dismissed EB-2 Case: Computer Science

U.S. Departn~ent of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
klentieing data deleted to 
pvmt clearly unwanantd 
~~~ of p=wRal privacy 
Office: NEBRASKA SERVICE CENTER 
 Date: JUN 2 5 2008 
LIN 07 009 53042 
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. 5 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. 
P. wiuann, Chief 
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 provides transactional, regulatory agent, corporation governance and litigation 
management services. It seeks to employ the beneficiary permanently in the United States as a system 
analyst / web designer 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, a Form ETA 750,' 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 to a U.S. baccalaureate. 
On appeal, counsel submitted a brief and additional evidence. While counsel continued to assert that 
the beneficiary was eligible for the classification sought, counsel also requested that, in the 
alternative, the beneficiary be considered under a lesser classification. On October 22, 2007, this 
office issued a notice of intent to dismiss the appeal. In response, counsel continues to assert that the 
beneficiary is eligible for the classification sought and to request, in the alternative, that the 
beneficiary be classified as a professional or skilled worker pursuant to section 203(b)(3) of the Act. 
In our October 22, 2007 notice, we noted that counsel had not cited a legal authority for the 
proposition that the director was obligated to offer an opportunity to request a lesser classification or 
that would allow the petitioner to request a different classification on appeal. As further noted in 
that notice, the petitioner may not make a material change to a petition that has already been filed in 
an effort to make an apparently deficient petition conform to Citizenship and Immigration Services 
(CIS) requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). Thus, this 
decision only pertains to the original classification requested pursuant to section 203(b)(2) of the 
Act. 
Counsel's remaining assertions will be discussed below. For the reasons explained in the body of 
this decision, we uphold the director's finding that the beneficiary does not possess a foreign 
equivalent degree to a U.S. baccalaureate. As explained in our October 22, 2007 notice, the lack of a 
foreign equivalent degree precludes eligibility for the classification sought. We further find that the 
job offered does not require a member of the professions holding an advanced degree as required 
under 8 C.F.R. 5 204.5(k)(4). 
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 
I 
 After March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. 
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 three-year "Provisional Certificate" for his 
Bachelor of Science in Physics from the University of Madras. On the Form ETA 750B, the 
beneficiary indicated that he had also received a "diploma" from Aptech Computer Education. The 
petitioner submitted an evaluation from Morningside Evaluations and Consulting concluding that the 
beneficiary's three-year degree from the University of Madras was "substantially similar to those 
required toward the completion of three years of academic studies leading to a Bachelor's degree 
from an accredited institution of higher education in the United States." The evaluation then asserts 
that the beneficiary received a "Higher Diploma in Software Engineering" from Aptech Computer 
Education and provides: 
On the basis of the credibility of the University of Madras, Aptech Computer 
Education, the number of years of coursework, the nature of the coursework, the 
grades earned in the coursework, and the hours of academic coursework, it is the 
judgment of Morningside Evaluations and Consulting that [the beneficiary] has 
attained the equivalent of a Bachelor of Science in Computer Information Systems 
degree from an accredited institution of higher education in the United States. 
On appeal, the petitioner submitted copies of the higher diploma issued to the beneficiary by Aptech 
Computer Education as well as the transcript for this coursework. h our October 22,2007 notice, we 
requested evidence regarding Aptech's entrance requirements and whether it is accredited by the All- 
India Council for Technical Education (AICTE) or another authority. In response, counsel concedes 
that Aptech is not accredited but asserts that enrollment in Aptech "is based on competitive entrance 
examinations." Counsel hrther asserts that the beneficiary's foreign education must be equivalent to a 
U.S. baccalaureate because he was admitted to a U.S. Master's program at the University of Phoenix 
based on that foreign education. 
Eligibility for the Classification Sought 
As noted above, the ETA 750 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 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). 
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. 
Page 4 
v. Ashkenazy Property Management Corp. 817 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), afd 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.") 
As explained in our previous notice, a United States baccalaureate degree is generally found to 
require four years of education. Matter of Shah, 17 I&N Dec. 244 (Regl. Commr. 1977). This 
decision involved a petition filed under 8 U.S.C. $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: 
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, 101" Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 20161 3 at *6786 (October 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 (1978)(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. 101 -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, 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 degreeeW2 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. 8 204.5(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. 
In response to our October 22, 2007 notice, counsel asserts that the decision in Matter of Shah, 
17 I&N Dec. at 245, was based on the lack of evidence "to assist the agency in determining whether 
the three-year B.S. (special) degree in chemistry at issue was equivalent to a Bachelor's with a major 
in Chemistry." Counsel further asserts that discrepancies in dates in that matter indicated fraud. 
