dismissed EB-2 Case: Computer Science

(b)(6)
DATE: OCT 1 6 2014 OFFICE: TEXAS SERVICE CENTER 
INRE : Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2Q90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Under Section 203(b)(2)(A) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . We do not announce new constructions of law nor establish agency policy 
through non-precedent decisions. If you believe we incorrectly applied current law or policy to your case or if 
you seek to present new facts for consideration , you may file a motion to reconsider or a motion to reopen, 
respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the 
date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the 
latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file 
a motion directly with the AAO . 
Ron Rosenberg 
Chief, Admini strative Appeals Office 
www.usds,gov 
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DISCUSSION: The Director, Texas Service Center (Director), denied the immigrant visa petition 
and dismissed the petitioner's motion to reopen. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner provides information technology services. It seeks to permanently employ the 
beneficiary in the United States as a computer programmer. The petition requests classification of 
the beneficiary as an advanced degree professional under section 203(b)(2)(A) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A). 
At issue is whether the beneficiary possesses an advanced degree as required for the requested 
classification and by the terms of the accompanying ETA Form 9089, Application for Permanent 
Employment Certification (labor certification). 
I. PROCEDURAL HISTORY 
As required by statute, the U.S. Department of Labor (DOL) approved the accompanying labor 
certification. 1 The petition 's priority date is October 4, 2012.2 
Part H of the ETA Form 9089 states the following minimum requirements for the offered position of 
computer programmer: 
H.4. Education: Master ' s degree in computer science. 
H.5. Training: None required. 
H.6. Experience in the job offered: None required. 
H.7. Alternate field of study: None accepted. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.lO. Experience in an alternate occupation: None accepted. 
H.14. Specific skills or other requirements: "Knowledge of .NET and J2EE technology. Oracle 
Certified Professional Java SE 5 Programmer certification [r]equired." 
The beneficiary stated on the labor certification that he received a Master's degree in computer science 
from in India in The 
record contains copies of the beneficiary's Master of Science degree in information technology 
and accompanying transcripts from the institute. The record also contains copies of the beneficiary's 
2004 Bachelor of Computer Applications degree and accompanying transcripts from 
in India. 
The petitioner submitted a July 19, 2011 evaluation of the beneficiary's foreign educational credentials 
by The evaluation states that the 
1 See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D) ; see also 8 C.F.R. § 204.5(a)(2) . 
2 The priority date is the date the DOL accepted the labor certification for processing . See 8 C.F.R. § 204.5(d). 
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beneficiary completed three years of undergraduate study and two years of graduate study in India. The 
evaluation concludes that the beneficiary possesses the equivalent of a U.S. Master of Science degree in 
computer science. 
The offered position does not require any experience. However, the beneficiary 
stated on the labor 
certification that he gained about 17 months of related experience before joining the petitioner in the 
offered position on October 29, 2007. The beneficiary stated that he worked for 
in India as a software engineer from May 29, 2006 to October 3, 2007? 
In denying the petition and dismissing the petitioner's motion to reopen, the Director concluded that 
the record did not establish the beneficiary's possession of the qualifying education stated on the 
accompanying labor certification and required for classification as an advanced degree professional. 
The Director denied the petition on December 17, 2013 and dismissed the motion on April28, 2014. 
On appeal, the petitioner asserts that USCIS erred in determining that the beneficiary lacks a foreign 
degree equivalent to a United States Master's degree in computer science. 
The appeal is properly filed and alleges specific errors in law or fact. This office conducts appellate 
review on a de novo basis.4 We consider all pertinent evidence in the record, including new 
evidence properly submitted upon appeal. 5 
II. LAW AND ANALYSIS 
By approving the accompanying labor certification, the DOL certified that there are insufficient workers 
able, willing, qualified, and available to perform the job opportunity and that the alien's employment 
will not adversely affect the wages and working conditions of U.S. workers similarly employed. See 
section 212(a)(5)(A) of the Act (rendering immigrant workers inadmissible unless the DOL issues the 
required certifications). 
