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: DEC 2 6 2013 Office: NEBRASKA SERVICE CENTER FILE: 
INRE: 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. § 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 law 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 I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is an electronic payment systems industry business. It seeks to employ the beneficiary 
permanently in the United States as a hyperion lead systems analyst pursuant to section 203(b )(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). As required by statute, an ETA 
Form 9089, Application for Permanent Employment Certification approved by the Department of 
Labor (DOL), accompanied the petition. Upon reviewing the petition, the director determined that 
the beneficiary did not meet the job qualifications stated on the labor certification. 
Specifically, the 
director determined that the labor certification required a bachelor 's degree with five years of 
progressive experience , and that the petitioner failed to demonstrate that the beneficiary meets the 
experience requirement s of the position. The director denied the petition accordingly. 
On appeal, counsel asserts that the beneficiary meets the minimum experience required 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 elabor ation 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. § 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." !d. 
The petitioner has submitted evidence to show that the beneficiary possesses a bachelor's degree in 
computer applications. The petitioner has also submitted employment letters pertaining to the 
beneficiary ' s work experience. The issue in this case is whether the beneficiary's degree and work 
experience constitute a U .S. advanced degree or a foreign degree equivalent and meet the 
requirements of the labor certification. 
As noted above, the DOL certified the ETA Form 9089 in this matter. The 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. § 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 
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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 (91h Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
Evidence of qualifying experience shall be in the form of letters from former employers which 
include the name, address, and title of the writer and a specific description of the duties performed. 
If such evidence is unavailable, other documentation relating to the experience will be considered. 
8 C.F.R. § 204.5(g)(1). 
In this matter, Part H, line 4, of the labor certification reflects that a bachelor's degree in computer 
science, engineering, math, physics, or a related technology field is the minimum level of education 
required. Line 6 reflects that 60 months of experience in the job offered is required. Line 7 
indicates that there is an alternate field of study that is acceptable to the petitioner that mirrors the 
bachelor's degree field of study. Line 8 reflects that the petitioner is not willing to accept an 
alternative combination of education and experience. Line 9 reflects that a foreign educational 
equivalent is acceptable. Line 10 reflects that the petitioner is willing to accept the beneficiary's 60 
months of work experience in a computer-related occupation. 
The beneficiary set forth his credentials on the labor certification and signed his name under a 
declaration that the contents of the form are true and correct under the penalty of perjury. The 
beneficiary stated on the labor certification at Section J.ll that he received a bachelor's degree 
equivalent in computer applications from _ located in New 
Delhi, India, in 2003. The record reflects that the beneficiary has earned the equivalent of the requisite 
United States bachelor's degree, in December 2003. On the section of the labor certification eliciting 
information of the beneficiary's five years of work experience in the job offered, he represented the 
following: 
• That he was employed by the petitioner since January 30, 2012 as a hyperion lead 
systems analysis. 
• That he was employed by ~s a senior staff, Enterprise 
SWE from July 12, 2010 to January 27, 2012. 
• That he was employed by as a senior hyperion 
consultant from October 1, 2009 to July 9, 2010. 
• That he was employed by as a hyperion consultant from June 
25, 2007 to September 30, 2009. 
• That he was employed by 
August 22,2005 to May 5, 2007. 
