dismissed EB-2 Case: Computer Software

U.S. Department of Ilomeland Security 
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PUBLIC COPY 
20  ass-achusetts Ave. NW, Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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. ij 1153(b)(2) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. ij 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a computer software developer and consultancy firm. 
 It seeks to employ the 
beneficiary permanently in the United States as a senior project manager pursuant to section 203(b)(2) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). In pertinent part, section 
203(b)(2) of the Act provides immigrant classification to aliens of exceptional ability and members of 
the professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. As required by statute, an ETA Form 9089 Application for Alien 
Employment Certification approved by the Department of Labor (DOL), accompanied the petition. 
The director determined that the job offered did not require a member of the professions holding an 
advanced degree. 
On appeal, the petitioner submits a brief and minutes from a liaison meeting between the Nebraska 
Service Center and the American Immigration Lawyers Association (AILA). For the reasons 
discussed below, we uphold the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(2) 
 Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -- 
(A) In general. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. 5 204.5(k)(2) defines an advanced degree as follows: 
[Alny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate degree followed by at 
least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the 
specialty, the alien must have a United States doctorate degree or a foreign equivalent 
degree. 
The regulation at 8 C.F.R. 5 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under ths 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 
Page 3 
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 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, Part H, line 4, of the alien employment certification reflects that a Master's degree is 
the minimum level of education required. Line 8 reflects that a combination of education or 
experience is acceptable in the alternative. Lines 8-A through 8-C allow an employer to specify the 
combination of education and experience that is acceptable. Line 8-A requests the minimum 
alternative education level. An employer must respond by checking one of the following boxes: 
"None," "High School," "Associate's," "Bachelor's," "Master's," "Doctorate" or "Other." The 
petitioner did not select any of the specific degrees. Rather, the petitioner selected "Other." Line 8- 
B requires the employer to clarify "Other." The petitioner responded: "Any suitable combination of 
education, training, or experience is acceptable." On Line 8-C, the petitioner indicated that two 
years of experience is required in the alternative. Line 9 reflects that a foreign educational 
equivalent is acceptable. 
U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401,406 (Comm. 1986). See also Madany, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983); 
K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9" Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 st Cir. 1981). USCIS must examine "the language of 
the labor certification job requirements" in order to determine what the job requires. See generally 
Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret 
the meaning of terms used to describe the requirements of a job in a labor certification is to 
"examine the certified job offer exactly as it is completed by the prospective employer." Rosedale 
Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS' 
interpretation of the job's requirements, as stated on the labor certification must involve "reading 
and applying the plain language of the [labor certification application form]." Id. at 834 (emphasis 
added). USCIS cannot and should not reasonably be expected to look beyond the plain language of 
the labor certification that DOL has formally issued or otherwise attempt to divine the employer's 
intentions through some sort of reverse engineering of the labor certification. 
On appeal, the petitioner cites Matter of Demos Consulting Group, Ltd., 2007-PER-00020 (BALCA 
2007) for the proposition that the phrase "any suitable combination of education, training or 
Page 4 
experience is acceptable" is required by DOL when the employer will accept alternative job 
requirements. The petitioner then cites AILA Liaison Meeting at the Nebraska Service Center 
minutes for the proposition that USCIS accepts that the language on Line 8-B of the ETA Form 9089 
requires a combination of education and experience that is equal to or greater than the primary job 
requirements. 
The AILA liaison meeting minutes include a question from AILA noting that the Nebraska Service 
Center has concluded that the language "any suitable combination of education, training or 
experience" will not disqualify an alien from qualifying under section 203(b)(2) of the Act but 
acknowledging that when considering the language in a petition filed pursuant to section 203(b)(3) 
of the Act, which includes skilled workers, the language "will not be effective in defining an 
alternative degree requirement." We reemphasize that the question was phrased by AILA, not the 
Nebraska Service Center. The ultimate question and subsequent answer deal with what language 
will satisfactorily allow a petition to be considered in the skilled worker context. Nothing in the 
question or answer suggests or implies that for petitions filed under section 203(b)(2) of Act, the 
employer need not specify the alternative minimum requirements beyond the language used by the 
petitioner in this case. Rather, AILA's question assumes that qualifying those alternative minimum 
requirements with the language quoted above will not, by itself, prevent the petition from being 
considered under section 203(b)(2) of the Act. 
Regardless, 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), 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 USCIS 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.") 
The language used by the petitioner on Line 8-B of the ETA Form 9089 derives from 20 C.F.R. 
§ 656.17(h)(4), which provides: 
(i) Alternative experience requirements must be substantially equivalent to the 
primary requirements of the job opportunity for which certification is sought; and 
(ii) If the alien beneficiary already is employed by the employer, and the alien does 
not meet the primary job requirements and only potentially qualifies for the job by 
virtue of the employer's alternative requirements, certification will be denied unless 
the application states that any suitable combination of education, training, or 
experience is acceptable. 
Page 5 
In explaining this provision, DOL provided the following commentary, published at 69 Fed. Reg. 
77353 (Dec. 27,2004): 
Under 5 656.17(h)(4) of this final rule, an employer may specify alternative 
requirements provided the alternative requirements meet the criteria set forth by [the 
Board of Alien Labor Certification Appeals (BALCA) in [Matter of Francis Kellogg, 
94-INA-465 (BALCA 1998)l. In Kellogg, BALCA indicated that alternative 
requirements and primary requirements must be substantially equivalent to each other 
with respect to whether the applicant can perform the proposed job duties in a 
reasonable manner. There may also be other equally suitable combinations of 
education, training or experience which could qualify an applicant to perform the job 
duties in a reasonable manner, but which the employer has not listed on the 
application as acceptable alternatives. Therefore, even when the employer's 
alternative requirements are substantially equivalent but the alien does not meet the 
primary job requirements and only potentially qualifies for the job by virtue of the 
employer's alternative requirements, the alternative requirements will be considered 
unlawfully tailored to the alien's qualifications unless the employer has indicated that 
applicants with any suitable combination of education, training or experience are 
acceptable. 