3 
The record is unclear as to whether the labor certification states "the employer 's actual minimum requirements for the 
job opportunity" pursuant to 20 C.F.R. § 656.17(i)(l). The offered position requires knowledge of certain technologies 
and a programming certificate, but does not require any experience. The record does not indicate whether applicants 
could gain the required knowledge and certification without experience. The record does not contain copies of 
documentation regarding the labor certification process, such as copies of advertisements of the offered position and the 
recruitment report specified at 20 C.F.R. § 656.17(g)(l). The record also does not indicate how or whether the 
petitioner's ads included the "knowledge" requirements. In any future filings regarding this matter, the petitioner should 
provide documentation of the labor certification process, including copies of the ads for the offered position and the 
recruitment report. 
4 See 5 U.S.C. 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. U.S. Dep 't 
ofTransp. , NTSB , 925 F.2d 1147, 1149 (9th Cir. 1991). Federal courts have long recognized our de novo appellate 
authority. See, e.g., Soltane v. Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). 
5 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, Notice of Appeal or 
Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). 
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U.S. Citizenship and Immigration Services (USCIS), however, determines whether a beneficiary 
possesses the minimum requirements for a position certified by the DOL, and whether the position 
and the beneficiary qualif y for the requested immigrant visa classification. See Tongatapu 
Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984) (stating that the immigration 
service "may make a de novo determination of whether the alien is in fact qualified to fill the 
certified job offer"); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983) (state that "[i]t 
does not appear that the DOL's role extends to determining if the alien is qualified for the job"); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (holding that , "[g]iven the language of 
the Act, the totality of the legislative history, and the agencies' own interpretations of their duties 
under the Act, we must conclude that Congress did not intend DOL to have primary authority to 
make any determinations other than the two stated in section [212(a)(5)(A) of the Act]"). 
Therefore, the DOL's responsibility includes determining whether qualified U.S. workers are 
available to perform the offered position and whether the beneficiary's employment will adversely 
affect similarly employed domestic workers. USCIS's responsibility includes determining whether 
the beneficiary qualifies for the offered position , and whether the offered position and the 
beneficiary are eligible for the requested immigrant visa classification. 
Eligibility for the Classification Sought 
Section 203(b)(2)(A) of the Act makes visas available to qualified immigrants who are "members of the 
professions holding advanced degrees." See also 8 C.F.R. § 204.5(k)(l). 
The term "advanced degree" means: 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 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. 
8 C.F.R. § 204 .5(k)(2). 
A petition for an advanced degree professional must be accompanied by an official academic record 
showing that the beneficiary "has a United States advanced degree or a foreign equivalent degree ;" or 
"has a United States baccalaureate degree or foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five years of progressive 
post-baccalaureate experience in the specialty." 8 C.F.R. §§ 204.5(k)(3)(i)(A), (B). The job offer 
portion of the accompanying labor certification must also require an advanced degree professional. 8 
C.F.R. § 204.5(k)(4)(i). 
In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Computer 
Applications degree , followed by his two-year Master of Science degree in information technology, 
as the equivalent of a U.S . Master 's degree in computer science. 
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As indicated previously, the July 19, 2011 evaluation of the beneficiary's foreign educational 
credentials concludes that the beneficiary possesses the equivalent of a U.S. Master of Science 
degree in computer science. 6 The evaluation cites the Electronic Database for Global Education 
(EDGE) as one of its sources. 
EDGE was created by the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO), "a nonprofit, voluntary, professional association of more than 11,000 higher education 
admissions and registration professionals who represent more than 2,600 institutions and agencies in 
the United States and in over 40 countries around the world." See Am. Ass'n of Collegiate 
Registrars & Admissions Officers, http://www4.aacrao.org/centennial/about.htm. AACRAO's 
mission "is to serve and advance higher education by providing leadership in academic and 
enrollment services." Id. EDGE is "a web-based resource for the evaluation of foreign educational 
credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer­
reviewed source of information about foreign credentials equivalencies . 7 
EDGE states that a Master of Science degree from India represents two years of university study 
beyond a three-year bachelor 's degree. EDGE concludes that an Indian Master of Science degree is 
comparable to a bachelor's degree in the United States. 