as a part-time graduate assistant from 
The petitioner submitted the following evidence of the beneficiary's employment: 
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• A letter dated December 14, 2012 from a professor of finance at 
who stated that the university employed the beneficiary as a part-time 
graduate assistant (working an average of 20 hours per week) from August 22, 
2005 to May 5, 2007. The declarant described the beneficiary's progressive job 
duties in hyperion application administration, development and support. The 
AAO acknowledges the beneficiary ' s 10 months of qualifying employment with 
• Letters dated December 18, 2012 and September 4, 2013 from 
(former supervisor of and , who 
stated that the beneficiary was employed by as a full-time 
hyperion consultant from June 25, 2007 to September 30, 2009. The declarant 
stated that he supervised the beneficiary during his employment at 
and he described the beneficiary ' s job duties in hyperion application 
administration, development and support. He also stated that 
was acquired by . in October 2009. The letter is not on 
company letterhead and the declarant fails to specify the length of his 
employment with as a supervisor. Furthermore, the declarant 
fails to indicate that he supervised the beneficiary in New Jersey in 2007, 
, Virginia in 2008 and in Vienna, Virginia in 2009, as the beneficiary's 
employment statements and Forms W-2 listed below indicate were his respective 
addresses during that period. The petitioner has not established that secondary 
evidence as defined at 8 C.F.R. § 103.2(b)(2) should be accepted in lieu of the 
required evidence at 8 C.F.R. § 204.5(g)(1). As such, the evidence from 
will not be accepted. 
• A copy of a paystub from showing that that the beneficiary 
was paid wages in the amount of $1,578.27, with a pay date of August 1, 2007, 
for the first full pay period of the beneficiary's employment with 
and listing the beneficiary's address as New Jersey. 
• A copy of a Form W-2 issued by showing that the 
beneficiary received wages in the amount of $8 ,510.~3 in '.2 08, and listing the 
beneficiary 's address as Virginia. 
• A copy of a paystub from showing that the beneficiary was 
paid wages in the amount of $3,593.75, with a pay date of October 1, 2009, and 
listing the beneficiary's address as Virginia. The pay stub shows year-to­
date wages of $71,875.00, and represents ayment through the last day of the 
beneficiary ' s claimed employment wit 
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• A letter dated January 9, 2013 from the president of 
who stated that the company employed the beneficiary as a full-time senior 
hyperion consultant from October 1, 2009 to July 9, 2010. The declarant 
described the beneficiary ' s job duties in hyperion application administration, 
development and support. This letter contradicts the statements made in the 
addendum to the Asset Purchase Agreement between _ _ and 
dated October 30, 2009. The addendum stated 
in part: '' agreed to transfer the employees listed in the attached Exhibit , to 
The effective date of the transfer of these employees is November 16, 
2009." The agreement further states that the employees would be on the payroll 
of . with an effective date of January 4, 2010. Furthermore, the record of 
proceeding contains a copy of the official incorporation record from the state of 
Delaware which shows that the company was duly incorporated on October 22, 
2009. Thus, could not have employed the beneficiary from October 1, 
2009. The AAO acknowledges the beneficiary's experience with from 
January 4, 2010 to July 9, 2010 (6 months). 
• A letter dated December 20, 2012 from a human resource manager who stated 
that the beneficiary was employed by full-time as a senior 
staff, enterprise software engineering from July 12, 2010 to January 27, 2012. 
The declarant described the beneficiary's job duties in hyperion application 
administration, development and support. A second letter from 
dated September 22, 2008 states that the beneficiary was working as a 
contractor since July 2007. The declarant does not indicate the beneficiary's 
duties performed in the position. The AAO acknowledges the beneficiary ' s 
qualifying experience with from July 12, 2010 to January 27, 2012 (18 
months plus 15 days). 
The petitioner submitted the following employment statements in response to the director's Notice 
of Intent to Deny (NOID): 
• A letter dated July 18, 2013 from the HR director who stated that the beneficiary 
was employed by as a full-time software 
engineer from January 5, 2004 to August 12, 2005, and that he performed various 
software engineering duties. The declarant fails to specify the beneficiary's job 
duties. The beneficiary did not list as a former employer on 
the labor certification. In Matter of Leung, 16 I&N Dec. 2530 (BIA 1976), the 
Board ' s dicta notes that the beneficiary's experience, without such fact certified 
by DOL on the beneficiary's Form ETA 750B, lessens the credibility of the 
evidence and facts asserted. 