This language, especially the language in the last two sentences, unambiguously explains that the 
specific alternative job requirements should be stated on the ETA Form 9089 and where the alien is 
already working for the petitioner and only meets the alternative job requirements, the employer 
must also state that any suitable combination of education, training or experience are acceptable in 
order for DOL to conclude that the actual alternative job requirements listed were not unlawfully 
tailored to the alien's qualifications. 
A basic reading of the ETA Form 9089 and its instructions leads to the same conclusion. As stated 
above, Lines 8-A through 8-C require an employer to specify its alternative job requirements, even 
inquiring as to the specific degree required in the alternative. Moreover, the instructions to the form, 
Line 8, provide: "For example, if the requirement is bachelors + 2 years experience but the employer 
will accept a masters + 1 year experience, an alternative combination of education and experience 
exists." The instructions for Line 8-A state: "If the answer to question 8 is Yes, select the alternative 
level of education that is acceptable in combination with the number of months of experience 
specified in question 8-C." 
Nothing in the BALCA case cited by the petitioner suggests any other interpretation. BALCA cited 
the commentary published in the Federal Register quoted above and concluded: 
Thus, section 656.17(h)(4)(ii) was clearly intended to implement in the PERM 
regulations the pre-PERM ruling in Francis Kellogg, 1994-INA-465 and 544, 1995- 
INA-68 (Feb. 2, 1998) (en banc), that "where the alien does not meet the primary job 
requirements, but only potentially qualifies for the job because the employer has 
chosen to list alternative job requirements, the employer's alternative requirements 
Page 6 
are unlawfully tailored to the alien's qualifications, in violation of [the pre-PERM 
regulation at $ 656.21(b)(5)], unless the employer has indicated that applicants with 
any suitable combination of education, training or experience are acceptable." 
Our review of the job requirements in this case compared with the Alien's 
background indicates that the job requirements were largely tailored to the Alien's 
qualifications. 
Matter of Demos Consulting Group, Ltd., 2007-PER-00020 at 7. BALCA did not suggest that the 
employer in that case erred in listing the specific alternative job requirements. Rather, BALCA 
found those requirements tailored to the alien's qualifications because the employer did not also 
indicate that any suitable combination of education, training or experience are acceptable. 
DOL's role is to determine 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. 5 656.1(a). Section 212(a)(5) determinations are not subject to review by USCIS absent 
fraud or willful misrepresentation. Madany v. Smith, 696 F.2d at 1012- 101 3. See also Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Thus, it is not within our jurisdiction to question the approval of the alien employment certification 
in this case. That said, while DOL may be willing to accept the broad language used by the 
petitioner on Line 8-B in lieu of specific alternative job requirements, based on the extensive 
language quoted above, DOL clearly does not require the employer to omit the actual alternative job 
requirements so long as the petitioner qualifies those requirements with the language specified at 20 
C.F.R. $ 656.17(h)(4)(ii). 
We acknowledge in this case that the petitioner was required to use the language specified at 
20 C.F.R. $ 656.17(h)(4)(ii) because the beneficiary does not appear to meet the primary education 
job requirements, a Master's degree, and was already working for the petitioner. While the 
petitioner submitted an evaluation equating the beneficiary's Indian Master's degree from the 
University of Pune to a U.S. Master's degree, the petitioner acknowledges on appeal that the 
beneficiary does not meet the primary job requirements. While not a basis of denial in this matter, 
we simply note that the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officers (AACRAO) equates a two-year Indian 
Master's degree following a three-year Indian baccalaureate with a U.S. baccalaureate.' Thus, while 
1 
 AACRAO, according to its website, 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." AACRAO, http://www.aacrao.or~/about/ (last accessed December 4, 2008) (copy 
incorporated into the record of proceeding). 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." Id. According to the login page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials" that is continually updated and revised by staff and members of AACRAO. Dale E. 
Page 7 
the beneficiary has five years of post-baccalaureate experience and therefore qualifies as a member 
of the professions holding an advanced degree, he does not meet the primary job requirements 
specified on the ETA Form 9089. 
While the petitioner may have been obligated to use the language set forth in 20 C.F.R. 
5 656.17(h)(4)(ii) based on the provisions in that regulation, the petitioner was not precluded from 
specifying the actual minimum alternative job requirements. On line 8-B, the petitioner explicitly 
selected "Other" rather than "Bachelor's." The petitioner also indicated that only two years of 
experience were required in combination with the unspecified "Other" degree. As the petitioner did 
not indicate that the job required at least a Bachelor's degree plus five years of post-baccalaureate 
experience, we must uphold the director's conclusion that the job does not require a member of the 
professions holding an advanced degree. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
This deniaI is without prejudice to the filing of a new petition under a lesser classification. 
ORDER: The appeal is dismissed. 
Gough, Director of International Education Services, "AACRAO EDGE Login," 
htt~://aacraoedge.aacrao.orn/index.~hu~ (last accessed December 4, 2008) (copy incorporated into the record 
of proceeding). 
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.orrr/publications/guide to creating international 
pub1ications.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. (First ed. 
2005), available for download at www.aacrao.or~ipublicat~ons/~ide to creatin~ international 
publications.pdf (accessed December 4, 2008 and incorporated into the record of proceedings). 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.