dismissed EB-2 Case: Computer Science

US. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 07 056 52996 Office: NEBRASKA SERVICE CENTER Date:~p~ 2 g 200% 
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 1153(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. 
-7 
u 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 07 056 52996 
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 technology firm. It seeks to employ the beneficiary permanently in the United States 
as a computer software engineer 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 Alien 
Employment Certification 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 foreign equivalent degree to a U.S. baccalaureate. 
On appeal, counsel asserted that the beneficiary can qualify as a member of the professions holding 
an advanced degree with a U.S. baccalaureate or a foreign equivalent degree plus five years of 
progressive experience pursuant to 8 C.F.R. 5 204.5(k)(2). Counsel also relies on a memorandum 
that does not address the issue in contention: what constitutes a foreign equivalent degree. 
On December 27,2007, this office advised the petitioner of information obtained from the Electronic 
Database for Global Education (EDGE) and requested evidence regarding the entrance requirements 
for Indotronix, where the beneficiary received his postgraduate diploma, and whether that institution 
is accredited by the All-India Council for Technical Education (AICTE). This office further 
requested the petitioner's recruitment report. 
As noted in our December 27, 2007 notice, EDGE was created by the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO). Significantly, the individuals providing 
the evaluations on which the petitioner relies indicate that they have relied on AACRAO 
publications and one evaluator indicates that he is a member of AACRAO. Given this information, 
it becomes relevant whether the evaluations are consistent with the AACRAO materials on which 
the evaluators purport to rely. 
We received the petitioner's response on February 22,2008. The petitioner submits new evaluations 
of the beneficiary's education that are inconsistent with previous evaluations in the record. The 
petitioner also submits its recruitment report. Counsel asserts both that the beneficiary has the 
requisite education to qualify for classification as an advanced degree professional pursuant to 
section 203(b)(2) of the Act and that the skilled worker classification set forth at 8 C.F.R. 
5 203(b)(3) of the Act does not require a specific degree. Counsel cites no legal authority, and we 
known of none, that would allow the petitioner to request multiple classifications with the same 
petition. In fact, a petitioner may not make material changes to a petition that has already been filed 
in an effort to make an apparently deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). We find that a change of classification is a material 
change to the petition. Thus, the only classification we will consider in this decision is the 
classification originally requested, advanced degree professional pursuant to section 203(b)(2) of the 
Act. 
LIN 07 056 52996 
Page 3 
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 
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. 
Initially, the petitioner submitted the beneficiary's third-class three-year Bachelor of Science degree 
from Andhra University. The subjects listed are English, Telugu, Mathematics, Chemistry and 
Physics. The petitioner also submitted the beneficiary's Post Graduate Diploma in Computer 
Applications from the Indotronix Institute of Informatics. Finally, the petitioner submitted an 
evaluation from the Trustforte Corporation concluding that the beneficiary's three-year degree from 
Andhra University constitutes "the equivalent of three years of academic studies toward a Bachelor 
of Science Degree at an accredited institution of higher education in the United States." The 
evaluation then asserts that the beneficiary's postgraduate diploma coursework "fulfilled the 
requirements for a bachelor's level concentration in Computer Science at an accredited US college 
or university." Ultimately, the evaluation concludes that the beneficiary's academic history is the 
"equivalent of a Bachelor of Science from an accredited US institution of higher education." This 
evaluation was prepared by Barry S. Silberzweig, who indicates that he is a member of AACRAO 
and that he relied on AACRAO publications. 