• A letter dated July 17, 2013 from the senior project manager at 
who stated that the beneficiary was employed by 
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as a full-time software engineer from January 5, 
2004 to August 12, 2005, and that he supervised the beneficiary in his capacity as 
a team lead. The declarant described the beneficiary's duties. The petitoner has 
not established that secondary evidence may be accepted in lieu of the evidence 
required of the regulation at 8 CFR §103.2(b )(2). Thus, the AAO will not accept 
the beneficiary 's experience with 
On appeal, counsel asserts that the beneficiary had in excess of five years of progressive post­
bachelor's qualifying work experience prior to the priority date of December 7, 2012. Counsel 
further asserts that even without relying on the beneficiary's work experience gained by working for 
the petitioner, he met the qualifying work experience requirement based upon the evidence originally 
submitted in the Form 1-140 petition. Counsel lists the beneficiary's work 
experience totals as 
illustrated in the table below: 
Com(!any Name Job Title Dates of Employment Total # of Hours 
Software Engineer 01/05/04- 08/12/05 18 months 
I p/t grad assistant 08/22/05-05/05/07 10 months 
Sr. hyg_erion consult 10/01!09-07 /09/10 9 months 
I 
Senior staff/enterprise 07/12/10-01/27/12 18 months 
software engineering 
I Hyperion Lead systems 
analyst 
01!30/12-12/06/12 10 months 
TOTAL TOTAL TOTAL 65 months (five years 
and five months) 
Com(!_any Name Job Title Dates of Emplo_Xment Total # of Hours 
I p/t grad assistant 08/22/05-05/05/07 10 months 
I Hyperion consult 06/25/07-09/30/09 27 months 
I Sr. hyperion consult 10/01/09-07/09/10 9 months 
I Senior staff/enterprise 07/12/10-01/27/12 18 months 
software engineering 
TOTAL TOTAL TOTAL 64 months (5 years and 
4 months) 
Counsel asserts that only the Department of Labor (the DOL) can make decisions as to questions of 
substantial similarity of PERM positions. Nevertheless, in response to question J.21, which asks, 
"Did the alien gain any of the qualifying experience with the employer in a position substantially 
comparable1 to the job opportunity requested," the petitioner answered "no." In general, if the answer 
1 A definition of"substantially comparable" is found at 20 C.F.R. § 656.17: 
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to question J.21 is no, then the experience with the employer may be used by the beneficiary to 
qualify for the proffered position if the position was not substantially comparable and the terms of 
the ETA Form 9089 at H.lO provide that applicants can qualify through an alternate occupation. 
Here, the beneficiary indicates in response to question K.1 that his position with the petitioner was as 
a hyperion lead systems analyst. Therefore , the experience gained with the petitioner is substantially 
comparable as he was performing the same type of job duties more than 50 percent of the time as 
that required in the proffered position (hyperion lead systems analyst). According to DOL 
regulations, therefore, the petitioner cannot rely on this experience to establish that the beneficiary 
qualifies for the proffered position. 2 
The employment statements are insufficient to establish the beneficiary 's employment experience . 
To be eligible for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date, which as noted above, is December 7, 2012. See Matter of 
Wing 's Tea House, 16 I&N Dec. 158. As noted above, the petitioner submitted a copy of an asset 
purchase agreement between dated October 30, 2009 . 
The agreement is accompanied by an addendum that was signed by the relevant parties on January 
12, 2010. Although the declarant stated in the letter that it employed the beneficiary since 
October 1, 2009, the addendum specifically states that the effective date of 
employee's transfer would be November 16, 2009, and that the employees would be on the payroll 
of with an effective date of January 4, 2010. 
