dismissed EB-2 Case: Computer Science

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
JAN 0 3 2014 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of Jaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form J-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.usds.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5 . Do not file a motion directly with the AAO. 
Thank you, 
~ntrg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
petitioner filed a motion to reopen and reconsider this decision, which the director dismissed on July 
31, 2013. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner describes itself as a computer software company. It seeks to permanently employ the 
beneficiary in the United States as a "Consulting Technical Manager (Computer Systems Analyst) ." 
The petitioner requests classification of the beneficiary as an advanced degree professional pursuant 
to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
At issue in this case is whether the beneficiary possesses an advanced degree as required by the 
terms of the labor certification and the requested preference classification. 
I. PROCEDURAL HISTORY 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL). 1 The priority date of the petition is September 2, 2011.2 
Part H of the labor certification states that the offered position has the following mmtmum 
requirements: 
H.4. Education: Bachelor's degree in Computer Science, Engineering, Business, Math, Physics, 
or a related technical field. 
H.5. Training: None required. 
H.6. Experience in the job offered: 60 months. 
H.7. Alternate field of study: Computer Science, Engineering, Business, Math, Physics, or a 
re~ated technical field. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.lO. Experience in an alternate occupation: 60 months in a "computer software-related 
occupation." 
H.l4. Specific skills or other requirements: 
Employer will accept Bachelor's degree in Computer Science, Engineering , Business , 
Math, Physics, or related technical field, followed by five years of progressive, post­
baccalaureate work experience in job offered or five years of progressive, post­
baccalaureate work experience in a computer software-related occupation. Education 
or experience must include: 1. Experience with system Architecture and 
1 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
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NON-PRECEDENT DECISION 
development; 2. System Performance Tuning; 3. Develop computer software utilizing 
SQL and PL/SQL programming languages; 4. Server Migrations and Upgrades; 5. 
Experience with I/0 layer storage Design and Layout and problem resolution; 6. 
Server Sizing and Infrastructure Planning; 7. High availability architecture design and 
implementation; 8. 1 9. Experience 
with data modeling; and 10. Datawarehouse ETL Strategy. Any suitable combination 
of education, training, or experience is acceptable. Must be available to work on 
short-term projects on demand at various, unanticipated sites throughout the United 
States. 
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Computer 
Science from completed in 1995. The record contains a copy 
of the beneficiary's Bachelor of Science degree in Computer Science and transcripts from 
issued on May 13, 1995. 
The director ' s decision denying the petition concludes that the beneficiary does not qualify as an 
advanced degree professional because his degree was not obtained from a nationally accredited 
institution in the United States. 
On appeal, the petitioner asserts: (1) that the Code of Federal Regulations and the Act do not require the 
attainment of a U.S. academic degree from an institution that is accredited by the U.S. Department of 
Education; (2) that Congress did not intend to require that degrees in the employment-based second 
preference category be accredited by the U.S. Department of Education; (3) that two cases cited by the 
director do not apply to this case, specifically Matter of Yau, 13 I&N Dec. 75 (Reg.Comm. 1968),3 
and Tang v. INS, 298 F.Supp. 413 (C.D. Cal. 1969);4 and (4) that the beneficiary reasonably believed 
that the is an accredited institution of higher learning. 
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The 
AAO conducts appellate review on a de novo basis.5 The AAO considers all pertinent evidence in 
the record, including new evidence properly submitted upon appeal.6 A petition that fails to comply 
3 Affirmed by Yau v. INS, 293 F.Supp. 717 (C.D. Dal. 1968). 
4 
Affirmed by Tang v. INS, 433 F.2d 1311 (91h Cir. 1970). 
5 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the 
powers which it would have in making the initial decision except as it may limit the issues on notice 
or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. 
DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
6 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1). 
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). 
(b)(6) NON-PRECEDENT DECISION 
Page 4 
with the technical requirements of the law may be denied by the AAO even if the director does not 
identify all of the grounds for denial in the initial decision. 7 
II. LAW AND ANALYSIS 
The Roles of the DOL and USCIS in the Immigrant Visa Process 
At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and 
Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the 
labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at 
section 212(a)(5)(A)(i) of the Act, which provides: 
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 
(II) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing 
these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are 
qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit 
courts: 
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 tum, DOL has the authority 
to make the two determinations listed in section 212(a)(14). 8 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. 
7 See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 
345 F.3d 683 (9th Cir. 2003). 
8 Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
Page 5 
NON-PRECEDENT DECISION 
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 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 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. 
§ 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. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from the 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 
certified job opportuni ty is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: 
The Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own 
determination of the alien's entitlement to sixth preference status. !d. § 204(b ), 
8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir.1983). 
(b)(6)
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NON-PRECEDENT DECISION 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and the 
beneficiary are eligible for the requested employment-based immigrant visa classification. 
Eligibility for the Classification Sought 
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.P.R.§ 204.5(k)(l). 
The regulation at 8 C.P.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An 
"advanced degree" is defined as: · 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 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. 
A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." The occupations listed at section 101(a)(32) of 
the Act are "architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
In addition, the job offer portion of the labor certification must require a professional holding an 
advanced degree. See 8 C.F.R. § 204.5(k)(4)(i). 
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of 
the professions holding an advanced degree, and that the offered position requires, at a minimum, a 
professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or 
professional degree (or a 
foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a 
foreign equivalent degree) followed by at least five years of progressive experience in the specialty. 
