dismissed EB-2 Case: Information Systems

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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. 9 103.5 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 or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center on June 5, 2007. The petitioner filed an appeal on July 6, 2007, and the 
Administrative Appeals Office (AAO) rejected the appeal on December 8,2009 on the basis that the 
petitioner failed to submit his brief in a timely manner. The AAO sua sponte reopens the appeal. 
The appeal will be dismissed. 
The petitioner is a, broadcasting and Internet products and services business. It seeks to employ the 
beneficiary permanently in the United States as a business systems development manager 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 master's 
degree or a four-year bachelor's degree followed by five years of progressive experience in the 
specialty. 
On appeal, counsel asserts that the beneficiary possesses the equivalent of a United States bachelor's 
degree in information systems and accounting plus the requisite five years of progressive work 
experience. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
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 fwther states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
The 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 1 147, 1 149 (9th Cir. 199 1). The AA07s 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). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeaL2 
I After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in 
The beneficiary possesses a foreign three-year bachelor's degree in information systems and 
accounting and a three-and-a-half-year diploma in computer science. The issue in this case is 
whether the beneficiary's foreign three-year bachelor's degree in information systems and 
accounting is a foreign degree equivalent to a U.S. baccalaureate degree. The AAO finds the 
beneficiary to possess five years of progressive experience in the specialty and an additional three 
years of experience as required by the labor certification. 
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 212(a)(5)(A)(i) of the Act; 20 C.F.R. $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). 
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. Askkenazy Property Management Corp. 8 17 F. 2d 74, 75 (9' 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). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. 5 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 . . . . 
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). 
Significantly, the statutory language used prior to Matter ofshah, 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 201613 at "6786 (Oct. 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. $ 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: 
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. 29,1991) (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."3 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. 
For this classification, advanced degree professional, 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." For classification as a member of the 
professions, the regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) 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." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. 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). Compare 
8 C.F.R. 5 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an 
official academic record showing that the alien has a degree, diploma, certificate or similar award 
from a college, university, school or other institution of learning relating to the area of exceptional 
ability"). 
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. 
Qualifications for 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 
Compare 8 C.F.R. 3 214.2(h)(4)(iii)(D)(5) (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. 
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. 5 1154(b), as one of the determinations incident to the INS'S decision 
whether the alien is entitled to sixth preference status. 
K. R. K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9~ Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
21 2(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 certifcation in no way indicates that the alien offered the 
certiJied job opportunity is qualrfied (or not qual2fied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K R. K Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "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. ' 
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. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. USCIS 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 
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. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS'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. 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. 
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 or equivalent or bachelor's degree in computer 
science, business administration, or information systems and 
five years of progressive experience as equivalent of a master's 
degree 
Experience: Three years in the proffered position or three years in the related 
occupation of systems analyst or data modeling and as a 
supervisor or manager 
In support of the beneficiary's educational qualifications, the record contains a copy of the 
beneficiary's three-year bachelor of commerce degree diploma in information systems and 
accounting and three-and-a-half-year diploma in computer science, both from the University of South 
Africa. The record also contains an evaluation regarding the beneficiary's education dated July 20, 
2000 from. Dr. states that the beneficiary possesses the equivalent of a bachelor's 
of science degree in business administration with majors in accounting, information systems, and 
computer science as awarded by an accredited U.S. university. generally discusses credit 
hours as compared with classroom hours within his analysis of the beneficiary's educational 
background. He does not go into detail as to how he made his determinations. 
Moreover, we have reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (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://aacraoedge.aacrao.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, they 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 
In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009)' the District 
Court in Minnesota determined that the AAO provided a rational explanation for its reliance on 
information provided by the American Association of Collegiate Registrar and Admissions Officers 
to support its decision. 
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 South Africa, and while 
it confirms that a bachelor of commerce degree represents attainment of a level of education 
comparable to three years of university study in the United States, it does not suggest that a three- 
year degree from South Africa may be deemed a foreign equivalent degree to a U.S. baccalaureate. 
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 beneficiary does not meet the job requirements on the labor certification. 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.