Thus, the issues are whether the beneficiary has a degree that is a foreign equivalent degree to a U.S. 
baccalaureate degree. We must also consider whether the beneficiary meets the job requirements of 
the proffered job as set forth on the alien certification and, if so, whether the job requires an advanced 
degree professional as required at 8 C.F.R. 5 204.5(k)(4). 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by DOL. In response to our December 
27, 2007 notice, counsel asserts that DOL has the authority to define the employment requirements 
underlying an alien employment certification. 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 2 12(a)(5)(A)(i) of the Act; 20 C.F.R. 5 656.1 (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 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
LIN 07 056 52996 
Page 4 
In response to our December 27, 2007 notice, counsel relies on a letter from 0 
111, Director of the Business and Trade Services Branch of CIS' Office of Adjudications. The letter 
discusses whether a "foreign equivalent degree" must be in the form of a single degree or whether 
the beneficiary may satisfy the requirement with multiple degrees. The Office of Adjudications 
letter is not binding on the AAO. Letters written by the Office of Adjudications do not constitute 
official CIS policy and will not be considered as such in the adjudication of petitions or applications. 
Although the letter may be useful as an aid in interpreting the law, such letters are not binding on 
any CIS officer as they merely indicate the writer's analysis of an issue. See Memorandum from 
Thomas Cook, Acting Associate Commissioner, Office of Programs, Signzficance ofLetters Drafted 
by the Office ofAdjudications (December 7,20OO)(copy incorporated into the record of proceeding). 
Rather, 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 (9th 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), aff'd 273 F.3d 874 (9th 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). Even CIS internal 
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5th Cir. 2000)(An agency's internal guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely.") 
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). 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, 101" Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at "6786 (October 26, 1990). At the time of enactment 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 Lorilland v. 
Pons, 434 U.S. 575, 580 (1978)(Congress is presumed to be aware of administrative and judicial 
interpretations). 
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: 
LIN 07 056 52996 
Page 5 
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, 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 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. Where the analysis of the beneficiary's credentials relies on 
work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a 
bachelor's degree rather than a "foreign equivalent degree."' 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. 5 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify 
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may 
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. 56 Fed. Reg. at 60900. 
The initial evaluation from the Trustforte Corporation concluded that the beneficiary's three-year 
degree documented the completion of "the equivalent of three years of academic studies toward a 
Bachelor of Science Degree at an accredited institution of higher education in the United States." In 
response to our December 27, 2007 notice, the petitioner submits a new evaluation of the 
beneficiary's education from 
 of Career Consulting International. - 
asserts that the beneficiary's 
 from Andhra University by itself is equivalent 
to a U.S. baccalaureate. This conclusion is inconsistent with the previous evaluation from the 
Trustforte Corporation. 
purports to reach this conclusion by assigning various credits for the beneficiary's 
courses. These credits do not appear on the beneficiary's transcript and 
 does not explain 
how she determined the number of credits. A Project for Intemational Education Research (PIER) 
1 
Compare 8 C.F.R. 5 214.2(h)(4)(iii)(D)(S)(defining for purposes of a nonirnrnigrant visa classification, the 
"equivalence to completion of a college degree" as including, in certain cases, a specific combination of 
education and experience). The regulations pertaining to the immigrant classification sought in this matter do 
not contain similar language. 
LIN 07 056 52996 
Page 6 
Workshop Report on South Asia I80 (1986) explicitly states that "transfer credits should be 
considered on a year-by-year basis starting with post-Grade 12 year." The chart that follows states 
that 12 years of primary and secondary education followed by a three-year baccalaureate "may be 
considered for undergraduate admission with possible advanced standing up to three years (0-90 
semester credits) to be determined through a course to course analysis." This information seriously 
undermines assertion that the beneficiary's three years of baccalaureate education is 
comparable to 120 credits and a four-year baccalaureate in the United States. 
further asserts: "UNESCO clearly recommends that the 3 and 4 year Indian degree 
should be treated as equivalent to a bachelor's degree by all UNESCO members." She provides 
three website addresses in support of this assertion and subsequently quotes the following UNESCO 
recommendation: 
Member States should take all feasible stops within the framework of their national 
systems and in conformity with their constitutional, legal and regulatory provisions to 
encourage the competent authorities concemed to give recognition, as defined in 
paragraph l(e), to qualifications in higher education that are awarded in the other 
Member States. 