Although the educational evaluation submitted by the petitioner refers to EDGE, the evaluation's 
conclusion that the beneficiary possesses the equivalent of a U.S. Master's degree contradicts 
EDGE's conclusion that an Indian Master of Science degree is comparable to a U.S. bachelor's 
degree. The evaluation does not explain why or how it reached a conclusion different from its cited 
source. The contradictory conclusion of the evaluation casts doubt on its reliability. See Matter of 
6 At its discretion, USCIS may treat expert testimony as advisory opinions. See Matter of Caron Int'l, Inc., 19 I&N Dec. 
791, 795 (Comm'r 1988). However, USCIS determines an alien's eligibility for the benefit sought. Jd. The submission 
of expert letters in support of a petition does not establish presumptive eligibility. Jd. USCIS may consider whether the 
letters' contents support the alien's eligibility. Jd. USCIS may give less weight to opinions that are uncorroborated, 
inconsistent with other evidence, or questionable in any way. ld.: Matter of Soffici , 22 l&N Dec. 158, 165 (Comm'r 
1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190, 193 (Reg'! Comm'r 1972)); see also Matter of D-R-, 25 
I&N Dec. 445, 460 n.13 (BIA 2011) (holding that expert witness testimony may be given different weight depending on 
the extent of an expert's qualifications or the relevance, reliability, and probative value of the testimony). 
7 
Federal courts across the country have upheld the use of EDGE in visa petition proceedings. See Viraj, LLC v. U.S. 
Att 'y Gen.,- Fed. Appx. -, 2014 WL 4178338 (11th Cir. 2014) (upholding reliance ofUSCIS on EDGE reports in ruling 
that a beneficiary with a three-year bachelor's degree and a two-year Master's degree from India did not hold an 
"advanced degree"); Tiseo Group, inc. v. Napolitano, No. 09-10072,2010 WL 3464314 *4 (E.D. Mich. Aug. 30, 2010) 
(fmding that USCIS properly weighed a petitioner's evaluations and EDGE information to conclude that beneficiary's 
foreign undergraduate and graduate degrees were comparable to a United States bachelor's degree); Sunshine Rehab 
Servs., inc. v. USCJS, No. 09-13605, 2010 WL 3325442 *9 (E.D. Mich. Aug. 20, 2010) (upholding a USCIS 
determination that the beneficiary's three-year bachelor's degree was not a foreign equivalent degree to a U.S. 
baccalaureate); Confluen ce Jnt'l, Inc. v. Holder, No. 08-2665, 2009 WL 825793 *4 (D. Minn. Mar. 27, 2009) 
(determining that this office provided a rational explanation for its reliance on EDGE information to support its 
decision). 
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Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) (a petitioner must resolve inconsistencies in the record by 
independent, objective evidence). 
Therefore, the evidence of record does not establish the beneficiary's possession of a U.S. Master's 
degree or a foreign equivalent degree. Further, the labor certification does not permit and the 
petitioner does not claim that the beneficiary possesses at least five years of post-baccalaureate 
experience in the specialty to alternatively qualify as an advanced degree professional. 
We issued a Notice oflntent to Dismiss (NOID) the appeal on August 20, 2014 and attached a copy of 
the EDGE report to it. In response, the petitioner submitted additional evidence in support of the 
beneficiary's qualifYing education, including page printouts from the website of 
another company that evaluates foreign educational credentials. The printouts state 
that recognizes "selected" three-year bachelor's degrees from India as the equivalents of U.S. 
bachelor's degrees. To be considered U.S. baccalaureate equivalents, the printouts state that students 
must have earned three-year degrees with Division 
I grades and the institutions that issued the degrees 
must have been accredited by the National Assessment and Accreditation Council (NAAC) with a grade 
of"A " or better. 
