dismissed EB-2 Case: Computer Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacp 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: FEB 0 2 2009 
LIN 08 001 50713 
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: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Fonn I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
LA- 
u. 
.%oh F. Grissom, Actlng Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a computer software and systems firm. It seeks to employ the beneficiary permanently 
in the United States as a project manager. The petition was accompanied by an approved ETA Form 
9089 Alien Employment Certification from the Department of Labor. The central issue in this 
proceeding involves the classification sought. On Part 2 of the Form 1-140 petition, the petitioner 
checked box "d," indicating that it seeks to classify the beneficiary pursuant to section 203(b)(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(2), as a member of the 
professions holding an advanced degree or an alien of exceptional ability. The director determined 
that the petitioner had not established that the job requires a member of the professions holding an 
advanced degree or an alien of exceptional ability pursuant to 8 C.F.R. $204.5(k)(4). 
On appeal, counsel asserts that the petitioner filed an "amended 1-140 petition" seeking to classify the 
beneficiary under a lesser classification pwsuant to section 203(b)(3) of the Act. The "amended" 
petition, however, was, in fact, a new petition with fee, assigned the receipt number SRC-08-025- 
53674. We note that this petition was approved by the director, Texas Service Center, on November 21, 
2008. As the new petition was based on the same ETA Form 9089, the beneficiary retains the same 
priority date as he would have under the petition before us. For the reasons discussed below, the appeal 
will be dismissed. 
The Form 1-140, Immigrant Petition for Alien Worker, was filed concurrently with the beneficiary's 
Form 1-485, Application to Register Permanent Residence or Adjust Status, on August 16, 2007. 
The petitioner checked box "d" under Part 2 of the Form 1-140 petition requesting classification as a 
member of the professions holding an advanced degree or an alien of exceptional ability. The 
petitioner also signed the Form 1-140 under penalty of perjury, certifying that "this petition and the 
evidence submittedwith it are all true and correct." 
The burden is on the petitioner to select the appropriate classification rather than to rely on the 
director to infer or second-guess the petitioner's intended classification or consider subsequent 
"amendments." As discussed, the Form 1-140 petition was clearly marked under Part 2 as a petition 
filed for classification as a member of the professions holding an advanced degree or alien of 
exceptional ability. The petitioner signed the Form 1-140 under penalty of perjury, attesting that the 
information on the form was correct. As the petition was unaccompanied by instructions from 
counsel or the petitioner specifying otherwise, the director properly adjudicated the petition pursuant 
to section 203(b)(2) of the Act. A post-filing 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 U.S. Citizenship and Immigration Services (USCIS) requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Cornm'r. 1998). In addition, the Ninth Circuit has 
determined that once USCIS concludes that an alien is not eligible for the specifically requested 
classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an 
alternate classification. Brazil Quality Stones, Inc., v. Chertofi Slip Copy, 2008 WL 2743927 (9'h 
Cir. July 10,2008). 
Furthermore, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for 
a single petition with a single fee. The initial filing fee for the Form 1-140 covered the cost of the 
director's adjudication of the 1-140 petition. Pursuant to section 286(m) of the Act, 8 U.S.C. tj 1356, 
USCIS is required to recover the full cost of adjudication. In addition to the statutory requirement, 
Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all direct and 
indirect costs of providing a good, resource, or service.' If the petitioner now seeks to classify the 
beneficiary as a professional or skilled worker pursuant to section 203(b)(3) of the Act, then it must 
file a separate Form 1-140 petition requesting the new classification, as it has already done. On 
appeal and in response to the AAO's motion, counsel has cited no statute, regulation, or standing 
precedent that permits a petitioner to change the classification of a petition once a decision has been 
rendered by the director. 
The current regulation at 8 C.F.R. 8 103.2(b)(8)(i) provides in pertinent part: "If the record evidence 
establishes ineligibility, the application or petition will be denied on that basis." Further, 8 C.F.R. 
tj 103.2(b)(8)(ii) provides in pertinent part: "If all required initial evidence is not submitted with the 
application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the 
application or petition for lack of initial evidence or for ineligibility . . . ." 
Thus, the director is not required to issue a request for additional evidence or a notice of intent to 
deny in every potentially deniable case. If the director determines that the initial evidence supports a 
decision of denial, the regulation at 8 C.F.R. tj 103.2(b)(8) does not require solicitation of further 
documentation. As the director correctly adjudicated the petition under section 203(b)(2) of the Act, 
we will only consider on appeal whether the director correctly denied eligibility under that 
classification. 
The regulation at 8 C.F.R. tj 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under this classification must be accompanied by an 
individual labor certification from the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that the 
alien's occupation is within the Labor Market Information Program, a hlly executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The job offer 
portion of the individual labor certification, Schedule A application, or Pilot Program 
application must demonstrate that the job requires a professional holding an 
advanced degree or the equivalent or an alien of exceptional ability. 
(Bold emphasis added.) 
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. 
I 
 See http:l/www.whitehouse.~ov/omb/circulars/aO25/aO2S.h, accessed January 29, 2009 and incorporated into the 
record of proceedings. 
Page 4 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 (Comm'r. 1986). See also 
Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). USCIS must examine "the language of 
the labor certification job requirements" in order to determine what the job requires. See generally 
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 application form]." Id. at 834 (emphasis 
added). 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, line 4, of the labor certification reflects that a bachelor's degree in computer 
science or a related field is the minimum level of education required. Line 6 reflects that 60 months 
of experience are also required. Line 8, however, reflects that there is a combination of education or 
experience that is acceptable in the alternative. Specifically, the petitioner indicated that it would 
"accept 2 yrs exp for each yr missing towards 4-yr Bachelor's." Line 9 reflects that a foreign 
educational equivalent is acceptable. 
The regulation at 8 C.F.R. 5 204.5(k)(2) defines an advanced degree as follows: 
[Alny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate 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 degree or a foreign equivalent 
degree. 
In 1991, when the final rule for 8 C.F.R. 9 204.5 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 (1990), 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). Thus, even where experience is 
considered towards an advanced degree, the alien must have and the job must require a U.S. 
baccalaureate degree or a foreign equivalent degree. As the petitioner was willing to accept 
experience in lieu of a baccalaureate, the job did not require a member of the professions holding an 
advanced degree. 
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 sustained that burden. 
Order: The appeal is dismissed.