Counsel asserts that there has been no evidence of fraud relating to the beneficiary's employment at 
and that the employment letter submitted by the beneficiary 's former supervisor is 
sufficient to establish his employment with that company. Contrary to counsel ' s claim, the 
evidence is insufficient to establish that the beneficiary was employed by 
whose address is in Iselin , New Jersey. The declarant, who represented that he was a former 
supervisor of indicated that the beneficiary was employed by the company from 
June 25, 2007 to September 2009. However, the paystubs and Form W-2 issued by 
to the beneficiary lists the company's address as 33 Wood Avenue in Iselin , New Jersey and 
5) For purposes of this paragraph (i): 
(ii) A "substantially compar able" job or position means a job or position 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions, the percentage of time spent on the various duties, organization 
charts, and payroll records. 
2 The record does not establish that the DOL considered whether the beneficiary's experience with 
the petitioner as a hyperion lead systems analyst was substantially comparable, or that DOL 's 
approval of the labor certification application constitutes acceptance of the beneficiary's experience 
with the petitioner as not substantially comparable. 
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the beneficiary's address as Virginia on his on his Form W-2 for 
2008, and his IJay stub from for September 2009 lists his address as 
Virginia. Although claims to have employed the beneficiary 
from October 1, 2009 to July 9, 2010, the address listed on its stationery is in 
New Jersey while the beneficiary's address during that period is listed as 
Virginia on the company issued pay stubs for 2010. As noted above, there is no 
evidence in the record to demonstrate that the declarant supervised the beneficiary at all locations in 
and New Jersey. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice. See Matter of 
Ho at 582. 
Moreover, the petitioner has not established that primary evidence is unavailable and that secondary 
evidence in the form of letters and affidavits from others are sufficient to prove the beneficiary's 
work experience at See 8 CFR §103.2(b)(2). 
The regulation at 8 C.F.R. § 103.2(b)(2) provides: 
Submitting secondary evidence and affidavits. (i) General. The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. If a required 
document, such as a birth or marriage certificate, does not exist or cannot be obtained, 
an applicant or petitioner must demonstrate this and submit secondary evidence, such 
as church or school records, pertinent to the facts at issue. If secondary evidence also 
does not exist or cannot be obtained, the applicant or petitioner must demonstrate the 
unavailability of both the required document and relevant secondary evidence, and 
submit two or more affidavits, sworn to or affirmed by persons who are not parties to 
the petition who have direct personal knowledge of the event and circumstances. 
Secondary evidence must overcome the unavailability of primary evidence, and 
affidavits must overcome the unavailability of both primary and secondary evidence. 
See also 8 C.F.R. § 204.5(g)(l) (Other documentation relating to experience will be considered if the 
required letters are unavailable). 
The petitioner fails to overcome the unavailability of primary evidence to establish the beneficiary's 
emiJloyment at The petitioner submitted a copy of a printout downloaded from 
website and dated September 4, 2013. The printout shows that is 
operational and continues to provide services and solutions to its customers. Therefore, the 
statement by the beneficiary's supervisor who no longer works for the qualifying employer, may not 
be accepted as evidence of the beneficiary's employment under the regulation at 8 C.F.R. § 
204.5(g)(1) and (1)(3)(ii)(A). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. at 158. Therefore, the AAO does not accept the employment statement as evidence of the 
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beneficiary's work experience. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). To be 
eligible for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date, which as noted above, is March 29, 2011. See Matter of 
Wing 's Tea House, 16 I&N Dec. 158. 
Furthermore, the employment Jetter submitted by does not 
contain a description of the beneficiary's job duties. In addition, the petitioner has not established 
why the letter from may be acceped to prove the beneficiary's employment 
at Further, the beneficiary failed to list as a former 
employer on the labor certification. 8 C.F.R § 204.5(g)(1). Therefore, the AAO does not accept the 
employment statements as evidence of the beneficiary's work experience. 
According! y, the petitioner has failed to establish that the beneficiary has the requisite 60 months 
(five years) of progressive post-baccalaureate experience or that he is qualified to perform the duties 
of the proffered position as of the priority date. 8 C.F.R § 204.5(g)(1). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.