The information also identifies nine U.S. universities "that would entertain applications [for 
graduate programs] by candidates who hold three-year bachelor's degrees." In addition, the petitioner 
submits a IJrintout from the website of _ 
indicating that the U.S. school will consider students holding three-year, Indian 
bachelor's degrees "for direct admission" to Master's degree programs in computer science and 
information systems. 
The petitioner's evidence indicates that recognizes certain three-year bachelor's degrees from 
India as equivalents of U.S. bachelor's degrees. However, the record does not include an evaluation of 
the beneficiary's educational credentials..£y or evidence that the beneficiary's bachelor's degree 
from would meet criteria for a U.S. baccalaureate equivalency. 
website contains a link to the NAAC's website, where information indicates that NAAC awarded 
an accreditation grade of "B++." See World Ed. Servs., 
(accessed Oct. 8, 2014). 
Because the NAAC accredited with a grade below "A," the record does not establish 
that would recognize the beneficiary's bachelor's degree as the equivalent of a U.S. baccalaureate 
degree. IS Also, the information does not explain the evaluation service's reasoning for recognizing 
certain three-year, Indian bachelor's degrees as the equivalent of U.S. bachelor's degrees, or how its 
equivalency criteria differs from EDGE's . 
8 
The record also does not establish when criterion requires an institution to obtain a minimum accreditation 
grade of "A" (e.g.
, currently, when the degree was tssued, previously). The record also does not include previous NAAC 
accreditation grades obtained by 
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The petitioner's evidence also indicates that certain U.S. universities will consider applicants with three­
year, Indian bachelor's degrees for admission into graduate programs. However, the record does not 
establish that any of these universities would specifically accept the beneficiary's bachelor's degree for 
graduate admission in the required field of computer science. The record also does not indicate the 
universities' rationales or criteria for accepting three-year, Indian degrees as U.S. baccalaureate 
equivalents, or whether any other U.S. universities beyond the nine identified follow similar practices. 
For the foregoing reasons, the petitioner's evidence in response to the NOID does not establish the 
beneficiary's possession of the qualifying education. 
The petitioner argues that USCIS errs in relying solely on EDGE to determine whether the beneficiary 
possesses the qualifying education. It asserts that we failed to consider other sources cited by the 
evaluation of the beneficiary's foreign educational credentials or to "articulat[e] a clear factual and legal 
basis for rejecting the expert opinion by 
We acknowledge the other sources cited by the education evaluation. However, the record 
does not contain any evidence from the evaluator or from any of the other sources cited by the 
evaluation in support of its conclusion or to explain its inconsistency with EDGE. See Matter of Ho, 
supra, at 591-92 (a petitioner must resolve inconsistencies in the record by independent, objective 
evidence). 
Our factual and legal basis for discounting the education evaluation stems from the contradictory 
conclusions of it and EDGE. Not only have federal courts upheld EDGE as a reliable, peer-reviewed 
source of information about foreign educational equivalencies, see supra n.7, but the evaluation itself 
cites EDGE. Unless explained or resolved, the contradictory conclusions of the evaluation and one of 
its sources undermines the evaluation's reliability and probative value. See Matter of D-R-, supra, at 
460 n.13; Matter ofSojjici , supra, at 165 (citing Matter ofTreasure Craft of Cal., supra, at 193); Matter 
of Caron Int 'l, Inc., supra, at 795 (all holding that expert testimony may be afforded lesser evidentiary 
weight depending on a variety of factors, including its reliability, probative value, and consistency with 
other evidence); see also Matter of Ho, supra, at 591-92 (a petitioner must resolve inconsistencies in the 
record by independent, objective evidence). As noted above, the evaluation does not discuss the 
references cited as sources, or explain how the referenced sources support the evaluator's conclusion. 
The record does not include copies of the referenced sources. 