The petitioner also submitted 138 pages of UNESCO materials, only two of which are relevant. The 
recommendation provided relates to "recognition" of qualifications awarded in higher education. 
Paragraph 1 (e) defines recognition as follows: 
'Recognition" of a foreign qualification in higher education means its acceptance by 
the competent authorities of the State concemed (whether they be governmental or 
nongovernmental) as entitling its holder to be considered under the same conditions 
as those holding a comparable qualification awarded in that State an deemed 
comparable, for the purposes of access to or further pursuit of higher education 
studies, participation in research, the practice of a profession, if this does not require 
the passing of examinations or further special preparation, or all the foregoing, 
according to the scope of the recognition. 
The UNESCO recommendation relates to admission to graduate school and training programs and 
eligibility to practice in a profession. Nowhere does it suggest that a three-year degree must be 
deemed equivalent to a four-year degree for purposes of qualifying for a class of individuals defined 
by statute and regulation as eligible for immigration benefits. More significantly, the 
recommendation does not define "comparable qualification." At the heart of this matter is whether 
the beneficiary's degree is, in fact, the foreign equivalent of a U.S. baccalaureate. The UNESCO 
recommendation does not address this issue. 
The two other new evaluations from 
 of Mar uess Educational Consultants and Dr. 
of the AUAP Evaluation Service are similar to a evaluation. We note that 
asserts that his evaluation adheres to the recommendations stated in a specific 
AACRAO publication, discussed in more detail below. 
LIN 07 056 52996 
Page 7 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Commr. 1988). However, CIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters Erom experts 
supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795. CIS may even give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id. at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
previous evaluation of the petitioner's degree. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Id. The record 
does not contain objective evidence resolving these inconsistencies in the petitioner's favor. As the 
record does not resolve this inconsistency, we will not consider the beneficiary's three-year 
baccalaureate as a foreign equivalent degree to a U.S. baccalaureate. Thus, we must now consider 
the beneficiary's diploma from Indotronix. 
On December 27, 2007, we advised the petitioner that we had reviewed the EDGE created by 
AACRAO. As noted above, states that he is a member of AACRAO and - 
asserts that he relied on AACRAO materials, specifically, A P.I.E.R. Workshop Report on South 
Asia: The Admission and Placement of Students from Bangladesh, India, Pakistan and Sri Lanka 
(1 986). AACRAO, according to its website, www.aacrao.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:Naacraoedge.aacrao.org, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." 
EDGE provides a great deal of information about the educational system in India. It discusses both 
Post Secondary Diplomas, for which the entrance requirement is completion of secondary education, 
and Post Graduate Diplomas, for which the entrance requirement is completion of a two- or three- 
year baccalaureate. EDGE provides that a Post Secondary Diploma is comparable to one year of 
university study in the United States but does not suggest that, if combined with a three-year degree, 
may be deemed a foreign equivalent degree to a U.S. baccalaureate. EDGE further asserts that a 
Postgraduate Diploma following a three-year bachelor's degree "represents attainment of a level of 
education comparable to a bachelor's degree in the United States." The "Advice to Author Notes," 
however, provides: 
LIN 07 056 52996 
Page 8 
Postgraduate Diplomas should be issued by an accredited university or institution 
approved by the All-India Council for Technical Education (AICTE). Some students 
complete PGDs over two years on a part-time basis. 
 When examining the 
Postgraduate Diploma, note the entrance requirement and be careful not to confuse 
the PGD awarded after the Higher Secondary Certificate with the PGD awarded after 
the three-year bachelor's degree. 
Finally, we noted that the beneficiary's diploma reflects that the Indian government recognizes 
Indotronix for '0' level courses. It does not suggest that Indotronix is accredited by AICTE or that 
it requires an Indian baccalaureate for entry into the postgraduate diploma program. 