The beneficiary possesses a Bachelor's degree in Computer Science from which 
has not been accredited by a recognized accrediting agency. For the reasons set forth below, a 
degree from an unaccredited institution will not be considered an advanced degree under 8 C.F.R. § 
204.5(k)(2). 
In the United States, institutions of higher education are not authorized or accredited by the federal 
government. 9 Instead, the authority to issue degrees is granted at the state level. However, state 
approval to operate is not the same as accreditation by a recognized accrediting agency. 
According to the U.S. Department of Education (DOE), "[t]he goal of accreditation is to ensure that 
education provided by institutions of higher education meets acceptable levels of quality." 10 
Accreditation also ensures the nationwide recognition of a school's degrees by employers and other 
institutions, and also provides institutions and its students with access to federal funding. 
Accrediting agencies are private educational associations that develop evaluation criteria reflecting 
the qualities of a sound educational program, and conduct evaluations to assess whether institutions 
meet those criteria. 11 Institutions that meet an accrediting agency's criteria are then "accredited" by 
that agency. 12 
The DOE and the Council for Higher Education Accreditation (CHEA) are the two entities 
responsible for the recognition of accrediting bodies in the United States. While the DOE does not 
accredit institutions, it is required by law to publish a list of recognized accrediting agencies that are 
deemed reliable authorities as to the quality of education provided by the institutions they accredit. 13 
The CHEA, an association of 3,000 degree-granting colleges and universities, plays a similar 
oversight role. The presidents of American universities and colleges established CHEA in 1996 "to 
strengthen higher education through strengthened accreditation of higher education institutions. "14 
9 See http://ope.ed.gov/accreditation. 
10 http://www2.ed.gov/print/admins/finaid/accred/accreditation.html. 
11 !d. 
12 !d. 
13 !d. 
14 
www.chea.org/pdf /Recognition _Policy-June_ 28 _ 2010-FINAL.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
CHEA also recognizes accrediting organizations. "Recognition by CHEA affirms that standards and 
processes of accrediting organizations are consistent with quality , improvement, and accountability 
expectations that CHEA has established." 15 According to CHEA, accrediting institutions of higher 
education "involves hundreds of self-evaluations and site visits each year, attracts thousands of 
higher education volunteer professionals, and calls for substantial investment of institutional, 
accrediting organization , and volunteer time and effort."Hi 
The DOE and CHEA recognize the 
as the accrediting association with jurisdiction over where IS 
located. 17 website lists all accredited institutions within its jurisdiction, and 
is not named as one of the accredited institutions . See 
Therefore, has not been accredited by a recognized 
accrediting agency. 
In summary, accreditation provides assurance of a basic level of quality of the education provided by 
an institution as well as the nationwide acceptance of its degrees. An unaccredited degree does not 
provide a sufficient assurance of quality. Therefore, since the beneficiary's Bachelor 's degree in 
Computer Science from is not from an accredited institution of higher education, 
it does not qualify as an advanced degree within the meaning of 8 C.P.R. § 204.5(k)(2). 
The AAO concurs with the petitioner that Matter ofYau and Tang v. INS do not directly apply to the 
instant appeal. 18 Nonetheless, for the reasons explained above, the beneficiary is 110t eligible for 
classification as an advanced degree professional based on a degree from an unaccredited institution. 
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to 
establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign 
equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) 
followed by at least five years of progressive experience in the specialty. Therefore, the beneficiary 
does not qualify for classification as an advanced degree professional under section 203(b )(2) of the 
Act. 
The Minimum Requirements of the Offered Position 
The petitioner must also establish that the beneficiary satisfied all of the educational, training, 
experience and any other requirements of the offered position by the priority date. 8 C.P.R. § 
15 Id. 
16 Id. 
17 See http://www.chea.org/Directories/regional.asp. 
18 The holding of these cases pertains to the former Group II, Schedule A blanket certification 
regulations which specifically required a degree from an accredited U.S. college or experience or a 
combination of experience and education equivalent to such a degree. 
(b)(6) NON-PRECEDENT DECISION 
Page 9 
103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); 
see also Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1911). 
In evaluating 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. See 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). 
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by regulation, USCIS must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 
Madany, 696 F.2d at 1015. 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." 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 [labor certification]." Id. at 834 (emphasis added). USCIS 
cannot and should not reasonably be expected to look beyond the plain language of the labor 
certification or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification . Even though the labor certification may be prepared with the 
beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the 
labor certification requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 
(D. Or. Nov. 30, 2006). 
In the instant case, the labor certification states that the offered position requires a Bachelor ' s degree in 
Computer Science, Engineering, Business, Math, Physics, or a related technical .field and 60 months 
of experience in the job offered or in a "computer software-related occupation." However, for the 
reasons explained above, the petitioner has failed to establish that the beneficiary possesses a bachelor's 
degree from an accredited institution of higher learning in the United States to qualify as an advanced 
degree professional. 
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the 
offered position set forth on the labor certification by the priority date. Accordingly, the petition must 
also be denied for this reason. 
III. CONCLUSION 
In summary, the petitioner failed to establish that the beneficiary possesses an advanced degree as 
required by the terms of the labor certification and the requested preference classification. 
Therefore, the beneficiary does not qualify for classification as a member of the professions holding 
an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition 
is affirmed. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.