The petitioner also cites a 1995 memorandum issued by the legacy Immigration and Nationality Service 
and an unpublished 2007 decision by this office. The memo states that evaluations of foreign 
educational credentials from reputable evaluation services "should be accepted without question unless 
containing obvious errors." Immigration & Nationality Serv., Nov. 13. 1995, available at 73 Interpreter 
Releases, No. 12, 364 (Mar. 25, 1996). The memo also states that "the ability of the credentials 
evaluator to perform the evaluation should not be challenged if the evaluation was performed by a 
professional credentials evaluation service." Id The unpublished decision cited by the petitioner 
concludes that a beneficiary with a three-year bachelor's degree and a two-year master's degree from 
India possessed the required foreign equivalent of a U.S. Master's degree. Matt er of __ , 
(AAO Dec. 5, 2007). 
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Unpublished decisions and internal policy memoranda do not legally bind this office. See 8 C.P.R. § 
103.3(c) (stating that only published, precedent decisions by the Board oflmmigration Appeals (BIA), 
the Attorney General, and USCIS bind agency employees); see also Loa-Herrera v. Trominski, 231 
P.3d 984, 989 (5th Cir. 2000) (holding that an agency's internal guidelines "neither confer upon 
[plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely") . Therefore, we need 
not follow the memo or unpublished decision cited by the petitioner. 
Moreover, the cited decision does not support the petitioner's argument. USCIS records show that we 
reopened that matter and withdrew our December 5, 2007 decision. On April 28, 2009, we ruled that 
that petitioner did not establish the beneficiary's possession of a U.S. Master's degree or a foreign 
degree equivalent. See Matter of __ , (AAO Apr. 28, 2009), available at 
Therefore, even if the case had been persuasive, it no longer 
stands for the proposition cited by the petitioner. 
The memo cited by the petitioner is also unpersuasive. The memo provides guidance on the 
adjudication of H-lB nonimmigrant visa petitions, which are governed by different statutory and 
regulatory requirements than advanced degree professional petitions. Therefore, it does not relate to the 
adjudication of the immigrant visa petition in the instant case. 
Moreover, as previously indicated, we must follow published, precedent decisions by our agency and 
the BIA. In multiple cases, the agency and the BIA have stated that expert testimony, like evaluations 
of foreign educational credentials, does not establish presumptive eligibility for the benefits sought and 
that such testimony may be afforded less weight depending on its relevance, reliability, probative value, 
corroboration, and consistency. See supra n.6. 
In the instant case, the educational evaluation submitted by the petitioner was internally inconsistent, 
citing EDGE but contradicting its conclusion without explanation. We notified the petitioner of this 
issue in our NOID. The petitioner provided a second copy of the evaluation, but not further explanation 
from its author. Because the record does not explain or support the contradictory conclusion of the 
education evaluation, we afford the evaluation less evidentiary weight and conclude that the record does 
not establish the beneficiary' s qualifying education. 
After reviewing all of the evidence of record, we conclude that the petitioner has not established the 
beneficiary's possession of at least a U .S. Master's degree or a foreign equivalent degree. Therefore, 
the beneficiary does not qualify for classification as an advanced degree professional under section 
203(b)(2)(A) ofthe Act. 
The Minimum Requirements of the Offered Position 
A petitioner must also establish that a beneficiary satisfied all the educational, training, experience 
and other requirements of the offered position by the petition's priority date. 8 C.P.R. §§ 
(b)(6)
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103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, USCIS must examine the job offer portion of the 
accompanying labor certification to determine the minimum requirements of the offered position. 
users may not ignore a term of the labor certification, nor may it impose additional requirements. 
See K.R.K. Irvine, Inc. v. Landon, supra, at 1009; Madany v. Smith, supra, at 1015; Stewart Infra­
Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 3 (1st Cir. 1981). 
users interprets the meaning of job requirements on a labor certification by "examin[ing] the 
certified job offer exactly as it is completed by the prospective employer." Rosedale & Linden Park 
Co. v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the 
requirements must involve "reading and applying the plain language of the [labor certification]," 
even if the employer intended requirements other than those stated on the form. Id. at 834 (emphasis 
added). 