While the decision questions the "validity" of the degree issued partway into that alien's studies, the 
decision also unambiguously states: "Thus, he could only have completed a 3-year course of study, 
which is not equivalent to a United States baccalaureate degree, usually requiring 4 years of study. 
The petitioner has failed to establish that the beneficiary's 'B.S. (Special), special subject- 
2 
 Compare 8 C.F.R. 214.2(h)(4)(iii)(D)(S)(defining for purposes of a nonimmigrant 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. 
Chemistry' is equivalent to a United States baccalaureate degree in chemistry." Id. Moreover, this 
decision is completely consistent with the education evaluation submitted, which concluded that the 
beneficiary's three-year degree was only equal to three years of academic study towards a U.S. 
baccalaureate. 
The evaluator from Morningside Evaluations and Consulting listed his membership in the American 
Association of Collegiate Registrars and Admissions Officers, AACRAO. Accordingly, as noted in 
our October 22, 2007 notice, we have reviewed the Electronic Database for Global Education 
(EDGE) created by AACRAO. 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://accraoedge.accrao.org/register/index/php, EDGE is "a web- 
based resource for the evaluation of foreign educational credentials." 
Authors for EDGE are not merely expressing their personal opinions. Rather, authors for EDGE 
must work with a publication consultant and a Council Liaison with AACRAO's National Council 
on the Evaluation of Foreign Educational Credentials. "An Author's Guide to Creating AACRAO 
International Publications" 5-6 (First ed. 2005), available for download at 
www.aacrao.org/publications/guide to creating international publications.pdf. If placement 
recommendations are included, the Council Liaison works with the author to give feedback and the 
publication is subject to final review by the entire Council. Id. at 11-12. 
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, 
the diploma 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: 
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. 
In our October 22, 2007, we advised the petitioner that, according to Aptech Computer Education's 
website, www.aptech-education.com/accp.html, the prerequisite for their program is a mandatory 
aptitude test. It does not suggest that a three- or even a two-year baccalaureate is required for 
admission. Nowhere on its website does it indicate that it is accredited by AICTE. As stated above, 
counsel's response does not assert that Aptech is accredited or that it requires a three-year degree for 
entrance into its program. 
In response to the October 22, 2007 notice, the petitioner submits the beneficiary's Master of 
Business Administration (MBA) from the University of Phoenix. The petitioner must establish the 
beneficiary's eligibility as of the priority date. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Regl. Commr. 1971). The beneficiary's MBA degree was issued July 3 1, 2007, 
nearly four years after the priority date in this matter. Nevertheless, the degree is not submitted for 
purposes of consideration in and of itself, but as evidence that the beneficiary's prior education, 
which gained him admission to the MBA program, must be equivalent to a U.S. baccalaureate. The 
petitioner submits evidence from the University of Phoenix's website demonstrating that admission 
into the university's graduate programs requires "an undergraduate degree from a regionally 
accredited or candidate for accreditation, or approved nationally accredited college or university, or 
a comparable degree from a recognized institution outside the United States." 
The petitioner has not demonstrated that the beneficiary's admission into the University of Phoenix's 
MBA program was unconditional in that it did not require him to complete any additional credits at 
the University of Phoenix. Moreover, the opinion of one admissions officer at the University of 
Phoenix, a for-profit institution, is less persuasive than the juried and widespread consensus opinion 
represented by EDGE. 
It remains, the degree from Aptech is not a benchmark above the beneficiary's three-year degree but 
a second lesser degree. Aptech does not provide credit for the three-year degree or otherwise 
incorporate the education represented by a three-year degree by requiring the three-year degree for 
admission. 
Our conclusion that the beneficiary's education is not a foreign equivalent degree does not result 
from a requirement that all of the education takes place at one institution. Clearly, an undergraduate 
student who transfers credits to Harvard University and subsequently obtains a baccalaureate from 
Harvard can be said to have a U.S. baccalaureate. 
 That degree from Harvard is presumptive 
evidence of a baccalaureate without any need to evaluate the underlying education that led to that 
degree because Harvard requires a certain amount of course credits taken either at Harvard or 
transferred to Harvard before it will issue a degree. The degree from Aptech, however, is not 
evidence of a baccalaureate because attainment of the degree does not require four years of 
education at Aptech or another institution. As stated above, the combination of two lesser degrees 
will not be considered a foreign equivalent degree to a U.S. baccalaureate degree any more than two 
baccalaureate degrees can be considered equivalent to a Master's degree. 
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. 
Page 8 
Job Requirements 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). While the director did not address whether the job required a member of the professions 
holding an advanced degree, this issue was raised in our October 22, 2007 notice of intent to dismiss 
and is a second basis for dismissing the appeal. 
