary had completed. Mr. highlights the fact that the beneficiary 
completed 13 years of study prior to entering the university level whereas students in the United 
States merely com~lete 12 years of studv ~rior to entering that level of study. The petitioner has 
2, 2007. The evaluation also states that the beneficiary completed the equivalent of a bachelor of 
science degree with a concentration in computer science. Ms. bases her analysis primarily 
upon the contact or classroom hours that the beneficiary had completed. The AAO notes that there 
is no evidence in the record demonstrating that Ms. -is qualified to determine whether a 
foreign academic credential is equivalent to a U.S. baccalaureate. On appeal, counsel urges USCIS 
to follow is own adjudicative procedures and consider the two credentials evaluations favorably in 
order to deem that the beneficiary possesses the requisite education for the position. USCIS uses an 
evaluation by a credentials evaluation organization of a person's foreign education as an advisory 
opinion only. Where an evaluation is not in accord with previous equivalencies or is in any way 
questionable, it may be discounted or given less weight. , 19 I&N Dec. 817 
(Comm. 1988). 
In determining whether the beneficiary's three-year bachelor of science degree from Osmania 
University in India is a foreign equivalent degree, we have reviewed the Electronic Database for 
Global Education (EDGE) created by the American Association of Collegiate Registrars and 
Admissions Officer (AACRAO). ACCRAO, according to its website, www.aacrao.org, is "a 
nonprofit, voluntary, professional association of more than 10,000 higher education admissions and 
registration professionals who represent approximately 2,500 institutions in more than 30 countries." 
Its mission "is to provide professional development, guidelines and voluntary standards to be used 
by higher education officials regarding the best practices in records management, admissions, 
Page 8 
enrollment management, administrative information technology and student services." According to 
the registration page listed on their website, EDGE is "a web-based resource for the evaluation of 
foreign educational credentials." 
EDGE provides a great deal of information about the educational system in India, and while it 
confirms that a bachelor of science degree is awarded upon completion of two or three years of 
tertiary study beyond the Higher Secondary Certificate (or equivalent) and represents attainment of a 
level of education comparable to two to three years of university study in the United States, it does 
not suggest that a three-year degree from India may be deemed a foreign equivalent degree to a U.S. 
baccalaureate. 
The AAO notes that the labor certification does not state that the equivalent to a single source four- 
year bachelor's or foreign degree equivalent in computer science, math, MIS, engineering, or a 
related field would be acceptable. Though the beneficiary does possess the requisite experience for 
the position, he does not possess the requisite degree. Whether three-year bachelor of science degree 
programs exist in the United States or not is not relevant to the question of whether a foreign three- 
year degree is equivalent to a four-year single source bachelor's degree in the United States. 
Counsel also asserts that the position actually only requires a formal bachelor's degree, not a the 
equivalent of a United States bachelor of science degree. The AAO finds this argument to be 
flawed, as a foreign equivalent to a United States bachelor's degree is still required by the terms of 
the labor certification, and a United States degree is defined as requiring four years of study. 
Counsel concludes the appeal by stating that the petition could instead be approved under the EB-3 
category as a professional or skilled worker. The petitioner signed the Form 1-140 petition under 
penalty of perjury, attesting that the information on the form was correct. As the petition was 
unaccompanied by instructions from the petitioner specifying otherwise, the director properly 
adjudicated the petition pursuant to section 203(b)(2) of the Act. Since the director's decision was 
not in error, the petitioner is precluded from requesting a change of classification on appeal. A 
request for a change of classification will not be entertained for a petition that has already been 
adjudicated. A post-adjudication alteration of the requested visa classification constitutes a material 
change. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
To determine whether a beneficiary is eligible for a preference immigrant visa, USCIS must 
ascertain whether the alien is, in fact, qualified for the certified job. USCIS 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, USCIS must look to 
the job offer portion of the labor certification to determine the required qualifications for the 
position. USCIS may not ignore a term of the labor certification, nor may it impose additional 
requirements. 
Page 9 
1986). See also, Madany, 696 F.2d at 1008; -, 699 F.2d at 1006; - - 661 F.2d 1 (1st Cir. 198 1). 
The alien does not qualifl as a member of the professions holding an advanced degrees or its 
equivalent as he does not meet the terms of the labor certification as explicitly expressed or as 
extrapolated from the evidence of its intent about those requirements during the labor certification 
process. 
The beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 
and, thus, does qualify for preference visa classification under section 203(b)(2) of the Act. For this 
reason, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.