In the instant case, as indicated previously, the accompanying labor certification states that the 
minimum requirements of the offered position of computer programmer include a Master's degree in 
computer science or a foreign equivalent degree. For the reasons previously discussed, the record does 
not establish the beneficiary's possession of a U.S. Master's degree in computer science or a foreign 
equivalent degree. The labor certification does not permit an applicant to qualify based on a bachelor's 
degree or a foreign equivalent degree followed by five years of experience in the specialty. Therefore, 
the record does not establish that the beneficiary meets the minimum requirements of the offered 
position as specified on the labor certification. 
Specific Skills or Other Requirements 
Beyond the Director's decision, the record also does not establish the beneficiary's possession of the 
specific skills or other requirements of the offered position as specified on the accompanying labor 
certification. 9 
Part H. 14 ofthe accompanying ETA Form 9089 states additional requirements of the offered position 
of computer programmer, including "[k]nowledge of .NET and J2EE technology" and "Oracle Certified 
Professional Java SE 5 Programmer certification." Part J. 21 of the form states that the beneficiary did 
not gain qualifying experience for the job opportunity while employed by the petitioner in a 
"substantially comparable" position. 
9 We may deny an application or petition that fails to comply with the technical requirements of the law, even if the 
Director did not identify all of the denial grounds in the initial decision. See Spencer Enters., Inc. v. United States, 229 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajj'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. Dep 't of Justice , supra, 
at 145 (noting that we conduct appellate review on a de novo basis). 
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However, the record indicates that the beneficiary obtained the required programming certification 
while employed by the petitioner in the offered position. The labor certification states that the petitioner 
has employed the beneficiary in the offered position since October 29, 2007. A copy of an examination 
score report accompanied the petition, indicating that the beneficiary obtained the required 
programming certification on August 17, 2011. In response to our NOID, the petitioner submitted a 
copy the beneficiary's programming certificate, which also indicates that it was issued on August 17, 
2011. 
A September 5, 2014 letter from the petitioner's president and chief executive officer confirms the 
petitioner's employment of the beneficiary since October 2007. The letter also states that an interviewer 
determined that the beneficiary possessed knowledge of .NET and J2EE technologies at the time the 
petitioner hired him. However, the letter does not state that the beneficiary possessed the required 
programming certification at the time of his hiring. 
An employer cannot require U.S applicants to possess qualifications beyond those possessed by the 
alien at the time of hire, unless: the alien gained the qualifications while working for the employer in a 
position that was not "substantially comparable" to the offered position; or the employer can 
demonstrate that it is no longer feasible to train a worker to qualify for the offered position. 20 C.F.R. § 
656.17(i)(3). A "substantially comparable" position means a job "requiring performance of the same 
duties more than 50 percent of the time." 20 C.F.R. § 656.17(i)(5)(ii). 
In the instant case, the labor certification and the letter from the petitioner's president indicate that the 
petitioner employed the beneficiary in a substantially comparable position (the offered position) when 
the beneficiary obtained the required programming certification. The record does not contain any 
evidence of the infeasibility of training a worker to qualify for the offered position. 
Therefore, because the beneficiary obtained the programming certification after the petitioner hired him, 
the record does not establish the beneficiary's possession of the specific skills or other requirements for 
the offered position. 
III. CONCLUSION 
The record does not establish the beneficiary 's possession of an advanced degree as required by the 
terms of the labor certification and the requested preference classification. Therefore, the 
beneficiary does not qualify for classification as a member of the professions holding an advanced 
degree under section 203(b)(2)(A) of the Act. The Director's decision denying the petition will be 
affirmed. The record also does not establish the beneficiary's possession of the programming 
certification specified by the labor certification before the petitioner hired him in the offered 
position. 
The appeal will be dismissed for the above stated reasons , with each an independent and alternate 
basis for the decision. In visa petition proceedings, the petitioner bears the burden of establishing 
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eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.