The regulation at 8 C.F.R. 5 204.5(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 fully 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 Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. 
 Do not duplicate the time requirements. 
 For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
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, 
Madany, 696 F.2d at 1008; K.R.K. Iwine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). CIS must examine "the language of the 
labor certification job requirements" in order to determine what the job requires. See generally 
Page 9 
Madany, 696 F.2d at 1015. 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." 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 [labor certification application form]." Id. at 834 (emphasis 
added). 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. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: Master's degree* 
Major Field of Study: CS, Engineering, IT, Physics, or related field. 
Experience: 
 3" years in job offered. 
Block 15: 
 *Will accept Bachelor's degree in CS, engineering, IT, Physics, 
or a related field followed by 5 years of related progressive 
experience. 
*Will accept educational equivalency evaluation prepared by 
qualified evaluation service or in accordance with 8 CFR 
5 2 14.2(h)(4)(iii)(D). 
As noted in our October 22, 2007 notice of intent to dismiss, the regulation at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(D) defines, for purposes of a nonimmigrant visa classification, the "equivalence to 
completion of a college degree7' 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. In fact, as discussed above, the legislative history for section 203(b)(2) 
of the Act makes very clear that the alien must have a baccalaureate and may not combine education 
and experience to demonstrate an equivalency. 56 Fed. Reg. at 60900. Thus, we raised the issue as 
to whether the job in this matter requires a member of the professions holding an advanced degree as 
required under 8 C.F.R. 5 204.5(k)(4). 
In response to our notice, counsel references a letter from Mr. Efren Hernandez 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, Signzjcance of Letters Drafted by the Office of 
Adjudications (December 7, 2000)(copy incorporated into the record of proceeding). As stated 
above, 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. 817 F. 2d at 75; R.L. Inv. Ltd. Partners v. INS, 
86 F. Supp. 2d at 1022. 
Counsel further states: 
Petitioner acknowledges that the criteria set forth in 8 C.F.R. 4 214.2(h)(4)(iii)(D), 
providing that three years of specialized training and/or work experience can equate 
to a year of college education, relates to the H-1B nonimmigrant classification and 
that no corresponding statute or regulation exists relating to immigrant pre3ference 
classifications. However, relying on the Hernandez guidance and in an effort to 
ensure that all U.S. workers with a qualifying combination of education from more 
than one institutions, deemed equivalent to a Bachelor's degree, were given an 
opportunity to apply for the position, [the petitioner] utilized the only regulatory 
definition governing educational equivalencies available to define the proper 
combination of education that would be accepted for the position. 
Counsel then asserts that the reference to 8 C.F.R. 5 214.2(h)(4)(iii)(D) "in no way expanded the 
requirements to include" a combination of education and experience. Counsel then cites Grace 
Korean United Methodist Church v. ChertofJ: 437 F. Supp. 2d 1174 (D. Or. 2005) for the proposition 
that CIS "does not have the authority or expertise to impose its strained definition of 'B.A. or 
equivalent' on that term as set forth in the labor certification." Counsel also cites Snapnames v. 
Chertoff, 2006 WL 3491005 (D. Or. 2006). 
The AAO is not bound to follow the published decision of a United States district court in cases 
arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning 
underlying a district judge's decision will be given due consideration when it is properly before the 
AAO; however, the analysis does not have to be followed as a matter of law. Id. at 719. Regardless, 
we note that Grace Korean involved a lesser classification than the one sought in this matter. 
Counsel's citation to Snapname.s.com is not persuasive as the judge in that case found that CIS is 
entitled to deference in interpreting its own regulatory definition of advanced degree. 
Snupnames.com, Inc., 2006 WL 3491005 at 11. 
Even assuming that the phrase "B.A. or equivalent," is open to interpretation as decided in Grace 
Korean, the alien employment certification in this matter did not use that phrase. Rather, the alien 
employment certification expressly referenced a regulation that, by the plain language of that 
regulation, permits the equation of experience to education in calculating the equivalence of a 
college degree. It cannot now be credibly argued that the reference to this regulation as a whole, 
without limitation to a specific subparagraph of the regulation, does not indicate that all of the 
equivalencies defined in that regulation, including experience, would be acceptable in lieu of a 
baccalaureate. Thus, based on the plain language on the alien employment certification, it is clear 
that the job certified by DOL does not require an advanced degree professional as defined at 
8 C.F.R. 5 204.5(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, the job does not require a member of the professions holding an advanced degree. 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. 
This denial is without prejudice to the filing of a new petition under a lesser classification. 
ORDER: The appeal is dismissed.