Thus, we requested additional evidence about Ind~tronix.~ In response, the petitioner did not submit 
any official materials about Indotronix. Rather, simply asserts that Indotronix requires a 
three-year baccalaureate for admission and is accredited by the Department of Electronics for "0" 
Level courses. 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. 158, 
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
The regulation at 8 C.F.R. 5 204.5(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." The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) provides that evidence that an alien is a 
professional requires the submission of "an official college or university record showing the date the 
baccalaureate degree was awarded and the area of concentration of study." While this regulation 
relates to a lesser classification, we cannot conclude that the evidence required to demonstrate that 
an alien is a member of the professions holding an advanced degree is any less than the evidence 
required to show that the alien is a professional. Moreover, the commentary accompanying the 
proposed advanced degree professional regulation specifically states that a "baccalaureate means a 
bachelor's degree received from a college or university, or an equivalent degree." (Emphasis 
added.) 56 Fed. Reg. 30703,30306 (July 5, 1991). 
Moreover, it is significant that both the statute and relevant regulations use the word "degree" in 
relation to professionals and members of the professions holding an advanced degree. A statute 
should be construed under the assumption that Congress intended it to have purpose and meaningful 
effect. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985); Sutton v. 
United States, 819 F.2d. 1289, 1295 (5" Cir. 1987). It can be presumed that Congress' narrow 
requirement of a "degree" for members of the profession holding an advanced degree is deliberate. 
Significantly, in another context, Congress has broadly referenced "the possession of a degree, 
diploma, certificate, or similar award from a college, university, school, or other institution of 
At the time of our December 27, 2007 notice, the petitioner was not claiming that the beneficiary's three- 
year baccalaureate was a foreign equivalent degree to a U.S. baccalaureate on its own. Thus, we did not 
advise the petitioner that EDGE provides that a three-year baccalaureate is only comparable to three years of 
undergraduate education towards a U. S. baccalaureate. 
LIN 07 056 52996 
Page 9 
learning." 
 Section 203(b)(2)(C) of the Act (relating to aliens of exceptional ability). 
 Thus, 
Congress' exclusive use of the word "degree," both when defining members of the profession 
holding an advanced degree in the statute and when providing the minimum education required if 
combined with five years of experience in the legislative history, reveals that the advanced degree, 
or the baccalaureate if combined with five years of experience, must be a degree and that a diploma 
or certificate from an institution of learning other than a college or university is a potentially similar 
but distinct type of credential. 
The petitioner initially relied on the beneficiary's postgraduate diplomas in addition to his three-year 
baccalaureate as equivalent to a U.S. baccalaureate. But the postgraduate diplomas are not degrees 
issued by a college or university. Thus, they cannot be considered as evidence that the beneficiary 
has a foreign equivalent degree to a U.S. baccalaureate, even in combination with a three-year 
baccalaureate. Four years of education is not presumptive evidence of education equivalent to a U.S. 
baccalaureate, especially when less than four years of that education was acquired at a college or 
university. 
Even if we accepted that Indotronix were a college or university, the petitioner has not complied 
with our request to demonstrate that Indotronix both requires a three-year baccalaureate for 
admission and is an accredited university or institution or accredited by AICTE. - 
assertion that Indotronix requires a three-year baccalaureate for admission is simply not credible in 
light of the information on its diplomas that it is accredited for "0" level education. Ordinary level 
education is inherently secondary education, not undergraduate or graduate level education. 
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. 
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. tj 1 154(b), as one of the determinations incident to the INS'S decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
fiom DOL that stated the following: 
LIN 07 056 52996 
Page 10 
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, 
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 certzfication in no way indicates that the alien offered the 
certzfied job opportunity is qualzfied (or not qualzfied) 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 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. Id. fj212(a)[(5)J7 8 U.S.C. fj 1182(a)[(5)]. 
