dismissed EB-2 Case: Computer Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: ~flv 1 5 2005 
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. tj 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. 
--/ 
.$v Robert P. W~ernann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software consulting services business. It seeks to employ the beneficiary permanently in 
the United States as a software engineer 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, the petition was accompanied by certification from 
the Department of Labor. 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 the equivalent of an advanced degree as he did not hold a "baccalaureate 
degree or its foreign equivalent." 
On appeal, counsel asserts that the director failed to provide legal support for the assertion that education and 
experience cannot be considered equivalent to a baccalaureate degree. 
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." Id. 
The beneficiary possesses a foreign three-year bachelor's degree. Thus, the issues are whether that degree is a 
foreign degree equivalent to a U.S. baccalaureate degree or, if not, whether it is appropriate to consider the 
beneficiary's years of experience in addition to that degree. 
The beneficiary received a Bachelor of Science degree from the University of Mysore in India after three 
years of study. The original petition was accompanied by a credentials evaluation from William Edelson. In 
evaluating the beneficiary's Bachelor of Science degree, the evaluator stated: 
Calculations based on course duration and composition in the Bachelor of Science program, 
indicate that [the beneficiary] satisfied similar requirements to the completion of three years of 
academic study toward a Bachelor of Science Degree from an accredited institution of tertiary 
education in the United States. 
(Emphasis added.) After considering the beneficiary's university studies, the evaluator evaluated the 
beneficiary's work experience subsequent to his bachelor's degree. The evaluator concluded: 
The demonstration of Eighteen Years, Eleven Months of specialized work experience in 
Computer Science, considered together with his prior studies at The University of Mysore, 
indicate that [the beneficiary] satisfied similar requirements to the completion of a Bachelor 
of Science Degree in Computer Science from an accredited institution of tertiary education in 
the United States. 
(Emphasis added.) The director concluded that although the beneficiary had the required five years of 
experience applicable toward an advanced degree equivalency, he does not have the required baccalaureate 
degree or its foreign equivalent degree. 
On appeal, counsel asserts that the director failed to provide legal support for the assertion that a combination 
of education and experience cannot be considered equivalent to a U.S. baccalaureate degree in these 
proceedings. 
Counsel's assertions are not persuasive. First, a three-year bachelor's degree will not be considered to be the 
"foreign equivalent degree" to a United States baccalaureate degree. A United States baccalaureate degree is 
generally found to require four years of education. Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). 
According to India's Department of Education, the nation's educational degree structure provides for both 
three-year and four-year bachelor's degree programs. After 12 years of primary and upper primary school, a 
bachelor's degree in the arts, commerce, or the sciences may be earned after three years of higher education. 
A bachelor's degree in a professional field of study, such as agriculture, dentistry, engineering, pharmacy, 
technology, and veterinary science, generally requires four years of education. See generally Government of 
India, Department of Education, Higher Education in India, Academic Qualification Framework - Degree 
Structure, (last updated October 1, 2001), available at http://www.education.nic.in/htmlweb/higedu.htm 
(printed copy incorporated into the record of proceeding). If supported by a proper credentials evaluation, a 
four-year baccalaureate degree from India could reasonably be deemed to be the "foreign equivalent degree" 
to a United States baccalaureate degree. However, in Matter of Shah, the Regional Commissioner declined to 
consider a three-year Bachelor of Science degree from India as the equivalent of a United States baccalaureate 
degree because the degree did not require four years of study. Matter of Shah 17 I&N Dec. at 245. Based on 
the same reasoning, the beneficiary's three-year Bachelor of Science degree from the University of Mysore 
will not be considered the "foreign equivalent degree" to a United States baccalaureate degree for purposes of 
this preference visa petition. 
Citizenship and Immigration Services (CIS) 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, CIS is not required to accept or may give less weight to that evidence. Matter of 
Cavon International, 19 I&N Dec. 791, 795 (Comm. 1988); Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 
1988). Regardless, we are not questioning the evaluator's conclusions. The evaluation submitted pronounced 
the beneficiary's three-year Bachelor of Commerce degree to be the equivalent of three years of study at an 
accredited United States college or university and that this degree, only when combined with the beneficiary's 
work experience, is equivalent to a U.S. baccalaureate degree. 
Finally, counsel's assertion that there is no legal support for the position that we may not consider education 
and experience as equivalent to a U.S. baccalaureate degree is not persuasive. In 199 1, 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 (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 
Page 4 
equating to an advanced degree under the second, an alien must have at least a bachelor's 
degree. 
56 Fed. Reg. 60897,60900 (November 29, 199l)(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 with anything less than a full baccalaureate degree. Thus, 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. As noted in the 
federal register, persons who claim to qualify for an immigrant visa by virtue of education or experience 
equating to bachelor's degree will 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. 
Because the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 
the beneficiary does not qualify for preference visa classification under section 203(b)(2) of the Act as he 
does not have the minimum level of education required for the equivalent of an advanced degree. 
Moreover, to determine whether a beneficiary is eligible for a second preference immigrant visa, Citizenship 
and Immigration Services (CIS), formerly the Service or INS, must ascertain whether the alien is, in fact, 
qualified for the certified job. CIS 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, CIS must look to the job offer portion of the labor certification to determine the required 
qualifications for the position. CIS 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. 
1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 
1006 (9th Cir. 1983); Stewart Infi.a-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 st Cir. 
1981). 
Regarding the minimum level of education and experience required for the proffered position, Part A of the 
labor certification reflects the following requirements: 
Block 14: 
Education: Bachelor of Science or Equivalent 
Experience: Five years in the job offered or a related occupation. 
Block 15: 
Master's in Computer Science or Equivalent with more than 3 years experience is 
acceptable. 
We interpret "equivalent" to mean a foreign equivalent degree. As discussed above, the beneficiary does not 
have a foreign degree equivalent to a U.S. bachelor's degree. Thus, the beneficiary does not meet the 
requirements of the labor certification. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition may not 
be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 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.