dismissed EB-2 Case: Computer Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
IQ SYSTEMS, INC. 
ATTN.: LAKSHMI DEVI BODDU 
220 15 UNION TURNPIKE 
BAY SIDE, NY 1 1364 
FILE: - Office: NEBRASKA SERVICE CENTER Date: AUG 0 2 2010 
LIN-08-0 10-565 12 
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. 9 1 153(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. 9 103.5. 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. 
Thank you, 
Perry   hew - 
Chief, Administrative Appeals Ofice 
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Page 2 
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 software development and computer consulting company. It seeks to employ the 
beneficiary permanently in the United States as a senior programmer analyst pursuant to section 
203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). As required by 
statute, an ETA Form 9089 Application for Permanent Employment Certification (ETA Form 9089) 
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 U.S. Master's degree or foreign equivalent degree in the field required by the certified 
ETA Form 9089. 
The record shows that the appeal is properly and timely filed, 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. 
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.' On appeal, counsel asserts that the petitioner established the 
beneficiary's educational qualifications with the evaluations stating that the beneficiary attained the 
equivalent of U.S. master of science degree in computer science based on the beneficiary's three- 
year bachelor of science degree and two-year master of science degree in computer science fiom 
Osmania University in 1ndia.' 
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). The 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(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). 
2 The AAO notes that while the instant appeal is pending with this office, on December 20,2008, the 
petitioner filed another ETA Form 9089 on behalf of the instant beneficiary for a similar position 
requiring a bachelor's degree plus 24 months of experience, and based on the certified ETA From 
9089, the petitioner filed a new 1-140 immigrant petition under the EB3 professional category on 
March 15, 2010. The record shows that the new petition for professional category was approved by 
the Nebraska Service Center on May 20,2010. 

Page 3 
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 record contains the beneficiary's certificate for his bachelor program and transcripts for the 
three years of studies from and master of science degree and transcripts for the 
two years of studies from Thus, the issues are whether each degree is, on its 
own, a single source foreign equivalent to a U.S. master's degree, if not, whether each of them is, on 
its own, a single source foreign equivalent to a U.S. baccalaureate degree plus five years of 
experience. We must also consider whether the beneficiary meets the job requirements of the proffered 
job as set forth on the labor certification. 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 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 212(a)(5)(A)(i) of the Act; 20 C.F.R. 9 656.1(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. 5 656, 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 (9fh Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
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. Ashkenazy Property Management Corp., 8 17 F.2d 74, 75 (9" 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 (9" 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. 5 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. $1 153(b)(2)(A), which provides: 

Page 4 
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, 1 OISt Cong., 2nd 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 (1 978) (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. 10 1-649 (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). 

Page 5 
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. In the instant case, the three-year degree from Osmania 
University is not the foreign equivalent degree to a U.S. baccalaureate degree. 
We have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officer (AACRAO). AACRAO, according to 
its website, www.accrao.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, enrollment management, administrative information 
technology and student services." According to the registration page for EDGE, http://accraoed~e. 
accrao.org/register/index/php, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." 
EDGE confirms that while a master of arts, commerce, science awarded upon completion of two 
years of study beyond the two- or three-year bachelor's degree in India is not the foreign equivalent 
degree to a U.S. master's degree, it represents attainment of a level of education comparable to a 
bachelor's degree in the United States. In order to have experience and 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. $ 204.5(k)(2). 
Here the beneficiary's master of science degree in computer science from Osmania University 
represents attainment of a level of education comparable to a bachelor's degree in the United States. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. $ 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. tj 204.5(1)(3)(ii)(C) requires the submission of "an oficial 
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 @om a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). CJ: 8 C.F.R. 
tj 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"). 
In this case, the record contains evidence showing that the degrees and transcripts from Osmania 

University indicate that the beneficiary was awarded the degree from that university which is an 
accredited university in India. 
the beneficiary's master of science degree in computer science from in India 
upon completion of two years of studies following his three-year bachelor is the foreign equivalent 
degree to a U.S. master of science degree in computer science. USCIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, USCIS is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Cornm. 1988). 
Counsel refers to a decision issued by the AAO concerning a two-year master's degree from India 
equivalency to a U.S. master of science degree, but does not provide its published citation. While 8 
C.F.R. 8 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the 
administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. 8 103.9(a). 
The AAO finds that while the beneficiary does not possess a U.S. master's degree or a foreign 
equivalent degree, he has a "United States baccalaureate degree or a foreign equivalent degree," and 
thus, meet the minimum level of education required for the equivalent of an advanced degree, 
namely a Bachelor's degree, for preference visa classification under section 203(b)(2) of the Act. 
However, to qualify for the second preference classification with a bachelor's degree, the beneficiary 
must establish that he possessed at least five years of progressive experience in the specialty after his 
bachelor's equivalent degree but prior to the priority date. 
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. 8 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 DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
2 12(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 

Page 7 
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 certijication in no way indicates that the alien offered the 
cert@ed job opportunity is qualijied (or not qualijied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K. R.K Iwine, 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 ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, U.S. 
Citizenship and Immigration Services (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. 
In this matter, Part H of the labor certification reflects that a master's degree in computers, 
electronics, management of information systems (MIS) or related field, or a foreign educational 
equivalent is the minimum level of education required. The beneficiary obtained his bachelor 
equivalent degree, that is the master of sciencd degree in computer -science from - 
n October 24, 2003, and the priority date in the instant case is April 18, 2007. The 
beneficiary must establish that he has at least five. years of progressive experience in the specialty. 
However, it is impossible for the beneficiary to establish his five years of experience because the 
period from his obtaining degree to the priority date in this case is less than five years. 
Moreover, Part H, Line 6 reflects that the proffered position requires 24 months (two years) of 
experience in the job offered in addition to the master's degree requirements. The beneficiary does 
not possess a US master equivalent degree, but a bachelor equivalent only, and therefore, the 
beneficiary must establish that he has at least seven years of experience (five years in the specialty 
and two years in the job offered) prior to the priority date. 

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Page 8 
The regulation at 8 C.F.R. 5 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable, other documentation 
relating to the alien's experience or training will be considered. 
The record contains five letters submitted to establish the beneficiary's requisite experience for the 
proffered position. However, all the five letters only verify the beneficiary's two years and eleven 
months of experience. Furthermore, one of the letters is a resignation acceptance letter from the 
employer and another is without a specific description of the duties the beneficiary performed. 
Without such a specific description of the duties performed by the beneficiary, the AAO cannot 
determine whether the experience the beneficiary obtained from the employment with this employer 
enables him to perform the duties set forth on the ETA Form 9089 and further qualifies him for the 
proffered position. Therefore, the AAO cannot accept and consider these two letters as primary 
evidence to establish the beneficiary's requisite experience. The record does not contain any other 
experience verification documents pertinent to the beneficiary's requisite experience for the 
proffered position. The petitioner failed to submit regulatory-prescribed evidence to establish the 
beneficiary's five years of progressive experience in the specialty and two years of experience in the 
job offered prior to the priority date. 
The beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," but does 
not have the required five years of experience in the specialty and two years of experience in the job 
offered, and thus, does not qualify for preference visa classification under section 203(b)(2) of the 
Act. Therefore, the beneficiary does not meet the job requirements on the labor certification. For 
these reasons, considered both in sum and as separate grounds for denial, 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. 5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.