 The INS thenmakes its own 
determination of the alien's entitlement to sixth preference status. Id. fj 204(b), 
8 U.S.C. fj 1 154(b). See generally K. R. K. Iwine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir. 1983). 
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.~ 
In addition, the regulation at 8 C.F.R. fj 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under this classification must be accompanied by an 
individual labor certification fiom 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.) 
3 
 But cf: Hoosier Care, Inc. v. Chertofl482 F. 3d 987 (7th Cir. 2007) relating to a lesser classification than the 
one involved in this matter and relying on the regulation at 8 C.F.R. 5 204.5(1)(4), a provision that does not 
relate to the classification sought here. 
LIN 07 056 52996 
Page 11 
As noted by counsel, when determining the terms of the alien employment certification, CIS may not 
ignore a term nor may it impose additional requirements. See Madany, 696 F.2d at 10 1 5. CIS 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 CIS 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). CIS'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. CIS 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. 
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. 
In this matter, you checked "other" on Part H, line 4, of the alien employment certification in regards 
to the minimum level of education required. On line 4-A you specified that "other" meant "BS 
Equivalency." Line 6 reflects that five years of experience is required. Line 8 reflects that no 
combination of education or experience is acceptable in the alternative. Finally, line 9 reflects that a 
foreign educational equivalent is acceptable. 
If the job requires anything less than a U.S. baccalaureate or foreign equivalent degree plus five 
years post-baccalaureate experience, then it does not require an advanced degree professional as 
defined at 8 C.F.R. 5 204.5(k)(2). In order to ascertain what the petitioner meant by "BS 
Equivalency," we requested the petitioner's recruitment report. In response, counsel asserts that CIS 
"has neither the authority nor expertise to impose its definition of 'BS or BS equivalent' for 
purposes of the ETA-9089 approval as meaning anything other than what the Department of Labor 
interpreted the term to mean at the time it adjudicated and issued the labor certification." (Emphasis 
in original.) Counsel cites Tovar v. US. Postal Service, 3 F. 3d 1271, 1276 (9th cir. 1993) and Omar 
v. INS, 298 F. 3d 71 0,714-1 5 (gth Cir. 2002) in support of our purported lack of authority to interpret 
the language of the alien employment certification. 
Unlike the cases cited by counsel, which involved the U.S. Postal Service interpreting immigration 
law and legacy Immigration and Naturalization Services (INS) interpreting criminal law, our inquiry 
in this matter, whether the job requires an alien meeting the classification requirements, involves a 
law and regulation with which we are specifically charged with enforcing. As stated above, 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. fj 656.1 (a). Conversely: 
LIN 07 056 52996 
Page 12 
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 41 7,429 (D.C. Cir. 1977). 
Madany, 696 F.2d at 1012-1013. Moreover, as quoted above, the regulation at 8 C.F.R. 
tj 204.5(k)(4) explicitly states that the alien employment certification must reflect that the job 
requires an advanced degree professional. Thus, there is no question that CIS is charged with 
interpreting the job requirements and making preference classification decisions. 
We acknowledge that the plain language on the ETA Form 9089 is ambiguous. In order to better 
ascertain the petitioner's intent, we requested the recruitment report, which the petitioner submitted. 
The response is also ambiguous. While the newspaper advertisements specify that a "BS" plus five 
years of experience is required, the Internet advertisements reflect that the petitioner would accept a 
"4-yr BS or 3-yr BS or BS Education equivalency." As it appears that the petitioner was willing to 
accept a three-year baccalaureate or an education equivalency which may include a combination of 
education and experience, it appears that the job does not require a member of the professions 
holding an advanced degree as defined at 8 C.F.R. tj 204.5(k)(2). 
The beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree," 
and, thus, does not qualify for preference visa classification under section 203(b)(2) of the Act. In 
addition, while the beneficiary may meet the job requirements on the alien employment certification, 
such an interpretation requires us to conclude that the job does not require an advanced degree 
professional as required under 8 C.F.R. tj 204.5(k)(4). 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 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.